ICSID Tribunals and Sovereign Debt Restructuring-Related Litigation: Mapping the Further Implications of the Alemanni Decision

Abstract

First paragraph: In the aftermath of the sovereign debt restructuring (SDR) that was implemented by Argentina, aggrieved bondholders who did not accept the conditions of the debt exchange took different legal avenues to recover the amounts invested. Whereas some of them initiated actions before national courts, other investors decided to lodge their complaints with the International Centre for Settlement of Investment Disputes (ICSID) and succeeded in obtaining favourable decisions on jurisdiction. Certainly, the claims brought by bondholders under the bilateral investment treaty (BIT) between Argentina and Italy (Abaclat, Ambiente Ufficio and Alemanni) represent a turning point in the investment arbitration regime. In particular, the Decision on jurisdiction in Abaclat constituted a landmark in ICSID arbitration and a major event in terms of the evolution of foreign investment law (FIL), demonstrating the capacity of the ICSID system to adjust to changing circumstances. The Ambiente Ufficio Tribunal built on this Decision. More recently, on 17 November 2014, the Tribunal in Alemanni issued its Decision on jurisdiction in which it rejected most of the preliminary objections posed by the respondent State and allowed the claim to proceed. Even if this last case involved fewer investors and less money, it contributes to the current scholarly debate regarding ICSID jurisdiction on sovereign debt bonds.