Vivendi v Argentina : meaning of fair and equitable treatment

As we reported last week (see Legal update, ICSID tribunal holds Argentina in breach of BIT), in Vivendi v Argentina (ICSID Case no ARB/97/3), an ICSID tribunal has awarded the claimants damages for breach of the Argentina/France BIT provisions relating to fair and equitable treatment and expropriation. This marks the end of the long-running proceedings between Vivendi and Argentina which were commenced over ten years ago.

The main interest of the award lies in the treatment of the fair and equitable standard. The tribunal firmly rejected the respondents' contention that the treaty standard equated to the minimum standard of customary international law, holding instead that a provision requiring "fair and equitable" treatment imposed a more far-reaching standard. The award is also noteworthy for its discussion of the concept of expropriation, and for the approach to the assessment and proof of damages.