Investment Arbitration as the ‘New Frontier'

The Arbitrator and Mediator, Vol. 28, No. 1, pp. 59-69, 2009

Sydney Law School Research Paper No. 11/34

16 Pages Posted: 13 Jun 2011

See all articles by Chester W. Brown

Chester W. Brown

The University of Sydney - Faculty of Law

Date Written: June 9, 2011

Abstract

Since the Argentine financial crisis of 2001-2002, bilateral investment treaties (“BITs”) have increasingly come under the spotlight as a means by which foreign investors can enforce their rights against the host State of their investment. These rights come in the form of various substantive standards of protection, such as the protection against expropriation, the right to fair and equitable treatment, full protection and security, national treatment, most-favoured nation treatment, and importantly, the right to bring a claim in international arbitration against the host State in the event that the investor considers that the State has breached its international obligations. This article considers the case of Argentina (which has faced over 40 claims under BITs in the last decade), and provides a concise review of the substantive and procedural protections available to investors under these international instruments. The article then considers some challenges faced by the regime for investment treaty arbitration, such as the problem of inconsistent decisions, multiple proceedings, and the perceived lack of transparency.

Keywords: bilateral investment treaties, investment treaty arbitration, substantive standards of protection, international arbitration, Argentine financial crisis

JEL Classification: K10, K30, K33

Suggested Citation

Brown, Chester W., Investment Arbitration as the ‘New Frontier' (June 9, 2011). The Arbitrator and Mediator, Vol. 28, No. 1, pp. 59-69, 2009, Sydney Law School Research Paper No. 11/34, Available at SSRN: https://ssrn.com/abstract=1861665

Chester W. Brown (Contact Author)

The University of Sydney - Faculty of Law ( email )

New Law Building, F10
The University of Sydney
Sydney, NSW 2006
Australia

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