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The Argentinian Crisis Arbitrations

出版	SSRN, 2023
URL	http://books.google.com.hk/books?id=lfr6zwEACAAJ&hl=&source=gbs_api

註釋This book chapter analyses the so-called 'Argentinian crisis arbitrations', which are investment arbitration proceedings brought by various foreign investors against Argentina , following the host state's reaction to cope with its economic and financial crisis in 2000/2001. Before the renewable energy cases against Spain, Italy and the Czech Republic, the Argentina cases constituted the largest wave of investment arbitration claims directed against a single country with over 40 publicly known cases mostly brought under the International Centre for Settlement of Investment Disputes (ICSID) Convention, but also partly as United Nations Commission on International Trade Law (UNCITRAL) proceedings. These investment cases are an interesting subject for analysis due to their similar factual background. They have also been the cause of much controversy since tribunals had to review state measures that had been enacted to handle a serious economic crisis. Moreover, there was some inconsistency in arbitral case law leading to criticism of the investor-state dispute settlement system and its legitimacy. On jurisdiction, tribunals assessed inter alia whether general economic policies adopted in times of crisis were beyond their scope of jurisdiction. Another contentious jurisdictional issue emerged in the wake of the crisis: the first mass claim(s) in investment arbitration following Argentina's default in sovereign debt and the subsequent restructuring of bonds. On the merits, the Argentina cases addressed, inter alia the question whether the challenged Argentine measures constituted violations of fair and equitable treatment or other investment protection standards. Moreover, many Argentinian cases dealt with possible justifications for measures adopted during the crisis under the so-called non-precluded measures or emergency clauses of the applicable investment treaties as well as under state of necessity as a circumstance precluding wrongfulness under customary international law. Finally, the cases raise the issue of the extent of the obligation to comply with arbitral awards rendered under the ICSID Convention and Argentina's objections to the payment of ICSID awards.