The Sempra Annulment Decision of 29 June 2010 and Subsequent Developments in Investment Arbitration Dealing with the Necessity Defence
In: International Community Law ReviewSearch for other papers by Federica Cristani in
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Abstract
On 29 June 2010, an ad hoc International Centre for Settlement of Investment Disputes (ICSID) Annulment Committee annulled the 2007 Sempra Award for manifest excess of powers (within the meaning of the ICSID Convention), as it found that the Tribunal had failed to apply the correct law. The decision took into account the measures adopted by the Argentine Government to face the 2001 economic and political crisis and (like other previous awards and decisions on similar cases) raised the issue of the interpretation and application of the necessity defence in situations of economic emergencies. The approach of the ad hoc Committee on this particular point is the main focus of this note.
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12)
See Szodruch, supra note 6, p. 525.
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50)
On this point, Soufraki v. UAE (ICSID Case No. ARB/02/7), Decision on Annulment (5 June 2007), par. 37.
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53)
See Schreuer, supra note 47, p. 959.
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85)
See Binder, supra note 78, p. 613.
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99)
Roberto Ago, “Second Report on State responsibility”, Yearbook of the International Law Commission. Vol.II (UN Doc.A/CN.4/SER.A/1970.Add.1, 1970) p. 178, par. 7, http://www.un.org/law/ilc (accessed July 28, 2011). Also James R. Crawford, “The ILC’ Articles on Responsibility of States for Internationally Wrongful Acts. A Retrospect”, 96 American Journal of International Law (2002) p. 876.
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101)
See Binder, supra note 78, p. 625.
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102)
See Singh, supra note 89.
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125)
See Binder, supra note 78, p. 629; August Reinisch, “Necessity in International Investment Arbitration: an Unnecessary Split of Opinions in Recent ICSID Cases? Comments on CMS v. Argentina and LG&E v. Argentina”, 8 Journal of World Investment & Trade (2007) pp. 212–214. As regards emergency exceptions in investment treaties and their relationship with the customary rule of necessity, see C. Binder, “Non Performance of Treaty Obligations in Cases of Necessity: from ‘Necessity knows no Law’ via the ‘Law(s) of Necessity to Interfaces between different ‘Laws of Necessity’” 13 Austrian Review of International and European Law (2008), pp. 6–34; and Katia Yannaca-Small, “Essential Security Interests under International Investment Law”, in OECD (ed.), International Investment Perspectives: Freedom of Investment in a Changing World (2007), pp. 93–134.
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126)
See Binder, supra note 78, p. 626.
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132)
See Binder, supra note 78, p. 630; Gazzini, supra note 94, p. 469; Kalnina and Di Pietro, supra note 124, p. 245; August Reinisch, ‘The Future of Investment Arbitration’, in C. Binder, U. Kriebaum, A. Reinisch and S. Wittich (eds.), International Investment Law for the 21st Century (2009), pp. 894–916. An appellate system, however, could have the disadvantage of longer proceedings.
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The Sempra Annulment Decision of 29 June 2010 and Subsequent Developments in Investment Arbitration Dealing with the Necessity Defence
In: International Community Law ReviewSearch for other papers by Federica Cristani in
Current site
Google Scholar
PubMed
Abstract
On 29 June 2010, an ad hoc International Centre for Settlement of Investment Disputes (ICSID) Annulment Committee annulled the 2007 Sempra Award for manifest excess of powers (within the meaning of the ICSID Convention), as it found that the Tribunal had failed to apply the correct law. The decision took into account the measures adopted by the Argentine Government to face the 2001 economic and political crisis and (like other previous awards and decisions on similar cases) raised the issue of the interpretation and application of the necessity defence in situations of economic emergencies. The approach of the ad hoc Committee on this particular point is the main focus of this note.
| All Time | Past 365 days | Past 30 Days | |
|---|---|---|---|
| Abstract Views | 290 | 48 | 10 |
| Full Text Views | 146 | 0 | 0 |
| PDF Views & Downloads | 52 | 1 | 0 |