Case Discussion on Urbaser vs.

Argentina
LAW-332

BRAC University
Shabnam Talukder Barsha (12109035)
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Urbaser v. Argentina: Analysing the Expanding Scope

of Investment Arbitration in light of Human

Rights Obligations

While allowing investors the right to directly bring a claim against the States has said to be the

single most progressive development in International Law in the 20 th century, they also have

gained recognition as subjects of international law. It is this recognition which puts a corollary

duty on the investor to regard human rights while carrying out activities in the host state. Over

the past couple of decades, there has been a growth in, both, international human rights

jurisprudence and investment arbitration claims by investors against States. With both procedural

and substantive matters of importance coming to the fore, it has led to the convergence of both

the areas and raised a valid concern of the importance of erga omnes 1obligations of human

rights in investment arbitration. A human rights concern is a two-way street, with States being

concerned about human rights violations by the investor in their territory and the investor being

careful that his/her human rights are not unjustly violated by the State.

The recent award in the case of Urbaser v. Argentina brought to the fore the aspect of increasing

convergence of human rights with investment law. This case cements the strengthening position

being given to non-treaty international obligations in investment arbitration cases, besides

mercantile obligations, as also seen previously in the Phillip Morris cases last year. The Panel,

besides deciding on other questions on merit of the case, successfully allowed the State to make
1 Erga Omnes:- Erga omnes is a Latin phrase which means "towards all" or "towards everyone". In
legal terminology, erga omnes rights or obligations are owed toward all. For instance a property right is
an erga omnes entitlement, and therefore enforceable against anybody infringing that right.
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a human rights counter-claim against the Spanish corporation, Urbaser. A first of its kind, as the

treaty allowed for filing of claims from either of the parties, thus, allowing for the possibility of

counter-claims.

The dispute arose under the Spain-Argentina BIT2. The claimant investor was a shareholder in

a concessionaire which provided water and sewerage services in the Province of Buenos Aires,

Argentina. This was granted to the claimants subsidiary, AGBA, in early 2000s. Argentina faced

a financial emergency in 2001-02. It took emergency measures in January 2002, in the process of

which the Claimants concession was also terminated in 2006 by Buenos Aires, leading to

Claimants financial loss and insolvency. Citing obstruction and persistent neglect of AGBAs

shareholders interests, the Claimants alleged violations of the BIT, namely:

Article III.1, on the prohibition to adopt unjustified or discriminatory measures;

Article IV.1, on the obligation to afford fair and equitable treatment to the referred

investments; and

Article V, which forbids any illegal and discriminatory expropriation of foreign

investments, imposing obligations to compensate.

After analyzing Article X(5) 3of the BIT, which states that, The arbitral tribunal shall make its

decision on the basis of norms of private international law, and the general principles of

2 Spain Argentina BIT:- Date of Signature:- 3rd October 1991, Came into force:- 28th September 1992,
3
Article X(5) of Spain- Argentina BIT:- The Arbitral Tribunal shall make its decision on the basis of
agreement, and where appropriate on the basis of other treaties in force between parties and domestic
law of the Parties in whose territory the investment was made, including the norms of private
international law, and the general principles of international law.
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international law, the tribunal held that it is permitted by the BIT to incorporate principles of

international law to adjudicate the claim, thus, the BIT was not a closed system strictly

preserving investors right under the BIT. On the basis of this the Tribunal rejected the

Claimants contention that guaranteeing the human right to water is a duty that may be born

solely by the State, and never borne also by private companies like themselves. The Tribunal

referred to the Universal Declaration of Human Rights (UDHR) and the International

Covenant on Economic, Social and Cultural Rights (ICESCR) while reasoning its stance

on making private companies liable for human rights violations in investment disputes. Article

30 of the UDHR4imposes the duty on any group or person to maintain rights under the

Declaration, while General Comment 15 (Art. 11 and 12) by the Committee on Economic,

Social and Cultural Rights5 stresses the importance of the supply and the economic

accessibility of water, which will be the duty of States to ensure, in case it is being provided by

third parties. Corroborating its finding, the Tribunal further held that international law accepts

corporate social responsibility as a standard of crucial importance for companies operating in the

field of international commerce, which includes the duty to comply with human rights

obligations in countries other than the seat of their incorporation. Further, the Tribunal relied on

4
Article-30 of the Universal Declaration of Human Rights:- Article-30 of the Human Rights
Declaration states that, Nothing in this Declaration may be interpreted as implying for any State, group
or person any right to engage in any activity or to perform any act aimed at the destruction of any of the
rights and freedoms set forth herein.
5
General Comment No. 15: The Right to Water (Arts. 11 and 12 of the Covenant):- Adopted at the
Twenty-ninth Session of the Committee on Economic, Social and Cultural Rights, on 20 January 2003. In
2000, the World Health Organization estimated that 1.1 billion persons did not have access to an
improved water supply (80 per cent of them rural dwellers) able to provide at least 20 liters of safe water
per person a day; 2.4 billion persons were estimated to be without sanitation. (See WHO, the Global
Water Supply and Sanitation Assessment 2000, Geneva, 2000, p.1.) Further, 2.3 billion persons each
year suffer from diseases linked to water: see United Nations, Commission on Sustainable
Development, Comprehensive Assessment of the Freshwater Resources of the World, New York,
1997, p. 39.
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Article 31(3)(c) of the Vienna Convention on Law of Treaties (VCLT) 6 and Tulip Real

Estate v. Republic of Turkey to conclusively hold that rules of international law, of which human

rights are also a part of, cannot be ignored when adjudicating a claim arising out of a BIT,

especially when the treaty provides for it.

Jurisdiction

The tribunal in Urbaser v Argentina is the first to accept jurisdiction over a human rights

counterclaim. In doing so, it has simplified the jurisdictional requirements for ICSID

counterclaims.

The tribunal found that the disputing parties had consented to the use of counterclaims. The

terms of Article X of the Spain-Argentina BIT permitted either party to the dispute to

commence claims thus including the possibility of a counterclaim The terms in which the

claimant accepted the offer to arbitrate did not exclude counterclaims Further, the tribunal

indicated that a claimant cannot unilaterally delimit the competence of a tribunal through the

terms of their consent

The tribunal held that a sufficient connection between the originating claim and the counterclaim

was established by the manifest factual links between the claims and because the claims were

based on the same investment, or the alleged lack of sufficient investment, in relation to the

same Concession This position is contrary to awards that have required a legal connection

6 Article 31(3)(c) of the Vienna Convention on Law of Treaties:- Article 31 General rule of
interpretation .3.There shall be taken into account, together with the context: (c) any relevant rules
of international law applicable in the relations between the parties.
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between the claims (Saluka v Czech Republic)7. By permitting factual links, the tribunal

potentially permits a wider range of counterclaims to be raised by host states.

