$185 MILLION AWARD CONFIRMED FOR LOSSES CAUSED BY ARGENTINA’S EMERGENCY LAWS ENACTED IN RESPONSE TO 2002 ECONOMIC CRISIS

On June 24, 2010, we reported on a dispute between BG Group, a British company that invested in Argentinean gas distribution, and Argentina over losses incurred by BG Group after Argentina enacted emergency laws in response to an economic crisis in 2002. A U.S. district court has now confirmed an arbitration award in excess of $185 million over Argentina’s contention that the award violated public policy and was thus improper under the New York Convention. The court’s decision was based upon the following determinations: (1) that the panel correctly found that the governing investment treaty’s condition precedent for suit in Argentinean court to precede arbitration was invalid in light of Argentina’s emergency laws, which made it effectively impossible to comply with that condition; (2) that the arbitration was not an impermissible “derivative claim” brought by a non-party to the investment treaty because the duty that BG Group claimed Argentina violated was a duty contemplated by the treaty to extend to an investor; (3) that in calculating damages, the panel’s consideration of a transaction that occurred four years prior to the economic crisis was not improper because the panel considered it only to assist it in determining BG Group’s fair market value prior to its loss in 2002; and (4) that the award did not run afoul of the “just compensation” prong of the U.S. Takings Clause because the panel had held that no property had been expropriated by Argentina, and in any event, the panel was not an arm of the government, and a “judicial taking” is not an action under the law that is “well defined and dominant” so as to constitute a violation of public policy. Republic of Argentina v. BG Group PLC, Case No. 08-485 (USDC D.D.C. Jan. 21, 2011). This post written by Michael Wolgin.