Book Chapter
Reference
Water and economics : trends in dispute settlement procedures and practice
BOISSON DE CHAZOURNES, Laurence
BOISSON DE CHAZOURNES, Laurence. Water and economics : trends in dispute settlement procedures and practice. In: Brown Weiss, Edith, Boisson de Chazournes, Laurence &
Bernasconi-Osterwalder, Nathalie. Fresh water and international economic law . Oxford : Oxford University Press, 2005. p. 333-365
Available at:
http://archive-ouverte.unige.ch/unige:12861
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14
Water and Economics: Trends in Dispute Settlement Procedures
and Practice
LAURENCE BOISSON DE CHAZOURNES
1. INTRODUCTION
ComperÎng demands over freshwater resources may cesult in tensions. In sorne instances, rhere are outright disputes between usees of freshwater whose requirements and uses contliet with those of other usees. Water disputes are notably compounded by the steady increase in the world's population and the pressures arising therefrom. Every region of the world today is afflicted with international water disputes.
Water disputes concern both quantity and quality and are triggered by various factors, including economie orres. To date, dams, diversions, water-quality issues, and, more recently, investment mattees have been major causes of dis- putes. The case law of the Permanent Court of International Justice (PCIJ), the International Court of Justice (ICJ), and the Permanent Court of Arbitration (PCA) is illustrative of this situation. Ta cite two examples, the Gabakouo- Nagymaros case adjudicated by the ICJ in 1997 involving the building of a system of locks,l and the case conceming the application of the Convention on the Protection of the Rhine against Pollution by Ch/orides (1976 Rhine Con- vention), submitted by the Netherlands and France to the PCA,2 addressed water-qualiry issues. Concession agreements regarding water and sewage ser- vices are core questions in several recent cases referred to arbitral tribunals coo- stituted under the aegis of the International Centre for Settlement of Investment Disputes (ICSID).3 Moreover, several requests brought to the Word Bank
1 Case concerning the GabakoIJo-Nag)'maros Project (Hungary/Slovakia), ICJ (25 September 1997), available at www.icj-cij.org.
2 Case concerning the application of the Convention on the Protection of the Rhine against Pollution by Ch/orides (3 December 1976) and its Additional Protocol (2S September 1991), NetherlandsIFrance Final Award (12 March 2004), www.pca-cpa.org (only French text available). For the text of the Convention see UNTS, 1404 (1985), at 91. Forthe textofthe Protocol, see UNTS, 1840 (1994), at423.
3 See, among othees, Compaiiia de Aguas dei Aconqui;a, S. A. and Compagnie Générale des Eaux u.
Argentine Republic (ICSID Case No. ARB/97/3), Award (21 November 2001), ICSID Review-FIL]
16 (2001); Aguas dei Tunari S.A. u. Republic of BoUvia (Case No. ARB/02l3) still pending. See infra.
334 Laurence Boisson de Chazournes
Inspection Panel are related to projects involving the construction of large-scale water infrastructure.4 These examples illustrate both the importance and the extent of the relationship between water and economies. In the present con- tribution, these relationships, including (rade and investment issues, will be broadl y construed.
The progressive erosion of the traditional reluctance on the part of States to commit themselves, in advance, to juclicial and quasi-judicial dispute settlement mechanisms5 has coincided with the considerable progress made towarcls the institutionalization of dispute settlement facilities. In the last decade new per- manent courts and institutionalized arhitration bodies,6 vesred wirh broad subject-matter jurisdicrion, have begun operating. In addition to courts and other permanent adjudication mechanisms, several investigatory procedures have a1so recently emerged. These mechanisrns include the World Bank Inspection Panel, as weIl as rhe parallel investigation procedures adopted by the Inter-American Bank, the Asian Development Bank, and the European Bank for Reconstruction and Development.7 Other mechanisrns to add to this list include those established in the environmental and human rights areas, such as UN treaty bodies, regional human rights courts, and the newly established compliance mechanism under the Aarhus Convention on Access to Information, Public Participation in Decision- Making and Access to Justice in Environmental Matters (Aarhus Convention).8 The multiplication of dispute settlement mechanisms and procedures has an impact on the resolution of water disputes. On the one hand, the existence of various dispute settlement mechanisms and procedures gives States and other actors the opportunity to bring their corn plaints belore these bodies.
On the othec hand, ir raises the issue of potential conflicts between different Interpretations of specialized fields of law (for example, environmental and
4 See Mbenglle & Tignino and Cllllet & Gowlland-Gualtieri's chapters in this book. '
s See, e.g., United Nations Conuention on the Law of the Sea, 12 December 1982, 21 !LM (1982) 1261; WTO Understanding on Ru/es and Procedures governing the Settlement of Disputes 15 April 1994, 33 !LM (1994); Protocol No. Il to the Convention for the Protection of Human Rights and Fundamental Freedoms, 11 May 1994, ETS 155; Treaty of Amsterdam, 2 October 1997, OJ le 340) 173.
6 As an example, in Africa five new courts have been established, namely: the African Court of Human Rights, the Court of Justice of the Common Market of Eastern and Southern Africa, the Court of Justice of the Economie Community of West Africa, the Southern Afriean Development Community Tribunal, and the Court of Justice of the Union économique et monétaire Ouest Af~ic
aine. One should also note the establishment of: the Court of the European Economic Area, the Economie Court of the Commonwealth of Independent States, the Central American Court of Justice, the Caribbean Court of Justice, the International Criminal Court, the International Tribunal on the Law of the Sea, and the wro Appellate Body. One can also refer ta the institutionalized bodies introduced in the North American Free Trade Agreement (NAFT A) and in the MERCOSUR.
7 The Compliance Advisor and Ombudsman (CAO) Office ereated by the International Finance Corporation/Multilateral Investment Guarantee Agency (1999) and the citizen submission procedure established by the North Amencan Agreement on Environmental Cooperation (NAAEC) are also part of this eategory.
8 Aarhus Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters, Decision U7, Meeting of the Parties, 31 October 2002, www.unece.orglenv/pp/mopl/decision.l.7.e.doc.
Water and Economies: Trends in Dispute Settlement 335 trade law). It is interesting to note that water disputes have been brought to courts and tribunals since the very establishment of the latter in the early part of the twentieth century. Since then, they have been brought before almost aIl of the new dispute settlement bodies established over the last decades.
