Teinver S.A., Transportes de Cercanías S.A. and Autobuses Urbanos del sur S.A. v. The Argentine Republic
15 Journal of World Investment and Trade (2014), pp. 295-304
Grotius Working Paper 2014/028-IEL
8 Pages Posted: 12 Jun 2014
Date Written: June 10, 2014
The Tribunal in Teinver v. Argentina, a case in many respects similar to other cases brought against Argentina over the past decades, issued its decision on jurisdiction rejecting all objections to jurisdiction raised by Argentina. The latter had argued that several prearbitration requirements had not been met, and that Claimants could not rely on the dispute settlement clause contained in the Australia-Argentina BIT to defeat procedural requirements contained in the dispute settlement clause of the Argentina-Spain BIT which was applicable to the case at hand through the most-favored-nation clause (MFN) in the latter BIT. The case thus constitutes another decision in the -now classic but still controversial- question whether MFN clauses can apply to dispute settlement provisions. Yet, the Tribunal also addressed other important questions such as the standing of Claimants, the need to comply with domestic law as a requirement for the legality of the investment, and the influence of the funding of Claimant’s claim by a third-party. The Arbitrator appointed by Argentina, Dr. Kamal Hossain, issued a separate opinion in which he essentially agrees with the findings of the majority, but considers that 'some critical issues involved can be properly determined only after consideration of evidence'.
Keywords: investment law, arbitration, MFN clause, third party funding
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