During the 1990s, the business-friendly investment climate in Argentina encouraged many international corporations to set up affiliates or invest in existing local companies.
Between 1990 and 2001, Argentina ratified the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (ICSID Convention) and 58 different bilateral investment treaties (BITs), more than any other country in Latin America.
The investment climate changed abruptly after the 2001-2002 crisis, which resulted in one of the largest-ever sovereign debt defaults. The foreign companies which had invested in Argentina during the 1990s claimed that their countries' respective BITs had been breached and Argentina was involved in a large number of high-profile international disputes before arbitral tribunals constituted pursuant to the ICSID Convention. To date, 52 of the 550 cases registered at the International Centre for the Settlement of Investment Disputes (ICSID) have involved Argentina as respondent.
A recent Argentine Court of Appeals ruling establishes an important judicial precedent regarding the recognition and enforcement of ICSID awards in Argentina, even though it did not involve Argentina as respondent.
In 2001 Convial Callao SA and Compañía de Concesiones de Infraestructura SA – an infrastructure construction consortium – entered into a concession contract with a local authority in Peru. The purpose of the agreement was to design, build and operate a highway between the city of Lima and Peru's main international airport.
After several disagreements and mutual accusations of contractual breaches, Peru terminated the concession contract in 2008. The claimants filed a request for arbitration against Peru before ICSID in 2010.(1)
The claimants alleged that the concession contract and the resources that they had applied to the project constituted a protected investment covered by the BIT between Peru and Argentina. They also argued that by expropriating their investments, Peru remained liable for the violation of legal standards contained in the BIT and under international law. On this basis, the claimants grounded the jurisdiction of the tribunal and requested compensation for the alleged damages caused, which were approximately $125 million.
When answering the claim, Peru challenged the ICSID tribunal's jurisdiction and competence. It also objected to the admissibility of the claimants' action and denied that termination of the concession contract constituted a breach of the protection provided by the BIT or under international law.
On May 21 2013 the ICSID tribunal rendered its final award. The tribunal rejected Peru's challenge and decided that it had jurisdiction over the dispute. When analysing the merits, it concluded that Peru had violated none of the legal standards contained in the BIT with Argentina and rejected the claimants' action.
The ICSID award also decided the arbitration costs. The tribunal judged that Peru had failed to prove its lack of jurisdiction and the inadmissibility of the claim, but had succeeded on the merits of the dispute. As a result, the tribunal decided that the claimants should bear the costs of the proceedings, as they were the losing party. However, as Peru was defeated on the procedural exceptions, the claimants were ordered to pay only half of the costs incurred by Peru ($2,117,489.27).
Enforcement of ICSID award in Argentina
After several collection efforts, Peru filed a petition for bankruptcy against CCI in April 2015 before the Buenos Aires First Instance Commercial Court.(2) Peru claimed to be a creditor of CCI based on the ICSID award. It cited Section 6 of the ICSID Convention and sought direct enforcement of the ICSID award in Argentina.
At first instance the Argentine commercial court ruled that enforcement of the ICSID award was not exempt from undergoing the exequatur proceedings prescribed in the Civil and Commercial Procedure Code.
The court noted that, as a general principle, foreign arbitral or judicial judgments cannot be immediately equated to domestic judgments in Argentina. It cited the contemporary global trend towards mutual recognition of foreign judgments by acknowledging several relevant EU directives, but also underlined that Latin America has not yet achieved this principle of reciprocity.
The court then examined the application of the ICSID Convention section on the recognition and enforcement of awards, though it limited the analysis to the final part of Article 54(1).(3) It stated that under this provision, only Argentine judges are empowered to recognise and enforce an ICSID award "as if it were a final judgment" of a local tribunal. Therefore, the court concluded that Peru should initiate a judicial proceeding for the incorporation of the foreign award into the Argentine legal system as a condition precedent to its enforcement.
Pursuant to Section 517 of the Argentine Civil and Commercial Procedure Code, foreign awards must be enforced in Argentina under the terms of the treaty signed with the country in which they were issued. According to the court, no treaty provides for the direct enforcement of an ICSID award.
Finally, the first-instance ruling held that even if the ICSID award were considered to be exempt from the exequatur proceedings, the existence of liquid and collectible assets against CCI could not be established – a condition for the declaration of bankruptcy in Argentina.
The court stated that Peru had failed to demonstrate that:
- the ICSID award had been notified to CCI;
- the ICSID award complied with Article 49(1) of the ICSID Convention;(4) and
- CCI and Convial were jointly and severally liable for refunding Peru's costs.
Court of Appeals decision
Peru appealed the first-instance decision on the grounds that it had bypassed Article 53(5) and the first part of Article 54(1) of the ICSID Convention, which takes precedence over Argentine legislation. The appellant observed that under those provisions, the ICSID award was binding and should be directly recognised and enforced in Argentina without the need to observe the exequatur proceedings referred to in Section 517 of the Civil and Commercial Procedure Code.