The aim of this chapter is to provide an overview of the mechanisms and procedures which have jurisdiction over water and economic disputes. lt will focus on the actors entided to bring a water dispute before international mechanisms. The chapter will be divided into two main sections. In the first section, State-to-State dispute resolution mechanisms will be considered. In this context, special emphasis will be placed on judicial (such as the le] and inter- State arbitration mechanisms) and quasi-judicial means (such as the WTO Dispute Settlement Body and regional economic and trade procedures).9 The chapter will then turn to the settlement mechanisms that are accessible to non- State actors. Both sections will highlight that water disputes are, in most cases, embedded in wider disputes dealing with other issues.
2. INTER-STATE DISPUTE SETTLEMENT MECHAN1SMS, WITH PARTICULAR EMPHASIS ON JUDICIAL MEANS
Internationallaw provides several mechanisms and procedures to States to avoid or settle water disputes. Several conventions and agreements dealing with water issues involving cconomic features, as weil as codification endeavors, foresee the need to resort to dispute settlement mechanisms-be they of a diplomatie or a judicial nature.IO There have been a number of disputes which have been brought before the various judicial and quasi-judicial bodies established over time.
2.1 Treaty practice and codification endeavors
The Convention Relating ta the Development of Hydraulic Forces Affecting More Than One State, adopted in Geneva in 1923 under the auspices of the League of Nations, is currently the only water-relatecl convention in force with universal scope.l l !ts Article 12 states that:
If a dispute arises between contracting States as ta the application or interpretation of the present Statute, and if such dispute cannot be settled either directly between the Parties or
9 For a presentation of diplomatie means, see L. Boisson de Chazournes, The RaIe of Diplomatie Means ofSolving Water Disputes; A Special Emphasis on Institutional Mechanisms, RESOLUTION OF INTERNATIONAL WATER DISrUTES (Peace Palace Papers, Kluwer Law International, 2003) ar 91-110.
10 See L. Caflisch, Règles générales du droit des cours d'eau internationaux, 219 RCADI, at 9 (1989-VII); S. C. MeCaffrey, The Law of International Watercourses: Nan-Navigational Uses (Oxford University Press, OxfordINew York, 2001)_
11 Convention Relating ta the Development of Hydraulic Forces Affecting More Than One State Geneva, 9 December, 1923, 36 LNTS 76. However, this Convention has not been implemented hecause only !Wo of the signatory States are riparian ta an international watereourse.
336 Laurence Boisson de Chazournes
by sorne other amicable method of procedure, the Parties to the dispute may submit it for an advisory opinion to the body established by the League of Nations as the advisory and technical organization of the Members of the League in matters of communications and transit, unless chey have decided or shaH decide by mutual agreement to have recourse to
sorne other advisory, arbitral or judicial procedure.
The 1997 United Nations Convention on the Law of the Non-Navigationa/
Uses of International Watercourses (UN Watercourses Convention), although not yer in force, expressIy provides for dispute settlement mechanisms under the terms of Article 33.12 Accorcling to this provision, when parties to a dispute cannot reach agreement by negotiation,
chey may jointly seek the good offices of, or request mediation or conciliation by, a third party, or make use, as appropriate, of any joint watercourse institutions that may have been established by them or agree to submit the dispute to arbitration or to the Inter- national Court of Justice.
After six months, where negotiations or any other means of dispute settlement provided for in the Convention have failed, 'the dispute shall be submitted, at the request of any of the parties to the dispute, to impartial fact-finding'. In the latter case, the procedure can be invoked by any of the parties.
Numerous regional water-related agreements provide for inter-State dispute settlement mechanisms. In trus comext, mention should be made of the 1992 Southern African Deve/opment Community Treaty (SADe Treary) and its Protocols." The 1992 SADC Treary obliges its parties to resolve disputes amicably through negotiations as a fust resort.t4 Where negotiations fail, the matter can be brought before the SADC tribunal, created to 'ensure adherence to and the proper interpretation of the provisions of the treaty and the subsi- diary instruments, and to adjudicate upon such disputes as may' be referred ta it,.15 The tribunal has jurisdiction over aIl disputes related to the inter- pretation, application, and validity of the SADe Treaty and its Protocols. I6 The scope of jurisdiction of the tribunal includes 'disputes between States and between natural or legal persons and States,I? and between 'States and the Community,.18
At the European level, besides the 1992 Helsinki Convention on the Protection and Use of Transboundary Watercourses and International
12 Conuention on the Law of the Non-Navigational Uses of International Watercourses, UN Doc.
AfRESfS1I869, 21 May 1997, 36 lLM (1997) at 70.
13 Treaty of the Southern African Development Community, 17 August 1992, 32lLM (1993), at 120. SADC Revised Protocol on Shared Watercourses in the Southern Africa Development Community, Windhoek, 7 August 2000, 40 ILM (2001), at 317 (in particular, see Art. 7.2, which reads as follows: 'Disputes bètween State Parties regarding the inrerpretation or application of the provisions of this Protocol which are not settled amicably, shaH be referred to the Tribunal'). Protocol on Tribunal and the Ru/es of Procedures Thereof, Windhoek, 7 August 2000, www.sadc.int.
],4 SADe Treaty, supra note 13~ Art. 4. 15 Ibid., Art. 16(1).
16 Tribunal Protocol, supra note 13, Art. 14. 17 Ibid., Art. 16. 18 Ibid., Art. 17.
Water and Economies: Trends in Dispute Settlement 337 Lakes,19 several water-related agreements provide for cesort to arbitral and judicial mechanisms in water disputes. Many of these agreements establish compulsory rather than optional arbitration or adjudication, in the event that negotiations fail. 20 It is interesting to note that recourse to the
lel
has been avoided in the most recent waterCQurse conventions. In this area, even when resort to the le] is anticipated, such provisions do not per se constitute an authorization to take a dispute before thele].
On the contrary, the jurisdictional avenue is only open by way of specifie agreement rather than unilateral recourse.These provisions have the eHeet of encouraging recourse to the le] but they do not provide for ir.
