Dispute arise from injuries suffered by EAMSA Spanish entity owned by the claimant
Claimant invokes 1991 Argentine-Spain Bilateral Investment Treaty BIT, and by way of most favoured nation MFN clause the Chile-Spain BIT
IV A-S BIT ‘in all matters… treatment shall nor be less favourable than that extended by each party to the investment made by investors of 3rd country’
10(2) Ch-S BIT ‘investor can opt for arbitration after six-month period allowed for negotiations has expired’
Spain objected the Jurisdiction of the ICSID tribunal:
1. Claimant failed to comply with the requirement of art X ‘settlement of disputes’ A-S BIT ‘disputes shall be settle amicably, failure within 6 months then national tribunal. Arbitration only takes place if 18 months after proceedings in court + agreement of parties; since local remedies were not exhausted, and dispute was not submitted to Spanish Court.
2., 3. not analysed here.
Spain argued that A-S BIT wanted the courts to have the opportunity to resolve the case within 18 months
Maffezini replied that it was not the intention because only at the end of the period the party would still be free to take the case to arbitration, regardless of the outcome of court proceedings
If the only argument has been the previous one, the tribunal would have to conclude that because of the failure to present the case to the Spanish courts, the tribunal lacked competence to hear the case