Systemic Reflections on Argentina's Non-Compliance with ICSID Arbitral Awards: A New Role of the Annulment Committee at Enforcement?
Argentina’s non-compliance with arbitral awards has brought to the fore a question concerning compliance problems under the ICSID system. Argentina’s ignorance of its ICSID obligations might potentially undermine ICSID arbitration as an efficient mechanism for the resolution of investment dispute. In this paper, drawing from recent decisions on Argentina’s requests for stays of the award’s enforcement in annulment proceedings, the author considers that the annulment committees can be expected to play a more active role to facilitate a better compliance at the post-award enforcement stage. That is, in the face of persistent non-compliance, the annulment committees should take into account the possible inducement effect when they decide whether there has been appropriate assurance of compliance or decide what should be done so as to secure the compliance in their decisions concerning the stays. This should have important implications for the overall ICSID enforcement system in the future.
Relations and Possible Interactions between State-State Dispute Settlement and Investor-State Arbitration under BITS
The State-State arbitration and the investor-State arbitration are widely included in bilateral investment treaties. There are no clear rules under the customary international law directly addressing the relations between these two remedial channels. The paper argues that it is desirable to avoid parallel proceedings between State-State arbitration and investor-State arbitration, if their purposes are basically to address the same violation of obligation by the host State. However, there are some problems in applying the lis pendens and res judicata principles. The paper further argues that in order to avoid undesirable concurrent proceedings, the application of the good faith principle to suspend the conflicting second proceeding or to prevent a proceeding to re-decide the merit could be a possible solution. In addition to such interactive relations between these two proceedings, there are positive dual proceedings, i.e., to use State-State proceeding to pursue the compliance of an arbitral award resulting from the investor-State arbitration procedure.
Of Politics and Markets: The Shifting Ideology of the BITs
The United States has concluded over twenty bilateral investment treaties (BITs) with foreign countries. The original purpose behind the treaties was the protection of U.S. investment in foreign countries. The treaties purported to accomplish their goal by facilitating a free market and by limiting government intervention. The author argues that the ideological principles underlying the BITs have changed over the years, and that the change threatens the goal of' investment protection. The author analyzes the changes in the basic principles underlying the bilateral investment treaties and evaluates the potential consequences. First, the author describes the ideology and the reasoning behind the early BITs. The author then demonstrates how the ideology has changed. The author concludes with an analysis of the potential consequences of these changes.