International Investment Law and ISDS: Mapping Contemporary Latin America (original) (raw)
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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.
Revista Estudos Institucionais, Fev, 2018
This article explores three different approaches in changing the international investment dispute resolution institutional arrangement models. To do this, it first analyses the hegemonic Bilateral Investment Treaties' system of investor-State arbitration. Then the article focuses on critics related to the procedure, regarding jurisdictional issues. Thirdly, it presents three different approaches to change institutional arrangements in the investment dispute resolution system, as the European, the U.S. and the Brazilian approaches. RESUMO: O artigo explora três diferentes abordagens na mudança do sistema de disputas internacionais relacionadas ao investimento. Para fazer isso, primeiro analisa-se o modelo hegemônico caracterizado pela arbitragem entre investidor e Estado previstas em tratados bilaterais de investimento (BIT). Na sequência, o artigo foca nas críticas relacionadas ao procedimento da arbitragem em BITs, principalmente em questões jurisdicionais. Por fim, o artigo analisa três abordagens propostas hodiernamente ao se modificar o sistema de disputas de investimentos † SJD Student at
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...
Nomos, 2019
Brazil has always rejected investor-State arbitration as a means of dispute settlement and its recent Agreements on Cooperation and Facilitation of Investments confirms this choice. Nearly seven decades of investment arbitration practice has not convinced Brazil nor has it inflected its position on the matter. This means that should Brazilian investors face a legal problem in the host States with which Brazil has signed an investment agreement, they will, to some extent, be powerless as far as international juridical recourse is concerned in that the Brazilian investors will not be able to sue these States directly before an international arbitral tribunal. This is a disadvantage if compared to the direct access to international arbitration given by the investment agreements of other States to private investors. This article will examine the question of what would effectively change in the Brazil's practice should the investor-State arbitration be incorporated in the Brazilian investment agreements as a dispute settlement mechanism. This would enable the Brazilian government and negotiators to have a comparative factor and measure the pros and cons of inserting an investor-State arbitration clause in the investment agreements. The article concludes that if the arbitration clause is technically and cautiously drafted, there is no need to fear investor-State arbitration. Resumo O Brasil sempre rejeitou a arbitragem investidor-estadual como meio de resolução de contro-vérsias e os seus recentes Acordos de Cooperação e Facilitação de Investimentos confirmam essa escolha. Quase sete décadas de arbitragem de investimentos não convenceram o Brasil, nem influíram a sua posição sobre o assunto. Em consequência, caso os investidores brasilei-ros enfrentem um problema jurídico nos países com os quais o Brasil assinou um acordo de investimento, eles ficarão impotentes no que diz respeito ao recurso jurídico internacional, pois os investidores brasileiros não serão capazes de processar os seus países anfitriões dire-tamente perante um tribunal arbitral internacional. Isso é uma desvantagem se comparado com o acesso direto à arbitragem internacional dado pelos acordos de investimento de outros países aos seus investidores privados. Este artigo examinará o que efetivamente mudaria na prática do Brasil, caso a arbitragem entre investidor e Estado fosse incorporada nos acordos de investimento brasileiros como mecanismo de solução de controvérsias. Sendo assim, o artigo oferecerá ao governo brasileiro e os negociadores um fator comparativo para poder mensurar os prós e contras de inserir uma cláusula de arbitragem entre investidor e Estado nos acordos de investimentos. O artigo conclui que, se a cláusula de arbitragem for elaborada téc-nica e cautelosamente, não há necessidade de temer o instituto de arbitragem entre investidor e Estado. Palavras-Chave Arbitragem Estado-investidor. Brasil. Contratos de investimento.
