1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

REPUBLIC OF ARGENTINA, Petitioner,

v. AWG GROUP LTD., Respondent. Civil Action No. 15-1057 (BAH) Judge Beryl A. Howell

MEMORANDUM OPINION The Republic of Argentina (“Argen tina”) filed this lawsuit seek ing vacatur of an international arbitration awar d against the country in the amou nt of $20,957,809, plus interest, in favor of the respondent AWG Grou p Ltd. (“AWG”). Pet. to Vacate Arbitration Award (“Pet.”), ECF No. 1. AWG, for its part, s eeks confirmation, recognition, and enforcement of that same award. Cross-Pet. for Confirma tion, Recognition and Enforcemen t of Award (“Resp.’s CrossPet.”), ECF No. 12. 1 Argentina’s instant petition i s not the only effort by the co untry to avoid unfavorable arbitration awards arising out of disputes between Argentina and private consortia that contracted with A rgentina to provide in frastructure and pu blic services in the country. See,

1 The parties agree that their competing motions are subject to the Convention on the Recognition and Enforcement of ForeignArbitral Awards, June 10, 1958, 21 U.S.T . 2519, T.I.A.S. No. 6997 (“New York Convention”), codified in the Federal Arbitration Act (“FAA”) a t 9 U.S.C. §§ 201 et seq. , and that this Court, consequently, properly exercise s subject matter jurisdiction ov er this case, Pet. ¶ 8; Resp.’s Mem. in Opp’n Pet. to Vacate Arbitration Awardand in Supp. of Cro ss-Pet. for Confirm ation, Recognition and Enforcement of Award (“Resp.’s Mem.”) at 22, ECF No. 12; see 9 U.S.C. § 203 (“An action or proceeding falling under the Con vention shall be deemed to arise under th e laws and treaties of the Uni ted States. The district courts of the United States . . . shall have original jurisdiction over such an action or proceed ing, regardless of the amount in controversy.”); Scandinavian Reins. Co. v. Saint Paul Fire & Marine Ins. Co. , 668 F.3d 60, 71 (2d Cir. 2012 ) (“[T]he district court [has] subject-matter jurisdiction under 9 U.S.C. § 203, which p rovides federal jurisdiction over actions to confirm or vacate an arbitral award that is g overned by the C onvention on the Recognition and Enforcement of Foreign Arbitral Awards (the ‘New York Convention’)”).2 e.g. , BG Grp. PLC v. Republic of Argentina , 134 S. Ct. 1198 (2014) (reversi ng the D.C. Circuit’s vacatur of a $185 million dollar arbi tration award against Arge ntina in favor of British firm that was part of consortium with a maj ority interest in an Argentine entity holding “exclusive license to distribute natural ga s in Buenos Aires”); Argentine Republic v. Nat’l Grid PLC , 637 F.3d 365 (D.C. Cir. 2011) (affirming denial of Argentina’s petition to v acate a $53 million dollar arbitration award and grant of res pondent National Grid’s cross -motion to confirm the same). The arbitration award at issue in this case arises from a now -terminated thirty-year contract between Argentina and a private consortium, which incl uded AWG, “to operate the water distribution and treatment systems serving the city of Bu enos Aires.” Resp.’s Mem. in Opp’n Pet. to Vacate Arbitra tion Award and in Supp. of Cross-Pe t. for Confirmation, Recognition and Enforcement of Award (“Resp.’s Mem.”) at 1, ECF No. 12. 2 AWG alleges that fewer than ten years into the c ontract, Argentina altered the i nvestment framework, refused to authorize tariff adjustments, a ttempted to force a renegotiatio n of the contract, and ultimately terminated the contract, there by breaching “Argentina’s obligat ion to grant foreign investments ‘fair and equitable treatment’” and “Arge ntina’s obligation to provide fo reign investments ‘full protection and security’” under th e governing bilateral investm ent treaty between the United Kingdom and Argentina, the Agreem ent Between the Government of the United Kingdom of Great Britain and Northern Irela nd and the Government of the Re public of Argentina for the Promotion and Protection of Investme nts, Arg.-U.K. (“UK-BIT”). Id. at 7–9. The UK-BIT provides for binding internationa l arbitration arising out of a n investment, Resp.’s Cross-Pet., Ex. 6 to Decl. of Elliot Friedman ( “Friedman Decl.”), Agreement Between the Government of

2 Resp.’s Cross-Mot. and Resp.’s Mem. are docketed together at ECF No. 12. Further, R esp.’s Mem. is also docketed, in duplicate, at ECF No. 10 as the respondent’s Answe r. To simplify citation, the Court will reference only one of the duplicate memoranda, and hereinafter, the Court will refer only to the memorandum at ECF No. 12.3 the United Kingdom of Great Bri tain and Northern Ireland and th e Government of the Republic of Argentina for the Promotion a nd Protection of Investments, A rg.-U.K., Dec. 11, 1990 (“UKBIT”), ECF No. 12-7, available at 1765 U.N.T.S. 33, 38, and when the c ountry where the award is made is a signatory to th e Convention on the Recognition and Enforcement of Foreign Arbitral Awards (“New York Convention”), codified by reference at 9 U.S. C. §§ 201 et seq ., that convention governs enforcement of the award, see New York Convention, arts. I, III. In accordance with the terms of t he UK-BIT, the parties’ disput e was submitted to binding international arbitrati on before an expert tribunal (th e “Tribunal”), which confirmed its jurisdiction, see Pet., Ex. B to Decl. of Matthew Slater (“Slater Decl.”), AWG Grp. Ltd. v. The Argentine Republic , Decision on Jurisdiction ( Aug. 3, 2006) (“Decision on Jurisdi ction”), ECF No. 1-5, and after twelve years of proceedings entered a final award in favor of AWG in April
2015. Resp.’s Mem. at 1, 4, 11–12. Argentina now seeks to vacate the Tribunal’s award under the Federal Arbitration Act (“FAA”), 9 U.S.C. § 10, arguing tha t one of the arbitrators acted with “evident partiality,” and that the Tribunal exceeded its powers , Pet. ¶¶ 2–3. 3 For the reasons explained below, Argentina’s req uest to vacate the Tribunal’s a ward is denied and AWG’s crosspetition to confirm th e award is granted. 4

3 Argentina requests a hearing on its petition to vacate the ar bitration award bu t, given the sufficiency of the ample briefing, this request is denied. See U.S. Dist. Ct. Rules, D.D.C., L ocal Civil Rule 7(f) (allowance of oral hearing is “within the discretion of the Court”). 4 AWG has requested the posting of a pre-judgment bond, Mot. Pr e-J. Bond (“Resp.’s Mot. Bond”), ECF No. 13, but this request is denied as moot since the pending motion s are resolved and judgment is entered in AWG’s favor with this Memorandum Opinion. See Republic of Argentina v. BG Grp. PLC , 715 F. Supp. 2d 108, 115 n.6 (D.D.C. 2010) (“[T]he Court concludes that the posting of a bon d is unnecessary, in light of the Court’s conclusion here that Argentina’s petition to vacate or modify the Award is entirely without merit. Acco rdingly, . . . BG Group’s cross-motion for a pre-judgment bond is denied as moot.”).4 I. BACKGROUND Summarized below is the factua l and procedural background pert inent to the resolution of the pending motions. 5
A. The Concession Contract On December 28, 1992, Argentina awar ded a concession for the “p rovi[sion of] water and sewage services to Buenos A ires and surrounding municipalit ies” to a private consortium, which included AWG, a British corporation. Pet. ¶¶ 5, 13–14; P et., Ex. C to Slater Decl., AWG Grp. v. The Argentine Republic , Decision on Liability (Ju ly 30, 2010) (“Decision on Liability ”) ¶¶ 1, 33, ECF No. 1-6. Prior to this award, Argentina had decl ared its public s ervices to be in “a state of emergency” and had tak en steps to establish “a regulat ory framework to privatize certain public services.” Pet. ¶¶ 10–11; D ecision on Liability ¶¶ 28–3 1. Under this scheme, concessionaires would provide s ervices, new capital, and techno logy, and in turn, “would be entitled to the payment of tar iffs.” Pet. ¶¶ 11–12; Decision o n Liability ¶¶ 30–32. To attract “the necessary long-term private and f oreign capital,” the new regul atory framework: (1) pegged the Argentine peso to the United Sta tes dollar at a ratio of 1:1; and (2) permitted tariff adjustments “to take account of changing and une xpected circumstances.” Re sp.’s Mem. at 5–6; Decision on Liability ¶¶ 29, 124. Argen tina also entered into more than fi fty bilateral investment treaties, including the UK-BIT, 6 through which the countries sought t o “encourage cr oss-border private investment.” Resp.’s Mem. at 4; Decision on Lia bility ¶¶ 29, 1 24. The Buenos Aires water and sewag e concession was granted to a c onsortium comprised of AWG and other foreign and Argen tine companies, which togethe r formed and operated as an

5 The parties have filed a number of exhibits in this case that are immaterial to the legal conclusion reached here and, consequently, merit no discussion. 6 The UK-BIT was signed on Decem ber 11, 1990, bu t came into for ce on February 19, 1993. UK-BIT at 33– 34.5 Argentine company named Agua s Argentinas S.A. (“AASA”). 7 Pet. ¶ 13; Decisi on on Liability ¶¶ 32–33. On April 28, 1993, AASA entere d into a thirty-year c ontract with Argentina (the “Concession Contract”). Pet. ¶ 14; Decision on Liability ¶ 34. In accordance with the requirement in the Concession Cont ract to provide an “upfront i nvestment to improve and expand the system,” AASA obtained loans from multilateral lendi ng agencies, payable in United States dollars, while AASA had agr eed to receive tariff payment s in Argentine pesos, which were pegged under the terms of t he Concession Contract to the U nited States dollar at a ratio of 1:1. Pet. ¶ 15; Decision on Lia bility ¶ 35. The Concession Co ntract included a termination clause “allowing termination under specified circumstances, inc luding termination for the concessionaire’s fault.” Pet. ¶ 16; Decision on Liability ¶ 11 4. By 2001, AASA had invested $1.7 billi on in the Concession Contr act, “yield[ing] substantial improvements in the water distribution and sewage s ystem serving Buenos Aires.” Resp.’s Mem. at 6; Decisi on on Liability ¶¶ 35–36. Around this time, however, Argentina “began to experience significant economic difficulties that wou ld eventually lead to a financial crisis having serious consequen ces for the country, its people, and its investors, both foreign and national.” Decision on Liability¶ 41; Pet. ¶ 18. “[T]o retur n stability to the country,” Argentina adopted “a series of policies and measures,” including, in 2002 , Emergency Law No. 25,561. Pet. ¶ 19; Decision on Liability ¶ 44. This measure, inter alia : (1) “abolished the currency board that linked the Argentine peso t o the U.S. dollar, which was fo llowed by a significant depreciation of the Argentine pe so;” (2) “abolished the adjustm ent of public service contracts according to the agreed-upon indexa tions;” and (3) “authorized the Executive branch of the

