## Facts

- A French investor (Compagnie Générale des Eaux, later Vivendi Universal S.A.) and its Argentine affiliate (Compañía de Aguas del Aconquija S.A.) held a 30-year concession (1995) to operate water and sewerage services in the Province of Tucumán, Argentina.
- The concession involved tariff increases and obligations to expand and improve service quality.
- After a change in provincial government, provincial authorities publicly challenged tariffs and performance and sought changes to the concession’s terms.
- Public controversy over service quality and regulatory measures contributed to widespread non-payment by customers and severe financial deterioration of the concession.
- The concession contract included an exclusive forum clause assigning disputes to Tucumán’s administrative courts; Argentina (the federal state) was not a party to the concession contract.
- The investors filed an ICSID claim under the France–Argentina BIT, alleging treaty breaches including fair and equitable treatment, full protection and security, and unlawful expropriation.

## Issues

1. Whether treaty claims under a BIT remain legally distinct from contract claims arising from the same facts.
2. Whether a contractual exclusive-forum clause can preclude or limit adjudication of BIT claims in ICSID arbitration.
3. Whether a tribunal that affirms BIT jurisdiction may nonetheless decline to decide significant treaty claims by characterizing the dispute as contractual.
4. Under ICSID Convention Article 52(1)(b), what constitutes a “manifest excess of powers” warranting annulment.

## Decision

- The 2000 tribunal accepted jurisdiction under the BIT but dismissed the investors’ BIT claims on the merits, treating the dispute as essentially contractual and directing contractual disputes to Tucumán’s administrative courts under the forum clause.
- In 2002, an ICSID ad hoc committee partially annulled the award under Article 52(1)(b), holding that the tribunal manifestly exceeded its powers by accepting jurisdiction yet failing to decide a significant portion of the BIT claims.
- The committee emphasized annulment is not an appeal and is limited to Article 52 grounds, applying a “plain” or “obvious” standard to “manifest” excess of powers.
- The committee rejected annulment based on serious departure from a fundamental rule of procedure and, after partial annulment for excess of powers, did not annul for failure to state reasons beyond the affected portions.

## Legal Principles

- Contract claims and treaty claims are distinct; the presence of contractual rights and remedies does not exclude treaty-based claims arising from the same facts.
- A contractual exclusive-forum clause does not, by itself, extinguish or override treaty-based consent to ICSID arbitration for properly pleaded BIT claims within the tribunal’s jurisdiction.
- A tribunal that assumes jurisdiction must decide the treaty claims within its competence; declining to do so may constitute a manifest excess of powers under ICSID Convention Article 52(1)(b).
- ICSID annulment is a limited remedy (not merits review) confined to Article 52 grounds, but it can address structural failures to exercise accepted jurisdiction.

## Conclusion

The annulment decision held that, after accepting BIT jurisdiction, an ICSID tribunal cannot avoid deciding substantial treaty claims by treating them as contract disputes governed by a local forum clause; doing so may be a manifest excess of powers warranting partial annulment under Article 52.


Compañía de Aguas del Aconquija S.A. & Vivendi Universal S.A. v. Argentine Republic, ICSID Case No. ARB/97/3 (Annulment Decision July 3, 2002)