About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline
LOG IN
LOG IN

3 Asian J. WTO & Int'l Health L & Pol'y 199 (2008)
The Argentine Financial Crisis: State Liability under BITs and the Legitimacy of the ICSID System

handle is hein.journals/aihlp3 and id is 201 raw text is: THE ARGENTINE FINANCIAL CRISIS: STATE LIABILITY UNDER BITS AND THE LEGITIMACY OF THE ICSID SYSTEM William W. Burke-White* ABSTRACT With an extraordinary increase in the number of BITs and the development of the ICSID allowing direct investor-state arbitrations of alleged violations of BITs, international investment law has expanded tremendously over the past two decades and afforded investors with unprecedented protections. This contributed to the initiation of more than forty ICSID cases against Argentina for its measures taken in response to the 2001-2002 financial crises. Among them, four cases decided by early 2008 are of particular significance, in part because of ICSID Tribunals' treatment of Argentina's claims of treaty-based NPM and the necessity principle under customary international law. As analyzed in this article, the resulting jurisprudence is deeply problematic: not only is the reasoning seriously flawed, but the four ICSID Tribunals' rulings also lack consistency even in the face of identical factual circumstances. In turn, this poses a serious challenge to the legitimacy and viability of the BIT regime and the ICSID system more generally, and hence a deep rethinking of various proposed solutions is urgently needed to restore confidence in the system. * Assistant Professor of Law, University of Pennsylvania Law School. Ph.D. (Cambridge, 2006); J.D. (Harvard, 2002), M.Phil. (Cambridge, 2000), B.A. (Harvard, 1998). While the author has served as an expert witness for the Government of Argentina in some of the cases noted herein, this work reflects his independent academic opinion and is not indicative of the policy of the Government of Argentina. The author can be reached at wburkewh@law.upenn.edu.

What Is HeinOnline?

HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline.

Purchase Access

Contact us for annual subscription options:

Contact Us

Already a HeinOnline Subscriber?

Log In

profiles profiles most