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The Public International Law Regime Governing International Investment. By José E. Alvarez. The Hague: Hague Academy of International Law, 2011. Pp. 502. $25, €18.

Published online by Cambridge University Press:  20 January 2017

Susan D. Franck
Susan D. Franck*
Affiliation:
Washington and Lee University School of Law
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Type
Recent Books on International Law
Information
American Journal of International Law , Volume 106 , Issue 4 , October 2012 , pp. 890 - 896
Copyright
Copyright © American Society of International Law 2012

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References

1 Information about the conference is available online at http://www.sielnet.org/Default.aspxPpageId=819491.

2 Burke-White, William W. & von Staden, Andreas, Investment Protection in Extraordinary Times: The Interpretation and Application of Non-Precluded Measures Provisions in Bilateral Investment Treaties, 48 Va. J. Int’l L. 307, 308-11 (2008)Google Scholar.

3 Roberts, Anthea, Clash of Paradigms: Actors and Analogies Shaping the Investment Treaty System, 107 AJIL (forthcoming 2013)Google Scholar.

4 See Tobin, Jennifer L. & Rose-Ackerman, Susan, When Bits Have Some Bite: The Political-Economic Environment for Bihteral Investment Treaties, 6 Rev. Int’l. Org. 1 (2011)CrossRefGoogle Scholar (questioning the value of creating monolithic narratives about the actual or intended benefits of investment treaties); see also Yackee, Jason Webb, Do Bihteral Investment Treaties Promote Foreign Direct Investment? Some Hints from Alternative Evidence, 51 Va. J. Int’l L. 397, 400 (2010)Google Scholar; Allee, Todd & Peinhardt, Clint, Delegating Differences: Bihteral Investment Treaties and Bargaining over Dispute Resolution Provisions, 54 Int’l Stud. Q. 1 (2010)CrossRefGoogle Scholar.

5 See Plato, Apology, Crito and Phædo of Socrates 53 (Henry Cary trans., 1897) (“Would, O Crito! that the multitude could effect the greatest evils, that they might also effect the greatest good ....”); see also id. at 59 (noting that “these multitudes, who rashly put one to death [] would restore one to life”).

6 See, e.g., Maurer, Noel, Argentina Beats ICSID! Seriously, Argentina Beats ICSID. Regularly, in The Power and the Money Google Scholar, at http://noelmaurer.typepad.com/aab/2012/06/argentina-beats-ICSID-seriously-argentina-beats-ICSID.html (providing commentary by Maurer, a Harvard Business School professor, that discusses general statistics about investment treaty disputes and Argentina’s experience within the larger framework).

7 The figures are based upon a dataset that is publicly available and downloadable. See http://law.wlu.edu/faculty/page.asp?pageid=1185.

8 The Generation 2 dataset involved all publicly available awards as of June 1, 2009. See id. A third generation of research to assess awards rendered before January 1, 2012, is underway.

9 The use of “n” indicates the number of cases.

10 As in the Generation 1 data, damages were converted to a common U.S. dollar currency at the date of the award. All damage awards were then adjusted for inflation using the consumer price index as of January 1, 2011.

11 Even when accounting for statistical outliers, the trimmed claimed mean was US$147,352,001 (n=72), and the winzorized claimed mean was Us$ 188, 198, 953 (n=79).

12 Maffezini v. Kingdom of Spain, ICSID Case No. Arb/97/77, Award (Nafta Ch. 11 Arb. Trib. Nov. 13, 2000), involved an amount claimed of Esp30,000,000, which amounted to the raw amount of US$155,314 at the date of the award.

13 Generation Ukraine Inc. v. Ukraine, ICSID Case No. Arb/00/9, Award (Sept. 16, 2003), involved a raw claim of US$9,400,000,000.

14 The raw mean damage award, without adjusting for inflation, was Us$18,889,128 (n=99). Even accounting for statistical outliers, the trimmed mean award was Us$1,266,186 (n=82), and the winzorized mean damage was US$3,353,098 (n=99).

15 The tribunal awarded US$269,814,000 on the date of award, which amounts to US$329,788,959.80 when adjusted for inflation.