The Institut de droit international (IDI) and the International Law Association (ILA)21 have bath addressed the topic of dispute settlement in case of water dispures. The Madrid Declaration adopted by the ID! in 1911 recommended the appointment of permanent joint commissions to give opinions when works or utilizations by aState might result in serious consequences in the territory of another Stare.22 Several Articles of the 1966 ILA Helsinki Rules on the Uses of the Waters of International Rivers are devoted to dispute settlement mechan- isms.23 The Helsinki Rules envisage both diplomatie and judicial means, stating that 'if the States concerned have not been able to resolve their dispute through
19 UN/ECE Convention on the Protection and Use of Transboundary Watercourses and Inter·
national Lakes, Helsinki, 17 March 1992, www.unece.org. ln particular, see Art. 22 of this instru·
ment providing that: '1. If a dispute arises between two or more Parties about the interpretation or application of this Convention, they shall seek a solution by negotiation or by any other means of dispute settlement acceptable to the parties to the dispute. 2. When signing, ratifying, accepting, approving or acceding to this Convention, or at any time thereafter, a Party ma)' declare in writing ta the Depositary that, for a dispute not resolved in accordance with paragraph 1 of this Article, it accepts one or bath of the following means of dispute settlement as compulsory in relation to any Party accepting the same obligation; (a) Submission of the dispute to the International Court of Justice; (b) Arbitration in accordance with the procedure set out in Annex IV. 3. If the parties ta the dispute have accepted both means of dispute settlement referred ta in paragraph 2 of this Article, the dispute may be submitted only to the International Court of Justice, unless the parties agree otherwÎse. '
20 Convention on the Protection of the Rhine, Rotterdam, 22 January 1998, 1404 UNTS at 59 (Art. 16); Danube Convention on Cooperation for the Protection and Sustainable Use of the Danube River, Sofia, 29 June 1994, 34 !LM (1995) at 851 (Art. 24); Convention on the Protection of the Rhine agaÎnst Pol/ution by Chlorides, supra note 2 (Art. 13).
21 On, the work of the ILA in water issues, see S. Bogdanovic, International Law of Water Resources-Contrihution of the International Law Association (Kluwer Law International, 2001).
22 Institut de droit international, International Regulations Regarding the Use of International Watercourses for Pnrposes Other than Navigation, Annuaire de l'Institut de droit international, 24, (1911) at 265-7. Other relevant resolutions of the IDI are: the Salzburg Resolution of 1961, Res- olution on the Utilization ofNon·Maritime International Waters (Except for Navigation), Salzburg, Annuaire de l'Institut de droit international, 49, (1961) at 381-94; the Athens Resolutions of 1979, The Pollution of Rivers and Lakes and International Law, Annuaire de l'Institut de droit interna·
tional, 58 (1979) at 169; and the three resolutions adopted in Salzburg in 1997, the Environment, Responsihility and Liability for Environmental Damage under International Law, and Procedures, Annuaire de l'Institut de droit international, 67 (1997) at 217.
23 International Law Association, The Helsinki Ru/es on the Uses of the Waters of International Rivers, Report of the Fifty·Second Conference Held at Helsinki (Arts XXX-XXXVII), 1966 (London, 1967), at 486.
338 Laurence Boisson de Chazournes
negotiation', or they have been unable to agree through JOInt institution al mechanisms, good offices, or resort to a conciliation commission,24 'it is recommended that the States concerned agree to submit their legal disputes to an ad hoc arbitral tribunal, to a permanent arbitral tribunal or te the International Court of Justice'. 25
2.2 Resort to the PCI] and ICJ
The ficst case brought before the peI] to deal with water issues was in relation to the principle of freedom of navigation. At stake was the identification of the sections of the River Oder to which the internation'al regime established by the Treaty of Versailles was to apply 50 as te allow for international navigation.261t thus had a strong economic component as it dealt with the scope of freedom of passage within the context of a specifie watercourse. Aeeording to Artides 341 and 343 of the Treaty of Versailles, the Oder was placed under the adminis- tration of an International Commission composed of representatives of Poland, Prussia, Czeehoslovakia, Great Britain, France, Denmark, and Sweden. The Commission was eharged, inter alia, 'to define the sections of the river or its tributaries to which the international regime shaH be applied,.27 In the course of discussion, differences of opinion arose with respect to the extent of the jurisdietion of the Commission, as weil as to the interpretation of Article 331 of the Versailles Treaty. That Anicle provides that the Oder 'and ail navigable parts' thereof 'which naturally provide more than one State wÎth access to sea' are ~international'.
The Polish government contended that two tributaries of the Oder (the Netze and the Wartha), located in Pol and, provided only Poland with access to the sea, and that therefore they did not fall within the terms of Article 331.
On the other hand, the six other States of the International Commission maintained that the condition prescribed by Article 331 was fulfiUed. In their view, the two tributaries were thus submitted to the jurisdiction of the
International Commission. /~
The PCI] was asked to determine whether the jurisdictiqn of the Commission extended to the tributaries of the Oder situated in Polaud. In holding that the jurisdiction of the Commission extended to those tributaries, the Court stated that a solution 'has been sought not in the idea of a right of passage in favor of upstream States, but in that of community of interest of riparian States,.2B Moreover, it held that this community of interest in a navigable river 'becomes the basis of a common legal right, the essential features of which are the perfeet
2-4- International Law Association, The Helsinki Ru/es on the Uses of the Waters of International Rivers, Report of the Fifty-Second Conference Held at Helsinki (Arts XXX-XXXVII), 1966 (London,
1967), at 486, Art. XXXIIJ. 2S Ibid., Art. XXXIV.
26 Territorial jurisdiction of the River Oder Commission (Czech., Den., Fr., Ger., Gr. Brit., and Swed., v. Pol.), peI] seT. A No. 23 (10 September 1929).
27 Treary of Versailles, Art. 343.
28 Territorial jurisdiction of the River Oder Commission, supra note 26, at 27.
Water and Economies: Trends in Dispute Settlement 339 equality of all riparian States in the user of the whole course of the river and the exclusion of any preferential privilege of any one riparian State in relation to the other'. 29
Another case brought to the PCIl dealt with the use of the waters of the Meuse River by Belgium and the Netherlands30 This river, although for a large part unsuitable for navigation, served as a water reservoir for several artificial canals used for the transportation of goodS.31 lndeed, the Meuse River crosses one of the earliest and most highly industrialized areas of Europe. In order to meet their growing economic needs, Belgium and the Netherlands started the construction of a series of canals, fed by the waters of the Meuse, which would have allowed the expansion of commercial traffic.
In 1863, the two countries signed a treaty that regulated the withdrawal of water from the Meuse.32 Yet, during the 1920s, it became clear that other canals needed to be built and a larger supply of water had to be drawn from the Meuse.
In panicular, the development of the coal-fields in the Dutch and Belgian Limburg called for an improvement in the waterways communications with the ports of the North Sea. Thus, because of the building of new canals fed by the waters of the Meuse, the Netherlands and Belgium began competing over a limited amount of water drawn from this river. In this context, the Dutch government instituted proceedings against Belgium before the PCIl.
