Amid rumours of Argentina’s upcoming denunciation of the ICSID Convention after many awards and decisions rendered against that country, it is advisable to reflect about the current status of the Maffezini doctrine within its original context, i.e., the Spain-Argentina (or, reciprocally, the Argentina-Spain) BIT.
So far, six Arbitral Tribunals have accepted that investors (whether Argentinean or Spanish) may benefit from the MFN Clause included in Article IV(2) of the BIT to bypass a required 18-month period of litigation within the host State courts before resorting to international arbitration (ICSID or ad hoc under the UNCITRAL Rules of Arbitration). As far as it is known, to date no Arbitral Tribunal under the Spain-Argentina BIT has denied this solution, although a dissenting opinion was rendered for the first time in late December 2012.
The current score is, as indicated above, 6-0, a clear victory for investors against host States. It could lead us to affirm the existence of jurisprudence constante in this legal issue, at least under the Spain-Argentina BIT. Nonetheless, this post intends only to update the reader on this topic and is deliberately open for further research, analysis and debate. Continue reading »