Originally from Journal of Damages in International Arbitration

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I.  INTRODUCTION

On July 17, 2017, a tribunal comprising Judge Thomas Buergenthal (president), Henri C. Alvarez, Q.C. (Claimants’-appointee) and Dr. Kamal Hossain (Respondent’s-appointee)  issued an award concerning allegations that Argentina had violated the Argentina-Spain bilateral investment treaty (the “Treaty”), international law, Argentine law and commitments and representations it made to the Claimants, by unlawfully re-nationalizing and taking other measures related to their investments in two Argentine airlines and their subsidiaries. Argentina also made a counterclaim.  The Tribunal held Argentina liable for breaching the Treaty’s fair and equitable treatment standard by its conduct related to the Parties’ July 2008 Agreement, and the Treaty’s expropriation provision by taking the Airlines “not in accordance with the law” and without “adequate compensation.”  The Tribunal awarded damages of USD 320,760,000 for those Treaty breaches plus interest and ordered Argentina to contribute over USD 3 million to the Claimants’ legal and other costs.  It rejected Argentina’s counterclaim.  Dr. Hossain issued a separate dissent, which this Note does not discuss.

II.  FACTUAL BACKGROUND

A. Claimant’s Ownership of the Airlines

In 2001, Sociedad Estatal de Participaciones Industriales  (“SEPI”), a holding company owned by the Spanish government, owned Aerolíneas Argentinas S.A. (“ARSA”) and Austral-Cielos del Sur S.A. (“AUSA”) (collectively, the “Airlines” or the “Argentine Airlines”) through an Argentine intermediary company called Interinvest.  SEPI owned 99.2% of Interinvest, and Interinvest, in turn, held 92.1% of ARSA’s shares and 90% of AUSA’s shares.