Belgium and the Netherlands advanced parallel daims during the proceedings before the PCIJ. In brief, the Netherlands asked the Court to decide that the diversion works carried out by Bclgium were in violation of the treaty concluded in 1863 between both countries. At the same time, the Be1gian government, rejecting the Dutch daim, filed a counterdaim inviting the Court to find that the works performed by the Netherlands were in breach of the same treaty. Thus, both parties cited the same instrument as a source of rights and duties, but differed in their interpretation of its scope.
The PCI], taking a narrow approach, stated that the 1863 Treaty did not prevent parties from constructing, modifying, or enlarging canals wholly situated in the national territory, provided that the diversion of water at the Maastricht intake and the volume of water discharged therefrom was not affected.33 Thus, the Court confined its reasoning to issues related to the law of treaties. !ts judgment gave priority to the principle of pacta sunt servanda, without taking into account the underlying reasons for the dispute, namely,
29 Ibid.
JO Diversion of Water from the Meuse (Netherlands v. Bdgium), PCI] ser. NB No. 70 (28 June 1937).
31 C. Romano, The Peaceful Settlement of International Environmental Disputes: A Pragmatic Approach (Kluwer Law, 2000) at 234.
32 Treaty between Belgium and the Netherlands for the Regulation of Drawings of Water [rom the Meuse, The Hague, 12 May 1863, Consolidared Treaty Series, vol. 127, at 438-43. See C. Romano, supra note 31, at 234-5.
33 Diversion of Woter (rom the Meuse (Netherlands v. Belgium), supra note 30, at 26.
340 Laurence Boisson de Chazournes
the commercial civalry between Belgium and the Netherlands.34 In the view of the Court, the parties could- build as many canals as they wanted, even if they were entering iota sriff competition for a limited amount of watec, provided the principles of the 1863 Treaty were maintained. However, in adopting this approach, the PCI] was unable ta settle the question concern- ing the amount of water which parties had the right to draw from the Meuse.
In addition, the judgment did not assist the parties to engage in further nego- tiations on this issue. Ir was oilly sorne fifty years after the judgment had been rendered that the parties were finally able, through negotiations, to establish a legal regime that was satisfactory te both sicles, on the drawings from the Meuse.35
The dispute over the GabCikovo-Nagymaros project settled by the lCJ in 1997 centered on the 1977 Treaty between Hungary and Czechoslovakia (from 1993 Slovakia).36 Ir provided fur the construction of rwo series of locks, one at GabCikovo, in the territory of Czechoslovakia, and the other at Nagymaros in Hungary. The two constituted 'a single and indivisible operational system of works'. Yet, as a result of intense criticism generated by the project in Hungary, in 1989 the Hungarian government decided to suspend and then to abandon the project. Czechoslovakia worked out various alternative solutions, but Hungary maintained that further environmental studies were required before construc- tion could be pursued. The failure of negotiations paved the road to the under- taking of urùlateral actions: Czechoslovakia started to work on Variant C, which entailed, among other things, a unilateral diversion of the Danube by Czechoslovakia on its territory and the construction of a dam and two hydro- electric plants. During this phase, Hungary notified Czechoslovakia of the ter- mination of the 1977 Treaty.
In 1993, Hungary and Slovakia signed a special agreement submitting their dispute to the IC]. In~ the special agreement, the parties asked the Court to decide, inter alia, whether Slovakia was entitled to proceed to Variant C and to determine the legal effects of the notification of the termination of the 1977 Treaty by Hungaty. In 1997, the lC] decided that the 1977 Tteaty remained in force and that Slovakia was not entitled to put Variant C in operation. While for the purposes of the present chapter, considerations on how the Court came to
34 ln this regard the Court stated: 'From the hîstory of the dispute given above, it will he seen that one of the dîfficulties in achieving a seulement of the differences between the two States has been the Belgian desire ta obtain The Netherlands' consent ta the construction of a new canal connecting Antwerp and the Rhine, a point upon which one may infer that the Netherlands Government [has felt itselfl unable ta accede ta the wishes of the Belgian Government because of the commercial rivalry between Anrwerp and Rotterdam. With this aspect of the question the Court is in no way concerned.
lts task is limited ta a decision on the legal points submitted ta it as ta whether ... certain work constructed by the Belgian Government ... infringe[s on] the Treary of 1863 and [regarding] the Belgian counterclaim, as ta whether ... certain work constructed br The Netherlands Govern- ment ... constitute(s) an infringement of the Treaty of 1863.' Ibid., at 16.
35 See Agreement on the Protection of the Rivers Meuse and Schedt, Charleville Mezieres, 26 April 1994, 34 !LM (1995), at 85l.
36 Case concernîng the Gabéikovo-Nag}'maros Proiect, supra note 1.
Water and Economies: Trends in Dispute Settlement 341 these conclusions can be left aside,37 it should be noted that the Court (as the PCI} did in the Diversion of the Meuse dispute) left the parties to negotiate an agreement that would put an end to their dispute on the basis of the Court's decision.
In the words of the Court:
lt is not for the Court to determine what shaH be the final result ofthese negotiations to he conducted by the Parties. It is for the Parties themselves·to find an agreed solution that takes account of the objectives of the Treaty, which must he pursued in a joint and integrated way, as weB as the norms of international environmentallaw and the principles of the law of international watercourses ... What is required in the present case by the cule pacta sunt servanda, as reflected in Article 26 of the Vienna Convention of 1969 on the Law of Treaties, is that the Parties find an agreed solution within the cooperative context of the Treary.38
Sinee the Gabélkovo-Nagymaros case, the ICJ has adjudicated two other cases involving water issues: the Kasikili/Sedudu case in 1999,39 and the Cameroon v. Nigeria dispute in 2002.40 Both cases concerned boundary issues.
In addition, there were underlying economic and trade aspects to the disputes.
Lastly, Niger and Benin have taken their dispute over the Niger River to the IC],41 which deals with demarcation of borders across boundary rivers and the attribution of the islands in the Niger River.
It should be noted that in the KasikililSedudu case the !CJ had the opportu- nity explicitly to bring an economic pe!.:"spective to the issues concerning the
37 On the case, see C. Boume, The Case concerning the Gabakovo-Nagymaros Project: An Important Milestone in International Water Law, YEARBOOK OF INTERNATIONAL ENVIRONMENTAL LAW, vol. 8 (1997), at 6-12; A. Boyle, The Gabcikovo-Nagymaros Case: New Law in Old Botties, ibid, at 13-20; J. Sohnle, L'irruption du droit de l'environnement dans la jurisprudence de la CIJ:
l'affaire Gabéikovo-Nagymaros, REVUE GÉNÉRALE DE DROIT INTERNATIONAL PUBLIC, vol. 102 (1998) at 85-121.
