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- Headnote
- Decision [eng]
- List of Abbreviations
- I Introduction
- II Procedural history
- III Requests for Relief
- IV Factual Background of the Dispute
- 63
- A The Privatization of the Gaming Sector in the Province of Salta
- B Development of Claimants’ Investment
- C Development of Regulatory Framework and License Fee in the Province of Salta
- D Investigations and Sanctions Prior to the Revocation of ENJASA’s License
- E ENREJA’s Investigations Leading up to the Revocation of ENJASA’s License
- F Revocation of ENJASA’s License and Subsequent Events
- V Arguments of the Parties on Liability
- 134
- A Claimants’ Arguments on the Facts
- B Claimants’ Analysis of the Law
- C Respondent’s Analysis of the Facts
- 224
- 1 Motives for Revoking ENJASA’s Gaming License
- 2 Administrative Inquiries and Sanctions between 2007 and May 2013
- 3 The Revocation of ENJASA’s License Constituted a Regular Exercise of ENREJA’s Powers
- D Respondent’s Analysis of the Law
- VI The Tribunal’s Analysis of Respondent’s Liability
- 305
- 306
- 307
- 308
- 309
- A Applicable Law and Causes of Action
- B Expropriation
- 318
- 319
- 320
- 321
- 322
- 1 Breach of Article 4(1) and (2) of the BIT
- a) The Relevant Legal Principles
- b) Application of the Legal Framework to the Facts of the Case
- 352
- (1) Permanent and Substantial Deprivation of Claimants’ Investment
- (2) ENREJA’s Use of Its Regulatory Powers
- 2 Claim for Breach of Article 4(3) of the BIT
- C Fair and Equitable Treatment
- D Conclusion on Respondent’s Liability
- VII Quantum
- VIII Costs
- IX Decision
- Dissenting Opinion
- Introduction
- A The Subject-Matter and Nature of the Dispute, and the Tribunal’s Competence and Function
- B The Applicable Law
- C The Burden of Proof
- D Claimants’ Claim and the Rule of Previous Exhaustion of the Local Remedies of the Respondent State
- E The Duty to Make Reparation
- Part I: on the Customary Rule of International Law Invoked By Respondent which Sets Forth that a State is Not Bound to Compensate an Alien for Potential Adverse Effects Arising from the Exercise by its Competent Agencies of the State’s Regulatory and Police Powers
- A The Customary Nature of the Rule and Applicability thereof to the Instant Case
- B General Acknowledgement of the Rule Applicability to International Arbitrations on Foreign Investments
- C International Arbitral Tribunals’ Deference toward Decisions Adopted in the Domestic Forum by the State’s Competent Body
- D The High Level of Demand of the Exceptions to the Rule
- E Claimants’ Admission of the Existence of a Customary Rule of International Law Concerning the State’s Exercise of its Regulatory and Police Powers, and Challenge to the Application of the Rule in the Instant Case
- F The Treatment Given to the Customary Rule of International Law Invoked by Respondent and Admitted by Claimants in the Majority Award
- G Conclusion on the Customary Rule Invoked by Respondent
- Part II: On Respondent's Potential International Responsibility for the Internationally Wrongful Acts Alleged by Claimants
- 101
- A Claimants’ First Claim: Alleged Violation of Article 4(1) and (2) of the TBI by Respondent (Indirect Expropriation)
- (a) Relevant Texts
- (b) Consideration of the Claim
- (i) The Revocation of ENJASA’s License Was Not an “Indirect Expropriation”
- (ii) The So-Called “Sole Effects” Doctrine is not Applicable to This Case
- (iii) The Arbitral Practice and Contemporaneous Authors Reject the “Sole Effects” Doctrine
- (iv) Were Licensee’s Rights Subject to Expropriation?
- (v) Has There Been Complete or Near Complete Deprivation of Value or Control of Claimants’ Investment?
- (vi) The Power of the Regulatory Agency as the Enforcement Authority to Take Action for Violation or Breach of Article 5 of Law No. 7020, as Amended by Law No. 7133
- (vii) The Final Nature of ENREJA’s Revocation Sanction and Considerations and Conclusions of Resolution No. 240 on the Violations or Breaches by ENJASA of Article 5 of Law No. 7020
- (viii) Claimants Have Failed to Establish their Allegations Exempting ENJASA from Liability for its Violations or Breaches of the Obligations to Prevent Money Laundering under Article 5 of Law No. 7020
- (ix) Due Process and ENJASA’s Right of Defense Were Observed at All Times
- (x) The Proportionality of the Sanction Imposed by ENREJA
- (c) Conclusion on Claimants’ First Claim
- B Claimants’ Second Claim: Alleged Violation by Respondent of Article 4(3) of the BIT (Direct Expropriation)
- C Claimants’ Third Claim: Alleged Violation by Respondent of Article 2 (1) of the BIT (Fair and Equitable Treatment)
- (a) Relevant Texts
- (b) Consideration of the Claim
- (i) The Prior Question of Distinction between Company Rights and Their Shareholders’ Rights
- (ii) Respondent's Position on the Content and Scope of the “Fair and Equitable Treatment” Standard
- (iii) The Content and Scope of the “Fair and Equitable Treatment” Standard Invoked by Claimants
- (iv) Applicability of Customary International Law to the Determination of the Content and Scope of the “Fair and Equitable Treatment” Standard
- (v) Claimants’ Assertion that Respondent Has Violated its Self-Defined “Fair and Equitable Treatment” Standard is Wrong
- (vi) Claimants’ Allegations on Arbitrariness, Due Process and the Right of Defense, Denial of Justice and Legitimate Expectations Have Not Been Proved
- (vii) The Underlying Reasonableness of the Sanction Revoking the License
- (viii) Assessment and Extent of the Sanction and the Alleged Proportionality Criterion
- (ix) On the Political Conspiracy Alleged by Claimants
- (c) Conclusion on Claimants’ Third Claim
- Part III: General Conclusion
- Part IV: The Compensation Awarded to Claimants by the Majority Award
- Part V: The Silence in the Majority Award on Claimants’ Contribution to the Injury Alleged Thereby
- Part VI: The Decision in the Majority Award on the Costs of the Arbitration
- Part VII: The References of the Majority Award to the Present Dissenting Opinion
- Decision PDF [eng]
- [3.80.4.147]
- 3.80.4.147
