State of Responsibility for ‘General Measures of Economic Policy’ Under Investment Law

Abstract

This essay seeks to examine the prospect of state responsibility under international investment law for general measures of economic policy in light of the decisions on jurisdiction from eighteen arbitration disputes related to the 2001-02 Argentine financial crisis. Upon reaching the conclusion that state responsibility for such measures may obtain, the essay proposes devising a standard of the fair and equitable treatment by using as a point of reference, pursuant to Article 31.3(c) of the Vienna Convention on the Law of Treaties, the preamble and first two provisions of Article IV of the Articles of Agreement of the International Monetary Fund. The essay then considers the practical challenge of framing a claim. Last, the essay concludes with brief reflections on the results of this inquiry. This essay offers a legal framework for considering the conformity of general measures of economic policy with international investment treaties. While the framework could apply to historical, ongoing, and future instances of impugnable economic measures, this essay does not speculate on potential results from applying the legal framework to the facts of any particular episode.