International investment arbitration and the necessity defense : rulings and application from Argentina ; and, Of silence and defiance : a case study of the Argentine press during the Proceso of 1976-1983

Abstract

This study examines the evolution of the modern necessity defenses in ICSID arbitration claims against Argentina arising from the 2001/2 economic crisis. To date, ICSID tribunals have been fractured in their approaches to Argentina’s necessity defenses. The high degree of inconsistency among the tribunals has provoked criticism and threatens to tarnish the legitimacy of the ICSID system, especially in Latin America. Recent developments indicate that a more coherent and legally sound alternative is emerging with a “two-step” approach that is moving away from reliance on customary international law and towards language in the bilateral investment treaty (BIT) between the Argentina and the United States. The BIT-based “two-step” approach is superior to the other two approaches available in terms of legal justifications and policy implications. Adherence to the “two-step” approach in future tribunals will allow for greater consistency, predictability, and stability for states and investors. Abstract: This study suggests that a weak press establishment was key among factors that enabled the excesses of the government’s response to domestic terrorism during Argentina’s most recent military dictatorship, the Proceso of 1976-1983, which resulted in gross human rights violations. The paper examines the role of the Buenos Aires Herald, which played an exceptional role in reporting violence during the Proceso and was the only major Argentine daily to take a confrontational editorial posture vis-à- vis the government. In researching this topic, the author used the archives of the Herald, primary source documents and press clips from the era, interviews with key figures in Argentine journalism, and a variety of academic sources on the issue. The paper considers political and historical factors as they shaped the Argentine media and set the stage for the events of the Proceso.