This past Sunday, the US District Court for the Southern District of New York issued an important decision on the enforceability of an ICSID award under the bilateral investment treaty between Argentina and the US.
The decision relates to the CMS Gas award and is noteworthy for the fact that it deals with issues of first impression such as the assignability of an ICSID award and whether there should be a limitations period in the enforcement of such an award. It is also remarkable given the small number of published US court opinions dealing with the enforcement of ICSID awards.
Factual background
On January 8, 2010, Blue Ridge Investments L.L.C (‘Blue Ridge’) filed a petition in the US District Court for the Southern District of New York to confirm an ICSID award obtained against Argentina five years earlier by initial claimant CMS Gas Transmission Company (‘CMS’). CMS brought a claim against Argentina in 2001. The Tribunal found that Argentina had breached its obligations to CMS under the bilateral investment treaty between the US and Argentina, and awarded $133.2 million plus interest in compensation (the ‘Award’). Argentina has not paid any portion of the Award to date.
In 2008 Blue Ridge purchased the Award, thus becoming its assignee. Soon thereafter, Blue Ridge notified Argentina that it was the successor-in-interest to CMS and sought to enforce the Award in the Southern District of New York. After two previous aborted attempts at enforcement, Blue Ridge again sought to have the award recognised and Argentina moved to dismiss on several grounds, discussed below.
Decision
US District Judge Paul G. Gardephe considered, amongst other things, whether Blue Ridge, as an assignee, lacked standing to seek recognition and enforcement of the Award. Argentina argued that the term ‘party’ as used in Article 54(2) and throughout the ICSID Convention, refers to parties to the underlying arbitration, and therefore, only the original parties can seek recognition or enforcement of an award under Article 54(2).
Judge Gardephe went on to examine the meaning of the term ‘party’ or ‘parties’ under different articles of the ICSID Convention, carrying out a thorough textual analysis before concluding that the ICSID Convention used the term “party” in different ways depending on the meaning of each particular article and that there was nothing in Article 54 that limited the identity of those who could rightfully seek enforcement to the parties to the underlying arbitration. Thus, Blue Ridge, as assignee, was able to seek enforcement.
Furthermore, the court considered whether there should be a limitations period for the enforcement of an ICSID award in the US courts. As regards to limitation period, the Court concluded that under Article 54 of the ICSID Convention “a federal court is to treat the award of the arbitral tribunal as it would be a final judgment from a state court”. Therefore, a 20-year statute of limitations which, under New York law, governs the enforcement of a final money judgment from a court of another state, is applicable in to the enforcement of an ICSID award in the New York courts.
Issues for Discussion
This decision may be seen as an important milestone International Arbitration case law as it may provide a new category of ‘tradable’ awards that can be bought and sold to third parties that may have nothing to do with the initial arbitral proceedings and may, potentially, fall short of satisfying essential requirements for bringing arbitral proceedings in the first place.
Additionally, the application of a 20-year statute of limitations seems controversial given the silence of the ICSID Convention (and, indeed, the U.S. implementing statute) on the matter.
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