The Argentine Financial Crisis: State Liability Under BITs and the Legitimacy of the ICSID System

32 Pages Posted: 1 Feb 2008  

William W. Burke-White

University of Pennsylvania Law School

Multiple version iconThere are 2 versions of this paper

Date Written: January 24, 2008

Abstract

This essay examines the jurisprudence of the International Center for the Settlement of Investment Disputes (ICSID) arbitral tribunals in a series of cases brought against the Republic of Argentina in the wake of the 2001-2002 Argentine financial collapse. The essay considers the ICSID tribunals' treatment of non-precluded measures provisions in Argentina's bilateral investment treaties (BITs) and the customary law defense of necessity and argues that the ICSID tribunals have sought to radically narrow the opportunities available to states to craft policy responses to emergency situations while strengthening investor protections beyond the intent of the states parties to the BITs under which these cases have been brought. The essay critiques this line of jurisprudence and suggests that the September 2007 Report of the Annulment Committee in the case of CMS v. Argentina may be read as an effort from within the ICSID system itself to question the legitimacy and structure of current investor-state arbitration.

Keywords: Banking & Finance, Dispute Resolution, International Law, Law & Economics, Bilateral Investment Treaties (BITs), International Center for the Settlement of Investment Disputes (ICSID), Argentina, Argentine financial collapse, Arbitration, Legitimacy, Investor protection, sovereign debt

JEL Classification: F34, K33, H63

Suggested Citation

Burke-White, William W., The Argentine Financial Crisis: State Liability Under BITs and the Legitimacy of the ICSID System (January 24, 2008). U of Penn, Inst for Law & Econ Research Paper No. 08-01. Available at SSRN: https://ssrn.com/abstract=1088837 or http://dx.doi.org/10.2139/ssrn.1088837

William W. Burke-White (Contact Author)

University of Pennsylvania Law School ( email )

3501 Sansom Street
Philadelphia, PA 19104
United States

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