The Argentine Financial Crisis: State Liability Under BITs and the Legitimacy of the ICSID System

Power Shifts in International Law: Structural Realignment and Substantive Pluralism

“…454 Brazil's failure to ratify any BITs flowed from a view that "national regulation was about disciplining foreign investment, and BITs were about restricting the state's scope to effectively regulate capitals sic." 455 As claims have mounted against states that had ratified BITs and investor-state arbitral tribunals have offered more expansive interpretations of the treaties' substantive protections, 456 other states have started to follow Brazil's lead, renouncing their BITs and exiting from the International Center for the Settlement of Investment Disputes ("ICSID"), where BIT claims are usually adjudicated. Bolivia, Venezuela, and Ecuador have each exited or indicated plans to withdraw from ICSID and renounced some BITs.…”

International Investment Law and EU Law

“…66 To put it differently, fulfilling the requirements of the necessity test prompts EU exclusivity, as has been parallelism between internal and external powers and that it is only the exercise of competence which creates its exclusive character. Since the EU is exclusively competent for the conclusion of an international agreement if it is the only way an EU objective can be attained, it is to be argued that the competence is shared when the participation merely facilitates the exercise of an internal competence.…”

“…66 For example the German control of market access mechanism contradicts the current distribution of competences. Nevertheless, Member States' BITs not violating specific rules of EU law need to remain in force until the EU has concluded new international investment agreements with the third countries involved.…”

“…Article 2 provided for a default rule of a 1-year termination period for agreements which neither foresaw the entry into force of the CCP nor allowed for an "annual notice of termination." 66 To be sure, an approach used in one policy area may not be equally suitable for another policy area because the economics, the history and any other factors are different. Finally, Article 4 stated that the Member States, in consultation with the Commission, shall arrange that the terminal dates of their agreements with third states coincide.…”

“…49 above). In the two stabilisation and association agreements relating to Macedonia and Croatia, following directly the aforementioned provision, the nearly identical "particular aims" of these cooperations, established in both of these agreements, are listed as follows: The aforementioned provisions, which entered into force in 2004 with regard to Macedonia and in 2005 with regard to Croatia, 66 show that the contracting parties hitherto assumed that the legal protection of foreign investment was not so much a subject matter of the stabilisation and association agreements, but rather a concern of the EU Member States. 59(1)(2) SAA/Macedonia (fn.…”