HasAbaclat v Argentinaleft the ICSID with a ‘mass’ive problem?

Abstract

This article seeks to analyse the impact of the award on jurisdiction in Abaclat v Argentine Republic . Specifically, the article discusses whether the tribunal’s decision to allow ‘mass arbitrations’ within the ICSID (International Centre for Settlement of Investment Disputes) framework withstands scrutiny. An attempt is made to define mass arbitrations as a form of multiparty arbitrations with two key features—the presence of a high number of claimants and issues that are ‘sufficiently similar’. On this foundation, the article first highlights that ‘mass arbitrations’, as understood in Abaclat , do not require claimants to obtain additional consent from a respondent state. This is because multiparty proceedings (of which ‘mass arbitrations’ are a form) are permitted under Article 25 of the ICSID Convention. The article then presents three possible challenges to admissibility—bifurcation of proceedings, appointment of experts, and collection of evidence—and argues that these are permitted in ICSID jurisprudence since they are procedural devices which a tribunal is qualified to adopt under Article 44 of the ICSID Convention. Finally, the article dismisses possible due process concerns that Abaclat -type ‘mass arbitrations’ could raise. The article concludes with a suggestion to adopt specific rules on ‘mass arbitrations’ in the form of Additional Facility Rules, given the growing examples of multiparty investment disputes. Abaclat and ors v Argentine Republic , ICSID Case No ARB/07/5, Decision on Jurisdiction and Admissibility, IIC 504 (2011) Ambiente Ufficio S.p.A. and ors v Argentine Republic , ICSID Case No ARB/08/9, Decision on Jurisdiction and Admissibility, IIC 576 (2013) Guaracachi America, Inc & Rurelec plc v Plurinational State of Bolivia , PCA Case No 2011–17, Award, IIC 628 (2014)(ICSID) Convention on the Settlement of Investment Disputes between States and Nationals of other States (1965), arts 25, 43, 44ICSID Rules of Procedure for Arbitration Proceedings (2006), Rules 19, 34UNCITRAL (United Nations Commission on International Trade Law) Arbitration Rules (2010), art 17