7 The consortium included the following other companies: Suez, Vivendi Universal, S.A. (“Vivendi”), Socieded General de Aguas de Bar celona S.A. (“AGBAR”), Banco de Galicia y Buenos Aires S.A., Socieded Comercial del Plata S.A., and Meller S.A. Pet. ¶ 13; Decision on Liability ¶ 32.6 government to renegotiate all pub lic service contracts.” Pet. ¶ 19; Decision on Liability ¶ 44. The Emergency Law “also forbade concessionaires from suspending or altering their contractual performance.” Resp.’s Mem. a t 7; Decision on Liability ¶ 44. These policies and measures, particularly the unpegging of the A rgentine peso from the Unite d States dollar, “had a ruinous effect on AASA’s cash flows, because AASA’s tariffs were calcul ated in Argentine pesos while its debt obligations were necessarily denominated in U.S. dolla rs.” Resp.’s Mem. at 7; Decision on Liability ¶ 50. Starting in March 2002, Argentina and AASA engaged in negotiati ons “to adjust the terms of the Concession Contract ,” but were unable to come to a n agreement. Pet. ¶ 20; Decision on Liability ¶¶ 46–47, 49–50. A rgentina ignored or re jected AASA’s requested “tariff adjustments and modifications to its operation conditions” and, instead, “demanded that AASA provide water and sewage services to areas outside the scope of [the Concession Contract]” and “insisted that AASA continue t o comply fully with its investmen t obligations.” Resp.’s Mem. at 7; Decision on Liability ¶¶ 44–51. Argentina also “alerted AAS A to several significant performance failures in viola tion of the Concession Contract.” Pet. ¶ 20; Decisi on on Liability ¶
52. In September 2005, the AASA reque sted termination of the Conces sion Contract, which Argentina refused. Resp.’s Mem . at 7; Decision on Liability ¶ 53. Several months later, in March 2006, Argentina terminated the Concession Contract for fa ult by AASA. Pet. ¶ 21; Decision on Liability ¶ 56.
B. The Arbitration On April 17, 2003, after passage of the Emergency Law, but pri or to the termination of the Concession Contract, the fore ign investors in AASA requeste d arbitration against Argentina7 claiming that Argentina’s actions “violate[d] three specific tr eaty provisions: 1) guarantees against direct and indirect e xpropriation of their investments; 2) guarantees to accord their investments full protection and s ecurity; and 3) guarantees to accord their investments fair and equitable treatment.” Decision on Liability ¶¶ 48, 127; see UK-BIT, arts. 2(2), 5. Each of the foreign investors (her einafter “Clai mants”) invoked Argentina’s consent to arbitrate in the bilateral inve stment treaty governing their in vestment. 8 Decision on Liability ¶¶ 1–2. Since the other bilateral i nvestment treaties provided fo r International Centre for Settlement of Investment Disputes (“ICSID”) arbitration, Argentina and AWG agreed that the ICSID would also administer AWG’s case, subj ect to the Arbitration Rules of the United Nations Commission on International Trade Rules (“UNC ITRAL Rules”), which is a def ault internationa l arbitration scheme provided for in the UK-BI T. Decision on Lia bility ¶¶ 2, 4; BIT, art. 8(3). This scheme permitted all of the foreign invest ors’ claims to be arbitrated before the same tribunal. Decision on Liability ¶¶ 2, 4; Pet. ¶ 24. The Tribunal, appointed in fa ll 2003, was comprised of three me mbers. Decision on Liability ¶ 5; Pet. ¶ 24. The Cl aimants appointed Professor Gabrielle Kaufmann-Kohler; Argentina appointed Professor Pedro Nikken; and, because the pa rties could not agree on a third arbitrator, ICSID appointed Pro fessor Jeswald W. Salacuse to be the Tribunal President. Decision on Liability ¶¶ 5–6; Pet. ¶ 24. The seat of the arbit ration was designated to be Washington, D.C. Pet., Ex. A to Slater Decl., AWG Grp. Ltd. v. The Argentine Republic , Award (Apr. 9, 2015) (“Final Award”) at i, ECF No. 1-4; Decision on L iability ¶ 9.

8 Suez and Vivendi’s investments were governed by the 1991 Bila teral Investment Treaty between the Argentine Republic and France (“ France-BIT”), while AGBAR’s inv estment was governed b y the 1991 Bilateral Investment Treaty between the Argentine Republic and the Kingdo m of Spain (“Spain-BIT”) . Decision on Liability ¶ 2.8 Over the course of the arbitra tion, from the time of AWG’s requ est for arbitration in April 2003 to the Tribunal’s issuan ce of the final award twelve years later, in April 2015, the Tribunal issued five decisions . Decision on Liability ¶ 1; Fin al Award at i. In the first decision, issued on August 3, 2006, the Tribuna l rejected Argentina’s obj ections to the Tribunal’s jurisdiction to hear the claim s. Decision on Jurisdiction ¶ 69 . The second decision responded to Argentina’s request to remove Pro fessor Kaufmann-Kohler from th e Tribunal, because she had served as an arbitrator in a di fferent case, in which the panel had already issued an award against Argentina. Resp.’s Mem. at 14. T his challenge was rejected by “the two unchallenged arbitrators (including Argentina’s appointee),” in accordance w ith agreed-upon procedures. Resp.’s Mem. at 14; Resp.’s Cross-Pet., Ex. 16 to Friedman Decl ., AWG Grp. v. The Argentine Republic (Oct. 22, 2007) (“First Disqua lification Decision”) ¶¶ 12, 17, ECF No. 12-17 (citing ICSID Arbitration Rule 9(4)). 9 The third decision responded t o a second request from Argenti na to remove Professor Kaufmann-Kohl er, following her appointment on April 19, 2006, to the Board of Directors of UBS (“UBS Board”), “on grounds that her d irectorship, and her decision not to disclose it, gave rise t o justifiable doubt s as to her i mpartiality and independence, in conflict with the ICSID Conventi on and the UNCITRAL Rules.” Pe t. ¶¶ 28–29; Pet., Ex. K to Slater Decl., Challenge to Mrs. G abrielle Kaufmann Köhler (“Sec ond Disqualification Challenge”) at 1–2, ECF No. 1-14. T he two unchallenged arbitra tors, again, rejected Argentina’s claim. 10 Pet., Ex. H to Slater Decl., AWG Grp. Ltd. v. The Argentine Republic (May 12, 2008) (“Second Disqualification Deci sion”) ¶ 26, ECF No. 1-11. In an y event, on April 15, 2009,

9 The First Disqualifi cation Decision is not at issue in this a ction and Argentina has not objected to the procedure for reviewing challenges to arbitrators due to allege d bias. 10 In the Second Disqualification Decision, the two unchallenged arbitrators explain that it was “their understanding that in keeping w ith the parties’ agreement that a single tribunal was to hear all three of the [related] cases the parties were bestowing o n the remaining members the a uthority to decide the challenge under the UNCITRAL Rules in the case of AWG Grp. Limited v. the Argentine Republic .” Second Disqualification Decision ¶ 13. According to the two arbitrators, Argentina did not object to “proceeding on this basis.” Id.9 nearly a year after the Second D isqualification Decision, “Prof essor Kaufmann-Kohler resigned as an independent director [of UBS]” in order “to avoid any pos sible expression of doubt about her arbitral independence.” Res p.’s Mem. at 22; Resp.’s Cross- Pet., Ex. 23 to Friedman Decl., Kaufmann Kohler Leaves UBS Board , Global Arbitration Revie w, May 1, 2009, at 1, ECF No.
12-24. Over a year after Professor Kau fmann-Kohler had resigned from t he UBS Board, the Tribunal issued its fourt h decision, on July 30, 2010, finding Argentina liable for failing to provide the investments “fair a nd equitable treatment.” Decisi on on Liability ¶¶ 247–48. Specifically, as described in the Decision on Liability, the Tr ibunal concluded that “Argentina’s actions in refusing to revise the tariff according to the legal framework of the Concession and in pursuing the forced renegotiati on of the Concession Contract co ntrary to that l egal framework violated its obligations under the applicable BITs to accord th e investments of the Claimants fair and equitable treatment.” Id . ¶ 247. 11 The fifth and final Tribuna l decision on damages owed by Argentina, known as the “Final Award,” was issued on April 9, 2 015, and awarded a total of $404,539,050, plus interest, to the Claimants, including $20,95 7,809, plus interest, to AWG. Final Award at 58–62. 12 AWG alleges that Argentina has not yet complied with the awar d, see Resp.’s Mem. at 3, and Argentina does not dispute this assertio n.

