Is the Legitimacy Crisis in the Eye of the Beholder?

by SANTIAGO GARCES JARAMILLO

Essay presented on the Topic: “How Do We Design for Legitimacy?” for The University of Miami School of Law and Young ICCA full-tuition scholarship competition.
March 2012

This essay examines the current state of affairs regarding Ecuador’s challenge to the legitimacy of the international investment arbitration system following the tension created by the Lago Agrio domestic litigation and the related international arbitration under the US-Ecuador BIT. The essay reflects on Ecuador’s precise submissions to the legitimacy debate while providing support for the literature in the defense of the current system of investor-state arbitration. After analyzing the detailed reasons for Ecuador’s current critique; and finding them to respond mostly to endogenous factors related to the country’s new mandates under the 2008 Constitution, this essay attempts to provide a design for legitimacy through treaty drafting and negotiation for the Country’s future participation in the international investment arbitration scenario.

 

Download PDF: SGJ_Legitimacy_Essay.pdf (253 kb)

 

Switzerland’s Department of Foreign Affairs endorsed Federal Supreme Court decision (BGE 136 III 379) not to lift Bank of International Settlement’s (BIS) immunity due to an attempt of NML Capital to freeze $300m (£186m) on Argentina’s bank accounts.

by: Dimitrij Euler, MLaw, PhD Candidate, University of Basle, Switzerland.

Obtaining an award is only half way through; the final step – i.e. to enforce the award or verdict – will be the cherry on the cake. Immunity of states and state entities challenges councils for claimant after investor-state arbitration. Successful claimants against Argentina are facing difficulties to enforce their debts adjudicated in awards and verdicts. In very creative attempts, lawyers enforce debts against boats, airport facilities and assets of international organisations. Numerous international organisations have their seat in Switzerland and enjoy extensive immunities. A limitation of the immunity would set an unfortunate precedent for Switzerland.

Continue reading Switzerland’s Department of Foreign Affairs endorsed Federal Supreme Court decision (BGE 136 III 379) not to lift Bank of International Settlement’s (BIS) immunity due to an attempt of NML Capital to freeze $300m (£186m) on Argentina’s bank accounts.