Investment Arbitration as the ‘New Frontier'

Since the Argentine financial crisis of 2001-2002, bilateral investment treaties (“BITs”) have increasingly come under the spotlight as a means by which foreign investors can enforce their rights against the host State of their investment. These rights come in the form of various substantive standards of protection, such as the protection against expropriation, the right to fair and equitable treatment, full protection and security, national treatment, most-favoured nation treatment, and importantly, the right to bring a claim in international arbitration against the host State in the event that the investor considers that the State has breached its international obligations. This article considers the case of Argentina (which has faced over 40 claims under BITs in the last decade), and provides a concise review of the substantive and procedural protections available to investors under these international instruments. The article then considers some challenges faced by the regime for investment treaty arbitration, such as the problem of inconsistent decisions, multiple proceedings, and the perceived lack of transparency.