11 The arbitrator selected by Argentina, Professor Nikken, wrote a separate opinion from the other two arbitrators in the Decision on Liability, but nevertheless agre ed that Argentina violated its obligation to give the Claimant’s investments fai r and equitable treatment. See Pet., Ex. I to Slater Decl., Sep arate Opinion of Arbitrator Pedro Nikken ¶ 1, ECF No. 1-5 (citing differing grounds than th e majority for reaching the same conclusion). 12 The Tribunal issued the Final A ward in Washington, D.C. Fina l Award at i. Consequently, venue is proper in this district. See generally 9 U.S.C. § 9 (“If no court is sp ecified in the agreement of th e parties, then [an application to confirm an arbitration award] may be made to the United States court in and for the district within which such award was made.”); 9 U.S.C. § 10 (providing that the court “in and for the district wherein the award was made may make an ord er vacating the award”).10 C. Procedural History On July 6, 2015, Argentina petitione d to vacate the Tribunal’s arbitration award on the grounds that the Tribunal acte d with evident partiality, under 9 U.S.C. § 10(a)(2) (authorizing vacatur of arbitration award “wher e there was evident partialit y or corruption in the arbitrators”), and that the Tribunal exceede d its powers by improperly calcula ting damages and failing to apply international law, under 9 U.S.C. § 10(a)(4) (authorizing vacatur of arbitration award “where the arbitrators exceeded their powers, or so imperfectly executed them that a mutual, final, and definite award upon the subject matter submitted was not made”). See generally Pet. Less than two months later, on September 1, 2015, AWG filed a c ross-petition to confirm the award, pursuant to 9 U.S.C. § 9, and Ar ticle IV of the New York Convention. See generally Resp.’s Cross-Pet. Both peti tions are ripe for review.
II. LEGAL STANDARD FOR REVIEW O F CHALLENGED ARBITRATION AWARD Review of arbitral awards is “extremely limited,” Kurke v. Oscar Gruss & Son, Inc. , 454 F.3d 350, 354 (D.C. Cir. 2006) (quoting Teamsters Local Union No. 61 v. United Parcel Serv.,
Inc. , 272 F.3d 600, 604 (D.C. Cir. 2001)), and i s “‘not an occasion for de novo review.’”
Scandinavian Reins. Co. v. Saint Paul Fire & Marine Ins. Co. , 668 F.3d 60, 71 (2d Cir. 2012) (quoting Wallace v. Buttar , 378 F.3d 182, 189 (2d Cir. 2004)). Courts “do not sit to hea r claims of factual or legal error by an a rbitrator” as they would “in r eviewing decisions of lower courts.” Kurke, 454 F.3d at 354 (internal citations and quotations omitted). I ndeed, the standard of review of arbitral awards is so narrow that courts are “not aut horized to reconsider the merits of an award even though the parties ma y allege that the award rest s on errors of fact or on misinterpretation of the contract.” United Paperworkers Int’l Union, AFL-CIO v. Misco, Inc ., 484 U.S. 29, 36 (1987). While an “ar bitrator may not ignore th e plain language of the contract . .11 . [,] as long as the arbitrator i s even arguably construing or applying the contract and acting within the scope of his author ity, that a court is convinced he committed serious error does not suffice to overturn his decision.” Id . at 38. The Supreme Court has explaine d that this high level of deferen ce is required for arbitration awards because, “[i]f parties could take ‘full-bore legal and evidentiary appeals,’ arbitration would become ‘merel y a prelude to a more cumbersome and time-consuming judicial review process.’” Oxford Health Plans LLC v. Sutter , 133 S. Ct. 2064, 2068 (2013) (quoting
Hall Street Assocs. , L.L.C. v. Mattel, Inc. , 552 U.S. 576, 588 (2008)). Thus, where the parties have chosen arbitration, they “mu st now live with that choice.” Id. at 2071. The fact that the document containing an arbitration agreement is a treaty does not “make[] a critical difference,” since “[a]s a general matter, a treaty is a contract, though between nations.” BG Grp. PLC , 134 S. Ct. at 1208. “Consistent w ith the ‘emphatic federal p olicy in favor of arbitral dispute reso lution’ recognized by the Supreme Court as ‘appl[ying] with special force in the field of internati onal commerce,’ the FAA affords the district court little discretion in refusing or deferring enforcement of foreign arbitral awards . . . .” Belize Soc. Dev. Ltd. v. Gov’t of Belize (“Belize Soc. Dev. I”) , 668 F.3d 724, 727 (D.C. Cir. 2012) (a lteration in original) (quoting Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc. , 473 U.S. 614, 631 (1985)).
III. DISCUSSION Argentina urges vacatur of the arbitration award under two pro visions of the FAA’s § 10. First, due to Professor Kaufma nn-Kohler’s position on the UBS B oard, and her alleged failure to investigate and disclose that pos ition and its po tential for co nflict, Argentina contends vacatur is warranted under 9 U.S.C. § 10( a)(2). Pet. ¶¶ 2, 43. Second, b ecause the Tribunal allegedly awarded damages outside of the legal boundaries afforded by the UK-BIT and allegedly failed to12 apply international legal princi ples as required by the UK-BIT, Argentina argues that vacatur is also warranted under 9 U.S.C. § 10(a)(4). Id. ¶¶ 3, 68. AWG discounts these arguments as “groundless” and contends that the arbitration award must be co nfirmed because none of the statutory bases for vacatur exi st. Resp.’s Mem. at 3. Followi ng review of the statutory framework, Argentina’s challenges to the Tribunal’s arbitrationaward are addressed seriatim below.
A. Statutory Framework Both the United States and Argen tina are parties to the New Yo rk Convention, which applies to arbitral awards made in the territory of a signatorycountry to the Convention. See
New York Convention , art. I(1)); Belize Soc. Dev. I, 668 F.3d at 731 n.3 (“If the place of the award is ‘in the territory of a party to the Convention, all ot her Convention states are required to recognize and enforce the award, reg ardless of the citizenship or domicile of the parties to the arbitration.’” (quoting Creighton Ltd. v. Gov’t of the State of Qatar , 181 F.3d 118, 121 (D.C. Cir. 1999))). The Supreme Court descri bed the purpose of the New Yo rk Convention as to “encourage the recognition and enf orcement of commercial arbitr ation agreements in international contracts and t o unify the standards by which agr eements to arbitrate are observed and arbitral awards are enforce d in the signatory countries.” Scherk v. Alberto-Culver Co. , 417 U.S. 506, 520 n.15 (1974). Thus, the Conve ntion “provid[es] fo r ‘the recognition and enforcement of arbitral awards made in the territory of a State other than the State where the recognition and enforcement of such awards are sought.’” Belize Soc. Dev., Ltd. v. Gov’t of Belize (“Belize Soc. Dev. II”) , 794 F.3d 99, 103 (D.C. Cir. 2015), petition for cert. filed , Dec. 24, 2015 (quoting New York Convention, a rt. I(1)). “The basic unde rstanding of the New York Convention is that ‘[ e]ach Contracting Sta te shall recognize ar bitral awards as binding and13 enforce them in accordance with t he rules of procedure of the t erritory where the award is relied upon, under the conditions laid dow n in the . . . articles [of the Convention].’” TermoRio S.A.
E.S.P. v. Electranta S.P. , 487 F.3d 928, 934 (D.C. Cir. 2007) (alte ration in original) ( quoting New York Convention, art. III). “‘ [T]he critical element is th e place of the award: if that place is in the territory of a party t o the Convention, all other Conven tion states are required to recognize and enforce the award, regardle ss of the citizenship or domicil e of the parties to the arbitration.’”
Id. (quoting Creighton Ltd. , 181 F.3d at 121). The New York Convention, which h as been codified as chapter 2 of the FAA, 9 U.S.C. §§ 201–08, provides that a party ma y apply to any court with ju risdiction for c onfirmation of an arbitration award within three y ears of when the award is made, id . § 207. The court is required to “confirm the award unless it finds one of the grounds for re fusal or deferral of recognition or enforcement of the award specifi ed in the [New York] Convention .” Id. Article V of the New York Convention sets forth the e xclusive grounds for refusal of recognition and enforcement of the award. See TermoRio S.A. E.S.P., 487 F.3d at 935 (noting that courts “may refuse to enforce the award [subject to New Yor k Convention] only on the grounds explicitly set forth in Article V of the Convention.” (quoting Yusuf Ahmed Alghanim & Sons v. Toys “R” Us, Inc. , 126 F.3d 15, 23 (2d Cir. 1997))). As pertinent here, Article V(1)(e) provid es for vacatur of an arbitral award that “has been set aside or su spended by a competent authority of the country in which, or under the law of which, that award was made,” New York Convention, ar t. V(1)(e), thereby authorizing parties to e mploy any grounds provided by domestic law in the jurisdiction where the award was made, “to the extent that” those domestic provisions are “not in conflict with” the New York Convention. 9 U.S.C. § 208. See also Scandinavian Reins. Co. , 668 F.3d at 71 (observing that “ʻFAA and the N ew York Convention work in tande m, and they have14 overlapping coverage to the ex tent that they do not conflict’”) (quoting Sole Resort, S.A. de C.V. v. Allure Resorts Mgmt., LLC , 450 F.3d 100, 102 n.1 (2d Cir. 2006)); Yusuf Ahmed Alghanim &
Sons. , 126 F.3d at 21 (“We read Article V(1 )(e) of the [New York] Co nvention to allow a court in the country under whose law th e arbitration was conducted to apply domestic arbitral law, in this case the FAA, to a motion t o set aside or vacate that arbi tral award.”). 13 Thus, when, as here, the award is made in the United States, th e parties may, through Article V(1)(e), seek vacatur of the arbitration award under th e FAA provisions applicable to domestic awards in 9 U.S.C. §§ 10 and 11. See Zeiler v. Deitsch , 500 F.3d 157, 164 (2d Cir. 2007) (finding, where “arbitrati on took place in the United Sta tes” but where significant aspects of the arbitration, including cer tain parties and the governing law were international, “the awards entered . . . are at the same time subject to the FAA provision s governing domestic arbitration awards” and the New York Convention); see also Yusuf Ahmed Alghanim & Sons , 126 F.3d at 23 (“The Convention specifically con templates that the state in wh ich, or under the law of which, the award is made, will be free to set aside or modify an award in accordance with its domestic arbitral law and its full panopl y of express and implied ground s for relief.”). Under the domestic provisions of the FAA, the court must confirm an arbitration award unless there are statutory grounds to vacate, modify, or correc t the arbitrators’ decision. 9 U.S.C. § 9 (“[A]ny party to the arbitra tion may apply to the court [inand for the district within which such award was made] for an orde r confirming the award, and the reupon the court must grant

13 The New York C onvention provides additional grounds for refus al to recognize or enforce an arbitral award, including: invalidity of th e agreement to arbitrate, New York Convention, art. V(1)(a); lack of proper notice of the arbitration proceedings, id. art. V(1)(b); the award dealt with matters “not contemplated b y or not falling within the terms of the s ubmission to arbitration,” id. art. V(1)(c); “[t]he compositi on of the arbitral authority or the arbitral procedure w as not in accordance w ith the agreement of the parties, or, failing such agreement, was not in accordance with the law of the co untry where the arbitration to ok place,” id. art. V(1)(d); or the award dealt with subject matter “not capable of settlement by arbitration under the law of,” or “contrary to the public polic y of,” the country in which enf orcement is sought, id. arts. V(2)(a)–(b).15 such an order unless the award i s vacated, modified, or correct ed as prescribed in sections 10 and 11 of [the FAA].”). 14 Section 10 of the FAA provides the following four grounds for vacatur of an arbitration decision and award: (1) where the award was proc ured by corruption, fraud, or undue means; (2) where there was evident pa rtiality or corru ption in the arb itrators, or either of them; (3) where the arbitrators were guilty of misconduct in refusing to postpone the hearing, upon sufficient cause s hown, or in refusing to hear ev idence pertinent and material to the controversy; or of any other misbehavior by which the rights of any party have been prejudiced; or (4) where the arbitrators exceeded their powers, or so imperfec tly executed them that a mutual, final, and defi nite award upon the subject matte r submitted was not made. 9 U.S.C. § 10(a). 15
B. Argentina’s Claim of Evident Partiality by a Tribunal Member Invoking the grounds set out in the FAA’s § 10(a)(2), Argentinacontends that “[t]he [a]ward must be vacated because Professor Kaufmann-Kohler had adirect interest in the outcome of the case by virtue of he r service as a director (and a shareholder) of UBS,” Pet. ¶ 43,

14 The D.C. Circuit has authori zed vacatur of an a rbitral award based on a decision made “in manifest disregard of the law.” Kurke , 454 F.3d at 354 (“In addition to the statutory grounds, ‘arbi tration awards can be vacated . . . if they are in manifest disregard of the law.’” ( quoting LaPrade v. Kidder, Peabody & Co. , 246 F.3d 702, 706 (D.C. Cir. 2001))). The Supreme Court has made clear, however, that the FAA’s §§ “10 and 11 . . . provide the FAA’s exclusive grounds for expedited vacatur and m odification,” Hall St. Assocs. , 552 U.S. at 584, leaving unclear whether a manifes t disregard for law continues to provide a viable basis for vacating an arbitration decision, see Stolt-Nielsen S.A. v. AnimalFeeds Int’l Corp. , 559 U.S. 662, 672 n.3 (“We do not decide whether ‘manifest disregard’ survives our decision in Hall Street Associates . . .”); Republic of Argentina v. BG Grp. PLC , No. 11-7021, 2014 U.S. App. LEXIS 9519, at *2 (D.C. Cir. May 21 , 2014) (per curiam) (assuming, without deciding, that the manifest-disr egard-of-law standard applies, but finding that the petitioner failed to meet that standard); Regnery Publ’g, Inc. v. Miniter , 368 F. App’x 148, 149 (D.C. Cir. 2010) (per curiam) (same); STMicroelectronics, N.V. v. Credit Suisse Secs. (USA) LLC , 648 F.3d 68, 78 (2d Cir. 2011) (expressing “skepticism about the validity of [the] ‘man ifest disregard’ doctrine in li ght of recent Supreme Court precedent,” but finding that the respondent had failed to m eet it). This issue need not be resolved here since Argentin a does not raise “manifest disregard of the law” as a ground for vacatur. 15 Section 11 of the FAA, which i s not relied upon by Argentina or at issue in this case, also authorizes modification or correction of an arbitration award where there is “an evident material mis calculation of figures or an evident material mistake in the description of any person, thin g, or property referred to in the award,” 9 U.S.C. § 11(a), or “[w]here the arbitrators have awarded upon a matter n ot submitted to them, unless it is a matter not affecting the merits of the deci sion upon the matter submitted” or “[w]here the award is imperfect in matter of form not affecting the merits of the controversy,” 9 U.S.C. § 11(b)– (c). As noted, FAA’s § 11 is not at issue in this case.16 and that this arbitrato r’s impartiality was further evidenced b y her “failure to disclose her acceptance of the appointment as director and her failure to investigate adequately the potential for the appointment to compromise her independence and impartia lity,” id . AWG responds that these claims are meritless in light of the deferential standard of review due to the two unchallenged arbitrators’ Sec ond Disqualificatio n Decision, and that, in any event, Argentina has failed to demonstrate that Profe ssor Kaufman-Kohler’s position, or her failure to investigate or disclose the potential for conf lict, amounted to the requisite “evident partiality” to refuse recognition and enforcement of t he Final Award. Resp.’s Mem. a t 25–34.
1. Relevant Background Review of the chronology of event s and the factual basis for th e alleged partiality demonstrates that Argentina’s challenge to one of the Tribunal members falls far short. On July 17, 2003, the Claimants appointed Professor Kaufman-Kohler as o ne of three arbitrators to hear the Claimant’s ICSID cases, incl uding AWG’s case at issue in th is litigation. Second Disqualification Decision ¶ 3. 16 Subsequently, these three arbitrators on the Tribunal commenced hearings and issued deci sions in the Claimant’s cases , on such issues as “timetables and procedures on submission of docum ents, the jurisdiction of the tribunal, requests by a group of nongovernmental organization to pa rticipate as amicus curiae , the withdrawal of certain parties, and various other matte rs concerning the orderly manag ement and processing of the arbitral proceedings.” Id. ¶ 6 (footnotes omitted).

