Investor-State Disputes in Latin America: A Judgment on the Interaction Between Arbitration, Property Rights Protection, and Economic Development (original) (raw)
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Investment Treaty Arbitration in Latin America
Latin American Research Review, 2019
This study analyzes variations in the incidence of state involvement in investment treaty arbitration in Latin America and the Caribbean over the 1987–2014 period. Its main contributions are fourfold. First, by focusing on the balance of incentives and opportunities facing political leaders and foreign investors, the study establishes a new basis for understanding the reasons actors opt for the risks and uncertainties of international arbitration instead of resolving international investment disputes via alternative means. Second, by restricting the focus of research to the Latin American region, the study is able to move beyond the analysis of relatively time-invariant structural and institutional conditions and crude indicators to address the role played by the preferences of political actors. Third, by disaggregating disputes by sector of investment, the analysis documents the variable role of ideology and electoral incentives in investment treaty arbitration. Finally, by underli...
Foreign direct investments are important catalysts for national development and states have sought to attract investment by ratifying investment treaties that offer guarantees to foreign investors and that allow foreign investors to file an arbitration against a host state directly before an international tribunal. However, investment treaty arbitrations do not act only as a mechanism of dispute settlement; they also have a global governance role. They review the legality of state conduct through their adjudicative powers, in reference to those obligations that are narrowly stipulated in investment treaties. On the other hand, states must protect the most basic interests of those under their jurisdiction, even if to do so contradicts the interests of investors, and, in turn, investors have submitted claims against states through international arbitration whenever their interests have been contradicted. In the following article it will be discussed how the regulatory capacity of states has been considered in investment treaty arbitrations , with particular regard to the arbitrations filed against Argentina in the 2000s.
Salida: Latin America, ICSID, and the Politics of International Investment Arbitration
Since 2007, Bolivia, Ecuador, and Venezuela have exited from the International Centre for the Settlement of Investment Disputes (ICSID), a subsidiary of the World Bank that serves as an arbitration forum for international investment agreements. The departed member states have accused ICSID of bias towards corporations and criticized the institution's high costs, lack of an appeal mechanism, and what they perceive as non-transparency, blindness to economic disparities between members, and intrusions on national sovereignty. Referring to ICSID's alleged favouritism, Bolivian President Evo Morales has charged: "[t]he governments of Latin America... never win the cases. The multinationals always win" (Reuters 2007). This thesis examines these exits from ICSID and tests critics' claims regarding the institution's operations. I demonstrate that states have left ICSID for ideological, and not purely economic, reasons. Whereas Bolivia and Ecuador exited despite having fared relatively well in their respective caseloads, other Latin American states have remained members despite being litigated against and losing more frequently. Where the exiting states differ, however, is in their governments' political ideology, which is demonstrably more anti-neoliberal than that of remaining member states. To test my theory, I perform case studies of Argentina, Bolivia, Ecuador, and Venezuela. Using an index of anti-neoliberal indicators, I demonstrate that government ideology provides a more robust explanation for state exit from ICSID than expenses and litigation records alone.