38 Case concerning the GabCJkovo-Nagymaros Project (HungaryISlovakia), supra note 1, at 141 and 142. At the beginning of March 1998, representarives of the two countries initialled a draft framework agreement which was approved by Slovakia but not by Hungary. Frustrated by the failure of the framework agreement, Slovakia requested the IC] to render an addirional judgement. See IC]
Press Communiqué 98/28 of September 1998.
39 Case concerning Kasikili/Sedudu Island (Botswana/Namibia), IC] (13 December 1999), www.i.cj-cij.org.
40 Case concerning the Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v.
Nigeria: Eq. Guinea intervening) (10 Ocmber 2002), www.icj-cij.org. It should be noted that in this case the ICJ, dealing with the delimitation of the frontier in Lake Chad, refers ta the works of the Lake Chad Basin Commission. This Commission was established by the Convention and Statutes relating
ta the Development of Chad Basin on May 22, 1964 (Cameroon, Chad, Nigeria, and Niger). For the text of the Convention, see Treaties concerning the Non-Navigations Uses of International Water- courses, Africa, FAO, Legislative Study, 61, at 10. Art. 8 of the Statures establishes the Chad Basin Commission and Art. 9(g) endows the Commission with authority ta examine complaints and ta promore the settlement of disputes. The IC] noted that in 1983 the riparian States gave the Com- mission the task of dealing with certain boundary and security issues, and the Commission has since met regularly ta discuss those issues. See Case concerning the Land and Maritime Boundary between Cameroon and Nigeria, Ihid., paras 36 and 53.
41 Benin and Niger jointly submit a Boundary Dispute ta the International Court of Justice, IC], Information Office (2002), www.icj-cij.org.
342 Laurence Boisson de Chazournes
delimitation of boundary ri vers. The IC], recognizing the economic importance of navigation (mainly due to ,tourist activities and fishing) in the Chobe River,42 held that
the Parties have undertaken to one arrother chat there shaH he unimpeded navigation for craft of thetr nationals and flags in the channels of Kasikili/Sedudu Island. As a result, in the southern channel of Kasikili/Sedudu Island, the nationals of Namibia, and vessels fIying ies flag, are entitled ta, and shall enjoy, a (rearment equal to chat accorded by Botswana ta its own nationals and to vessels flying its own flag. Nationals of the two States, and vessels, whether flying the flag of Botswana or of Namibia, shaH be subjeet ta the same conditions as regards navigation and environmental protection. In the northern channel, each Party shalilikewise accord the nationals of, and vessels flying the flag of, the other, equal national treatment.43
The Court reminded the parties of their commitment to cooperate with each other. In highlighting this, the IC] thus gave a modern perspective to the issues concerning the delimitation of rivers. Ir recognized that social and economic interactions between the people living in the two co-riparian States must be preserved and encouraged.
2.3 Inter-State arbitration
Water disputes may also be brought before inter-State arbitration tribunals. The Lake Lanoux case and the dispute related to the interpretation of the 1976 Rhine Convention and its 1991 Protocol provide examples of a resort to arbitra tian in water-related disputes.
In the Lake Lanoux case, a French diversion project of the waters of Lake Lanoux, located in the Pyrenean region, was at the center of the dispute. The use of transboundary waters in that region had long been the subject of disputes:
since the middle of the nineteenth century, water diversion projects had resulted in tensions between France and Spain. In this context, in 1866, the two parties concluded a treaty that regulated certain transboundary issues, including the apportionment of water.44
ln 1950, the French government presented a plan aiming to exploit the hydroelectric potential of the waters of Lake Lanoux by diverting its waters towards the River Ariège, thereby affecting the course of waters which natur- ally drained into Spanish territory via the Carol River.4S Although the French projeet also ensured the full restoration of f10w ta the Carol River, it met with opposition from the Spanish governmenr. In particular, Spain argued that, under the provisions of the 1866 Treaty, the works affeeting transboundary waters could be executed only with its consent.
42 Case concerning Kasikili/Sedudu Island (BotswanalNamibia), supra note 39, para. 40.
43 Ibid., para. 103.
44 See The Treaty of Bayonne and Îts Additional Act, 26 May 1866, Consolidated Treat)' Series,
voL 132, at 359-74. 45 C. Romano, supra note 31, at 219-32.
,',
1
Water and Economies: Trends in Dispute Settlement 343 Due te these divergent positions, Spain and France brought the dispute before an ad hoc arbitration tribunal. In its award, the tribunal, developing well- established principles of internationallaw such as the principle of good faith, concluded that the French project did not violate the 1866 Treaty.46
The arbitral tribunal affirmed that consultations and negotiations between the two States relating ID the dispute must comply with the rules of good faith and must not be mere formalities.47 Sanctions could also be applied in the event, for example, of an unjustified breaking off of discussions, abnormal delay, disregard of agreed procedures, systematic refusais to take adverse proposals or interests into consideration, and, more generally, in cases of violation of the rules of good faith.48 In case of projected works, riparian States have a clury to inform and consult in good faith, as weil as to take ioto account the interests of other riparian States.49
The case relating to the 1976 Rhine Convention and its 1991 Prorocol, in which the Netherlands was matched with France, provides another example of a reson to arbirration.50 In that case too, water protection and economic factors were closely entangled. The objective of the 1976 Rhine Convention and its 1991 Protocol is the improvement of water quality through the adoption of measures against pollution by chio rides. In order to realize the aim of the Convention, Germany, France, Luxembourg, the Netherlands, and Switzerland adopted a Protocol in 1991 which set out a system of allocation of payment that participating countries would make in furrherance of this aim. A dispute arose between the Netherlands and France with respect to the interpretation and application of the 1991 Protocol. An arbitral tribunal was asked to clarify the modalities of paymeot as provided in the 1991 Protocol. In order to determine the amount that France was expected to pay co the Netherlands, the tribunal analyzed the relevant provisions of the 1991 Protocol in light of the rules of interpretation established by the Vienna Convention on the Law of Treaties.51 In particular, the tribunal paid attention co the principle of good faith and to the purpose and object of the Rhine Convention. During the pleadings before the tribunal, the parties adopted divergent positions with regard ro the pur- pose of the Rhine Convention. While France argued that the aim of the 1976 Rhine Convention is to establish solidarity between riparians, taking ioto account the fact that pollution sources are multiple and not only located in France, the Netherlands considered that its purpose is the improvement of water quality and ensuring the supply of drinking-water. The tribunal found that both interpretations were compatible, since soli da rit y between riparians
46 Lake Lanoux arbitration (SpainIFrance), (16 November 1957) Report of International Arbitral Awards, vol. 12, (1957), 281-317, at 306-307. English text: International Law Reports, vol. 24
(1957), at 101-42. 47 Ibid., para. ll.