16 The parties do not challenge the relevant factual record coll ected and summarized by the Tribunal in the Second Disqualification Decisi on or the Decision on Liability i n this case. See Pet.’s Sur-Reply in Supp. Pet. to Vacate Arbitration Awa rd & in Opp’n Resp.’ s Cross-Pet. for Conf irmation, Recognition and Enforcement of Award (“Pet.’s Sur-Reply”) at 8 n.4, ECF No. 20. Accordingly, those facts are deemed u ndisputed and relied upon as the factual record in evaluating Argentina’s claim of evident parti ality on the part of a Tribunal member.17 During this ongoing arbitra tion activity, on April 19, 2006, Pr ofessor Kaufmann-Kohler was appointed to a three-year t erm as a non-executive member of the UBS Board. Id. ¶ 11. At this time, “she submitted on a confidential basis a list of all her arbitrations to UBS and was subsequently informed by UBS tha t there were no conflicts of in terest, except with respect to her position as a member of the Ame rica Cup Jury (since UBS sponsor ed a yacht in that competition), from which she resigned.” Id. ¶ 14. Although the arbitration a t issue in this case had already commenced and was disc losed in the conflicts check to UBS, Professor KaufmannKohler did not disclose her new UBS Board position to the insta nt parties or othe r arbitrators.
Id. ¶ 11. In the spring and fall of 2007, the Tribunal held heari ngs on the merits of each of the Claimant’s cases. Id. ¶¶ 6, 8. Upon learning of Professor Kaufma nn-Kohler’s appointment to the UBS Board over a year after her appointment, Arg entina filed a challenge to disqualify Professor Kaufmann-Kohler from the arbitration pro ceedings on November 29, 2007. 17 Id. ¶ 11. This challenge was premised on UBS’s ownership of sha res in two members of the con sortium responsible for “the Buenos Aires water privatization that is at the heart of the di spute.” Id. ¶ 21. Specifically, “[a]ccording to the Vivendi web s ite, UBS was a ‘main investor’ in the corporation, holding 2.38% of its registered voti ng stock as of March 31, 2007. UBS also held some 2.1% of the voting shares of Suez as of March 7, 2007.” Id. ¶ 12. In its challenge, Arg entina also pointed out that “UBS does research on a nd makes recommendations with r espect to investments in the water sector, a sector in whic h the Claimants operate, and UBS has developed financial products that it sells to investors to pe rmit them to invest in the wate r sector on a global basis.” Id.

17 Article 10(1) of the UNCITRAL R ules provides that: “An arbitr ator may be challenged if circumstances exist that give rise to justifia ble doubts as to the arbitrator ’s impartiality or independence. ” Second Disqualification Decision ¶ 22.18 Further, Argentina cited the f act that, as a non-executive memb er of the UBS Board, Professor Kaufmann-Kohler is compensated f or her services, in part, with UBS stock. Id. Notably, UBS is not a shareholder of AWG. Id. ¶ 21. In a submission to the remaining t wo arbitrators determining th e challenge, Professor Kaufmann-Kohler explained that until Argentina’s challenge was lodged, “she had no knowledge of the business relationships all eged to exist between the Clai mants and [UBS].” Pet., Ex. F to the Slater Decl., Letter from Gab rielle Kaufmann-Kohler to Gonz alo Flores (Dec. 21, 2007) (“Dec. 21, 2007 Kaufmann-Kohler L etter”) at 1; Pet. ¶ 14. Afte r Argentina brought these business relations to her attenti on, she requested that UBS “ve rify the accuracy of the UBS shareholdings in the Claimants and was informed by the UBS Corp orate Group General Counsel that UBS held 2.38% of the shares and voting rights of Vivendi Universal on March 31, 2007 and 2.13% of Suez’s share cap ital on March 7, 2007 and 1.3% on April 18, 2006.” Second Disqualification Decision ¶ 14; Dec. 21, 2007 Kaufmann-Kohler L etter at 1. Professor Kaufmann-Kohler submitted to the remaining two arbitrators on the Tribunal additional contextual information “that UBS , as a global financial institu tion, has many business relationships with many corpora tions and states worldwide but t hat she as an independent, nonexecutive director has no involveme nt in individual investment decisions and did not receive any information about such individual investment decisions” and “th at non-executive directors do not deal with individual UBS client matters or transactions.” Seco nd Disqualification Decision ¶ 14. Similarly, UBS itself confirmed, “ [a]ll these shareholdings are fairly small, if not fractional. They do not have a strategic meaning of any kind. UBS would invest in hundreds, if not thousands of commercial ente rprises around the globe in a s imilar way. Investment of this magnitude lies within the ordi nary course of business of our ba nk.” Second Disqualification19 Decision ¶ 14 (quoting “co mmunication of December 20, 2007 to P rofessor Kaufmann-Kohler signed by UBS’ General Counsel an d another Legal Advisor”). Notwithstanding the minimal nature of UBS’s investments in two consortium members other than AWG and the challe nged arbitrator’s lack of knowledg e about the UBS investments until alerted by Argentina, as well as her lack of any role or decision-making authority over UBS’s investments, Argentina at tempted to bolster its challenge by offering expert reports from Cornell University Law School Pro fessor Charles W. Wolfram (“Wo lfram Reports”). Id. ¶ 15; see generally Pet., Ex. D to Slater Decl., ExpertReport of Charles W. Wolfra m (Feb. 29, 2008); Pet., Ex. E to Slater Decl., Repl y Expert Report of Charles W. Wolfram (Mar. 24, 2008). As noted by the unchallenged arbitrato rs, the Wolfram Reports focu sed almost entirely on consortium members, Suez and V ivendi, not AWG, to support Argen tina’s argument that Professor Kaufman-Kohler’s pos ition on the UBS Board rendered h er impartial in evaluating AWG’s claims. Second Dis qualification Decision ¶ 15. Ultimately, the unchallenged arbit rators of the Tribunal, inclu ding Argentina’s appointed arbitrator Professor Nikken, conc luded that Argentina’s Second Disqualification Challenge must be dismissed for failure “to pr ove any fact indicating a manife st lack of independence or impartiality.” Id. § V, ¶ 1. With respect to AWG, t he unchallenged arbitrators r easoned that, “the only connection, if one ma y call it that, between Professo r Kaufmann-Kohler and the Claimant AWG Group Limited is the fact that she is a director o f UBS and that UBS, among its many other activities and inter ests throughout the world, condu cts research and develops financial products related to t he water sector,” but they concl uded that this connection is insufficient to give rise to “ justifiable doubts as to an arbit rator’s independence and impartiality.”
Id. ¶ 24. Based on this conclusion, th e two unchallenged members further found that Professor20 Kaufmann-Kohler was not require d to disclose facts that would n ot have given rise to justifiable doubts as to impartiality. Id. ¶ 26. The two unchallenged members acknowledged “the possibility of a connection betwee n the AWG case and the other two cases in the sense that if it were established that Professor Kaufmann-Kohler were predispose d to favor the Claimants in the ICSID cases such predisposition would also favor AWG Group Limi ted which is a partner with the other Claimants in the Bue nos Aires water privatization,” id. ¶ 21, but as they found no such predisposition, the arbitrators did not have occasion to addres s any implications of this connection, see id. ¶¶ 40, 48. 18 Notwithstanding the two unchalle nged arbitrator’s findings, sub sequent to the Second Decision on Disqualification, in an abundance of caution, Profe ssor Kaufmann-Kohler cut short her UBS Board service and resigne d from the UBS Board prior to the Decision on Liability and the Final Award. See Resp.’s Cross-Pet., Ex. 22 to F riedman Decl., Form 20-F for UB S AG at 191 (2009 Annual Report noting Gabrie lle Kaufmann-Kohler tender ed her resigna tion at Annual General Meeting on April 15, 2009), ECF No. 12-23; see also Kaufmann Kohler Leaves UBS Board at 1 (contemporaneous int erview by Professor Kaufmann-Koh ler explaining that she resigned, in part, to avoid doubts arising about her independen ce “‘in arbitrati on proceedings’”). 2. Analysis Section 10(a)(2) of the FAA provides that the Court may vacate an arbitration award “where there was evident partiality or corruption in the arbitr ators, or either of them.” 9 U.S.C. §

18 Argentina suggests, in a single sentence, that these two arbi trators were themselves impartial, claiming that the “decidedly dismissive approach” in the Second Disqualificat ion Decision reflects that t hey “had a conclusion in mind – that their esteemed co-ar bitrator, colleague, and friend would not be disqualified – and back-filled ‘reasons.’” Pet.’s Mem. in Opp’n Resp.’s Cross-Pet. for Confir mation, Recognition and Enforcement of Award & in Further Supp. Pet. t o Vacate Arbitration Award (“Pet.’s Opp’ n”) at 30, ECF. No 17. Nevertheless, Argentina did not move to disqualify the other arbitrators from the Tribunal, nor raise any challenge on evident partiality grounds to the unchallenged arbitrators in its petition here. To the e xtent this suggestion amounts to a belated effort to impugn the impartiality of these two arbitrators, it merits no further discussion.21 10(a)(2). 19 The Supreme Court provided som e guidance for evaluating evide nt partiality challenges in its plurality opinion in Commonwealth Coatings Corp. v. Continental Cas. Co. , a decision setting aside an arbitr ation award where one of the pa rties was a “repeated and significant” customer of one of the arbitrators. 393 U.S. 145, 146 (1968). Justice White, in his concurring opinion, provided the n arrowest reasoning for the de cision to vacate the award for evident partiality, observing tha t the “Court does not decide t oday that arbitrator s are to be held to the standards of judicial deco rum of Article III judges, or indeed of any judges.” Id. at 150 (White, J., concurring). Instea d, noting that arbitrators are often “effective in t heir adjudicatory function” because “they are me n of affairs, not apart from but of the marketplace,” Justice White reasoned “that arbitrators are not automatically disqualified b y a business relationship with the parties before them if both partie s are informed of the relatio nship in advance, or if they are unaware of the facts but the r elationship is trivial.” Id. Nevertheless, “where the arbitrator has a substantial interest in a firm which has done more than trivial business with a party, that fact