International Investment Law and ISDS: Mapping Contemporary Latin America
In recent years, the negotiation and conclusion of international investment agreements (IIAs) in Latin America has gone hand-in-hand with a rethinking of investment standards and the elaboration of new IIA models. This is evident, among others, in Brazil's cooperation and facilitation investment agreements (CFIAs), the continuing negotiations on the creation of a regional dispute settlement centre under the aegis of the Union of South American Nations (UNASUR), some recently-released investment policy documents and amendments to national arbitration laws for disputes involving the State. The article highlights such developments emphasising the broad spectrum of local approaches that vary from convergence to divergence in order to interpret Latin American countries' position in the existing investor-State dispute settlement (ISDS) system and reveal the role that the sub-continent can play in the future design of ISDS. Keywords Latin America – international investment law – Brazil's cooperation and facilitation investment agreements (CFIAs) – UNASUR Centre for the Settlement of Investment Disputes – national arbitration laws – investor-State dispute settlement – dispute prevention and alternative dispute resolution (ADR)
Foreign Investors, Domestic Courts and Investment Treaty Arbitration
Ole Kristina Fauchald, Daniel Behn, Malcolm Langford (eds), The Legitimacy of Investment Arbitration. Empirical Perspectives (Cambridge University Press 2022), 2022
for their useful comments on earlier drafts. 1 For an overview of the justifications to have ISA, see Gus van Harten, 'Five Justifications for Investment Treaties: A Critical Discussion' (2010) 2(1) Trade, Law and Development 1. For a historical overview of the beginnings of investor-state arbitration and ICSID, see Taylor St John, The Rise of Investor-State Arbitration (Oxford University Press, 2018), pp. 20-2. She finds that: (a) there was little initial demand for ISDS from investors; (b) the ICSID Convention 'did not emerge as an optimal institutional solution'; (c) 'ICSID officials influenced states' decisions to delegate in their investment treaties' and (d) exiting from ISDS is hard.
The Journal of World Investment & Trade, 2016
A number of international investment agreements (IIAs) set out a ‘local litigation requirement’, i.e. specify that recourse to investor-State arbitration becomes possible only after a certain period of time spent litigating in domestic courts. Numerous tribunals have dealt with this type of provision but they have followed different approaches as to its nature, function and scope, or as to whether non-compliance with it can be excused. This article focuses on the different aspects of local litigation requirement clauses in search of an interpretation that gives effectiveness to the provision, paying particular attention to the experience of Latin American countries and arbitral decisions discussing this topic, which in most cases involve countries from this region. It is argued that this precondition has an enormous potential to foster good governance and could serve to achieve a better coexistence between investor-State dispute settlement (ISDS) and local tribunals.
Developing Countries in International Investment Arbitration
International Law and the Global South, 2018
This chapter will provide some foundational underpinnings on the key phrase that is central to this book-the concept of developing countries and their developmental challenges and perspectives in international investment arbitration. Part 4.2 of the present chapter elaborately provides an account of the complexity of developing country classification forwarded by different international organisations and existing scholarship on the issue. Part 4.3 particularly focuses on the fact that, despite adopting the popular term 'developing countries' to describe a large number of countries, there exist large differences between these countries. This part will also discuss, in brief, the concept of development. Finally, Part 4.4 will explore whether the country classifications different international organisations have adopted and the concepts of development scholars have adopted can provide useful guidance to international investment tribunals. It will conclude by arguing that, for the purposes of international investment disputes, the tribunals need to adopt a concept of developing countries which takes into account the development factors that exist in these countries relevant to international investment law in their interpretation of the FET standard. 4.2 Country Classification and Developing Countries in International Investment Arbitration A key phrase that runs through this book is 'developing countries'. Cognisant of a diverse understanding of the term, this chapter aims to contextualise the discussion by familiarising the reader with classifications of countries different international organisations have adopted. It will review the most common justifications for such classifications in the present literature, without offering a detailed discussion of the historical aspect of this issue, which is beyond the scope of this book. Rather, it
International standards of investment in international arbitration procedure and investment treaties
Revista Jurídicas, 2018
Debido a la importancia significativa de la inversión extranjera en el crecimiento económico de los países, especialmente los países en desarrollo, el propósito de esta investigación es revisar las normas internacionales de inversión en el procedimiento de arbitraje internacional y los tratados de inversión que han sido muy eficaces para eliminar las barreras de inversión así como para proteger y atraer a más inversionistas extranjeros a los Estados anfitriones. El método descriptivo-analítico fue aplicado en esta investigación utilizando recursos bibliográficos. El presente estudio, al describir y analizar los conceptos, ejemplos y métodos de aplicación de las normas internacionales de inversión en los tratados bilaterales y multilaterales de inversión, así como el procedimiento de arbitraje internacional, ha llegado a la conclusión de que estas normas son muy flexibles y dinámicas, y evolucionan en el tiempo.