Developments in International Investment Law and Policy in the Americas
Yearbook on International Investment Law & Policy 2020, 2021
Our analysis focused on 2020 investment law and policy developments in the Americas in three different and interrelated areas: domestic policies adopted by countries; international treaty-making and negotiations; and investor-state dispute settlement (ISDS). Taking these developments together, we suggest that 2020 confirmed a scenario of continuity in investment law and policy in the Americas, informed by global trends of the discipline. For one, the number of terminated international investment agreements exceeded new ones, and states remained reluctant to conclude new treaties (Section C). Additionally, the number of ISDS cases continued to increase (Section D). One area where COVID-19 has promoted changes that will potentially affect the investment regime in the future concerns national policies adopted by states (Section B), ranging from investment facilitation to restrictions. A fair number of these national policies will likely be challenged before arbitral tribunals, but that has not happened yet.
International investment law in Latin America: universalizing resistance
in Latin America and international investment law, 2022
It is argued in this chapter that international investment law does what it does by virtue of its ambivalent relationship towards universality. With a specific emphasis on Latin American legal thought and practice, it is particularly shown in the following sections how international investment law come to simultaneously accommodate claims of universality as well as resistance thereto. This chapter first shows the extent to which, at an abstract level, the sources metaphoric discourse enables the simultaneous vindication of both universality and resistance to universality. It then elaborates on how the enabling of an ambiguous engagement with universality came to inform the systematic use and espousal of the sources of international law in international legal thought and practice in Latin America. Afterwards, the attention turns to how this ambivalence manifests itself in the way in which the content is allocated to the concepts of international investment law like the international minimum standard and the standard of compensation. The chapter ends with a few concluding remarks on how such ambivalence towards universality is not accidental and makes the claim that resistance to universality is a form of cynicism at the service of universality itself.
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.
Brazil's New Investment Treaty Model: Why Now
Vestnik RUDN. International Relations, 2022
The investment treaty regime, unlike other economic regimes, lacks common substantive multilateral rules and depends on countries signing bilateral or plurilateral investment treaties. As the regime presented a pro-developed country bias, developing countries, especially in Latin America, avoided signing investment treaties up to the 1980s. Brazil followed this trend and did not start an investment treaty program until the late 1990s. However, the treaties never entered into force. The country also avoided acceding to the World Bank agency responsible for investment arbitration proceedings-the International Centre for Settlement of Investment Disputes (ICSID). In 2015, Brazil started a new investment treaty program. However, the timing seems counterintuitive. The investment treaty regime had already been criticized, including inefficiency in attracting foreign investment, the potential to encroach on countries' regulatory sovereignty and the lack of legitimacy of its investor-state dispute settlement (ISDS) procedure. Furthermore, the favorable foreign economic scenario did not force the country to seek an inflow of foreign capital at that time. The new Cooperation and Facilitation Investment Agreement (CFIA) is presented as an investment treaty model for developing countries, since it responds to major criticisms to the investment treaty regime, and at the same time meets the demands of an important domestic interest group, the Brazilian industrial sector, for a legal framework that mitigates the political risk of its increasingly internationalized operations. Brazil's CFIA may be viewed as a model that other developing countries could emulate in the face of the failure of the traditional paradigm of investment dispute settlement.
Missing Calvo? Latin America's love-hate relationship with the Investment Treaty Regime
Conjuntura Austral: journal of the Global South, 2021
For decades, following the views of the Argentine legal scholar Carlos Calvo, Latin American countries avoided adopting international investment treaties. The Calvo doctrine established that disputes between foreign investors and the state should only be settled by national courts, to the exclusion of international jurisdictions. This position eroded as numerous bilateral investment treaties (BITs) were signed during the 1980s and 1990s, exposing the countries of the region to investment lawsuits. Recently, a crisis of the investment treaty regime has been noticed in the region, with the denunciation of both BITs and the ICSID Convention, the non-recognition of arbitral awards, and the negotiation of a new model of investment treaties. The analysis of the historical process of rise and crisis of the investment regime in the region, through the review of documents and data on its effects, demonstrate that countries have taken measures to restrict the possibility of investor-State arbitration. In this sense, the region seems to be experiencing a return to Calvo's doctrine on the need to guarantee countries’ decision-making autonomy in strategic policies.