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Jun 05, 2008

Anti-Arbitration Trends in Latin America

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“Anti-Arbitration Trends in Latin America”, New York Law Journal, June 5, 2008.

While certain Latin American countries are adopting instruments which contemplate international arbitration as a means of resolving investorstate disputes (see, e.g., the Free-Trade Agreement between the United States and Peru, which was approved on June 28, 2006 by the Peruvian Congress), others have engaged in the reverse trend of terminating or narrowing the scope of existing commitments to arbitrate. All members of the Alternativa Bolivariana para Las Américas y El Caribe (ALBA)—namely Nicaragua, Cuba, Bolivia and Venezuela—as well as Ecuador have, over the last year, announced measures or taken active steps to curtail investors’ recourse to international arbitration.

These countries are evaluating or implementing a spectrum of options in this respect, ranging from constitutional reforms or amendments of legislative provisions to the denunciation of the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (“the ICSID Convention, International Centre for Settlement of International Disputes.”) Not all of these measures are, however, likely to achieve the contemplated goal. 

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Authors and Contributors

Emmanuel Gaillard

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International Arbitration

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