Emilio Agustín Maffezini v. The Kingdom of Spain

Abstract

387Jurisdiction — Competence of arbitration tribunal — Failure to exhaust domestic remedies — Article 26 of the icsid Convention — Consent to icsid conditioned on prior exhaustion of domestic remediesJurisdiction — Competence of arbitration tribunal — Failure to exhaust domestic remedies — Whether constituting waiver or forfeiture of right to submit dispute to international arbitration — More favourable provision applied due to most-favoured-nation clauseTreaties — Most-favoured-nation (mfn) clause — Failure to exhaust domestic remedies — Reference to other bilateral investment treaties — Ejusdem generis — mfn applies with respect to dispute settlement arrangements — Public policy limitations of application of third treatyJurisdiction — Standing — Article 25 of the icsid Convention — Shareholder of corporation — Personal investment as foreign investorJurisdiction — Competence of arbitration tribunal — Parties to the dispute — Whether private corporation is a State entity — Structural definition of ownership and control — Functional definition of performing activities of a public natureJurisdiction — Competence of arbitration tribunal — Time of the dispute — Critical date — Natural sequence of events that led to a disputeProvisional measures — Application requesting Claimant to post guarantee for costsState responsibility — Attribution of responsibility for acts and omissions of public agency — Functions of public agency assessed by structural and financial tests — Mixed governmental and commercial nature of agency’s functions — Public agency governed by private law but exercising public functions governed by public law — Functions of public nature entail responsibility — Agency not discharging public function in providing advice and financial information — Decision to increase investment cannot be considered a commercial activityMunicipal law — Loan authorization given on assumption of prior contract — No legally binding contract concluded under Spanish law — No legal obligation with regard to loan — Disinvestment negotiations did not lead to conclusion of contractMunicipal law — Statute of limitations under Spanish law on claims for compensatory damages against State not applicable to claims filed under icsid Convention