IV- Minority shareholders can have access to ICSID.

In CMS,[6] an American company CMS, who had invested in an Argentine company

Transportadora de Gas del Norte (TGN) and owned 29.42% of the shares was affected by an alleged suspension by Argentina of a tariff adjustment formula for gas transportation all of which, it was argued, arose out of general economic policies.

The Tribunal stated that although it did not have jurisdiction over general economic

policies taken by Argentina, it did have jurisdiction over measures of general economic

policies that affect the investment provided they have been adopted in violation of

international law or in violation of commitments made to the investor. “This means in

fact that the issue of what falls within or outside the Tribunal’s jurisdiction will be

subsumed in the determination of whether a given claim is or is not directly connected

with specific measures affecting the investment”.[7] The Tribunal then held that nothing in international law prohibited investment claims submitted by shareholders independently from those of the corporation concerned. It also said that although that rule seemed to protect majority or controlling shareholders, the prevalence of protection to all kind of shareholders through treaty arrangements made that approach the exception.

Likewise in Enron v. Argentina,[8] the Tribunal held that minority shareholders might be permitted to mount separate and competing arbitration claims. Accordingly, the tribunal

noted that, notwithstanding the claimant being a minority shareholder, it was treated as a

covered investor under the terms of the relevant BIT, because the Respondent had

pursued and asked the Claimant in its newly-privatized natural gas industry.