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International Arbitration Forum

Abertis Infraestructuras, S.A. v. Argentine Republic

Case summary

At a glance

Parties
Abertis Infraestructuras, S.A. (Spain) v. the Argentine Republic
Case no.
ICSID Case No. ARB/23/39
Forum and rules
ICSID Convention arbitration; ICSID Arbitration Rules in force from 1 July 2022; place of proceeding Washington, D.C.; language Spanish
Treaty
Spain–Argentina BIT, signed in Buenos Aires on 3 October 1991, in force since 28 September 1992
Tribunal
Deva Villanúa (President), Elisabeth Eljuri, Loretta Malintoppi
Sector
Toll-road concessions; infrastructure
Outcome
Pending. The published documents are procedural orders only: bifurcation refused (2 July 2024), document production decided (30 December 2024), and redactions decided (12 March 2025).

The dispute

Abertis, a Spanish company, holds shares in Autopistas del Sol S.A. (Ausol) and Grupo Concesionario del Oeste S.A. (GCO), the concessionaires of the main road accesses to Buenos Aires. Abertis had brought an earlier ICSID arbitration over Argentina's measures of January 2002. It discontinued that arbitration after it signed two Comprehensive Agreements (Acuerdos Integrales) with Argentina in June 2018. Abertis alleges that from 2020 Argentina froze tariffs indefinitely, refused to apply the direct-compensation mechanism for the tariff deficit, pursued criminal proceedings against the officials who signed the Agreements and announced it would nationalise the concessions. It also alleges that in October 2022 Argentina brought domestic acciones de lesividad to have the Agreements declared invalid. Abertis claims a breach of fair and equitable treatment under the BIT, while Ausol and GCO pursue separate commercial arbitrations under the Agreements. Argentina objects that the claim is contractual and premature, that the investment is illegal, and that Abertis did not litigate in Argentine courts for 18 months as Article X of the BIT requires.

Key holdings

  1. Bifurcation refused. Jurisdiction and merits will be heard together, and the decision on the costs of the bifurcation incident is reserved. Procedural Order No. 2, ¶ 54
  2. The same State acts can be both a breach of contract and a breach of treaty standards. In the Tribunal's preliminary view, parallel commercial and domestic proceedings are not in themselves a reason to decline jurisdiction. Whether the claim is purely contractual is intertwined with the merits. Procedural Order No. 2, ¶¶ 30–32
  3. Abertis's investment is its shareholding in Ausol and GCO and the concession rights, whose legality Argentina did not appear to challenge. Any illegality of the Comprehensive Agreements would therefore not by itself make the investment illegal. Its effect on the claims is a merits question. Procedural Order No. 2, ¶¶ 37–38
  4. The objection based on the 18-month domestic-litigation requirement and the reach of the MFN clause (Article IV) is not obvious. Applying a heightened standard, the Tribunal found it not strong enough prima facie to justify bifurcation, although the tribunal in Abertis's first arbitration had bifurcated on the same objection. Argentina had also reserved the right to raise further objections later. Procedural Order No. 2, ¶¶ 19–21, 45–46
  5. On efficiency, not bifurcating costs nine extra months if jurisdiction is declined, against eleven extra months if the case is bifurcated and jurisdiction is upheld. The risk of inefficiency falls mainly on Abertis, which is paying the advances because Argentina suspended its payments. Procedural Order No. 2, ¶¶ 49–51
  6. Document requests were decided by reference to Articles 3 and 9 of the IBA Rules (2020). The order sets out criteria for legal privilege and allows redaction or a privilege log, and it warns of adverse inferences for unjustified refusal to produce. Procedural Order No. 3, ¶¶ 16–31, 35
  7. Under ICSID Rule 63, transparency covers the Tribunal's decisions but not the parties' submissions. Only the Tribunal's decision column of the document-production annexes is subject to publication; the parties' pleaded positions remain protected. Procedural Order No. 3 is published in full. Publication of the decision column was postponed so that Abertis could propose specific redactions by 17 March 2025. Procedural Order No. 4, ¶¶ 37–43

Procedural history

  1. 31 August 2023After registration of the request for arbitration, ICSID asks Abertis for a USD 200,000 advance.
  2. 27 November 2023Tribunal constituted.
  3. 28 February 2024Argentina announces that it is suspending payment of advances. On 7 March 2024 Abertis pays USD 199,976.00 in its place.
  4. 13 March 2024Procedural Order No. 1 sets the procedural rules and alternative timetables. The timetable annex is updated on 27 March 2024.
  5. 9 April 2024Abertis files its Memorial on Jurisdiction and Merits. Argentina requests bifurcation on 24 May 2024.
  6. 2 July 2024Procedural Order No. 2: bifurcation refused.
  7. 30 December 2024Procedural Order No. 3 decides the parties' document production requests.
  8. 12 March 2025Procedural Order No. 4 decides the redaction dispute over the annexes to Procedural Order No. 3.
  9. 17 November 2025Procedural Order No. 5 (redacted) issued; its text is not included here.
  10. 3 March 2026Procedural Order No. 6 issued; its text is not included here.

Tribunal, counsel and experts

Decided by
For the claimant
Freshfields Bruckhaus Deringer · Marval, O'Farrell & Mairal · Abertis Infraestructuras, S.A.
For the respondent
Procuración del Tesoro de la Nación

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Keywords

Summary generated with AI from the published documents — refer to the award for the authoritative text.

Case ID
ICSID Case No. ARB/23/39
Country
Economic sector
Treaty
Spain - Argentina BIT (1991)
Section