4N Ibid. 49 Ibid.
50 Case concerning the application of the Convention on the Protection of the Rhine against Pollu- tion b}' Chlorides (3 December 1976) and its Additional Protocol (25 September 1991), supra note 2.
51 Vienna Convention on the Law of Treaties, United Nations, 22 May 1969, Treaty Series, vol. 1155, at 331, Arts 31 and 32.
344 Laurence Boisson de Chazournes
was the basis for the measures adopted by parties aiming to improve Rhine water quality.
For several yeaIS the Netherlands had made payments 50 that France coulcl adopt measures against the pollution caused by chlocides. Ir argued chat France had only partially fulfilled its responsibilities according to the 1991 Protocol.
The tribunal decided that France was ob!iged to reimburse the Netherlands for payments made and not used, and at the same rime the tribunal determined the accrued interes! owing to the Netherlands.
The tribunal, recalling the holding of the pel] in the dispute over the Territorial jurisdiction of the River Oder Commission,52 considered that the 1976 Rhine Convention aims at safeguarcling water quality as weIl as creating a 'community of interest' between riparians.53 When riparians establish a com- mon Legal regime dealing with the utilization of their shared watercourse, they highlight the relevance of the notion of community of interest. Thus, the solidarity between riparians is an element of their 'community of interest'.
2.4 Trade dispute settlement~ mechanisms: specialized procedures for water-trade disputes
Depending on the status of water in relation to issues of interpretation and application of the relevant agreements, disputes could arise under WTO as weIl as regional economic agreements. 54
The compulsory jurisdiction of the WTO dispute settlement mechanism encompasses ail disputes between Members arising under the so-caJled 'covered agreements,.55 Therefore, if water-related issues fall under one or more of the
\VfO agreements, water-trade disputes could be referred to the WTO dispute setrlement mechanism.
Within the \VfO, besicles the 'mainstream procedures' resting on consulta- tions, the establishment of a panel, and recourse to the Appellate Body, there also exists the possibility of resorting to arbitration in application of Article 25 of the DSU. This Article reads as follows:
Expeditious arbitration within the "WTO as an alternative means of dispute settlement can facilitate the solution of certain disputes that concern issues that are dearly defined by both parties. 56
52 Territorial jurisdiction of the River Oder Commission, supra note 26, at 27. See a/so Case concerning the Gabéikovo-Nagymaros Project (HungaryISlovakia), supra note 1, para. 85.
53 Case concerning the application of the Convention on the Protection of the Rhine against Pollution by Chlorides (3 December 1976) and its Additional Protocol (25 September 1991), supra note 2, paras 97-98.
54 See Edith Brown Weiss and Mireille Cossy's chapters in this book_
J5 See Appendix l to the Dispute Settlement Understanding [hereinafter DSU].
56 The idea behind this arrangement was that sorne simple disputes would be more amenable to arbitration rather than to the more cumbersome panel proceedings. See L. Boisson de Chazournes, L'arbitrage à l'OMC, REVUE DE L'ARBITRAGE, nO 3 (2003) at 949-89.
Water and Economies: Trends in Dispute Settlement 345 States can also agree to resort to other means of dispute settlement of a more diplomatie nature, such as good offices, conciliation, and mediation.57 The language used in the DSU appears to provide for an inflexible exclusive juris- diction regime, barring referral of cases coming under the WTO legal system to any outside dispute settlement forum.
With respect to the exclusiveness of the DSU provisions, one should also note that according to Article 1(2) of the DSU, the specifie dispute sertlement rules included in sorne of the covered agreements override the provisions of the DSU. In such context, it would seem that specifie jurisdiction-regulating clauses providing for non-exclusive jurisdiction of the WTO dispute settlement should prevail.58 Furthermore, the language used in Article 23(1)59 only bars Members from seeking the redress of a violation of the WTO agreements before another forum than a WTO Panel and the Appellate Body, but it does not explicitly bar other outside courts or tribunals from interpreting WTO provisions. 60
Inter-State trade disputes may also faIl under the jurisdiction of a regional dispute settlement procedure such as the North American Free Trade Agree- ment (NAFT A), or under the jutisdiction ofthe European Court of Justice (ECJ).
Chapter 20 of the NAFTA provides the main inter-State dispute settlement provisions.61 It establishes a Free Trade Commission, on which each Member State has a cabinet-Ievel representative, to oversee the implementation of the Agreement and resolve disputes concerning its interpretation or application.61 According to Article 2003, Member States are obliged to overcome difficulties wherever possible through cooperation and consultation, but a comprehensive dispute settlement procedure is provided in case they should not succeed in doing so.
57 See Art. 5.6 of the DSU. Thus far there has been only one case of mediation through the Directar-General of the WTO. In this single case, however, the requesting Members specin.ed that the mediator 'could be provided by procedures similar to those envisaged for mediation under Article S of the DSU'. See General Council, Request for Mediation by the Philippines, Thailand and the European Communities-Joint Communication {rom the European Communities, Thailand and the Philippines, 16 Oeta ber 2002, doc. WT/GO/66.
58 See Agreement on the Apt)lication ofSanitary and Phytosanitary Measures (1S April 1994), Art.
11(3), Annex lA ta WTO Agreement and Agreement on Trade-Related Aspects of IntellectuaJ Properry Rights, 15 April 1994, Article 64, 33 ILM (1994), at 1197.
59 Article 23(1) reads as follows: '1. When Members seek the redress of a violation of obligations or other nullin.cation or impairment of benefits under the covered agreements or an împedîment ta the attainment of any objective of the covered agreements, they shall have recourse ta, and abide by, the rules and procedures of this Understandîng.'
60 Obviously WTO provisions are înterpreted from time ta time by national courts of the Mem- bers, including the European Court of Justice. See Y. Shany, The Competing Jurisdictions of Inter- national Courts and Trihunals (Oxford University Press, Oxford, 2003), at 184.