The counterclaim was also within the jurisdiction of the Centre. This condition implicitly

requires reference to Article 25 ICSID Convention8, which only permits an investment tribunal

to hear a legal dispute arising directly out of an investment. The tribunal rejected the position

that a human rights claim was inherently beyond its jurisdiction, as it was not convinced that a

human rights counterclaim and an investment dispute were mutually exclusive.

Therefore, provided the terms of the arbitration agreement are wide enough, a counterclaim that

is based on human rights is not automatically excluded from the scope of Article 46 ICSID

Convention. Further, the tribunal only required that the respondent present a prima facie case

to establish jurisdiction. This does not place a significant onus on a host state. Whilst this aspect

of the tribunals reasoning is promising for a host state human rights counterclaim, the tribunals

discussion of the merits presents significant challenges.

7 The Arbitral Tribunal in the Saluka Investments B.V. (The Netherlands) v. the Czech Republic
case issued a Partial Award on March 17, 2006. The Partial Award was made public on 22 March,
2006:- An international arbitral tribunal has today found that the Czech Republic breached the
international treaty between the Netherlands and the Czech Republic for the promotion and protection of
investments in an action brought by Nomura affiliate Saluka Investments B.V. (Saluka).

The arbitration arose out of events consequent upon the reorganisation and privatisation of the Czech
banking sector after the Communist period, which ended in 1990. The Czech Government privatised one
of the major Czech banks, known as IPB by selling the State's shareholding to a company within the
Nomura Holding. The Nomura company which bought the shares in IPB transferred them to a Nomura
subsidiary, Saluka Investments BV a legal person under the laws of The Netherlands.

8 Article-25 of ICSID Convention:- Art. 25 contains requirements relating to the nature of the
dispute (ratione materiae) and to the parties (ratione personae). In addition, the parties must have given
their consent. The requirements relating to the nature of the dispute are that it must arise directly from an
investment and that it must be of a legal nature. Those relating to the parties specify that one side must be
a Contracting State and the other a national of another Contracting State. All other parts of Art. 25 either
define or otherwise specify these essential requirements.
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Merits

In a positive move from a human rights perspective, the tribunal countered the claimants

argument that the BIT conferred no obligations on the investor The tribunal examined the

arbitration clause the applicable law clause and Article VII(1) of the Spain-Argentina BIT 9(a

more favorable law clause) all of which permitted reference to sources of law external to the

BIT, including treaties and general international law. Consequently, the tribunal found that BIT

was not a closed system Rather, the BIT enabled the respondent to make reference to certain

legal sources external to the BIT when identifying obligations that would bind the claimant.

Further, the tribunal rejected the claimants view that, as a non-state actor, it was not bound by

human rights obligations The tribunal considered that, as corporations are the recipients of rights

under BITs, they are subjects of international law and can also bear obligations in international

law The tribunal referred to the Universal Declaration on Human Rights (UDHR)

and the International Covenant on Economic, Social and Cultural

Rights (ICESCR) to establish that there were human rights obligations associated with a right
10
to water In addition to these rights, the tribunal used Article 30 UDHR and Article 5(1)

ICESCR 11to establish that private parties owe human rights obligations. The tribunal also relied
9 Article VII(1) of the Spain-Argentina BIT:- Where a matter is governed by this Agreement and also
by another international agreement to which both parties are a party or by general international law, the
parties and their investors are subjects of international law to whichever terms are more favorable.
10
Article-30 of the Universal Declaration of Human Rights states that, Nothing in this Declaration
may be interpreted as implying for any State, group or person any right to engage in any activity or to
perform any act aimed at the destruction of any of the rights and freedoms set forth herein.

11 Article 5(1) ICESCR:- Nothing in the present Covenant may be interpreted as implying for any State,
group or person any right to engage in any activity or to perform any act aimed at the destruction of any
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on the International Labor Offices Tripartite Declaration of Principles

concerning Multilateral Enterprises and Social Policy to support this position Using

the terminology found in these provisions, the tribunal concluded that, in addition to human

rights giving effect to the right to water, there was also an obligation on all parts, public and

private parties, not to engage in activity aimed at destroying such rights

The terms of this obligation suggest that Article 30 UDHR and Article 5(1) ICESCR prevent

the claimant from relying on its rights under the BIT to destroy human rights. However, I would

argue that this obligation cannot be sourced from these provisions. Both Article 30 UDHR and

Article 5(1) ICESCR are aimed at preventing the deliberate misinterpretation of one human

rights obligation to justify the violation of other rights (see Saul, Kinley and Mowbray, The

International Covenant on Economic Social and Cultural Rights: Commentary,

Cases, and Materials (OUP 2014), 263). Hence, Article 5(1) ICESCR uses the terms:

Nothing in the present Covenant may be interpreted as

implying any right to engage in any activity or to perform any

act aimed at the destruction of any of the rights or

freedoms recognized herein (emphasis added).

Consequently, if the tribunal in Urbaser intended to extend the operation of article 5(1)

ICESCR to rights sourced from other treaties, such as BITs, this interpretation is contrary to its

express terms. Alternatively, if Article 5(1) ICESCR was intended to be applied as it is drafted,

a claimant would need to rely on its own human rights to intentionally destroy the human rights

of others to meet this test. A claimant could potentially invoke the right to property (relying on

of the rights or freedoms recognized herein, or at their limitation to a greater extent than is provided for in
the present Covenant.
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the UDHR) but would need to interpret this right so as to deny a human right of the host state

population. This scenario would be unlikely to arise in many investment disputes.

In addition to these problems, the intention behind Article 5(1) ICESCR was to prevent newly

formed fascist groups from relying on human rights as a justification for their activities (see Saul,

Kinley and Mowbray, The International Covenant on Economic Social and

Cultural Rights: Commentary, Cases, and Materials (OUP 2014), 263). Article

17 European Convention on Human Rights,12 which serves a similar function to

Article 5(1) ICESCR, has only been applied in cases that fundamentally undermine its goals,

such as incitement to hate. Again, it is difficult to envisage a wide range of circumstances where

a comparative policy consideration might be applied in an investment context.

The tribunal held that their interpretation of Article 5(1) ICESCR could not be applied to the

human right to water. First, the tribunal found that the respondents argument conflated the

concessionaires provision of water and sewerage services with the obligation to fulfil the human

right to water The tribunal noted that, based on the respondents argument, the origin of the

human rights obligation would be the concession contract Secondly, as the human right to water

provided a duty to perform, the only obligation was placed on the state As it was for the state to

regulate the supply of water to fulfil this right, the claimants obligation would also be sourced

from the concession contract or domestic law These findings were problematic because the

tribunal did not have jurisdiction over matters relating to Argentinas domestic law (Decision

on Jurisdiction). Given that the respondent had not identified an independent obligation in

international law that was binding on the claimant, the counterclaim could not succeed.

