Ambiente Ufficio S.p.A. and others v. Argentine Republic, ICSID Case No. ARB/08/9 (formerly Giordano Alpi and others v. Argentine Republic), Dissenting Opinion of Santiago Torres Bernárdez (May 2, 2013)
1. I regret to dissent from the majority’s decision entirely, the reason being that I uphold most of the preliminary objections submitted by the Respondent in the present case, except the second part of objection (b) because it has not been proved to my satisfaction that Claimants consciously committed a bad faith abuse of right by instituting the present proceeding through the filing with ICSID of the Request for Arbitration of 23 June 2008. Moreover, the relationship between NASAM and Claimants in the present case is not as stringent as the relationship between TFA and Claimants in the Abaclat and others v. Argentine Republic case.
2. I part ways therefore with my co-arbitrators for a series of outstanding reasons which, in my opinion, prevent the present Tribunal - an ICSID international tribunal - from taking jurisdiction in the case. These reasons, grounded on public international law considerations and the submitted argument and evidence, may be summarized as follows:
(1) The Argentine sovereign debt instruments at the basis of the Claimants’ claims (“security entitlements” in Argentine sovereign bonds) do not constitute a “protected investment” under the ICSID Convention because the alleged “investments” were made without any intent to perform any economic activity in the host country or in connection with any particular project related to an activity of that kind in that country, as confirmed by the fact that none of the alleged “investments” were done “in the territory of the Argentine Republic” in the sense of Article 1(1) and (4) of the 1990 Argentina-Italy BIT;
(2) Consequently, the Italian holders of the said “security entitlements” as defined in Article 1(2), of the Argentina-Italy BIT are not prima facie “protected investors” either because they are not physical or juridical persons of a Contracting Party who have made, are making or have assumed an obligation to make investments in the territory of the other Contracting Party, but in the circumstances of the case the objection does not possess an exclusively preliminary character.