COLLECTIVE ACTIONS IN ICSID ARBITRATION: THE ARGENTINE BONDS CASE

Abstract

This comment deals with collective actions in ICSID arbitration. This topic has emerged as one of the hottest issues in international investment law after the recent Decision on Jurisdiction and Admissibility in the case Abaclat and others v. Argentina. In this decision the majority of the ICSID Arbitral Tribunal considers as admissible the collective action of about 60,000 Italian bondholders represented by the Association for the Protection of Investors in Argentine Securities. The decision issued by the Abaclat Tribunal could open the way to mass claims in international arbitrations based on international agreements on the protection of foreign investments (so-called BITs), brought by holdout creditors in case of sovereign insolvency. A critical review of some selected issues dealt with by the Tribunal will be presented. First of all, this comment addresses the qualification of the Italian investors’ mass claims as treaty claims (rather than as contractual claims). Secondly, the qualification of the claimants’ security entitlements in the Argentine bonds as investments made in Argentine territory pursuant to the Argentina-Italy BIT is analysed. Finally, the method and reasoning followed by the Tribunal in order to admit bondholders’ mass claims under BITs in ICSID arbitration are critically discussed. In this respect, the conclusion is drawn that the Tribunal has conflated questions regarding subjective jurisdictional requirements under the ICSID Convention and Argentina-Italy BIT with questions of claims’ admissibility, as well as issues related to parties’ consent to ICSID arbitration with mere procedural issues.