12 Article 17 European Convention on Human Rights : - Prohibition of abuse of rights:- Nothing in

this Convention may be interpreted as implying for any State, group or person any right to engage in any
activity or perform any act aimed at the destruction of any of the rights and 14 15 freedoms set forth
herein or at their limitation to a greater extent than is provided for in the Convention.
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Nonetheless, the tribunal concluded:

The situation would be different in case an obligation to abstain,

like a prohibition to commit acts violating human rights would be

at stake. Such an obligation can be of immediate application, not

only upon States, but equally to individuals and other private

parties. This is not a matter for concern in the instant case

This statement appears to reflect the tribunals prior view based on Article 30 UDHR and

Article 5(1) ICESCR. Given the difficulties of relying on these provisions outlined above, it is

not clear that the obligation to abstain can be of immediate application. Further, the tribunal

did not construct its concluding statement in the same terms as its previous formulation of the

obligation. It interprets the obligation to abstain to include a prohibition on committing acts that

violate human rights. Whilst this encompasses cases of deliberately misinterpreting human rights

to violate the rights of others, what the tribunal suggests arguably extends beyond these cases to

those human rights framed as prohibitions. These are most commonly associated with jus

cogens 13obligations such as the prohibition on slavery, the prohibition on genocide and the

prohibition on racial discrimination. Although these prohibitions could apply to investment

projects (for example, the dispute in Piero Foresti v South Africa 14stemmed from the

13 Jus Cogens :- Jus cogens (from Latin: compelling law; English: peremptory norm) refers to certain
fundamental, overriding principles of international law, from which no derogation is ever permitted. See
Ian Brownlie, Principles of Public International Law (5th ed., Oxford, 1998).
14
Piero Foresti v South Africa:- P Piero Foresti, Laura de Carli & Others v. The Republic of South
Africa, ICSID Case No. ARB(AF)/07/01 :- On October 5, 2009, the arbitral tribunal in the Piero Foresti,
Laura De Carli and others v. the Republic of South Africa case, pending at the International Center for
Settlement of Investment Disputes (ICSID), granted an NGO coalition the opportunity to file a written
submission. The arbitral tribunal issued its decision almost three months after receiving the petition in the
pending case. The NGO coalition includes four human rights groups the Centre for Applied Legal
Studies (CALS), the Legal Resources Centre (LRC), the Center for International Environmental Law
(CIEL), and INTERIGHTS (the International Centre for the Legal Protection of Human Rights). Also, for
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operation of Black Economic Empowerment legislation) this type of claim is rare and would also

not automatically bind individuals or corporate entities. As such, the tribunals statement does

not clarify which human rights bind foreign investors.

The decision reached by the Panel is of consequential importance for two reasons. Firstly,

investment treaty arbitration is in a precarious situation as many countries are either signing out

of it or have already rescinded their treaties, owing to the regulatory chill they have been facing

because of multitudes of investment claims. Secondly, the decision reaffirms the greater scope

which States are being given off late by arbitral tribunals to regulate, to assert their sovereignty

in a bona fide manner, and to make sure the rights of their citizens are not violated in fear of

protecting the treaty rights of alien investors. In Philip Morris v. Uruguay 15last year in the

investor was not allowed to subvert the national policy adopted for the purposes of public health.

The intention of the State, it being bona fide, to take a public policy measure was given a higher

legal ground against the claims of it being unreasonable, discriminatory and disproportionate

which were analysed and rejected by the tribunal. The tribunal had also imported the human

the first time ever, an ICSID tribunal ordered the parties in the arbitration to disclose their key legal
filings to a set of public interest organizations, despite the strong objections of the claimants. The
Tribunals decision is thus a major step towards transparency in investor-State arbitrations. This decision
means that the NGO coalition will have an opportunity to access the documents filed by the parties in
order to prepare a written submission to the tribunal concerning key public interest issues
in the case.

15 Philip Morris v. Uruguay :- The long-expected final award has been rendered in the high-profile
case initiated by tobacco giant Philip Morris in early 2010 against Uruguay over its tobacco control
measures. On July 8, 2016, a tribunal at the International Centre for Settlement of Investment Disputes
(ICSID) dismissed all claims by Philip Morris, ordering it to bear the full cost of the arbitration and to pay
Uruguay US$7 million as partial reimbursement of the countrys legal expenses.
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rights doctrine of margin of appreciation from the jurisprudence of European Court of Human

Rights to grant Uruguay a regulatory space to take such a measure for its national needs. The

ruling in Urbaser also squarely goes against the ruling in cases of Biloune v. Ghana

Investments Centre and Tradex Hellas S.A. v. Albania,16 where the tribunals expressly

dismissed human rights argument stating that its competence is limited only to the commercial

merits in the dispute.

16 Biloune v. Ghana Investments Centre and Tradex Hellas S.A. v. Albania :- Biloune and Marine
Drive Complex Ltd v. Ghana Investments Centre and the Government of Ghana, (Award) ILR 95
(1989), para. 209.

Mr. Antoine Biloune, a Syrian national held a 60% equity interest in MDCL, a corporation incorporated in
Ghana. MDCL was initially granted a lease in November 1985 by GTDC (a corporation owned and
formed by the Ghanaian Government to operate tourist facilities) to renovate and manage a restaurant at
the Marine Drive Complex in Accra, Ghana. In 1986, MDCL formed a joint venture with GTDC for the
construction of a 4-star hotel resort complex. The project was approved by the Ghana Investments Centre
in the GIC Agreement. MDCL accomplished substantial remodeling and construction, when the Accra
City Council issued an order to stop work citing the lack of a building permit. The City Council then
demolished part of the project, and Mr. Biloune, and other investors were subjected to financial scrutiny
by the authorities, after which Mr. Biloune was arrested, held in custody for 13 days without charge, and
subsequently deported from Ghana to Togo. The Government then closed the site of the project. Mr.
Biloune was not permitted to return to Ghana and MDCL was not allowed to carry out any further work
on the project, which remained uncompleted. On the basis of the arbitration clause contained in the GIC
Agreement, Mr. Biloune initiated arbitration under UNCITRAL rules against the GIC and the
Government of Ghana claiming that the respondents had effectively expropriated MDCLs assets and his
interest in MDCL and that they therefore had to pay compensation. The Tribunal concluded that when
viewed in conjunction, the issuance of the stop work order, the partial demolition of the construction, the
arrest and detention of Mr. Biloune, the requirement of filing assets declaration forms, and the deportation
of Mr. Biloune without possibility of re-entry had the effect of causing irreparable cessation of work on
the project. These actions constituted constructive expropriation of MDCLs contractual rights in the
project and accordingly the expropriation of the value of Mr. Bilounes interest in MDCL. The Tribunal
concluded that the Government of Ghana was under an obligation under the law of Ghana and under
international law to compensate Mr. Biloune.

