The Vivendi Case

France and the Argentine Republic (defendant) entered a bilateral investment treaty (BIT) that protected investments in each other’s territories. Investors could submit investment-related disputes to courts of the nation involved, or to arbitration by the International Centre for Settlement of Investment Disputes (ICSID) or an ad hoc tribunal under UN arbitration rules. French company Vivendi Universal (formerly Compagnie Générale des Eaux) and its Argentine affiliate Compañía de Aguas del Aconquija S.A. (collectively, CGE) (plaintiffs) entered a concession contract to provide water and sewer services to the Argentine province Tucumán. The contract contained a forum-selection clause requiring submission of disputes to the exclusive jurisdiction of Tucumán courts. CGE claimed Tucumán authorities incited customers not to pay bills, imposed improper fines and taxes, and took other concerted action to frustrate the contract. Relying on the BIT forum-selection provision, CGE brought claims before the ICSID, including direct claims that Argentina failed to protect French investors under the BIT (federal claims) and indirect claims attributing the Tucumán authorities’ conduct to Argentina (Tucuman claims). The ICSID tribunal found it had jurisdiction but that resolving some claims required interpreting and applying the concession contract—which required litigation in Tucumán. Therefore, the tribunal dismissed those claims as requiring exhaustion in Tucumán courts. As for other claims, the tribunal found Argentina did not violate the BIT itself or through Tucumán authorities and likewise dismissed. Both sides requested partial annulment.