Announcement of new investments in Argentina by companies that sued it at ICSID, by José Ángel Rueda

We would like to highlight that two oil and gas companies that sued Argentina at ICSID have announced new, multi-million investments in the country.

During a meeting with President Cristina Fernández de Kirchner at Quinta de Olivos, near Buenos Aires, on 22 February 2013[1] Total Austral pledged to invest $1.1bn during the next five years while Wintershall pledged $1bn for the same time period. These investments will focus on the production of natural gas.

It is well known that both companies sued Argentina at ICSID in connection with the measures taken by the country to deal with the economic emergency it suffered in 2001-2002.

On the one hand, Wintershall AG sued Argentina in 2004.[2] However, on 8 December 2008 an arbitral tribunal rendered an award on jurisdiction upholding Argentina’s argument that the claimant was not entitled to use the MFN clause inserted in the Germany-Argentina BIT to bypass a required 18-month period of litigation at the Argentinean domestic courts before resorting to international arbitration.[3]

On the other hand, Total Austral is a subsidiary of French oil giant Total, that sued Argentina in 2004 as well.[4] This case is still pending, according to ICSID’s website,[5] as the tribunal is dealing with quantum.[6] On 27 December 2010 the tribunal issued a Decision on Liability[7] in which it held Argentina liable for breaching the standard of fair and equitable treatment included in Article 3 of the France-Argentina BIT, “causing damage to Total.”[8]

[2] Wintershall Aktiengesellschaft v. Argentine Republic (ICSID Case No. ARB/04/14).

[3] Award, 8 December 2008, available at Tribunal: Fali S. Nariman, President (India), Professor Piero Bernardini (Italy) and Dr. Santiago Torres Bernárdez (Spain).

[4] Total S.A. v. Argentine Republic (ICSID Case No. ARB/04/1).

[6] Tribunal: Professor Giorgio Sacerdoti, President (Italy), Henri C. Álvarez (Canada) and Luis Herrera Marcano (Venezuela).

[8] Ibidem, at para. 485(a).