Bilateral treaties for the protection of investments: The Argentine case
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Volume 6 Number 1
Bilateral treaties for the protection of investments: The Argentine case Hernan M. Cruchaga Iraola, Pimentel & Iraola Abogados, Av. Co´rdoba 1838, Piso 3o Buenos Aires, Argentina CP C1120AAN tel: +54 11 5218 1810; fax: +54 11 4812 4958; e-mail: [email protected]
Hernan M. Cruchaga graduated as a lawyer from the University of Buenos Aires. He holds an LLM in corporate law from the Austral University in Buenos Aires and an LLM in banking and finance from the London School of Economics. He worked as legal counsel for the Argentine Republic until the end of 2003 and is a partner of Iraola, Pimentel & Iraola, a Buenos Aires based law firm. His main areas of interest are litigation, arbitration and commercial law.
Journal of International Banking Regulation, Vol. 6, No. 1, 2004, pp. 82–90 # Henry Stewart Publications, 1358–1988
Page 82
ABSTRACT This research is focused on the claims submitted by international investors against the Argentine Republic before different international courts. During the 1990s, and the life of the convertibility regime, Argentina signed several bilateral investment treaties with other countries. In late 2001 Argentina suffered a severe economic, political, financial and social crisis that was caused in part by the rigidity of the convertibility regime. The enactment of Emergency Law No. 25.561 abrogated the convertibility regime and triggered investors’ claims. These claims use bilateral investment treaties, and most of these instruments contain emergency clauses setting the treatment standard. This paper presents a perspective on the ongoing claims, their possible outcomes and the need to reformulate bilateral investment treaties in the future, in order to pave the way for investments in most Latin American countries.
BACKGROUND Between 1990 and 2000 the Argentine Republic signed different treaties for the protection of investments with third countries.1 These treaties, which are normally entered into between developed and other developing countries, are international instruments that regulate the treatment of foreign investments. The Argentine Republic has also ratified the Convention for Settlement of Investment Disputes between States and Nationals of other States (hereinafter the ICSID Convention), celebrated and opened for signature in Washington on 18th March, 1965. The treaties signed by the Argentine Republic2 include, among others, provisions regarding the following standards:
— Fair, equitable and non-discriminatory treatment — No direct or indirect expropriation, without payment of the appropriate compensation — National treatment — Most-favoured nation clause — Resort to international arbitration for settlement of possible investment disputes. In addition, and as explained below, most of these agreements contain a clause regarding emergency situations that may affect the host country.
Cruchaga
This paper aims to provide a perspective on the arbitration requests filed against the Argentine Republic by virtue of the alleged violation of the above-mentio
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