The Tribunal referred to the customary international law principle according to which, in case of
expropriation, compensation should restore the Claimant to the position that it would have enjoyed but for
the expropriation. The Tribunal stated that there existed a generally accepted principle of international
law that prompt, adequate and effective compensation be paid in case of expropriation. The Arbitral
Tribunal concluded that the most appropriate method of compensating Mr. Biloune was to award him the
amount of his actual investment in MDCL along with interest up to the date of payment and costs. The
Tribunal declined to make an award on the basis of lost future profits in the absence of sufficient proof.
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The ruling in Urbaser can also be held to be controversial for the purposes of imposing a human

rights liability on investors, but this goes well with the prevailing trend of, I) Investors having a

legal personality as transnational in international law, therefore, II) having the duty to uphold

international law, including human rights. Back in August 2003 itself, the Sub-Commission on

the Promotion of Human Rights of the United Nations Commission on Human Rights (CHR)

approved the Norms on the Responsibilities of Transnational Corporations and Other Business

Enterprises with Regard to Human Rights which defines human rights as one in the UN

multilateral and customary system, being in consonance with Articles 1, 2, 55 and 56 of the UN

Charter17. The Norms on Transnational Corporations reinforce how corporations must pay heed

to international human rights law. Similarly, the UN issued another document in June 2011, titled

Guiding Principles of Business and Human Rights which lays down principles of human rights
17 Articles 1, 2, 55 and 56 of the UN Charter :-

Article 1
The Purposes of the United Nations

Article 2
The Organization and its Members, in pursuit of the Purposes and Principles for its action

Article 55
With a view to the creation of conditions of stability and well-being which are necessary for peaceful and
friendly relations among nations based on respect for the principle of equal rights and self-determination
of peoples

Article 56
All Members pledge themselves to take joint and separate action in co-operation with the Organization
for the achievement of the purposes set forth in Article 55.
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which Corporations must follow, in recognition of the States obligation to protect human rights

in its territory and the duty on Corporations, as specialized organs performing specific functions,

to respect human rights while doing so. Although these obligations might be obligatory in nature,

they are a restatement of the will of the international community and act as a guiding mechanism

for international courts/panels to adjudicate upon disputes. These are obligations besides the

more binding ones which the Panel cited, such as the UDHR, ICESCR, which have attained

peremptory status in International Law.

From the point of view non-investment treaty obligations, the incorporation of it was also done

by an arbitral panel in the case of SPP v. Egypt18, where on the basis of the wordings of the

treaty, the Panel interpreted that these obligations exist as far as the dispute is concerned when

seen through Article 42 of the ICSID Convention. Though Egypt was not allowed the defence as

the cancellation of the contract took place before it ratified the UNESCO Convention under

18 SPP v. Egypt :- Southern Pacific Properties (Middle East) Limited v. Arab Republic of Egypt,
ICSID Case No. ARB/84/3. :- In 1974, SPP, a Hong Kong company, entered into agreements with Egypt
to establish a joint venture (ETDC) with a view to develop an international tourist complex at the
Pyramids Oasis in Egypt. SPPs Egyptian subsidiary, SPP(ME), held 60% of shares in ETDC, with the
remaining 40% owned by the Egyptian partner. The project went ahead until 1978 when, as a result of
parliamentary opposition, the Government effectively cancelled the project placing ETDC in judicial
trusteeship. By that time, SPP(ME) and SPP had invested approximately US$ 5 million in the project
(capital contributions and loans to ETDC, expenses for infrastructure design and development) and sold
286 building lots for a total of more than US$ 10 million. In 1978, pursuant to the contractual arbitration
clause, SPP and SPP(ME) commenced an ICC arbitration, and obtained an award of US$ 12.5 million in
damages. However, this award was later annulled by French courts on jurisdictional grounds. In 1984, the
Claimants decided to take the same matter before an ICSID Tribunal, pursuant to Egyptian Law which
contained an ICSID arbitration provision. The Claimants maintained that Egypts actions violated the
agreements and amounted to expropriation of the investment, and thus claimed compensation for the
value of their investment in ETDC plus interest. In its 1992 award based on Egyptian and international
law, the Tribunal held that Egypts actions constituted a lawful expropriation of the Claimants investment
(their shareholding in ETDC) and that Egypt was therefore liable to pay equitable compensation for the
value of the expropriated investment. In establishing this value, the Tribunal rejected the Claimants DCF
analysis, as well as the analysis based on past sales of SPP(ME)s shares. The Tribunal awarded all out-
of-pocket expenses incurred by the Claimants with interest at a 5% rate, prescribed by Egyptian law, and
with an upward adjustment to account for post-1978 US dollar devaluation. In addition, the Tribunal
compensated the Claimants for the loss of opportunity to make a commercial success of the project. In
total, the Tribunal awarded US$ 27.6 million.
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which the contract would be illegal, SPP findings laid down that a) Investment obligation can be

held to be against the States general international obligations, b) International obligations can be

given precedence over investment promises. However, in the Urbaser case, Article X of the BIT

specifically provided for adherence to international law and obligations besides contractual and

investment law obligations, thus providing the tribunal a scope to directly adjudicate the case

through the parameters of non-treaty obligations.

The Urbaser case has many far reaching implications. Besides the jurisdictional implication as

far as counter-claims are concerned, it sets a path for greater allowance for conflict of other

international law norms with that of international investment law, thus, a greater scope for

regulation and assertion of sovereignty for the host States.

It is not that this is first case where the defence of human rights has been acknowledged. In Suez

v. Argentina 19the tribunal did acknowledge the validity of States action in accordance with

19 Suez v. Argentina:- Suez, Sociedad General de Aguas de Barcelona, S.A.and Vivendi Universal,
S.A. v. Argentine Republic, ICSID Case No. ARB/03/19:-

Background
The relevant provisions concerning treatment standards provide:
In the Argentina-France bilateral investment treaty (BIT):
"Each Contracting Party shall undertake to accord ... just and equitable treatment, in accordance with the
principles of international law" (Article 3).
"Investments made by investors of one Contracting Party shall be fully and completely protected and
safeguarded ... in accordance with the principle of just and equitable treatment mentioned in Article 3"
(Article 5).
In the Argentina-Spain BIT:
"Each Party shall guarantee ... fair and equitable treatment of investments" (Article IV).
In the Argentina-UK BIT:
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international law, by virtue of Article 42 of ICSID20, but it held the concern to be mutually

exclusive from that of the States obligations for the investor. In SAUR International v

Argentine Republic 21the tribunal had also acknowledged the need for the State to regulate for

human rights concerns as a part of its governmental powers, but said it has to be balanced out

against the investors interests, thus, holding Argentinas actions as one eligible for compensable

"Investments of investors of each Contracting Party shall at all times be accorded fair and equitable
treatment" (Article 2).
Article 25 of the International Law Commission (ILC) Articles on Responsibility of States for
Internationally Wrongful Acts (2001) on the defence of necessity provides as follows:
"1. Necessity may not be invoked by a State as a ground for precluding the wrongfulness of an act not in
conformity with an international obligation of that State unless the act:
(a) Is the only way for the State to safeguard an essential interest against a grave and imminent peril; and
(b)Does not seriously impair an essential interest of the State or States towards which the obligation
exists, or of the international community as a whole.
2. In any case, necessity may not be invoked by a State as a ground for precluding wrongfulness if:
(a)The international obligation in question excludes the possibility of invoking necessity; or
(b)The State has contributed to the situation of necessity."

