Argentina and the ISDS system

Argentina’s experience in dealing with claims lodged against it under the investor-state dispute settlement system throws into sharp relief the many deficiencies of this arbitral regime.

by Federico Lavopa

The investor-state dispute settlement (ISDS) system has come under increasing criticism in recent years.

Inconsistent decisions, poorly reasoned awards, lack of transparency, parallel proceedings, serious doubts about arbitrators’ impartiality and the sheer size of the compensations sought by investors and awarded by arbitration tribunals are just some examples of the flaws that have been pointed out by detractors of the system.

The dozens of cases that were initiated against Argentina as a result of the outburst of one of its worst economic and financial crises in late 2001 became an often-quoted sad illustration of many of these shortcomings of the ISDS system.

Apart from the tragic consequences entailed by the economic and political crisis which was faced by Argentina, in particular in 2001-02 – which included a 50% fall in per capita gross domestic product (GDP), an unemployment rate of over 20%, a poverty rate of 50%, strikes, demonstrations, violent clashes with the police, dozens of civilian casualties and a succession of five presidents in 10 days – Argentina received a flood of claims from foreign investors that were filed under different ISDS mechanisms and, in particular, before the International Centre for Settlement of Investment Disputes (ICSID).

Indeed, in the period 2003-07, claims against Argentina represented one-quarter of all the cases initiated within the framework of the ICSID Convention.

These claims before international arbitral tribunals challenged the changes to the economic rules that Argentina had implemented to contain the effects of perhaps the worst economic cycle of its history.

Deregulation ... and crisis

After 1991, Argentina had embarked on an economic deregulation and liberalization programme. Among others, this programme included the convertibility of the Argentine peso and the creation of a currency board to maintain parity between the peso and the US dollar by limiting the local money supply to the amount of Argentina’s foreign exchange reserves.

This pro-market programme was accompanied by a strong emphasis on attracting foreign investment, which, among other aspects, resulted in the conclusion of 58 bilateral investment treaties (BITs), 55 of which came into effect.

It also included a mass privatization process of public companies which, at that time, represented an important part of the domestic economy.

This market-oriented model reached its limits in the late 1990s, and in May 2003, a new president took office whose government reformed the regulatory framework for the economy – particularly that for the public services privatized over the 1990s – and introduced a package of emergency laws which implied a considerable change in the conditions under which foreign investors and, in particular, public services providers had to run their business in Argentina.

As a consequence, many of them decided to resort to the investor-state dispute settlement mechanisms embodied in the dozens of bilateral investment treaties that Argentina had signed in the 1990s. In total, in the period 2001-12, exactly 50 cases were filed against Argentina.

A striking characteristic of the Argentinian experience is the amount of compensation claimed by the companies that sued Argentina. According to estimates made when the peak of cases following the crisis was reached, if all the investors that sued Argentina had obtained 100% of their claims, the total amount that the country would have had to bear would have been at around $80 billion. This sum would have been practically impossible to pay, even if Argentina had not been undergoing a period of acute economic crisis, because it represented approximately 13% of Argentina’s GDP for 2013.

Although Argentina’s response to this flood of cases was varied and it is still early to offer definite figures, it is already possible to conclude that, in general, arbitration tribunals were prone to render awards in favour of investors.

Almost 45% of the cases have received a condemnatory award, although most of these cases could still be reversed by annulment proceedings, whereas only 15% of the arbitration proceedings ended up with a final decision completely in favour of Argentina. The remaining 40% are mostly cases which either resulted in an agreement between the parties, were altogether suspended or are still awaiting a decision.

All in all, of the $80 billion in possible compensation calculated when the peak of cases against Argentina was reached following the crisis, Argentina has so far received final rulings involving the payment of $900 million.

Inflexible, inconsistent

The first salient conclusion is that the ISDS system has a very low capacity to adapt to totally exceptional circumstances for which it does not seem to have been designed.

Despite the efforts of Argentinian attorneys to show that the measures implemented in the post-crisis period were adopted in an emergency context, being so exceptional as to justify any breach of the substantive clauses of the BITs, few tribunals were prepared to sustain this defence.

This notwithstanding, and with most of these cases having already been dealt with, the upcoming scenario for Argentina seems much less drastic than that forecast when the peak of cases was reached.

While they represent a heavy burden for a developing country like Argentina, so far the compensation actually paid amounts to a small portion of the sum initially estimated.

The Argentinian case also represents a worrisome example of the failure of the ISDS system to ensure coherence and soundness in its decisions.

Although the dozens of cases submitted against Argentina addressed exactly the same package of measures (the post-crisis emergency laws) and the arbitrators had to assess very similar arguments of the different claimants and a practically identical series of defences put forward by the Argentinian government, the conclusions at which they arrived have shown striking differences.

Additionally, some of the decisions have been subject to strong criticism and/or declared null and void by annulment committees.

Finally, the experience of Argentina shows the difficulties that arbitration tribunals might encounter when trying to scrutinize the economic policy choices made by governments.

On top of the sensitivities of examining sovereign decisions of states, arbitrators might find themselves in the awkward situation of deciding on highly technical matters which they are clearly ill-equipped to assess.

The case of Argentina thus represents a sad example of the urgent need to reconsider and reform the ISDS system. Yet, the lessons to be drawn from this experience do not seem to lead to clear conclusions about which direction to take.

On the one hand, the system has proved to be extremely inflexible, which prevented it from addressing the exceptional peculiarities of the Argentinian case. On the other hand, however, the wide margin of discretion available to the arbitral tribunals resulted in the adoption of inherently poor decisions, and with high levels of incoherence among them. (IPS Columnist Service)  

Federico Lavopa is a professor at the University of San Andres and University of Buenos Aires. This article is based on the paper “Crisis, emergency measures and the failure of the ISDS system: The case of Argentina”, published as a South Centre Investment Policy Brief (No. 2, July 2015, www.southcentre.int/investment-policy-brief-2-july-2015). The views expressed in this article are those of the author and do not necessarily represent the views of, and should not be attributed to, IPS - Inter Press Service.

Third World Economics, Issue No. 598/599, 1-31 August 2015, pp24-25