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By Louis M. Solomon
We have posted on the role of class or other collective actions in international litigation,
both in the U.S. and elsewhere. The issue is also pertinent to the question
we have also discussed in various contexts: whether class or collective actions are available in the arbitration
Comes now an arbitral panel in the International
Centre for Settlement of Investment Disputes, or ICSID, and in a 282 page preliminary
decision on jurisdiction and admissibility finds that roughly 60,000 Italian bondholders
can join together to bring claims against the Republic of Argentina, Abaclat
and Others v. Argentina, ICSID Case No. ARB/07/5. The default by Argentina
is the same default that has occupied so much time of the U.S. courts (see our postings,
for example, reflecting the District Court's and Second Circuit's treatment of the Argentine
The claimants did not institute individual
arbitral proceedings. Rather, they eight of the major Italian banks
formed what in English the Panel calls Task Force Argentina, which was formed as
an association under Italian law. The TFA then contracted with individual
bondholders. TFA was given authority to negotiate and then sue.
The award is noteworthy from an international
practice perspective for the following reasons:
First, the decision addresses the
question of whether "mass" claim liability was consented to by the relevant persons.
Unlike most class action litigation in the U.S., the ISDIS panel drew a distinction
between who was objecting, the claimants/plaintiffs or the respondents/defendants.
Here it was not the claimants but the respondents who were objecting, and the panel
therefore imposed a different standard of analysis. The panel addressed the
ICSID rules concerning the eligibility of a person to participate in an ICSID arbitration
and rules concerning the conduct of such arbitration. Finding that the "Tribunal
must verify the existence of a consent, as an objective condition to its jurisdiction",
it found that there were no formal requirements imposed by the bilateral treaty
under which the mass claims were made and ultimately determined that the manner
of expressing consent to sue here was valid.
Second, the decision addresses what it
calls the question of "admissibility". The use of the term by the Panel appears
different from the way a US court would use the term. The Panel means something
akin to whether the ICSID framework could legally, structurally, practically
accommodate the "mass" aspect of the claim. The Panel rejected Argentina's
arguments that the ICSID framework "does not provide [for] and does not allow mass
claims"; rejected as well the argument that because a mass claim "resembles more
a type of class action" that it was therefore not cognizable under the ICSID rules;
and rejected finally a welter of practical objections (e.g., unmanageability).
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