Heir of Abaclat? Mass and Multiparty Proceedings: Ambiente Ufficio S.P.A. V. Argentine Republic
University of Missouri School of Law
December 11, 2013
29 ICSID Review-Foreign Investment Law Journal (2014), Forthcoming
University of Missouri School of Law Legal Studies Research Paper No. 2013-31
For years, the international legal community has speculated about whether and to what extent other investment tribunals would adopt the procedural practices described in the groundbreaking mass arbitration, Abaclat v Argentine Republic. Those questions were recently answered, at least to some extent, by Ambiente Ufficio v Argentine Republic, which is the second of three cases to arise out of Argentina’s sovereign debt crisis (Abaclat was the first).
Although Ambiente Ufficio cited Abaclat with approval, the nature and scope of that approval is somewhat unclear. For example, while the tribunal adopted much of the reasoning of Abaclat, Ambiente Ufficio did not adopt the core feature of the earlier case, namely the characterization of the dispute as constituting a ‘mass’ arbitration. Instead, Ambiente Ufficio was framed as a standard, albeit large, multiparty dispute.
This comment considers a number of procedural issues addressed in the Ambiente Ufficio preliminary award on jurisdiction and admissibility and discusses the propriety of allowing numerous (in this case, ninety) claimants to join together in a single investment proceeding. Five distinct but nevertheless interrelated matters are covered herein: (1) the characterization of the nature of the dispute; (2) the alleged need for secondary consent; (3) the proper interpretation of previous multiparty actions; (4) the absence of a contractual relationship between the claimants; and (5) the manageability of a dispute involving large numbers of individual claimants.
Keywords: Ambiente Ufficio, Argentina, sovereign debt, sovereign bond, mass arbitration, multiparty arbitration, investment arbitration, Abaclat
Date posted: December 12, 2013