The Court of Appeals granted the appeal in a unanimous ruling. The court highlighted that the case did not involve the enforcement of an award rendered by an ICSID tribunal against Argentina; rather, the claim sought the enforcement of an award rendered in favour of a contracting state to the ICSID Convention (Peru) against a national from another contracting state (CCI).
With this clarification, the court examined the application of Article 53 and the first part of Article 54(1) of the ICSID Convention, which the lower court's decision had omitted to do. This scrutiny formed the crux of its decision. Based on these provisions, the court stated that awards rendered in arbitration under the ICSID Convention are binding and the submission of a certified copy of the award before the competent court or authority suffices for it to be recognised and enforced in Argentina. Further, the court acknowledged that Peru and CCI's consent to arbitrate under the ICSID Convention excluded any form of judicial review of the award in principle. The court made a distinction in that regard by categorising the ICSID award as an international rather than a foreign decision.
On these grounds, the Court of Appeals held that the exequatur proceedings were not a precondition for local enforcement of the ICSID award, and that by acceding to the ICSID Convention, Argentina waived the judicial proceedings for the incorporation of ICSID decisions into the Argentine legal system.
The court also noted that Peru had fulfilled the formal requirements for recognition of the claim by sending a certified copy of the ICSID award and proof of service notice to CCI pursuant to Articles 49(1) and 54(2) of the ICSID Convention.(6)
Finally, the Court of Appeals commented on the power given to judges regarding the enforcement of ICSID awards in Argentina. It explained that, without detriment to the enforceability considerations made above on ICSID decisions, Argentine judges are empowered to proceed prudently in these cases and identify any potential violation of public policy. This assumes greater importance when the principle of due process is involved, as it forms part of Argentine international public policy. In this regard, the Court of Appeals referred to two recent landmark Supreme Court rulings on the limits to local enforcement of foreign judgments – Chevron(7) and Claren Corporation.(8)
This case provides insight into the recognition and enforcement of ICSID awards in Argentina, as it clearly established that the award in question could be enforced in Argentina without the need for exequatur proceedings.
When analysing the relevance of this ruling, the court considered that:
- the ICSID award did not involve Argentina as a respondent;
- Argentine judges are empowered to review ICSID awards on public policy grounds; and
- the internal competent courts appointed by Argentina pursuant to Article 54(2) of the ICSID Convention were the federal contentious administrative courts rather than the Court of Appeals that issued the decision.
For further information on this topic please contact Ricardo Ostrower or Martin Vainstein at Marval O'Farrell & Mairal by telephone (+54 11 4310 0100) or email (email@example.com or firstname.lastname@example.org). The Marval O'Farrell & Mairal website can be accessed at www.marval.com.ar.
(1) Convial Callao SA v Republic of Peru (ICSID Case ARB/10/2).
(2) Commercial Court 3, Secretary 6; Commercial Court of Appeals, Chamber A, CCI Cía de Concesiones de Infraestructura SA s/ pedido de quiebra por la República de Perú.
(3) ICSID Convention, Article 54(1):
"Each Contracting State shall recognize an award rendered pursuant to this Convention as binding and enforce the pecuniary obligations imposed by that award within its territories as if it were a final judgment of a court in that State. A Contracting State with a federal constitution may enforce such an award in or through its federal courts and may provide that such courts shall treat the award as if it were a final judgment of the courts of a constituent state."
(4) ICSID Convention, Article 49(1): "The Secretary-General shall promptly dispatch certified copies of the award to the parties. The award shall be deemed to have been rendered on the date on which the certified copies were dispatched."
(5) ICSID Convention, Article 53:
"(1) The award shall be binding on the parties and shall not be subject to any appeal or to any other remedy except those provided for in this Convention. Each party shall abide by and comply with the terms of the award except to the extent that enforcement shall have been stayed pursuant to the relevant provisions of this Convention. (2) For the purposes of this Section, "award" shall include any decision interpreting, revising or annulling such award pursuant to Articles 50, 51 or 52."
(6) Article 54(2):
"A party seeking recognition or enforcement in the territories of a Contracting State shall furnish to a competent court or other authority which such State shall have designated for this purpose a copy of the award certified by the Secretary-General. Each Contracting State shall notify the Secretary-General of the designation of the competent court or other authority for this purpose and of any subsequent change in such designation."
(7) Supreme Court, ASM c/ Chevron Corporation, April 6 2013.
(8) Supreme Court, Claren Corporation c/ Estado Nacional - arts 517/518 CPCC exequatur - s/ varios, June 3 2014.
This article was first published by the International Law Office, a premium online legal update service for major companies and law firms worldwide. Register for a free subscription.