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A Re-run of Siemens, Wintershall and Hochtief on Most-Favoured-Nation Clauses: Daimler Financial Services AG v Argentine Republic

2015; Oxford University Press; Volume: 30; Issue: 2 Linguagem: Inglês

10.1093/icsidreview/siv004

2049-1999

Sarah Wordsworth, Colin Brown,

Corporate Law and Human Rights

The Decision on Jurisdiction of the ICSID Tribunal in Siemens AG v Argentine Republic was noteworthy for following the Emilio Agustín Maffezini v Kingdom of Spain approach in permitting the claimant to invoke the most-favoured-nation (MFN) provision in order to access an investor–State dispute settlement (ISDS) provision in another bilateral investment treaty (BIT).4 Whether MFN provisions can be used in this way has of course proved to be one of the more enduringly controversial questions in investment treaty arbitration.5 In Daimler Financial Services AG v Argentine Republic,6 this issue was a re-run: a claim under the same Germany–Argentine Republic BIT (the BIT),7 and with two of the arbitrators who sat in the Siemens case: Professor Domingo Bello Janeiro (appointed by the Argentine Republic) and Judge Charles Brower (appointed by the Claimant, Daimler Financial Services AG). Professor Pierre-Marie Dupuy served as President of the Tribunal in Daimler. Judge Brower had, in the meantime, also been a member of the ICSID Tribunal in HOCHTIEF v Argentine Republic, which (by majority) followed the result in Siemens.8 But this time, the Tribunal decided by majority that the MFN provisions in the BIT did not permit Daimler to access the ISDS provision in another BIT (the Chile–Argentine Republic BIT), thus deciding the issue consistently with the Tribunal in ICS Inspection and Control Services Ltd v Argentine Republic, of which Professor Pierre-Marie Dupuy was also President.9 Judge Brower issued a Dissenting Opinion, in which he disagreed ‘in vivid terms’ with the Award’s MFN analysis;10 and Professor Bello Janeiro explained in his Opinion how he had modified his views since the Decision on Jurisdiction in Siemens.11 The Award in Daimler has recently survived an Application for Annulment,12 making it timely to consider the issues raised and decided by the Tribunal.