The Legitimacy Crisis in Investment Treaty Arbitration: Privatizing Public International Law Through Inconsistent Decisions

Abstract

ThisArticle details a series of cases involving sovereign states that are or have been sued for breaches of investment treaties.These cases include the following: (1) the "Czech TV Debacle" where the Czech Republic was sued for over U.S. $500 million; (2) the "Argentine Currency Crisis Claims" where the Republic of Argentina was sued for "billions of dollars"; (3) the "Lebanese Mobile Phone Fight" where U.S. $1.05 billion was disputed in a case involving the Republic of Lebanon, (4) the "Czech-Slovak Bank Battle" where the Slovak Republic was sued for U.S. $1 billion in damages; (5) the "Japanese-Czech Banking Battle" where a U.S. $1 billion claim was made against the Czech Republic; (6) the "Port Services Disputes" where claims are being brought claiming that the Islamic Republic of Pakistan owes approximately U.S. $350 million and the Republic of Philippines owes U.S. $120 million; (7) the "Building Bridges in Pakistan" where a claim for U.S. $450 million was made against the Islamic Republic of Pakistan; (8) the "Turkish Power Plant Joint Venture" where the Republic of Turkey is being sued for U.S. $300 million; (9) the "Argentine Water Dispute" alleging 1521 issues with economic and political consequences are resolved in private before different sets of individuals who can and do come to conflicting decisions on the same points of law 2 -and no single body has the capacity to resolve these inconsistencies.In the past twelve years, countries ("Sovereigns") have entered into approximately 1500 new Bilateral Investment Treaties ("BITs") 3 and the Republic of Argentina owes U.S. $300 million; (10) the "Egyptian Textile Business Dispute" where the Arab Republic of Egypt is being sued for U.S. $250 million; and (11) the "Oil Contract Bidding Dispute" where a U.S. $200 million claim was brought against the Republic of Trinidad and Tobago.Id.; see also Jack J. Coe, Jr., Taking Stock of NAFTA Chapter 11 in Its Tenth Year: An Interim Sketch of Selected Themes, Issues, and Methods, 36 Vand.J. Transnat'l L. 1381, 1400-01 (2003) [hereinafter Coe, Taking Stock] (describing the extensive amount of damages claimed under NAFTA despite the slim chances of recovery).These cases only involve claims brought under bilateral investment treaties.They do not involve claims pursued under multilateral agreements.See.

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