19 The parties disagree about the level of deference owed to the Tribunal’s legal conclusion, based on an undisputed factual record, that n o evident partiality was estab lished. Argentina argues that “[w]hen reviewing allegations under § 10(a)(2) of the FAA, courts apply a de novo standard,” in reliance on a number of out-of-circuit and State court decisions, which are all inapposite since none of these decisions involved either, as here, judicial review of a reasoned decision by n eutral arbitrators regarding the purported bias of a fellow arb itrator, or the applicable standard of review wh en presented by a record with s uch an arbitration decision. Pet.’s Sur-Reply at 4–5 (citing Flexsys Am. v. Local Union No. 12610 , 88 F. Supp. 2d 600, 602–04 (S.D. W.Va. 2000); Sun Ref. & Mktg. Co. v. Statheros Shipping Corp. , 761 F. Supp. 293, 301 (S.D.N.Y. 1991); Wages v. Smith Barney Harris Upham & Co. , 937 P.2d 715, 720–22 (Ariz. Ct. App. 1997); Plastic Recovery Techs. Co. v. Samson , No. 11 C 2643, 2011 WL 3205305 (N.D. Ill. July 28, 2011); Adams v. Barnes , No. 3:09-CV-1860-B, 2010 WL 2484251 (N.D. Tex. June 17, 2010); Boll v. Merrill Lynch, Pierce, Fenner & Smith, Inc. , No. 04-80031-CIV, 2004 WL 5589731 (S.D. Fla. June 28, 2004); Jason v. Halliburton Co. , No. CIV.A.02-1593, 2002 WL 31319945 (E.D. La. Oct. 15, 2002)) . AWG urges application of the deferential standard of review general ly accorded arbitral awards. See Resp.’s Mem. at 25. Such deference is consistent with the overwhelming weight of authorityrequiring deference to decisio ns of arbitration panels and the cautionary language in Commonwealth Coatings that: “The judiciary should minimize its role in arbitration as judge of the arbitrator’s impartiality. That role is best consigned to the parties, who are the architects of their own arbitration process, and are far better informed of the prevailing ethical standards and reputations within their business.” Commonwealth Coatings Corp. v. Continental Cas. Co. , 393 U.S. 145, 151 (1968) (White, J., concurring). Thus, the Court finds that def erence should be given to the unchallenged arbitrators’ Second Disqualification Decision. In any event, as explained infra , under either d eferential or de novo review, Argentina has failed to demonstrate evident partiality by a mem ber of the Tribunal under 9 U.S.C. § 10(a)(2).22 must be disclosed.” Id. at 151–52. Justice White also cautioned that “[t]his does notmean the judiciary must overlook outright chicanery in giving effect to their awards; that would be an abdication of our responsibility.” Id. at 150. Justice Black, writing for a plurality of four Justices, articulated a stricte r ethical standar d for arbitrato rs, finding that “we should, if anything, be even more scrupulous to safe guard the impartiality of arbitr ators than judges,” and that arbitrators must avoid even t he “appearance of bias.” Id. at 149, 151. 20 Following the lead of Justice White ’s concurrence, the D.C. Cir cuit, in Al-Harbi v.
Citibank , instructed that “‘the burden on a claimant for vacation of an a rbitration award due to ‘evident partiality’ is heavy, and t he claimant must establish specific facts that indicate improper motives on the part of an arbitrator.’” 85 F.3d 680, 683 (D.C. Cir. 1996) (quoting Peoples Sec. Life Ins. Co. v. Monumental Life Ins. Co ., 991 F.2d 141, 146 (4th Cir. 1993) (relying on Justice White’s concurrence in Commonwealth Coatings )). “‘The alleged partiality must be direct, definite, and capable of demonstr ation rather than remote, unce rtain or speculative.’” Al-Harbi , 85 F.3d at 683 (quoting Peoples Sec. Life Ins. Co. , 991 F.2d at 146) (internal quotation marks omitted). “‘[A] mere appearance of bias is insufficient to dem onstrate evident partiality.’”
Hammad v. Lewis , 638 F. Supp. 2d 70, 75 (D.D.C. 2009) (quoting Alston v. UBS Fin. Servs.,
Inc. , No. 04-01798, 2006 WL 20516, at *3 (D.D.C. Jan. 2, 2006)).

20 The divergence between the approaches of the plurality and Ju stice White’s concurrence left the Court without a majority opinion and, under the rule in Marks v. United States , “[w]hen a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, ‘the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds.’” 430 U.S. 188, 193 (1977) (quoting Gregg v. Georgia , 428 U.S. 153, 169 n.15 (1976) (opinion of Stewart, Powell, an d Stevens, JJ.)). See also In re Sealed Case , 722 F.3d 361, 365–66 (D.C. Cir. 2013) (explaining when plural ity versus concurring view is binding). Cons equently, the narrow view arti culated by Justice White for finding an arbitrator’s “evident partiality” is binding. See Morelite Constr. Corp. v. New York City Dist. Council Carpenters Benefit Funds , 748 F.2d 79, 83 (2d Cir. 1984) (noting “murky backdrop of Sup reme Court precedent” and that “much of Justice Black’s opini on must be read as dicta ”).23 Other circuits to have considere d the issue have employed an ob jective test that “‘evident partiality . . . will be found where a reasonable person would have to conclude tha t an arbitrator was partial to one party to the arbitration.’” Scandinavian Reins. Co. , 668 F.3d at 72 (quoting Morelite Constr. Corp. v. New York City Dist. Council Carpenters Benefit Funds , 748 F.2d 79, 84 (2d Cir. 1984)); see also Nationwide Mut. Ins. Co. v. Home Ins. Co. , 429 F.3d 640, 645 (6th Cir. 2005) (same); JCI Commc’ns, Inc. v. Int’l Bhd. of Elec. Workers, Local 103 , 324 F.3d 42, 52 (1st Cir. 2003) (same). Even t hough the D.C. Circuit has not e xpressly endorsed this standard, the parties appear to agr ee that it applies here. See Resp.’s Mem. at 26 (citing Al-Harbi v. Citibank, N.A. , No. 94-2425, 1995 WL 450523, at *2 (D.D.C. July 17, 1995)); Pet.’s Mem. in Opp’n to Resp.’s Cross-Pet. f or Confirmation, Recognition and E nforcement of Award & in Further Supp. Pet. to Vacate Arb itration Award (“Pet.’s Opp’n”) at 16, ECF. No 17 (stating award must be vacated where an arbitrator has a relationship “s uch that reasonable people would have to believe [that the relati onship] provides strong evidenc e of partiality by the arbitrator” (alteration in or iginal) (quoting Morelite , 748 F.2d at 85)). 21

21 The parties disagree (1) whe ther partiality must be proven by clear and convincin g evidence; and (2) whether findings by other arbitr al panels regarding the challen ged arbitrator’s impartiality have any bearing on this case. These disagreements make no difference to the ultimate r esult in this case. First, w hile AWG asserts that “a party must establish by ‘clear and convincing evidence’” the re asonable person standard, Resp.’s Mem. at 26 (citing district court adoption of “clear and convincing” burden of pro of in Al-Harbi, 1995 WL 450523, at *2), Argentina posits that “neither a ‘clear and convincing evidence’ standard nor a requirement to prove actual bias has been adopted by the Circuit and they should not be applied here,’” P et.’s Opp’n at 20 (footnote omitted). The Court need not resolve this disagreement over the burden of proof, because , even if that burden is les s rigorous than “clear and convincing,” it remains “heavy” a nd Argentina has failed to pro vide sufficient evid ence of any partiality. Second, both parties contest the impact of the Disqualification Decisions and other arbitration decisions on the “reasonable person” standar d. AWG argues that Argentina ca nnot demonstrate “evident partiality” for the simple reason that two unchallenged arbitrators in this case co ncluded that Professor Kaufmann-Kohler was impartial and, consequently, “not all reasonable persons ‘would have to conclude’ that [ her] affiliation with UBS rendered her incapable of judging impartially.” Resp.’s Mem. a t 27–28 (citing, in addition, an arbitral decision in another investment-treaty dispute, EDF International S.A. and others v. Argentina , ICSID Case No. ARB/03/23, Challenge Decision Regarding Professor Gabrielle Kaufmann-Kohle r (“EDF Decision”) (June 25, 2008), ECF No. 12-20, rejecting partiality challe nge to Professor Kaufmann-Koh ler due to her position on the UBS Board); see also Resp.’s Notice of Suppl. Authority at 1–2, ECF No. 24 (noting t hat the EDF Decision was upheld by an ICSID annulment committee on February 5, 2016). In response, Argenti na cites a different arbitration decision involving this challenged arbitrator, Compania de Aguas del Aconquija S.A. and Vivendi Universal S.A. v. Argentina , ICSID24 Set against the “onerous standard for vacatur,” Al-Harbi , 85 F.3d at 683, Argentina’s claim of evident partiality res ts entirely on Professor Kaufman n-Kohler’s position as a nonexecutive member on the UBS Board for a limited three-year peri od, from April 19, 2006, to April 15, 2009, out of the twelve-ye ar duration of the arbitrat ion. Despite the notable facts that UBS held no interest in AWG, that the challenged arbitrator served on the UBS Board for only a fraction of the time she serve d on the Tribunal, and that she h ad resigned from the UBS Board at the time of issuance of the Deci sion on Liability and the Final Award, Argentina points to UBS’s investments in two of AWG’s cons ortium partners and UBS’s gener al investment activities in the water sector, as evidence of the challenged arbitrator’s partiality. This evidence is wholly insufficient to establish Argen tina’s claim of evident partiali ty for at least three reasons. First, in the context of UBS’s ove rall business, that company’s interests in AWG’s consortium partners, Suez and V ivendi, was inconsequential. UB S “is among the world’s largest financial services companies, w ith operations in over fifty cou ntries, some 80,000 employees, and over 200,000 registered shareho lders.” Second Disqualifica tion Decision ¶ 10 (footnote omitted) (referencing www.ubs.com ). Indeed, illustrating the u biquitous nature of UBS’s business, Argentina itself was a client of UBS until January 17 , 2005, after the arbitration proceedings had commenced. See Resp.’s Cross-Pet., Ex. 24 to Friedman Decl., AWG Grp. v. Argentine Republic , Argentina’s Additional Observat ions and Comments to Mrs. Kauf fman-

Case No. ARB/97/3, Decision on the Argentine Republic’s Request for Annulment of the Award rendered on August 20, 2007 (“Vivendi Annulment Decision”) (Aug. 10, 2010), ECF No. 17-10; Pet.’s Sur-Reply at 14, in which the ICSID Annulment Commi ttee raised serious concern abou t the “compatibility” of se rving on a board of an international bank and as an international arbitrator, Vivendi Annulment Decision ¶ 218, but declined to annul the award since Professor Kaufman-Kohler and the parties were unawa re of UBS’s investment in Vivendi before the panel made the award, id. ¶¶ 234–35. The Vivendi Annulm ent Decision is easily distingui shable on its facts, since the challenged arbitrator was not on the UBS Board at the time of the critical Decision on Liability or Final Award in this case. Moreover, deferen ce is owed to the disqualificat ion decisions, which wer e resolved by impartial arbitrators. See supra note 19.25 Kohler Remarks (Jan. 7, 2008) ¶ 101, ECF No. 12-25 (Argentina a cknowledging its relationship with UBS and noting that it e nded on January 17, 2005). UBS’s investments in AWG’s consortium partners, Suez and V ivendi, were “‘fairly small, if not fractional,’” and amounted to only two of “‘hundreds, if not thous ands of commercial enterpri ses around the globe.’” Second Disqualification Decision ¶ 14 (quoting “communication of Decem ber 20, 2007 to Professor Kaufmann-Kohler signed by UBS’s G eneral Counsel and another Leg al Advisor”). These investments “represented a mer e one-twentieth of one percent (0 .056%) of UBS’s total investments worldwide,” Resp.’ s Reply Mem. in Further Supp. Cro ss-Pet. for Confirmation, Recognition and Enforcement of Awa rd (“Resp.’s Reply”) at 10 (e mphasis omitted), ECF No. 18, were within the “ordinary cour se of business of [the] bank, ” Second Disqualification Decision ¶ 14, and consisted mai nly of shares held on behalf of third parties, See Resp.’s CrossPet., Ex. 25 to Friedman Decl., AWG Grp. Ltd. v. The Argentine Republic , Claimant’s Comments on the Respondent’s Second Challenge to Professor Kaufmann-Kohl er (Dec. 24, 2007) ¶¶ 23–30, ECF No. 12-26 (noting UBS held approximately one-eighth of the Suez shares on its own behalf, while the rest of the Suez shares and all of the Vivendi shares were held on behalf of third parties). Indeed, the unchallenged arbitrators determined that “it is more likely that this arbitration, whatever its outcome, will ha ve a negligible effec t on the share price of Vivendi and Suez and certainly on the finan cial fortunes of UBS . . . . UBS ’s holding in Suez and Vivendi would have an insignificant eff ect on UBS profitability given the enormous size and scope of UBS global operations.” Second D isqualification Decision ¶ 36. Argentina contends that there is no requirement that it must prove that the aw ard at issue here would have an impact on Suez and Vivendi’s share prices, and thus, UBS’s bottom line, see Pet.’s Sur-Reply in Supp. Pet. to Vacate Arbitration Award & in O pp’n Resp.’s Cross-Pet. for Conf irmation, Recognition and26 Enforcement of Award (“Pet.’ s Sur-Reply”) at 9, ECF No. 20, buteven so, the lack of this evidence in the record certain ly does not help Argentina make i ts argument that the award would have had any effect on UBS. Relatedly, since UBS had no more t han a trivial i nterest in Sue z and Vivendi, the challenged arbitrator’s role at U BS and her compensation in UBS stock is likewise inconsequential. Courts have re peatedly rejected claims of evi dent partiality based on an arbitrator’s attenuated invest ment in one of the parties or, as here, an entity with tangential investments in a party. 22 Transit Cas. Co. v. Trenwick Reins. Co. , 659 F. Supp. 1346, 1353 (S.D.N.Y. 1987) (denying vacatur on grounds that relationship w as “trivial” where arbitrator owned stock in Cigna Corporati on, which had a subsidiary, CignaHoldings, which owned 100% of the Aetna Insurance Cor poration, which in turn owned 7.6% of the shares of the challenging party’s parent company); Standard Tankers (Bahamas) Co. v. Motor Tank Vessel, Akti , 438 F. Supp. 153, 160 (E.D.N.C. 1977) (findi ng arbitrator’s ownership of “a small number of shares” in a party’s parent company was immat erial where there was still “ such a vast number of outstanding shares of stock”); see also Sphere Drake Ins. Lt d. v. All Am. Life Ins. Co ., 307 F.3d

