Towards Greater Doctrinal Clarity in Investor-State Arbitration : The CMS, Enron, and Sempra Annulment Decisions
Series
Czeck Yearbook of International Law
ISBN
978-1-57823-305-2
Type
book section
Date Issued
2011
Author(s)
von Staden, Andreas
Editor(s)
Bělohlávek, Alexander J.
Rozehnalová, Naděžda
Abstract
Several arbitral awards rendered against Argentina under bilateral investment treaties and related to the country's devastating economic crisis in 2001-2002 restrictively interpreted Argentina's ability to rely on either the exception clause in the US-Argentina investment treaty or the necessity defence under customary international law. In three cases (CMS, Sempra, and Enron), the tribunals, by simply equating the requirements under the treaty exception with those of the customary necessity defence, all but ignored established canons of treaty interpretation and engaged in doctrinally muddled analyses of the relationship between treaty law and customary law. All three awards have since been subject to annulment decisions by ICSID ad hoc committees. While the decisions disagree on what constitutes an appropriate reason for annulment under the manifest excess of powers ground, they offer doctrinally much improved approaches to the interpretation and application of both treaty exceptions and the necessity defence. Identifying the proper dividing line between permissible annulment review and impermissible appellate review in such contexts has been, and will remain, contentious, but the Sempra and Enron committees offer reasonable assessments of when an error of law becomes so grave as to result in actual failure to apply the proper law.
Language
English
Keywords
Argentina
necessity
non-precluded measures provision
CMS
Enron
Sempra
annulment
manifest excess of powers
failure to apply the proper law
HSG Classification
contribution to scientific community
Refereed
No
Book title
Rights of the host states within the system of international investment protection
Publisher
Juris Publ.
Publisher place
Huntington, NY
Number
2
Start page
207
End page
230
Subject(s)
Division(s)
Eprints ID
71742
File(s)![Thumbnail Image]()
Name
Czech Yearbook of International Law - 2011.mht
Size
561.95 KB
Format
Unknown
Checksum (MD5)
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