16 The raw mean amount claimed for this subset was US$178,607,593, and the raw mean amount awarded was US$47,949,326. The smallest amount awarded was in Bogdanov v. Republic of Moldova, Award (Stockholm Chamber or Commerce Arb. Inst. Sept. 22, 2005), with an original award in Moldovan lei of 310, 000, which was a raw amount of US$24,603 on the date of the award and an inflation adjusted amount of US$28,336.23.

17 The nine cases out of the top sixteen awards (i.e., awards that were over US$20 million when adjusted for inflation to 2011) were (1) Siemens A. G. v. Argentine Republic, ICSID No. Arb/02/8, Award (Feb. 6, 2007) (original award: US$217,838,439.00; inflation adjusted: US$236,287,570.80); (2) Bg Group PLCV. Argentine Republic, Final Award (Uncitral Arb. Trib. Dec. 24, 2007) (original award: US$185,285,485.85; inflation adjusted: US$200,977,649.30); (3) Azurix Corp. v. Argentine Republic, ICSID Case No. Arb/01/12, Award (July 14, 2006) (original award: US$165,240,753.00; inflation adjusted: US$184,384,248.80); (4) Cms Gas Transmission Co. v. Argentine Republic, ICSID Case No. Arb/01/8, Award (May 12, 2005) (original award: US$133,200,000.00; inflation adjusted: US$153,411,584.00); (5) Sempra Energy Int’l v. Argentine Republic, ICSID Case No. Arb/02/16, Award (Sept. 28, 2007) (original award: US$128,250,462.00; inflation adjusted: US$139,112,225.80); (6) Enron Corp. v. Argentine Republic, ICSID Case No. Arb/ 01/3. Award (May 22, 2007) (original award: US$106,200,000.00; inflation adjusted: US$115,194,270.30); (7) Compama de Aguas del Aconquija S.A. v. Argentine Republic, ICSID Case No. Arb/97/3, Award (Aug. 20, 2007) (original award: US$105,000,000.00; inflation adjusted: US$ 113, 892, 640.10); (8) Lg&Eenergy Corp. v. Argentine Republic, ICSID Case No. Arb/02/1, Award (July 25, 2007) (original award: US$57,400,000.00; inflation adjusted: US$62,261,309.93); and (9) National Grid Plc v. Argentine Republic, Award (Uncitral Arb. Trib. Nov. 3, 2008) (original award: US$38,800,000.00; inflation adjusted: US$40,530,051.09). Of the top sixteen award, the seven remaining awards where investors were awarded over US$20 million when adjusted for inflation were (1) CME Czech Republic B.V. v. Czech Republic, Final Award (Uncitral Mar. 14, 2003) (original award: US$269,814,000.00; inflation adjusted: US$329,788,959.80); (2) Rumeli Tekkom As. v. Kazakhstan, ICSID Case No. Arb/05/16, Award (July 29, 2008) (original award: US$125,000,000.00; inflation adjusted: US$130,573,618.20); (3) Occidental Exploration and Production Co. v. Republic of Ecuador, Award (London Ct. Int’l Arb. July 1, 2004) (original award: US$71,533,549.00; inflation adjusted: US$85,161,691.65); {A) Adc Affiliate Ltd. v. Republic of Hungary, ICSID Case No. Arb/03/16, Award (Oct. 2, 2006) (original award: US$76,200,000.00; inflation adjusted: US$85,027,933.52); (5) Eastern Sugar B. V. v. Czech Republic, Partial Award (Stockholm Chamber of Commerce Arb. Inst. Mar. 27, 2007) (original award: US$33,746,200.00; inflation adjusted: US$36,604,226.78); (6) Archer Daniek Midland Co. v. Mexico, ICSID Case No. Arb(Af)/04/5, Award (Nov. 21, 2007) (original award: US$33,510,091.00; inflation adjusted: US$36,348,121.28); and (7) Metalad Corp. v. Mexico, ICSID Case No. Arb(Af)/97/1, Award (Aug. 30, 2000) (original award: US$16,685,000.00; inflation adjusted: US$21,792,534.41). Interestingly, out of the top six awards, five were against Argentina, but the largest award was rendered against the Czech Republic in Cme Czech Republic B. V.

18 Generation 2 data, which relates to all disputes with at least one publicly available award, reveals that Argentina has the largest caseload of any state (n=26). Mexico is the next largest (n=12; 8.8%), and the United States has the third largest number of awards (n=9; 6.6%). The average number of disputes brought against a state is 2.85.