61 North American Free Trade Agreement hetween the governments of Canada, Mexico and United States, 1 January 1994, 32lLM (1994), at 289. Special provisions are made for the settlement of disputes concerning antidumping and countervailing duty obligations (Chapter 19, NAFTA). In addition ta the inter-State procedure, Chapter Il provides for the seulement of disputes between a party and an investar of another party (see infra). 62 NAFT A, Art. 2001.
346 Laurence Boisson de Chazournes
Firse, consultatÎon and good offices, mediation, and conciliation by the Free Trade Commission are available to the States parties.63 Should chose sceps fail, the parties may requesr the establishment by the Commission of a live-persan arbitral PaneJ.64 The Panel may seek rechnical information and advice from experts, and may establish a Scienrific Review Board to gîve a writren report on any facrual issue concerning environmental, healrh, safery, or other scientific mattees raised by a disputing party in the proceedings.65 The Panel renders an Initial Report, where ie sets Out its findings of facr and ifS determinarion as to whether the measure at issue is or would he inconsistent with the obligations of the NAFT A.66 It then presents its Final Repon to the free Trade Commission.
On rcccipt of the Final Repon the panies may agrce upon the resolution of the dispute, in conformitj with the determinations and recommendations of the Panel,67
To the extent that the subject matter of a dispute lalls within bath the NAFTA and the
wro
dispute settlement mechanisms, the dispute may he settled in eicher forum at the discretion of the complaining parcy. ln this regard, under the terms of Article 2005, the NAFT A provides that in disputes falling under the jurisdiction of both NAFTA and thewro,
the applicant party can choose where to litigate. Upon selection, the choseo forum has exclusÎve jurisdicrion. Ir should be noted that cerrain disputes between NAFT A Members concerning the environment, conservation, or health and safery ·are subject to a special arrangement. In these cases the respondent State may insist that the dispute will be adjudicated before NAFTA dispute settlement bodies. The applicant is then prevented from seizing the WTO procedure and must withdraw from \VfO proceedings, if already initia):ed.68At the European level, the EC] has jurisdiction over a wide range of disputes. ln particular, it has jurisdiction over disputes brought by the Com- muniry institutions against Member States, alleging non-compliance with EC law·' The Court rnay also rule upon challenges to the legality of acts of the Community, and of refusais of Cornmunity institutions to act in circum- stances wbere they are obliged ta act.70 A third kind of jurisdiction derives from Article 177 of the EC Tteaty. The Court may reccive requests from the national courts of the Member States for an authoritative interpretation of Community law.
6) NAFTA, Art. 2007. 64 NAFfA, Art. 2008. 6S NAITA, Arts 2014, 2015.
60 NArrA, Art. 2016.
67 NAFTA, An. 2018. Unless the parties agree otherwi~, the Initial Report is ta he presenred within nÎnety days of the appoinrment of the last panellist, and the Final Report witrun a further
thirt)' days. 6S NArrA, An. 2005(3)-(5).
69 Claims may be brought by one or more States, or br Communiry institutions. See Consolidated Version of the Treaty establishing the European Community (EC Treary), 2001 OJ (C801l), at 84.
EC Treaty, Arts 169-70.
10 ln this case, daims can be brought by any Member State, or by a Community institution. In addition, the ECj may be seized by natural or legal persons having a direct interest in the matter. See EC Treaty, Am 173, 174, and 175.
Water and Economies: Trends
ln
Dispute Settlement 347 With respect to water disputes, it is ta be noted that the ECJ has rendered decisions dealing with the failure of a Memher State to comply withEe
water legislation. As an example, on 14 November 2002, the ECJ ruled against Ireland on account of its failure to ensure compliance with the microbiological stand- ards set out in Annex 1 to Council Directive 80/778/EEC of 1980, relating to the quality of water for human consumption.71The analysis of case law practice relating to water disputes shows that disputes have been brought before inter-State dispute settlement rnechanisms, be it the PCIJ, the ICJ, or through arbitration. This could also be the case on the basis of the WTO DSU as weil as various regional procedures. The latter are additional mechanisms to which States may have recourse in case the water issue at stake falls within the scope of jurisdiction of these procedures.
Other dispute settlement procedures allow non-State actors to he parties to them. Such is the case, for exarnple, in the areas of investrnent and human rights.
3. NON-STATE ACTORS AND WATER DISPUTES
Water disputes may also emerge when individuals and groups of individuals allege that their interests are affected.72 International procedures to which these non-State actors can have access are still rather an exception. The limited Humber of procedures in which non-Statc actors are entitled to participate can be found rnainly in the fields of investment law and human rights law.
Under international investment law, in particular multilateral and regional treaties such as the ICSID Convention and Chapter 11 of the NAFT A dealing with investment protection, private parties are entitled to challenge a State in an international forum. Human rights instruments can also provide avenues for settling water disputes. Lastly, other international procedures, such as the World Bank and multilateral development banks' inspection panels, the PCA Environmental Rules, or the SADC tribunal, grant a right of access to non-State actors. One must also add to this list the new compliance mech- anism established under Aarhus Convention, entitling members of the public to make communications concerning a Party's compliance with the Convention.
"
71 Case C-316JOO CommissÎon v. Ire/and, 14 November 2002. Seealso Case C~63/02 Commission v.
UK, 15 October 2002 (Directive 98/831EC-Quality of water intended for human consllmption);
see also Case C-396JOO Commission v. ltaly, 25 April 2002 (Directive 91/271IEEC-Urban waste- water treatment); Case C-161J00 Commission v. Germany, 14 March 2002 (Directive 9116761 EEC-Pollmion by Nitrates); Case C~384/97 Commission (J. Greece, 25 May 2000 (Directive 2000/601 EC-Dangerous Substances); Case C-20027122 Commission (J. Belgium, 16 Janllary 2003 (Directive 801778/EEC-Quality ofwater intended for human consumption).
72 See A. Tanzi and C. Pitea, EmergÎng Trends of Non-State Actors in International Water Dis- putes, RESOLUTION OF INTERNATIONAL WATER DISPUTES (Peace Palace Papers, Kluwer Law inter- national, 2003) ar 259-97; E. Hey, Non-State Actors and International Water Disputes: A Search for the Nexus between the Local and the Global, ibid., at 299-318.
