Hostname: page-component-78c5997874-lj6df Total loading time: 0 Render date: 2024-11-09T06:41:52.510Z Has data issue: false hasContentIssue false

Emilio Agustín Maffezini v. The Kingdom of Spain

ICSID (Arbitration Tribunal).  28 October 1999 ; 25 January 2000 ; 13 November 2000 ; 31 January 2000 .

Published online by Cambridge University Press:  01 January 2021

Get access

Abstract

Jurisdiction — Competence of arbitration tribunal — Failure to exhaust domestic remedies — Article 26 of the icsid Convention — Consent to icsid conditioned on prior exhaustion of domestic remedies

Jurisdiction — 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 clause

Treaties — Most-favoured-nation (mfn) clause — Failure to exhaust domestic remedies — Reference to other bilateral investment treaties — Ejusdem generismfn applies with respect to dispute settlement arrangements — Public policy limitations of application of third treaty

Jurisdiction — Standing — Article 25 of the icsid Convention — Shareholder of corporation — Personal investment as foreign investor

Jurisdiction — 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 nature

Jurisdiction — Competence of arbitration tribunal — Time of the dispute — Critical date — Natural sequence of events that led to a dispute

Provisional measures — Application requesting Claimant to post guarantee for costs

State 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 activity

Municipal 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 contract

Municipal law — Statute of limitations under Spanish law on claims for compensatory damages against State not applicable to claims filed under icsid Convention

Type
Case Report
Copyright
© Cambridge University Press 2002

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)