Facts
The underlying disputes arose under Argentina-France, Argentina-UK and Argentina-Spain BITs.
The claimants were incorporated variously in France, Spain or the UK. They were shareholders in Aguas
Provinciales de Santa Fe SA Aguas Argentina SA and Aguas Provinciales de Santa Fe SA (Subsidiaries).
The Subsidiaries were Argentinean companies, organised and managed by the claimants, and they held
30-year concessions for water distribution and wastewater treatment in Buenos Aires (awarded in 1993)
and in the Province of Santa Fe (awarded in 1995) respectively (Concessions). The Concessions were
granted in a privatisation process.
The privatisation of water and wastewater services in Argentina was connected with other reforms aimed
at remedying severe problems with its economy and public services. The tribunals concluded that the
legal framework introduced as a result of these reforms was aimed at:
Attracting foreign private capital and know-how.
Securing reasonable profit for investors and providing for adjustment mechanisms safeguarding
the profitability in case of changing circumstances.
Assuring efficient provision of water and wastewater.
During the Argentinean economic crisis (2001-2003), Argentina changed this legal framework in a way
that negatively impacted on the financial architecture of the claimants' Concessions. After unsuccessful
attempts by the claimants to renegotiate the Concessions and to withdraw from them, Argentina
 17

expropriation to the investor. The tribunal in this case not only acknowledged the importance of

human rights obligations in the role they play as a part of international law in a consent based

mechanism such as investment arbitration, which in earlier cases was disregarded, but also stated

the value of both the norms when seen from a wider aperture of international law. Although one

can say that human rights obligations, here that of water, trumped the BIT obligations but a

terminated both Concessions in 2006.

The claimants claimed that Argentina had:
By taking certain general regulatory measures to cope with the financial crisis, failing to revise
tariffs under Concessions and by taking certain measures at the time of termination of the
Concessions:
expropriated the claimants' investments directly and indirectly; and
breached the fair and equitable treatment (FET) standard.
Denied the claimants full protection and security by withdrawing from certain guarantees made
under the legal framework and thus removed the legal protection and security against its own actions
previously granted to the investments.
Argentina opposed these claims and raised certain defences, including the defence of necessity under
international law, to excuse any alleged breach of the BITs.
Decision
The tribunals held that the measures taken by Argentina:
Did not constitute (direct or indirect) expropriation of the claimants' investments.
Did not breach the obligation to provide investors with full protection and security.
Did breach its obligation to accord to investors FET.
The tribunals rejected Argentina's defence of necessity.

20 Article 42 of ICSID:-
1. The Tribunal shall decide a dispute in accordance with such rules of law as may be agreed by the
parties. In the absence of such agreement, the Tribunal shall apply the law of the Contracting State
party to the dispute (including its rules on the conflict of laws) and such rules of international law as
may be applicable.

2. The Tribunal may not bring in a Finding of non liquate on the ground of silence or obscurity of
the law.

3. The provisions of paragraphs (1) and (2) shall not prejudice the power of the Tribunal to decide a
dispute ex aequo et bono if the parties so agree.
 18

hierarchical nature of obligations was not stated explicitly. This position might become clearer

with similar disputes in the future.

By directly adjudicating that a human rights issue and an investment dispute are not mutually

exclusive, the tribunals decision can be ascertained to hold that different aspects of international

21 Saur International vs. Argentine Republic:- SAUR International v. Argentine Republic (ICSID
Case No. ARB/04/4)
The Claimant in this case was a subsidiary of Socit dAmnagement Urbain et Rural, S.A., specializing
in water production, water treatment, water distribution and sanitization.

The Claimant had participated and won a bid by the Province of Mendoza to privatize the Argentinian
company Obras Sanitarias Mendoza (OSM). OSM and the Province then signed a concession
agreement whereby OSM would act as the agent of the public service provider for drinkable water and the
draining of sewer systems. The Claimant then acquired 12,08% of OSM and signed a technical support
contract. However, because of the financial crisis in 2002, OSM experienced significant losses and
requested an increase in the price of water. Although both the concession contract and the technical
support contract had been correctly executed during the early years, the financial crises in 2002 had an
impact on their application. After suffering significant losses, OSM requested that the price of water be
raised.

The Claimant filed its Request for Arbitration in 2003 and, after a ruling on jurisdiction on 27 February
2006, the Parties agreed to suspend the proceedings, but arbitration recommenced when the concession
contract was cancelled in 2010 and transferred to a new State-owned company named Aysam.

The ICSID Tribunal ruled in favor of the Claimant and found that the Respondent had violated fair and
equitable treatment and expropriated the Claimants investment.

The Arbitral Tribunal also determined that it had not exceeded its powers and had jurisdiction over the
issue of compensation.

With respect to the amount of compensation, the Claimant argued that it should be equal in value to the
investment made in the shares of OSM and in the rights relating to the technical support contract. The
Tribunal agreed with the Claimants experts methodology for determining the value of the investment in
the shares but reduced the amount because of a risk of double compensation for the same offense as the
Claimant had also introduced administrative proceedings in Argentina. The Tribunal thus determined that
the value of Claimants investment in shares of OSM was US $20,643,021.

As for the investment in the technical support contract, because the Claimant could reasonably expect the
contract to be renewed, the value of the income the Claimant was supposed to receive had the termination
 19

law are under the ambit of one legal system which is how a dispute must be seen. Investment

claims cannot be allowed to fragment international law by making them an exception to inherent

obligations which every subject of international law is expected to follow. Such an inclusion and

interpretation by ad-hoc tribunals is another way how investment law can converge and is seen to

be converging with other branches of international law, rather than fragmenting it, besides

multilateralization of investment treaty law as another way. This, thus, is the great comeback

which the bilateral investment treaty regime can build upon.

What this dispute also inspires is how a treaty should be worded to allow the arbitral panel a

greater scope to assess the action of the host State in light of its domestic and international

obligations. Many States which are backing out of the investment treaty regime should and will

come up with treaties which expressly state that tribunal should adjudicate a claim on the basis of

principles of private and public international law, as seen in Article X of the Spain-Argentina

BIT. Article 14(9) of the Indias new Model BIT22, is the best example.
of the contract not occurred was found to amount to US $19,347,090.

