Systems of Legal Defence Used by Latin American Countries in Investment Disputes

in The Journal of World Investment & Trade
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This article describes the main features of the systems of legal defence that Latin American countries have been using when facing investment arbitration. It focuses on Argentina, Venezuela, Ecuador, Mexico, Peru, Bolivia, and Costa Rica, as a group of countries representative of the region and examines their strategies of internalisation or externalisation of the State’s legal defence and briefly addresses whether a policy to prevent investment disputes is in place. The article concludes that there is no uniform strategy of Latin American countries for the legal defence of investment disputes, but the large majority of States follow a mixed approach employing in-house lawyers and external counsel. With respect to the prevention of investment disputes, only some countries in the region have considered a preventive approach, or foster the use of alternative dispute resolution (ADR).

Systems of Legal Defence Used by Latin American Countries in Investment Disputes

in The Journal of World Investment & Trade

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2

As of 31 December 2015the percentages were 24% for South America and 6% for Central America and the Caribbean. ICSID ‘The ICSID Caseload – Statistic (Issue 2016-1)’ (31 January 2016) <https://icsid.worldbank.org/apps/ICSIDWEB/resources/Documents/ICSID%20Web%20Stats%202016-1%20(English)%20final.pdf> accessed 1 March 2016.

15

Brazil signed 14 BITs between 1994 and 1999but failed to ratify them. Leany Barreiro Lemos and Daniela Campello ‘The Non-Ratification of Bilateral Investment Treaties in Brazil: A Story of Conflict in a Land of Cooperation’ (2015) 22 Rev Intl Pol Econ 1055.

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In December 2015the MPFIPS was dissolved and several functions were transferred to the Ministry of Interior Public Works and Housing <http://www.mininterior.gov.ar/inicio/index.php> accessed 1 March 2016.

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Bolivia Act No 064 of 2011.

137

UNCTAD reports 9 cases by the end of 2015: UNCTAD ‘Investment Dispute Settlement Navigator’ (n 18). One more contract-based case is reported on the ICSID website (n 45).

144

Arts 6 and 8 of Act No 7638.

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