22 Argentina attempts to bolster its request for vacatur by citi ng cases where vacatur has been granted due to an arbitrator’s direct or substantial business dealings with a party to the arbitration. Pet. ¶¶ 50–51 (citing, e.g., Commonwealth Coatings , 393 U.S. at 146 (vaca ting award where relationship between ar bitrator and party “went so far as to include the rendering of services on the very project s involved in this lawsuit”); Applied Indus. Materials Corp. v. Ovalar Makine Ticaret Ve Sanayi, A.S. , 492 F.3d 1 32, 138 (2d Cir. 2007) (v acating award where a bran ch of the arbitrator’s company was negotiating with a party to commence a business relationship); New Regency Prods., Inc. v. Nippon Herald Films, Inc. , 501 F.3d 1101, 1103 (9th Cir. 2007) (vacating award where arb itrator was senior executive of a company “n egotiating with a production ex ecutive of one of the par ties to the arbitration to finance and co-produce an i mportant motion picture”); Olson v. Merrill Lynch, Pierce, Fenner & Smith, Inc. , 51 F.3d 157, 159 (8th Cir. 1995) (vacating arbitration award where arbitrator “did not disclose that he is vice-president, chief financial officer, and compliance officer for []an investment firm that underwrites and sells municipal bonds, or that his firm does a substantial amount of business with Mer rill Lynch,” one of the parties to the arbitration)). This reliance is misplaced. The se cases are plainly inapposite since UBS had insignificant investments in nonparties, Suez and Vivendi, rendering the challenged arbitrator’ s role at UBS similarly immaterial for purposes of showing any partiality.27 617, 621 (7th Cir. 2002) (“A judge can’t hold even a single sha re of a party’s stock, but this would not imply ‘evident par tiality’ for purposes of § 10(a)(2) .”). 23 The challenged arbitrator’s rol e as a non-executive member of t he UBS Board further demonstrates the attenuated natu re of her relationship to the p arties. As a matter of course, this arbitrator “ha[d] no involvement in individual investment decis ions and did not receive any information about such individual investment decisions” and “[d id] not deal with individual UBS client matters or transactions .” Second Disqua lification Decis ion ¶ 14. This role in an intermediary company is far more remote relative to the parties than the types of long-standing, direct, and repeated business rela tionship with a party that ha s supported a finding of evident partiality by an arbitrator. See, e.g. , Schmitz v. Zilveti , 20 F.3d 1043, 1044 (9th Cir. 1994) (arbitrator’s law firm represented the parent company of a part y in “at least nineteen cases during a period of 35 years”); Morelite , 748 F.2d at 84 (father-son rela tionship between an arbitrator and party). Thus, the challenge d arbitrator’s role on the Boar d of a limited investor in nonparties Suez and Vivendi for arelatively short time period dur ing the arbitration is so remote and trivial that no reasonable pers on would conclude she was partia l to a party as a result of that relationship. Al-Harbi , 85 F.3d at 683. 24

23 Argentina argues that the rel ationships in these cases are more attenuated than the one between Professor Kaufmann-Kohler and AWG’s partners, Suez and Vivendi, but even if that were the case, it does not change the fact that the relationship here is also attenuated.

24 Throughout its briefing, Argentina urges that the finding reg arding the challenged arbitrator set out in the Vivendi Annulment Decision be followed here, Pet.’s Opp’n at 18 –20; Pet.’s Sur-Reply at 14, but that arbitral decision fails to consider the issue of materiality and is, thu s, unpersuasive. In the Vive ndi Annulment Decision, an appellate arbitral body, the ICS ID Annulment Committee, reviewe d an arbitration award made by a panel that included Professor Kaufmann-Kohler. Vivendi Annulment Decision ¶ 1. The claims raised by Argentina were the same as those at issue here—namel y that Professor Kaufmann-Kohl er’s position on the UBS Board rendered her partial and biased towards the claimant, Vivendi. Vivendi Annu lment Decision ¶¶ 18–23. The Annulment Committee found that a director’s fiduciaryduties are “fundame ntally at variance with his or her duty as an independent arbitrator in an arbitration involving a party in w hich the bank has a shareholding or other interest, however small it may be,” Vivendi Annulment Decision ¶¶ 217–18 (footnote omitted), and that, generally speaking, the position of board member of an international bank and inter national arbitrator “may not be compatible and should not be, or in a modern international arbitration environ ment, should no longer be combined,” id. ¶ 218.28 In further support of its position, Argentina cites the Intern ational Bar Association Guidelines on Conflicts of Interest in International Arbitratio n. Pet. ¶ 55 (footnote omitted) (referencing IBA Guidelines on C onflicts of Interest in Interna tional Arbitration (“IBA Guidelines”), Int’l Bar Assoc. (2014), available at http://www.ibanet.org/Publications/ publications_IBA_guides_and_free_ materials.aspx). According to Argentina, these guidelines contain a “Non-Waivable Red List” of conflicts for arbitrators that cannot be waived, including when “[t]he arbitrator is a mana ger, director or member of the supervisory board, or has a controlling influence on one of the parties or an entity that h as a direct economic interest in the award to be rendered in the arbit ration.” IBA Guidelines, PartII, § 1.2. Other courts have found these guidelines to be persua sive, but not binding authority. See, e.g., New Regency Prods., Inc. v. Nippon Herald Films, Inc. , 501 F.3d 1101, 1103 (9th Cir. 2007). In a ny event, the IBA Guidelines simply do not favor Argentina’s position. Instead, these Guidelines expressly focus on the substantive nature, or materiality, of a challenged arbi trator’s financial o r business interest in the award by requiring a contro lling interest in an entity w ith, or some other “direct economic interest in,” the award. IBA Guidelines, Part II, § 1.2. Such a material interest is wholly absent on the part of the challenged arbitrator. Second, the fact that UBS, “among its many other activities and interests throughout the world, conducts research and develo ps financial products relate d to the water sector,” Second Disqualification Decision ¶ 24, cont ributes little to Argentina ’s claim of evident partiality. Argentina cites no case law eve n suggesting that an arbitrator’ s position with a company that

Notwithstanding this finding, the Annulment Committee did not a nnul the award, as it de termined that neither Professor Kaufman-Kohler, nor th e parties, were aware of UBS’s investment in Vivendi before the panel made the award. See id. ¶¶ 234–35. By finding that an arbitrator’s pos ition on the bo ard of directors of an international investment bank always creates i mpartiality, no matter how smal l the connection between the investment bank and an arbitral party, the Annulment Committee’s decision lacks con sideration of materiality, an important element that United States law embraces, and i n this respect this decision i s inconsistent with domes tic law applicable here.29 invests in the same general sect or as the parties gives rise to evident partiality. To the contrary, arbitrators are often called upon f rom relevant industries beca use they bring the benefit of expertise. See Commonwealth Coatings, 393 U.S. at 150 (White, J., conc urring) (recognizing that arbitrators are often “of the marketplace”); see also JCI Commc’ns , 324 F.3d at 52 (noting that “mere fact that the panel included busine ss rivals of one party does not rise to the level of evident partiality” because arbitrators from relevant industrie s bring expertise that “would be a considerable benefit”). Finally, given the attenuated busin ess interest between UBS and AWG’s business consortium partners, the cha llenged arbitrator had no duty to i nvestigate and disclose these “marginally disclosable” facts. Al-Harbi , 85 F.3d at 683 (referencing Commonwealth Coatings , 393 U.S. 145, 149 (1968)). Indeed, the c hallenged arbitrator w as not, prior to Argentina’s requests for disqualification, a ware of any relationship betwee n UBS and the claimants, and had done her due diligence by conduc ting a conflicts check with UBS

