BA Desarrollos LLC v. Argentine Republic

Case summary

At a glance

Parties: BA Desarrollos LLC (United States, Delaware) v. the Argentine Republic
Case no.: ICSID Case No. ARB/23/32
Forum and rules: ICSID Convention arbitration; ICSID Arbitration Rules in force as of 1 July 2022; place of proceeding Washington, D.C.
Treaty: United States–Argentina BIT (signed 14 November 1991, in force 20 October 1994)
Tribunal: Ms. Deva Villanúa (President), Mr. Stephen L. Drymer, Mr. Luis Alberto González García
Sector: Real estate development (Catalinas Norte II, Buenos Aires)
Outcome: Pending. The published documents are procedural orders only. Bifurcation was refused by majority (9 September 2024), and the hearing on jurisdiction and merits was fixed for 20–23 October 2025. The documents do not show the outcome.
Amount: Amount claimed not stated in the published orders. Fideicomiso BAP paid a total of USD 49.08 million for the two plots. Argentina declined to pay its share of ICSID's USD 400,000 advance, leaving USD 200,000 outstanding.

The dispute

BA Desarrollos LLC is a Delaware limited liability company set up as a special purpose vehicle of the EMS Group and managed by EMS Capital LP of New York. It constituted the Argentine real estate trust Fideicomiso BAP. In August 2018 the trust was awarded two plots (Plots 2 and 3) in the Catalinas Norte II area at auctions run by Argentina's State Property Management Agency (AABE), paying a total of USD 49.08 million, but the deeds were never executed. The claimant says Argentina obstructed the project and then expropriated it, breaching fair and equitable treatment, the bar on arbitrary or discriminatory measures and the bar on uncompensated expropriation (Articles II(2) and IV of the BIT). Argentina objects that it validly denied the BIT's benefits under Article I(2) because the claimant is controlled by third-country nationals and has no substantial business activities in the United States. It also argues that there is no investment, only an unfinished land sale, and that the trust's administrative claim of 30 December 2020 triggered the fork-in-the-road clause in Article VII; it adds that the auction terms gave jurisdiction to the courts of the City of Buenos Aires.

Key holdings

Bifurcation refused by majority. Argentina had reserved the right to raise further jurisdictional objections, so the Tribunal applied a higher standard. The denial-of-benefits objection is contested, including whether it was invoked too late. The lack-of-investment and fork-in-the-road objections are closely intertwined with the merits. PO No. 7, ¶¶ 17–18, 26, 29, 34–36, 45
A non-bifurcated procedure is more efficient: bifurcation would save at most about three months if the objections succeeded, but would add about a year and a half if they failed. Luis Alberto González García dissented on the denial-of-benefits objection, which he considered serious, unrelated to the merits and capable of disposing of the whole claim. PO No. 7, ¶¶ 40–41 and fn. 32
The United States may file a non-disputing Treaty Party submission on the interpretation of the BIT under ICSID Arbitration Rule 68. Its request for the case documents was rejected because the claimant objected, and Rule 68(3) allows documents to be shared only if neither party objects. PO No. 9, ¶¶ 12–15
The respondent is the Argentine Republic, not its counsel the Procuración del Tesoro. Documents in the file of the Federal Criminal and Correctional Court No. 11 are therefore in Argentina's possession, and Argentina must make its best efforts to produce them. A party may not redact documents already ordered to be produced on the basis of its own view that they are irrelevant; it may redact only on grounds such as privilege or confidentiality, and purely factual information must be disclosed. PO No. 10, ¶¶ 25–28, 38–40, 49
Under Rule 64 a party may have its own written submission published and the other party can only contest redactions. But the Tribunal refused to extend the United States' deadline so that it could read Argentina's published Counter-Memorial: that would use Rule 64 to sidestep PO No. 9 and Rule 68(3), and would disrupt the proceeding. PO No. 10, ¶¶ 58–59; PO No. 11, ¶¶ 12–14
Argentina's request to postpone the hearing because its counsel were involved in the Petersen appeal was refused. The earliest alternative date was February 2026, a delay of about four months that would be disproportionate. The hearing was set for 20–23 October 2025, with no closing statements and post-hearing briefs due by 12 December 2025. PO No. 12, ¶¶ 26–30
Redactions before publication follow ICSID Arbitration Rules 63 and 66. Information that is already public, such as the role of EMS Capital and Mr. Safra's ownership and nationalities, cannot be redacted. The identity and statement of the claimant's witness, and non-public information on AABE claims, may be withheld. PO No. 4, ¶¶ 26–27, 31–32, 39, 43, 45