22 Article 14(9) of the Indias new Model BIT:- Article-14:- Settlement of Disputes between an
Investor and a Party
Article-14 (9):- Burden of Proof and Governing Law
(i) This Treaty shall be interpreted in the context of the high level of deference that international
law accords to States with regard to their development and implementation of domestic
policies.
(ii) The Investor at all times bears the burden of establishing: (a) jurisdiction, (b) the existence of
an obligation under Chapter II of this Treaty, (c) a breach of that obligation, (d) that the
Investment, or the Investor with respect to the Investment, has suffered actual and non-
speculative losses as a result of the breach, and (e) that those losses were foreseeable and
directly caused by the breach.
(iii) The governing law for interpretation of this Treaty by a tribunal constituted under this Article
shall be: (a) this Treaty, (b) the general principles of public international law relating to the
interpretation of treaties, including the presumption of consistency between international
treaties to which the Parties are party, and (c) for matters relating to domestic law, the Law of
the Host State.
(iv) Interpretations of specific provisions and decisions on application of this Treaty issued
subsequently by the Parties in accordance with this Treaty shall be binding on tribunals
 20

It will be pertinent to see whether human rights as a whole will be put on a pedestal which might

act as the looking glass through which investor duties and violations will be analysed or will it be

graded so that only the most important rights which are peremptory in nature are allowed as a

defence. This will also to an extent satiate the concerns raised by the tribunal in the SAUR case of

there being an asymmetrical power relationship between the investor and the State. However, as

far as right to water is concerned, it has always been acknowledged by international law as one

of the most important human rights guarantee but it got disregarded owing to myriad of technical

and jurisdictional reasons.

Arbitrator Independence and Academic Freedom

In international law, members of the discipline often fill a variety of

professional roles. Many are scholars and practitioners at the same time;
some even act in capacities that are mutually incompatible at the domestic
level, such as being counsel and decision-maker at the same time albeit in
different proceedings. Investment arbitration is an area where this double-
hat problem is vividly discussed. The main concern is the independence of
arbitrators in light of interests that that individual may have in fulfilling other
professional roles. What is less debated is how practice involvement can
affect the role of the international lawyer as academic and how practice
affects, and risks compromising, the independence of international law as an
academic discipline. This is the theme underlying the following discussion of
a recent challenge in CC/Devas and others v. India, which was decided by ICJ
President Peter Tomka in an UNCITRAL arbitration under the Mauritius-India
bilateral investment treaty (BIT). It is an abbreviated version of my thoughts
from the first Editorial of the new Journal of World Investment and Trade that
just came out.

established under this Article upon issuance of such interpretations or decisions.

(v) In accordance with the Vienna Convention of the Law of Treaties, 1969 and customary
international law, other evidence of the Parties subsequent agreement and practice regarding
interpretation or application of this Treaty shall constitute authoritative interpretations of this
Treaty and must be taken into account by tribunals under Article 14.
 21

Challenge in CC/Devas and others v. India

In CC/Devas and others v. India,23 two arbitrators, Francisco Orrego

Vicua and Marc Lalonde were challenged because they had, in the
Respondents view, prejudged the meaning of the essential security-clause in
the applicable BIT: Mr. Lalonde because he sat in both CMS v.
Argentina and Sempra v. Argentina24 where a similar essential security-
clause from the US-Argentina BIT had been an issue; and Prof. Orrego Vicua
because he sat, together with Mr. Lalonde, in the same two arbitrations, as
well as in Enron v. Argentina25, which also involved the US-Argentina BIT.
On top, Prof. Orrego Vicua had written a chapter on Softening Necessity in
the Liber Amicorum for Michael Reisman, in which he analyzed the tribunals
approach to the necessity defense under customary international law and to
the essential security-clause.
23 CC/Devas (Mauritius) Ltd., Devas Employees Mauritius Private Limited and Telecom Devas
Mauritius Limited v. India, UNCITRAL :- The PCA acts as registry in this arbitration, which is
conducted under the UNCITRAL Arbitration Rules 1976 pursuant to the Agreement between the
Government of the Republic of Mauritius and the Government of the Republic of India for the Promotion
and Protection of Investments, which entered into force on June 20, 2000.
24
CMS Gas Transmission Company v. The Republic of Argentina, ICSID Case No. ARB/01/8:- The
International Centre for Settlement of Investment Disputes (ICSID) is a dispute-resolution body created
by treaty. Under this treaty (Convention), domestic courts are not empowered to review ICSID tribunal
decisions. The Convention does, however, afford parties an opportunity to challenge awards granted by
these tribunals. Upon a challenge, an ad hoc committee evaluates whether annulment is proper based on
one or more of five specific grounds as provided in Article 52 of the Convention, including:
(1) the tribunal was improperly convened,
(2) the tribunal manifestly exceeded its powers,
(3) a member of the tribunal engaged in corruption,
(4) a fundamental rule of procedure was materially violated, or
(5) the tribunal did not provide the reasoning behind the granted award. During its evaluation, an ad hoc
committee must only determine the soundness of the tribunals decision-making process, and must not
concern itself with the appropriateness of the amount of the award. Argentina (defendant) petitioned for
annulment of an award that an ICSID tribunal had mandated Argentina to pay to CMS Gas Transmission
Company (plaintiff), where the tribunal made its decision based on the premise that the definition of
necessity in Article XI of the U.S.-Argentine Bilateral Investment Treaty (BIT) was the same as the
definition based on customary international law as codified by Article 25 of the Articles on State
Responsibility of the International Law Commission (ILC).
25 Enron v. Argentina:- Enron Corporation and Ponderosa Assets, L.P. v. Argentine Republic,
ICSID Case No. ARB/01/3:- An Annulment Decision rendered on July 30, 2010 under the Treaty
between the United States of America and the Argentine Republic (Argentina) Concerning the
Reciprocal Encouragement and Protection of Investment (the BIT) and in accordance with the ICSID
Convention and Arbitration Rules.
 22

While ICJ President Tomka rejected the challenge against Marc Lalonde,
stating that merely expressing prior views on an issue in an arbitration did
not result in a lack of impartiality or independence, he upheld the challenge
against Francisco Orrego Vicua, because the latter had stuck to his
approach to interpreting essential security-clauses through three arbitrations
and in the academic article in question, although all three awards had been
partially or totally annulled precisely on that point. Comparing the two
challenges, the article written by Prof. Orrego Vicua made all the difference.
The case may therefore be read as boiling down to upholding a challenge of
an arbitrator based on a view he or she has taken in academic writing. This
decision is alarming, in my view, not only for investment arbitration, but for
scholarship in the field.

