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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:
William W. Burke-White*
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

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