Explaining Compliance and Non-Compliance with ICSID Awards: The Argentine Case Study and a Multiple Theoretical Approach

Moshe Hirsch

Journal of International Economic Law, 2016, vol. 19, issue 3, 681-706

Abstract: The general compliance with investment awards was until recently considered to have been good. Some recent reports, however, have revealed that certain states refuse to comply, or delay compliance, with investment tribunals’ decisions. Argentina’s past reluctance to unconditionally comply with a series of investment awards, prominently those related to the financial crisis in 2001–02 (mostly rendered by International Centre for Settlement of Investment Disputes (ICSID) tribunals) attracted substantial attention from scholars and policy-makers. For about six years (2007–13), Argentina declined to compensate these ICSID award creditors and conditioned the payment to ICSID award creditors upon undertaking local enforcement proceedings in Argentinian courts. This period of apparent non-compliance and the October 2013 settlement agreement with four award beneficiaries raise significant questions concerning the factors influencing states to breach or comply with international law, and particularly Argentina’s decisions regarding this series of ICSID awards. To address these questions, this study employs three major approaches in international relations literature: the realist, constructivist, and liberal perspectives. The following analysis leads to the conclusion that the main international relations approaches are not mutually exclusive and that factors emphasized by each perspective shed light on a different dimension of the decisions regarding compliance in this case. While a particular perspective better captures the core process explaining the decision adopted by Argentina in a specific period, variables emphasized by each theoretical lens have some explanatory value regarding decisions undertaken in each period. Thus, this article argues that exploring this case study through multiple theoretical perspectives provides a comprehensive and meaningful explanation for the decisions adopted by Argentina regarding compliance and non-compliance with ICSID awards.

Date: 2016
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