348 Laurence Boisson de Chazournes
3.1 Investor-to-State dispute resolution mechanisms: the ICSID and the NAFT A experiences
The ICSID is the oldest institutionalized arbitration procedure granting non- State actors access ta international arbitration tribunals.73 This instrument entitles a private party to proceed directly against a State in an international forum. In sa doing, it is important that the consent of bath States concerned by the dispute is obtained (namely, the host State and the investor's State of nationality). Article 25(1) of the ICSID Convention provides that:
The jurisdiction of the Centre shaH extend to any legal dispute arising directly out of an investment, between a Contracting State (or any constituent subdivision or agency of a Contracting State designated to the Centre by that State) and a national of another Contracting State, which the parties co the dispute consent in writing CO submit CO the Centre. When the parties have given their consent, no party may withdraw its consent unilateraHy?4
Arbitration before ICSID arbitration tribunals depends not only on accession to the Convention by the relevant States, but also on a specifie agreement to arbitrate a dispute before ICSID, entered into by the investor's State of nationality and the host State. This agreement may be expressed in several ways.
The most common form is a direct agreement between the two parties recorded in a single instrument, such as a bilateral investment treaty (BIT). Alternatively, the parties may submit a dispute that has already arisen by way of a compromis.
Moreover, national legislation and multilateral and regional agreements may also establish the jurisdiction ofICSID tribunals to settle State-investor disputes?5
Article 26 of the ICSID Convention states:
Consent of the parties to arbitration under this Convention shall, unless otherwise stated, he deemed consent to such arhitcation CO the exclusion of any orhec remedy ....
This provision establishes a typical exclusive jurisdiction clause. Indeed, the arbitration clause or agreement establishing the ICSID jurisdiction is normally lex specialis and overrides any general dispute settlement arrangement entered into by the contracting States. Thus, if the parties to a dispute have chosen to refer it to the ICSID, the Centre will normally have exclusive jurisdiction.
73 Convention on the Seulement of Inuestment DiS/JUtes between States and Nationals of Other States, Washington, 18 March 1965, 4lLM 524 (1966).
74 Under the so-called Additional Faci[ity Ru[es, the ICSID offers a second set of arbitration mies in order to accommodate disputes which invo[ve a State (or an investor's home Stare) which has not already acceded to the ICSID Convention. ICSID Additional Facility RuEes, 21 !LM 1443 (1982).
75 Over the fast ten years, several multilateral agreements have been conduded granting the jur- isdiction of ICSID Tribunals to settle investor-Stare disputes. These indude: the NAFTA (Art. 1120);
the Coionia Protocol on the Reciprocal Promotion and Protection of lnvestments within Mercosur, signed on 17 January 1994 (Art. 9), and the Buenos Aires Protocol on the Promotion and Protection of Investments Made by Countries Ihat are not Parties ta Mercosur, signed on 8 August 1994 (Art.
2(h)) (bath protocols concluded under the Asunâôn Treaty Establishing a Common Market Between Argentina, Brazil, Paraguay and Uruguay (Mercosur), signed on 26 March 1991); and the Energy Charter Treaty, 34 !LM 381 (Art. 26).
Water and Economies: Trends in Dispute Settlement 349 Another important eharaeteristic of the ICSID Convention deals with diplo- matie protection. Article 27 provides that:
No Contracting State shaH give diplomatie protection, or bring an international daim in respect of a dispute which one of its nationals and another Contracting Stace shall have consented to submit or shall have submitted to arbitration under this Convention, unless such other Conrracting State shaH have failed to abide by and comply with the award rendered in such a dispute.
Through this provision, the ICSID Convention bars inter-State adjudication over disputes that the parties have agreed to submit to ICSID dispute settlement procedure. The aim of this Article is to strengthen the exclusivity of the ICSID regime as the only forum for settling investment disputes, and thereby to prevent the rendering of conflieting judgments?6
Because of the increased number of bilateral, regional, and multilateral treaties providing for ICSID jurisdiction, this mechanism is likely to play a growing role in the setdement of disputes over water issues. Indeed, several cases concerning water services concession agreements have already been submitted to ICSID tribunals.77 To date, two awards have been rendered in this area: the Zhinvali Development project78 and the Compaiiia de Aguas dei Aconquija S.A.
and Vivendi Universal [formerly Compagnie Générale des Eaux] v. Argentina.79 However, this last award (rendered in 2000) has been annulled by an ad hoc Committee and the case is currently pending before a new ICSID tribunal. 80
Concerning matters of jurisdiction, a decision has been handed clown in another dispute, the Azurix v. Argentina case. 81
In the case concerning the Zhinvali Development pToject, the investor reclaimecl the reimbursement of tliè costs incurred in the course of its negotia- tians with the Georgian government for the rehabilitation of a hydro-electric
76 See C. Schreuer, The ICSID Conuention. A Commentary (Cambridge University Press, Cambridge, 2001).
77 ICSID pending cases on water issues: Azurix Corp. v. Argentine Republic (Case No. ARBlOll 12); Aguas deI TunariS.A. v. Republie of Boliuia (Case No. ARB/02/3); Jacobs Gibb Limited v.
Hashemite Kingdom of Jordan (Case No. ARB/02l12); Salini Costruttori S.p.A. and Italstrade S.p.A. v. The Hashemite Kingdom of Jordan (Case No. ARB/02l13) {Dam construction project};
Impregilo S.p.A. v. Mamie Republic of Pakistan (Case No. ARBl03/3) (Hydropower project); Aguas Provinciales de Santa Fe, S.A., Suez, Soâedad General de Aguas de Borce/ana, S.A. and Interagua Servicios Integrales de Agua, S.A. u. Argentine Republie (Case No. ARBl03117); Aguas Cordabesas, S.A., Suez, and Soâedad General de Aguas de Bareelana, S.A. u. Argentine Republie (Case No. ARB/
03118) (Warer services concession); Aguas Argentinas, S.A., Suez, Sociedad General de Aguas de Barcelona, S.A. and Vivendi Universal, S.A. v. Argentine Republic (Case No. ARB/03119).
78 Zhinvali Deuelopment Ltd v. Republic of Georgia (Case No. ARBlOO/1) (Rehabilitation of a hydropower plant), Award (24 January 2003). Award not yer published.
79 Compania de Aguas dei Aeonquija S.A. and Vivendi Universal v. Argentine Repub/ic (Case No.
ARBl97/3), Award (21 November 2000), 16 ICSID Rev.-FILJ 641 (2001); 40 ILM 426 (2001); 26 Y.B. Com. Arh. 61 (2002).
BO Companîa de Aguas dei AconquijaS.A. and Viuendi Universal u. Argentine Republie, Decision on application for annulment (3 July 2002), 41 !LM 1135 (2002).
81 Azurix Corp. v. The Argentine Republic (Case No. ARBlOlI12), Decision of the Tribunal on Jurisdiction (8 December 2003), at 78-80,85, http://www.asi1.orgl.