. Cf. Ometto v. ASA Bioenergy Holding A.G. , No. 12 Civ. 1328, 2013 WL 174259, at *4 (S.D.N.Y. Jan. 9, 201 3) (finding even an inadequate conflicts check “not tantamount to ‘evident parti ality’”). Argentina’s argument that a conflict check done by UBS is inadequate because it was an interested party, see Pet.’s Sur-Reply at 17–18, defies practic ality. UBS is in the best po sition to know of its matters, and accordingly, it was eminently reasonable for Professor Kaufmann -Kohler to rely upon the institution to inform her of mean ingful conflicts. Moreover, t his is not a case like Applied Indus. , relied upon by Argentina, where t he Second Circuit determined t hat an arbitrator, who was Chairman, President, and CEO of a multi-billion dollar company, upon learning of a potential conflict, should have conducted a n investigati on that would hav e uncovered an ongoing relationship for services betw een a subsidiary of that arbitrat or’s company and a party. 492 F.3d30 132, 139 (2d Cir. 2007). The Court f ound that the revenue from this relationship—$275,000— was nontrivial, and accordingly, tha t the arbitrator’s failure “to investigate those discussions or disclose that he would make no f urther inquiries” amounted to e vident partiality. Id. Unlike the relationship in Applied Indus. , however, the relationship between the challenged arbitrator as a non-ex ecutive director and UBS is fa r more remote than that between the operational Chairman, Presi dent, and CEO of a company and t he company he serves. Not only that, the relationship betw een UBS and AWG’s co-claimants was more remote because UBS was only a trivial invest or, in contrast to the ongoing ser vice contract relationship at issue
in Applied Indus. In any event, once the challenge d arbitrator was made aware of UBS’s investment in AWG’s partners, she immediately withdrew from del iberations, sought confirmation from UBS regarding “ the accuracy of the UBS shareh oldings in the Claimants,” and disclosed that information a s part of the underlying disqua lification proceedings. See Second Disqualification Decision ¶¶ 13–14. In other words, upon being made aware of a potential conflict, even a trivial one, Pro fessor Kaufmann-Kohler more th an fulfilled her duty to investigate. See Applied Indus. , 492 F.3d at 139 (stating that “[o]n ce the arbitrat or [i]s awa re that a nontrivial conflict of interest might exist, the calculus cha nge[s]” and “the arbitrator ha[s] a continuing duty to ensure that n either he nor his corporation h a[ve] a direct or indi rect interest in the outcome of the arbitration.”) (internal quotation marks omi tted)). These efforts and actions taken by the challenged arbitrat or in an abundance of caution c onfirms that the record here lacks any facts “that indicate improper motives.” Al-Harbi , 85 F.3d at 683. In sum, the “evident-partiality s tandard is, at its core, direc ted to the question of bias.”
Scandinavian Reins. Co. , 668 F.3d at 73. The record here do es not objectively suggest that the challenged arbitrator had any r eason to be biased against Argen tina. Thus, the Court agrees with31 the conclusion of the two unchall enged arbitrators, whose decis ion is, in any event, due deference, that “[a]n obj ective analysis . . . does not . . . l ead a reasonable, informed person to conclude that a justifiable doubt exists as to Professor Kaufma nn-Kohler’s impartiality or independence” with respect to A WG. Second Disqualification Dec ision ¶ 24.
C. The Tribunal Did Not Exceed Its Powers Argentina claims that the Tribunal exceeded its powers by faili ng to apply applicable law in its computation of damages and its evaluation of the necessi ty defense, warranting vacatur under the FAA’s § 10(a)(4). Close examination of these claims, however, demonstrates that the Tribunal acted well within its powers, and no vacatur is warran ted on these grounds. The FAA authorizes vacatur of a n arbitration award “where the a rbitrators exceeded their powers, or so imperfectly execute d them that a mutual, final, a nd definite award upon the subject matter submitted was not made. ” 9 U.S.C. § 10(a)(4). To succe ed in vacating an award under § 10(a)(4), a party must demonstrat e that the “arbitrator stray[e d] from interpretation and application of the agreement a nd effectively ‘dispense[d] his o wn brand of industrial justice.’”
Stolt-Nielsen , 559 U.S. at 671 (quoting Major League Baseball Players Ass’n v. Garvey , 532 U.S. 504, 509 (2001) (per curiam)). “ ‘[I]t is particularly nec essary to accord t he narrowest of readings to the excess-of-aut hority provision of section 10(d). That provision does not, it must be stressed, confer on courts a ge neral equitable power to subs titute a judicial resolution of a dispute for an arbitral one.’” Kanuth v. Prescott, Ball & Turben, Inc. , 949 F.2d 1175, 1180 (D.C. Cir. 1991) (quoting Davis v. Chevy Chase Fin. Ltd. , 667 F.2d 160, 165 (D.C. Cir. 1981) (analyzing prior versi on of statute when § “10(a)(4)” was numbe red “10(d)”). The Supreme Court has cautione d that courts “have no business w eighing the merits of the grievance [or] considering whe ther there is e quity in a par ticular claim.” Garvey , 532 U.S. at32 509 (alteration in original) (internal quotation marks and cita tion omitted). Deference to an arbitrator’s judgment applies, e ven if the court is convinced t hat the arbitrator “committed serious error.” Id. (internal quotation marks a nd citation omitted). “Because the parties ‘bargained for the arbitrator’ s construction of their agreement ,’ an arbitral decision ‘even arguably construing or applying t he contract’ must stand, regar dless of a court’s view of its (de)merits.” Oxford Health Plans , 133 S. Ct. at 2068 (quoting Eastern Associated Coal Corp. v. United Mine Workers of Am., Dist. 17 , 531 U.S. 57, 61 (2000)). Argentina simply cannot overcome this high hurdle requiri ng deference to the Tribunal’s determinations.
1. The Tribunal Did Not Exceed Its Power When It Awarded Damages Argentina argues that the Tribunal exceeded its powers in award ing damages, claiming that the Tribunal lacked author ity (1) to award damages arising after the Concession Contract’s lawful termination in 2006, and (2) to calculate damages assumi ng that Argentina was required to ensure AASA’s viability. AWG counters that “[t]he two damag es-related excess of power arguments presented in the Peti tion are nothing more than quarr els with the way the Tribunal assessed the evidence and applied the law.” Resp.’s Mem. at 39 . Despite Argentina’s efforts to cloak its challenge to the amount of damages awarded as jurisdi ctional arguments under FAA § 10(a)(4), the Tribunal acted we ll within its authority in both interpreting the contractual terms between the parties and the amount of damages owed. Argentina concedes that “the T ribunal was only authorized to aw ard damages for actions in violation of the BIT,” Pet . ¶ 74, which, in turn, required t he Tribunal to look to “ the applicable principles of international la w,” UK-BIT, art. 8(4). Neither t he UK-BIT itself, nor the UNCITRAL rules applicable here, e xpressly provide for awarding or calculating damages. In accordance with this direction i n the UK-BIT, the Tribunal “loo k[ed] to customary international33 law for the legal principles t hat govern the determination of d amages.” Final Award ¶ 23. As the Tribunal explained, the artic ulation of international law p rinciples in the Articles on Responsibility of States for Inte rnationally Wrongful Acts (200 1) (“Articles”), which have been adopted by the United Nations’ In ternational Law Commission (“I LC”), are “generally considered as a statement of cus tomary international law” and “ both parties in this case have relied [upon them] at various times.” Id. ¶ 24; see also id. ¶ 23 (“As both the Claimants and the Respondent in this case have agr eed in their pleadings, the leg al basis for awarding compensation in this case and the standard to be applied in det ermining the amount of that compensation is therefore to be found in international law; how ever, they do not agree on the specific content of the applicab le international law principles and the way in which they should be applied to the precise facts of these cases. This Tribunal, like others, must therefore look to customary international law for the legal principles that gover n the determination of damages in these cases.”) (footnote omitted)). Relying on these Articles, the Tribunal determined its mandate “to award ‘full compensa tion’ to the Claimants for the injuries caused by Argentina’s treaty violations, to seek ‘to wip e out all the consequences’ o f Argentina’s illegal acts, and to place the Claimants ‘in the situation which would, in all proba bility, have existed’ if Argentina had not committed its illegal acts.” Id. ¶ 27. Moreover, it determine d “the basic standard to be applied is that of full compen sation [] for the loss incurred a s a result of the intentionally wrongful act.” Id. Notably, Argentina does not que stion the Tribunal’s mandate u nder applicable principles of inter national law, but rather, Argenti na challenges how the Tribunal calculated such damages. To assist with the calculation of damages, the Tribunal appoint ed an independent financial expert, Dr. Akash Dee p, Senior Lecturer in Public Pol icy at the John F. Kennedy34 School of Government of Harvard Uni versity and a former Senior Economist of the Bank for International Settlemen ts in Basel, Switzerland. Id. ¶ 12; see also Pet., Ex. L to the Slater Decl., AWG Grp. v. The Argentine Republic , Final Report of the Financial Expert to the Tribunal (July 22, 2013), ECF No. 1-15; Pet., Ex. M to the Slater Decl., AWG Grp. v. The Argentine Republic , Response to the Tribunal’s Quer y About the Failure of AASA (Sep t. 21, 2014), ECF No. 1-16. The Tribunal determined, by applyi ng customary international law principles on damages, that the process for calculating dama ges consisted of three steps: (1) “determine the value of the investment in the hypothetical situ ation where Argentina did no t take measures that violated its treaty obligations,” (2) “determ ine the value of the investment as a result of the offending measures that Argentina did tak e,” and (3) “subtract the second value from the first and then actualize that amount by means of a n appropriate interest rate to arrive at the damages owing to the Claimants so as to put them in the financial position they would have been [in] had Argentina not breached the applicable BITs.” Id. ¶ 28. The Tribunal noted that this dama ges calculation was complicate d by the nature of the Claimants’ investments. Id. ¶ 29. In particular, the stream of revenue intended to compens ate Claimants for their early-on investments “depended on many vari ables, both foreseen and unforeseen, over the next three decades, including population g rowth in the area, general economic conditions, technological changes, labor conditions, m anagement efficiency, inflation, operating costs, and many others.” Id. To assist in accounting for these multiple variables, the Tribunal used an economic mode l, which was designed by Dr. Deep , and “sought to capture numerous relevant economic vari ables and to determine with a ce rtain degree of mathematical precision their impact on each other and on the costs, revenues , and profitability of the Concession [Contract].” Id. ¶ 30.35 The Tribunal determined, as a pr eliminary matter, that the valu ation period for calculating damages would begin a t the point in time before Arg entina’s illegal actions took place. Id. ¶ 36. The Tribunal further de termined that starting in 2002, when Argentina first breached the BITs, “the Claimant s[] had the right to a revenue stream which would continue for another 21 years until the year 2023, not just for another five years until the year 2006 when, unknown to them in 2002, Argentina would terminate the Concessi on [Contract].” Id. The Claimants detailed “five indi vidual elements of loss as a r esult of Argentina’s treaty violations: (1) loss on AASA’s debts that the Claimants had gua ranteed; (2) in the case of Suez, losses on future management fees (after 2002); (3) also in the case of Suez, losses on unpaid management fees earned before 2002; (4) losses on the Claimants ’ equity investments in AASA; and (5) losses on unpaid dividends due to the Claimants as shar eholders of AASA.” Id. ¶ 58. The Tribunal awarded damages for the first four of these elemen ts, id. ¶¶ 68, 83, 86, 103, ultimately determining that the last element, “losses on unpaid dividends,” was subsumed by the value of the sharehol der’s equity in AASA, id. ¶ 104. As noted, Argentina raises two cha llenges to this damages calcu lation. First, Argentina argues that because the Tribunal concluded no violation of the UK-BIT occurred when Argentina terminated the Concession Contract in 2006, see Decision on Liability ¶¶ 156, 246, any damages encompassing projected cash flo ws after 2006 fall outside of ar bitrators’ scope of authority. Pet. ¶ 74. This was an argument pres ented to and rejected by the Tr ibunal. See Final Award ¶¶ 35– 36. Specifically, in the underl ying arbitration, Argentina uns uccessfully argued that “any injury incurred by the Claimants after the termination in 2006 was a m atter to be resolved in Argentine courts according to the dispute resolution provis ions of the Co ncession Contract.” Id. ¶ 35 While Argentina correctly sta tes that the Tribunal found no vio lation of the UK-BIT from the36 2006 termination of the Concession C ontract, the Tribunal at th e same time found that Argentina’s wrongful acts o ccurred much earlier than 2006 and c ontinued to flow thereafter. Id. ¶ 36 (noting that the Tribunal de termined that the first breach of the treaties took place in 2002). In other words, Argentina mischa racterizes the Tribunal’s award of damages for post-2006 projected profits as damages “ari sing from termination of the C oncession Contract,” Pet.’s Opp’n at 34, when they are not. A review of the Final Award mak es clear that the Tribunal did n ot award damages for the termination of the Concession C ontract itself, but instead dete rmined that the UK-BIT violations entitled the Claimants to fut ure lost profits post-dating 2006 regardless of whether the Concession Contract had been l awfully terminated in 2006. The Tribunal reasoned: “Under international law . . . the Claimants’ are entitled to full com pensation for what they have lost as a consequence of Argentina’s tr eaty violations . . . . To limit the valuation period to five instead of twenty-one years would, of course , seriously undervalue the inv estments lost as a consequence of Argentina’s treaty violations .” Final Award ¶ 36. Accordin gly, the Tribunal found that at the time of the first breach in 2002, the claimants “had the right to a revenue stream which would continue for another 21 years,” and that the risk of terminatio n (as did occur in 2006) “would be accounted for in the rate applie d to discount to present value the remaining twenty-one years of projected cash flows.” 25 Id. When, as here, “it is contemplate d that the arbitrator will det ermine remedies for contract violations that he finds, cour ts have no authority to disagree with his honest judgment in that