Tension with earlier decision in Urbaser v. Argentina

To start out, the decision in CC/Devas parts with an earlier decision on a

similar issue. In Urbaser v. Argentina(see paras. 20-26), the respondent-
appointed arbitrator Campbell McLachlan was challenged for lack of
impartiality because he had expressed views on the application of most
favored nation (MFN) clauses to questions of arbitral procedure in an
academic treatise on investment law, criticizing the landmark ruling
in Maffezini v. Spain26 as heretical and stating his strong preference for a

26 Maffezini v. Spain:- Emilio Augustin Maffezini v. The Kingdom of Spain (ICSIDCase No.
ARB/97/7) :- The claimant was an Argentinian individual who established and invested in a corporation
named EAMSA, for the purpose of building a production facility for chemical products in Galicia, Spain.
The project was a joint venture with the Sociedad para el Desarrollo Industrial de Galicia(SODIGA), a
public-private entity with a mandate to encourage industrial development in Galicia. SODIGA provided
the investor with assistance in the form of advice and financing.
The project eventually failed due to surging costs, and the investor filed for arbitration under the
Argentina-Spain BIT. The investor claimed

(1) that the project failed because SODIGA had given flawed advice underestimating the costs of the
project, and

(2) that SODIGA was responsible for the additional costs resulting from the Environmental Impact
Assessment (EIA) because it had pressured EAMSA to begin construction before the EIA process was
finalized. Spain contested the allegations, stating that SODIGA was a private company whose acts were
not attributable to the state, and that the investor had assumed any risk relating to the feasibility and
profitability of his investment.
On the issue of state attribution, the tribunal found that some of SODIGAs functions were governmental
in nature while others were commercial. Accordingly, the tribunal found that it was necessary to
 23

competing line of jurisprudence. Secondly, in an article in ICLQ Prof.

McLachlan had discussed the defense of necessity and criticized the way the
tribunal in CMS had handled it. Since both issues played a role in the Urbaser
arbitration, the claimants challenged Prof. McLachlan for having prejudged
the case in important regards.
This challenge was, in my view rightly, rejected by his co-arbitrators. They
stressed the difference in the roles of a scholar, on the one hand, and an
arbitrator, on the other, and emphasized Prof. McLachlans ability to reassess
his views in light of novel arguments of the parties relating to the specific
wording, circumstances, and negotiation history of the treaty clauses at issue
For them, [t]he requirement of independent and impartial judgment means
that an arbitrators previously adopted opinion, whether published or not,
shall not be of such force as to prevent the arbitrator from taking full account
of the facts, circumstances, and arguments presented by the parties in the
particular case

Distinction between Law and Facts

The result reached in Urbaser is convincing, but the reasoning misses an

important distinction between law and facts. In my view, an arbitrator has to
be removed if he or she has expressed views in prior academic writing that
are fact-specific to the case at hand. Having formed an opinion, for example,
on whether Argentina was in a state of emergency during its 2001-2002

categorize the various acts or omissions giving rise to the dispute. On the investors main claim that
SODIGAs bad advice was responsible for the projects failure the tribunal found that even though
SODIGA officials had provided certain assistance relating to the projects costs and returns, that
assistance did not amount to a public function attributable to the state. Moreover, the investor was, simply
put, responsible for his own investment. The tribunal explained:
Bilateral Investment Treaties are not insurance policies against bad business judgments. While it is
probably true that there were shortcomings in the policies and practices that SODIGA and its sister
entities pursued in the here relevant period in Spain, they cannot be deemed to relieve investors of the
business risks inherent in any investment.
The claimant also contended that SODIGA was responsible for the additional costs resulting from the
EIA, which lead to the investors decision to stop the construction work and call off the project. In this
regard, the tribunal concluded that the investor should have known that the project a chemical plant
would require an EIA. According to the tribunal, the investor had known about the EIA requirement from
the beginning of the project, but had tried to minimize it so as to avoid additional costs or technical
difficulties.
For these reasons, the tribunal found that Spain could not be held responsible for the investors losses.
 24

financial crisis, disqualifies an arbitrator from sitting in a case concerning

that crisis because of an inability to assess the parties submissions on
questions of fact. The arbitrator would not, however, be prevented from
deciding whether Greece could invoke necessity due to its recent financial
crisis.
By contrast, a challenge should not be successful if an arbitrator has
expressed abstract views on how the applicable law in an arbitration must be
understood and interpreted, for example, whether umbrella clauses only
protect against breaches of sovereign contracts or of any contractual
undertaking of states, or how the standard of fair and equitable treatment
should be applied. This concerns objective, even if often contested, questions
of law that are, and this is crucial, outside the disposition of the disputing
parties an investor and a state. Arbitrators have to decide on these
questions of law based on the principle iura novit curia27, and hence can and
need to be partial towards the legal submissions of the parties.
Having expressed views on abstract questions of law, no matter how firm
that view is, does not reduce an arbitrators ability to exercise independent
judgment (Art. 14 of the ICSID Convention28) nor does it affect his or her
impartiality or independence (Art. 11 of the UNCITRAL Arbitration
Rules29), because there is no predisposition to the detriment of a party and
its factual submissions. An arbitrator should always hear the parties legal

27 Iura novit curia :- Iura novit curia is a Latin legal maxim expressing the principle that "the court
knows the law", i.e., that the parties to a legal dispute do not need to plead or prove the law that applies to
their case.
28 Art. 14 of the ICSID Convention:- Article -14 of ICSID convention provides:-

(1) Persons designated to serve on the Panels shall be persons of high moral character and recognized
competence in the fields of law, commerce, industry or finance, which may be relied upon to exercise
independent judgment. Competence in the field of law shall be of particular importance in the case of
persons on the Panel of Arbitrators.

(2) The Chairman, in designating persons to serve on the Panels, shall in addition pay due regard to the
importance of assuring representation on the Panels of the principal legal systems of the world and of the
main forms of economic activity.
29
Art. 11 of the UNCITRAL Arbitration Rules :- Disclosers by and challenges of Arbitrators:-
When a person is approached in connection with his or her possible appointment as an arbitrator, he or
she shall disclose any circumstances likely to give rise to justifiable doubts as to his or her impartiality or
independence. An arbitrator, from the time of his or her appointment and throughout the arbitral
proceedings, shall without delay disclose any such circumstances to the parties and the other arbitrators
unless they have already been informed by him or her of these circumstances.
 25

arguments and consider reassessing his or her views on matters of law, but
he or she would not be challengeable based on holding even firm convictions
on matters of law.
The decision in CC/Devas, then, is highly problematic, if the decisive point
was that Francisco Orrego Vicua lacked the necessary impartiality and
independence because he had set out and defended his view on the
application of essential security-clauses in academic writing. One may
criticize him for having a wrong understanding of the international law at
stake, but because of this he does not lack, in my view, the necessary
impartiality and independence to sit as an arbitrator in a case involving
similar or identical questions of law.

