Investment Arbitration in Latin America: The Uncertain Veracity of Preconceived Ideas

Abstract

The habitual description of the Latin American take on investment arbitration as one of hostility fails to capture the complexity and fine nuances of the relationship between Latin America and the investor-state dispute resolution mechanism. The article reconsiders the notion of hostility by canvassing the historical context of Latin American investment arbitration, and evaluating some particular topics that have surged in recent years. These include the particularities of compliance and enforcement in relation to awards delivered against Argentina and Ecuador, negotiations on the creation of a regional arbitration center under the aegis of UNASUR, and considerations of the public interest in arbitrations involving Latin American states. In exploring these topics, the article argues that there is no single Latin American approach to investment arbitration and that, overall, the region’s perception of dispute settlement should not be considered as particularly hostile to it.

Note: Smit-Lowenfeld Prize of the International Arbitration Club of New York (2016) as best article published in the field of international arbitration in 2014.

Keywords: ISDS, Latin America, UNASUR, investment arbitration, investor-state dispute settlement

JEL Classification: F02, F13, F21, F53, K41, K39, K40, K10, K33, K49, K12, K19, K20, K29, H70, E22, H87, F50, F52