25 Argentina’s contention that the Tribunal did not “follow thr ough by in fact adjusting the discount rate to account for the risk of termina tion” is of no ma tter. Pet. ¶ 7 4. The Supreme Court has made clear that “Courts [] do not sit to hear claims of factual or legal error by an arbitrat or as an appellate court does in reviewing decisions of lower courts.” United Paperworkers , 484 U.S. at 38. In fact “as long as the arbitrator is even a rguably construing or applying the contract and ac ting within the scope of his aut hority, that a court is convinced he committed serious error does not suffice to overturn his decision.” Id. When, as here, the Tribunal und isputedly had the authority to calculate damages, an y error in that calcu lation is not subject to challenge under the FAA’s § 10(a)(4).37 respect.” United Paperworkers , 484 U.S. at 38. In this case, t he Tribunal undisputedly had jurisdiction under the UK-BIT to a ward damages for a violation, and upon finding a violation, calculated those damages. There is simply no evidence that in calculating damages, the Tribunal exceeded its powers. See Oxford Health Plans , 133 S. Ct. at 2071 (“Unde r § 10(a)(4), the question for a judge is not whethe r the arbitrat or construed th e parties’ contr act correctly, but whether he construed it at all. Because he did, and therefore did not ‘exceed his powers,’ we cannot give Oxford the relief it wants.”). 26 Second, Argentina argues that the Tribunal exceeded its powers by assuming in its damages calculation that the c ountry “should have taken certainmeasures to ensure AASA’s continued financial health thr oughout the crisis” and that AASA would have continued to be viable in the absence of Argen tina’s treaty violations. Pet. ¶ ¶ 76–77. Although Argentina asserts that none of these steps was required by the Concession Contract, see id. ¶ 78, the damages in this case were ba sed, in part, on “the hypothetical situation where Argentina did not take measures that violated its treaty obligations.” Final Awa rd ¶ 28. In Kanuth , this Circuit recognized that an arbitration damages award “based on accounta nt projections of future earnings for a company that had exi sted for less than ten month s” was “[b]y [its] very nature . . . speculative,” but was neverthe less entitled to deference. 949 F.2d at 1181. Similarly, here, the Tribunal was required to engage in some degree of speculation t o determine the predicted cash

26 The non-binding cases cited by Argentina to support its argum ent that the Tribunal’s damages award exceeded its authority, Pet. ¶¶ 73 , 75, are distinguishable and therefore unpersuasive since, in each of those cases by contrast to the Tribunal here, th e arbitrators acted in complet e disregard or in violation of express language governing the parties’ contract. See, e.g ., Inter-City Gas Corp. v. Boise Cascade Corp. , 845 F.2d 184, 188 (8th Cir. 1988) (finding arbitrator disrega rded plain and unambiguous con tract when fashioning arbitration award); Mala Geoscience AB v. Witten Techs., Inc. , No. 06-1343, 2007 U.S. Dist. LEXIS 38767, at *6 (D.D.C. May 30, 2007) (finding arbitrator awarded relie f outside of the jurisdiction provided to him in the contr actual scheme and vacating that portion of the arbitration award); Melun Indus., In c. v. Strange, 898 F. Supp. 990, 993–94 (S.D.N.Y. 1990) (concluding arbitrator exceeded h is powers where he made findin gs outside of express instructions in contract).38 flows over the lifetime of the t erminated contract. As the Cir cuit made clear, where nothing “on the face of the panel’s lump-sum award” suggests “that the pane l failed to construe the contract,” any inquiry into “precisely how a nd why the panel derived the l ump-sum award,” is “clearly outside of [the court’s] limited scope of review.” Id. at 1182. Merely because Argentina does not agree with how the Tribunal calculated damages does not mea n that the Tribunal lacked jurisdiction to do so.
2. The Tribunal Did Not Exceed Its Powers When It Elected Not to A pply the Principle of Necessity Argentina claims that the Tribunal exceeded its power when it c hose not to apply the “exculpatory customary international law principle of necessity ” and instead “dispensed its own policy choices.” Pet. ¶ 80. AWG di smisses this claim as “noth ing more than a disagreement with the Tribunal’s factual and l egal findings.” Resp.’s Cross -Pet. at 43. The Court agrees with
AWG. As previously discussed, the UK- BIT required the Tribunal to lo ok to “applicable principles of international law” when deciding disputes, UK-BIT , art. 8(4), and Argentina is correct that the necessity defen se is such a principle. The ne cessity principle is set forth in Article 25 of the ILC’s Articles , which provides, in pertinent part: 1. Necessity may not be invoked by aState as a ground for preclud ing the wrongfulness of an act not in conf ormity with an international obligation of that State unless the act: (a) Is the only way for the State t o safeguard an ess ential interes t against a grave and imminent peril; and (b) Does not seriously impair an esse ntial interest of the State or States towards which the obligation exists, or of the international community as a whole.
2. In any case, necessity may not be invoked by a State as a groun d for precluding wrongfulness if:

(a) The international obligation i n question excludes the possibili ty of invoking necessity; or (b) The State has contributed t o the situation of necessity.39 Decision on Liability ¶ 249. According to Argentina, the Tribun al insufficiently addressed t he factors enumerated in Article 25(1)(a) and (2)(b) for the necessity defense by “summa rily conclud[ing] that it was ‘not convinced that the only way Arg entina could satisfy that essent ial interest was by adopting measures that would subsequentl y violate the treaty rights of t he Claimants’ investments to fair and equitable treatment.’” Pet. ¶ 82 (quoting Decision on Liab ility ¶ 260). Argentina bolsters this position by pointing out tha t “‘a combination of endogenou s and exogenous factors contributed to the Argentine cri sis at the beginning of this ce ntury.’” Id . (quoting Decision on Liability ¶ 264). According to Arg entina, the Tribunal’s “summ ary” conclusions exceeded its authority because those findings “ failed to define the applicab le legal standards under customary international law,” as req uired by a decision issued by the ICS ID Annulment Committee on the same day as the Tribunal’s D ecision on Liability. Id. ¶ 83 (citing Enron Creditors Recovery Corp., Ponderosa Assets, L.P. v. The Argentine Republic , ICSID Case No. ARB/01/3, Annulment Decision, ¶¶ 368–73 (Ju ly 30, 2010)). Argentina inte rprets this decision to require that a single definition of “onl y way,” a phrase used in Articl e 25(1)(a) “be adopted and explained,” and that “different definitions of ‘contributed to, ’” a phrase in Artic le 25(1)(b), “be analyzed and explained with car e before the necessity defense [ can] be rejected.” Id. Notwithstanding that the Tribuna l’s Decision on Liability and t he ICSID Annulment Committee decision were issued con temporaneously, Argentina utt erly fails to explain why the Tribunal should have found this ICSID Annulment Committee decis ion to be binding or even persuasive authority in its reje ction of the necessity defense. While international law principles are binding on the parties in t he instant arbitration, Argentin a cites no principle of international law that the rulings by a set of arbitrators in one arbitrationare or even should be binding on40 another set of arbitrators pres iding over different parties to a different dispute. To the contrary, generally arbitrators have “the power to determine whether a pr ior award is to be given preclusive effect . . . .” SBC Advanced Sols., Inc. v. Commc’ns Workers of Am., Dist. 6 , 794 F.3d 1020, 1028 (8th Cir. 2015) (quoting Trailways Lines, Inc. v. Trailways, Inc. Joint Counsel , 807 F.2d 1416, 1425 (8th Cir. 1986)); see also W.R. Grace & Co. v. Local Union 759, Int’l Union of United Rubber, Cork, Linoleum & Plastic Workers of Am. , 461 U.S. 757, 764–65 (1983) (finding an arbitrator’s determina tion that he was not bound by a prior arbitrator’s decision to be binding on the court). In any event, the Court need not de termine whether the Tribunal ’s interpretation of customary international law shoul d have been informed or someho w bound by the determinations of another pane l because the Decision on Liabili ty demonstrates that the Tribunal was “‘arguably construing or applying the contract.’” Kanuth , 949 F.2d at 1180–81 (quoting United Paperworkers , 484 U.S. at 38). In this decisi on, the Tribunal expressly an alyzed the UKBIT and concluded that “principle s of international law” applie d. See Decision on Liability ¶ 62–63. The Tribunal next separatel y addressed each of the four conditions on the application of the defense of necessity in Artic le 25 of the ILC Articles expl aining: “The customary international law, as restat ed by Article 25 of the ILC Article s, quoted above, imposes additional strict conditions.” Id. ¶ 258. In analyzing each of the four conditions, the Tribunal set forth its reasoning for finding that Argent ina failed to satisfy the defe nse. Id. ¶¶ 260–63 (discussing each of the four conditions). A lthough, only discussion of two cond itions included express reference to international law sources suc h as the Commentary to the ILC Articles and decisions by other investment arbitration panels; in none of the discussions did t he Tribunal suggest that it was departing from its mandate to a pply “applicable principles of i nternational law.” Id.41 Accordingly, the Tribunal did no t “‘dispense [its] own brand of industrial justice,’” but rather interpreted and applied th e customary international law as was required. Garvey , 532 U.S. at 509 (quoting United Steelworkers of Am. v. Enterprise Wheel & Car Corp. , 363 U.S. 593, 597 (1960)). Even if the Tribunal’s interpretation o r application was in error, that would be insufficient to vacate the award. See id. (finding even serious error t o be insufficient to vacate arbitral award); Oxford Health Plans , 133 S. Ct. at 2068 (“Only if ‘the a rbitrator act[s] outside the scope of his contractually de legated authori ty’—issuing an award that ‘simply reflect[s] [his] own notions of [economic] justice’ rather than ‘draw[ing] its e ssence from the contract’—may a court overturn his determinati on.” (alterations in original) (quoting Eastern Associated Coal , 531 U.S. at 62)). Similarly, Argentin a’s contention that “there si mply was no interpretation” of customary international law, Pet .’s Opp’n at 36, amounts to a c ritique of the thoroughness of the Tribunal’s analysis, but, even if this were an accurate critiqu e, a lack of extensive analysis is not grounds for vacatur, Lessin v. Merrill Lynch, Pierce, Fenner & Smith, Inc. , 481 F.3d 813, 820 (D.C. Cir. 2007) (finding arbitra tors are not required to expla in the basis for their award when the grounds can be gleaned from th e record). The Tribunal was “arguably construing or applying the contract” when it applied its interpretati on of internation al law and therefore did not exceed its power when rejecting t he necessity defense.
D. The Arbitral Award Must Be Confirmed For arbitral awards governed by t he New York Convention, a “cou rt shall confirm the award unless it finds one of the gr ounds for refusal or deferra l of recognition or enforcement of the award specified in the [N ew York] Convention.” 9 U.S.C. § 207. In this case, Argentina has failed to establish any grounds for vacatur enumerated in Artic le V(1)(e) of the New York Convention or under FAA §§ 10 and 11. The two grounds for refu sal of recognition or42 enforcement of the award under th e New York Convention identifi ed by Argentina here, namely: (1) Argentina’s purported inability to present its case due to the evident partia lity of Professor Kaufmann-Kohler, and (2) the Trib unal acting outside the scope of the submission to arbitration, are, as Argentina concedes, “s ubsumed within the grounds for an nulment under § 10(a) of the FAA.” Pet.’s Opp’n at 38 (citing Scandinavian Reins. Co. , 668 F.3d at 71). As Argentina has failed to demonstrate evident partiality and excess of powers u nder the FAA, its admittedly redundant claims under the New Yo rk Convention must also fail. Still, to obtain confirmation of a n award, the New York Convent ion requires that the applicant shall supply: “(a) [t ]he duly authenticated original award or a duly certified copy thereof;” and “(b) [t]he origin al agreement referred to in arti cle II or a duly certified copy thereof.” New York Conventi on, art. IV(1). AWG has complied w ith these requirements by submitting to the Court a copy of the award, as authenticated and submitted by the Tribunal, see Final Award, and by directing the C ourt to “Article 8 of the BI T and in AWG’s submitting its claim to arbitration,” Resp.’s Mem. at 45 (footnote omitted); Chevron Corp. v. Republic of
Ecuador , 949 F. Supp. 2d 57, 66–67 (D.D.C. 2013) (“Because the BIT con stitutes Ecuador’s ‘standing offer’ to arbitrate, all Chevron must show is that itwas a U.S. ‘company or national’ that submitted an ‘investment dispute’ in order for the Court t o find it had a binding arbitration agreement with Ecuador.”). Acco rdingly, the arbitral award mus t be confirmed.
IV. CONCLUSION For the foregoing reasons, Argentina’s petition to vacate the arbitral award is denied and AWG’s petition to confirm the award is granted. An appropriate order will accompany this Memorandum Opinion.43 Date: September 30, 2016

__________________________ BERYL A. HOWELL Chief Judge