XIII. Approaches to Investment Protection outside of Specific International Investment Agreements and Investor-State Settlement

Is State‐State Investment Arbitration an Old Option for Latin America?

“…The exhaustion of local remedies is an important principle of international law in that regard, but its explicit waiver by treaty is widely recognized. Also, while a waiver is not to be presumed, this is rebuttable, so the possibility of an implicit waiver should not be excluded (Crawford ; Sacerdoti and Recanati ). The ILC Draft on Diplomatic Protection with Commentaries (ILCDP) provides, with reference to Article 15(e), that “no general rule can be laid down as to when an intention to waive local remedies may be implied.…”

“…On the contrary, it is submitted that the language and context of the provisions (e.g., Article 23[14]b, Brazil‐Colombia IIA) constitute sufficient rebuttal of the strong presumption against the waiver of the requirement of exhaustion (for a contrary interpretation, see Macías, forthcoming). This departure from customary rules avoids procedural problems of interstate disputes (Sacerdoti and Recanati ).…”

“…Recent state‐state cases involving Latin America ( Peru v. Chile , Italy v. Cuba , and Ecuador v. United States ) may indicate a resurgence of the practice in the area. They sparked interest and were followed by a new range of academic contributors in this field (Bernasconi‐Osterwalder ; Juratowitch ; Lo ; Macías, forthcoming; Muchlinski ; Paparinskis , 2014; Pérez 2012; Posner and Walter ; Potestà , , ; Recanati ; Roberts ; Sacerdoti and Recanati ; Trevino ; Wong ). This literature has opened up avenues for further research in the area.…”