As exemplified by the three icsid cases brought by Italian bondholders against Argentina, arbitral tribunals have tended to interpret broadly the term ‘investment’ in applicable bits. However, the tribunal in Poštová banka v. Greece came to the opposite conclusion: the series of Greek sovereign bonds in question did not constitute a protected ‘investment’. Although the tribunal carefully scrutinized the specificity in phrasing in the applicable bits so as to justify its divergent conclusion, some commentators still find inconsistencies with previous jurisprudence. This article examines the interpretative approach taken by the Poštová tribunal and compares it to previous jurisprudence involving disputes over Argentine sovereign bonds, by employing the concept of a two-level judicial dialogue: dialogue on treaty languages and dialogue on an interpretative assumption. It will explain both the apparent consistency between the two lines of jurisprudence as well as the divergence in their interpretative approaches.
Whereas investment treaties and arbitration rules do not usually provide any explicit provision for mass claims in investment treaty arbitration, the Tribunal in Abaclat v Argentina established a landmark jurisprudence that allowed a massive 60,000 investors to bundle and bring their claims before a single arbitral tribunal. However, its reasoning has been severely criticised for its conclusion, which apparently favours bondholder protection at the expense of financial policy leeway of defaulted sovereigns: investment arbitration may adversely affect the orderly implementation of sovereign debt restructuring. This article attempts to take a more balanced approach towards this issue, by focusing on regulatory aspects of arbitral proceedings. A ‘regulatory’ investment treaty arbitration will not only provide creditor protection by opening the door for mass claims, but will also show a deference to an orderly restructuring by closing the door if circumstances so require.