CC/Devas Effect on Investment Arbitration

Elevated to general policy, the challenge in CC/Devas would exclude from the
pool of arbitrators all those who have actively contributed to investment law
scholarship. For want-to-be arbitrators, in turn, CC/Devas would chill
meaningful writing, as scholarship would not be a way to develop and show
expertise. On the contrary, it would kick authors out of the pool. The
resulting chill on scholarship would also make it more difficult for parties and
appointing authorities to make informed choices on arbitrators. This can
affect the outcome of individual cases, given that central notions of
substantive and procedural law are highly elastic and may depend crucially
on who is appointed as arbitrator. On a systemic level, this can compromise
the development of investment law and the ability of participants, including
states, to steer that development in a certain direction by appointing
individuals who have expressed certain views on investment law in academic
writing rather than others. CC/Devas would therefore decrease the
transparency and predictability of a system that is often criticized for a lack
thereof because it disincentivizes meaningful writing on how investment law
should be applied.

CC/Devas Chilling Effect on Academic Writing

Finally, what concerns me as an academic in investment law is the systemic
effect such challenge decisions have on scholarship in the field. The
challenge in CC/Devas, if considered good law, will disincentives already
established actors in the field to make meaningful contributions to
 26

investment law scholarship as writing a law review article may have the
effect of costing future appointments. At the most, it would produce largely
descriptive accounts of existing practice, while stifling normative arguments
and discussions of yet-to-come disputes. This is usually there will be
exceptions not the type of writing that advances our knowledge and brings
about innovation.
CC/Devas rationale would leave investment law scholarship for people who
only understand themselves as critical observers, who have no intention, nor
in fact the opportunity, to become future actors in practice. Having such
scholars is, of course, not the problem. On the contrary, independent
observers often make the most important contributions because of the
distance they have to practice. What concerns me is the absence of
scholarship that could have great importance for the field, but that is not
produced because the author may harvest ambitions for a practical career.
The challenge in CC/Devas, if adopted generally, could therefore compromise
the proper functioning of an independent academic discourse and indirectly
restrict academic freedom of investment law scholars. Challenge decisions
should not have such an effect. On the contrary, they should respect the
freedom of legal academia and not indirectly create rules for professional
ethics in academia.
In sum, I think that decisions like that in CC/Devas are bad for both
investment arbitration practice and scholarship. Much better are decisions
like that in Urbaser, or the very recent challenge in Repsol v.
Argentina 30that concerned the very same issue and arbitrator
as CC/Devas without finding a lack of independence. I can only hope that the
decision in CC/Devas remains an outlier. Its continued endorsement in future
challenges would not only be harmful to investment arbitration, it would
have detrimental effects on scholarship in international investment law.

30 Repsol v. Argentina:- Repsol SA and Repsol Butano SA v Argentina - ICSID Case No. ARB/12/38
- Procedural Order Taking Note of the Discontinuance of the Proceeding - Spanish - 19 May 2014
 27

. Conclusion

The award in Urbaser v Argentina does create a precedent for a host state human rights

counterclaim. The approach taken by the tribunal makes it easier for counterclaims to fall within

a tribunals jurisdiction. However, the substantive law that can form the foundation of the

counterclaim, consisting of an obligation to abstain is not clearly established based on the texts

referred to by the tribunal. Further, the tribunals final reference to this principle is somewhat

ambiguous. Therefore, the next stage in introducing human rights into ICSID arbitration will be

to determine, with more precision, which rights are capable of forming the basis of host state

human rights counterclaim.

--------------------------

References:- Books
 28

1. R. Dolzer, C. Schreuer, Principles of international investment law (OUP, Oxford 2012)

2. C. McLachlan, L. Shore, M. Weiniger, International Investment Arbitration. Substantive

Principles (OUP, Oxford 2008)

3. M. Sornarajah, The International Law on Foreign Investment (CUP, Cambridge 2010)
4. K. Schefer, International Invastment Law. Text, Cases and Materials, (Elgar publishing,

Massachusetts, 2013)

Links:-
I. http://investmentpolicyhub.unctad.org/ISDS/Details/490
II. http://www.uncitral.org/pdf/english/texts/arbitration/arb-rules-

revised/pre-arb-rules-revised.pdf
III. https://icsid.worldbank.org/en/Documents/resources/2006%20CRR_E

nglish-final.pdf
IV. http://isdsblog.com/2015/11/12/isds-case-summary-maffezini-v-spain/
V. http://www.internationalarbitrationcaselaw.com/new-

cases/enronvtheargentinerepublicannulmentdecisionbyorlandocabrera

c
VI. http://investmentpolicyhub.unctad.org/ISDS/Details/71
VII. https://www.italaw.com/cases/401
VIII. https://www.quimbee.com/cases/cms-gas-transmission-co-v-

argentine-republic
IX. http://investmentpolicyhub.unctad.org/ISDS/Details/68
X. http://investmentpolicyhub.unctad.org/ISDS/Details/68
XI. https://www.italaw.com/cases/1962
XII. https://pcacases.com/web/view/46
 29

XIII. https://www.investorstatelawguide.com/documents/documents/BIT-

0008%20-%20Argentina-Spain%20(1991)%20[english

%20translation]%20UNTS.pdf
XIV. http://investmentpolicyhub.unctad.org/IIA/mostRecent/treaty/154
XV. https://treaties.un.org/doc/publication/unts/volume%201155/volume-

1155-i-18232-english.pdf
XVI. http://www.un.org/en/universal-declaration-human-rights/
XVII. https://treaties.un.org/doc/publication/ctc/uncharter.pdf
XVIII. http://www.echr.coe.int/Documents/Convention_ENG.pdf
XIX. https://www.mygov.in/sites/default/files/master_image/Model

%20Text%20for%20the%20Indian%20Bilateral%20Investment

%20Treaty.pdf
XX. https://www.italaw.com/cases/documents/1466
XXI. https://www.italaw.com/cases/1456
XXII. https://www.international-arbitration-attorney.com/saur-international-

sa-v-republic-argentina/
XXIII. https://www.italaw.com/sites/default/files/case-documents/ita0826.pdf
XXIV. https://www.italaw.com/cases/460
XXV. http://isdsblog.com/2016/08/25/philip-morris-v-uruguay/

Cases:-
1. Philip Morris Brands Srl, Philip Morris Products S.A. and Abal Hermanos

S.A. v. Oriental Republic ofUruguay, ICSID Case No. ARB/10/7 (formerly FTR

Holding ...
 30

2. Suez, Sociedad General de Aguas de Barcelona, S.A.and Vivendi Universal,

S.A. v. Argentine Republic,ICSID Case No. ARB/03/19

3. Republic of Argentina, Decision on Jurisdiction and Liability. 6 Jun

2012. SAUR International SA v.Republic of Argentina, ICSID Case No.

ARB/04/4