El estado de necesidad y las cláusulas de emergencia contempladas en los APPRI: los casos argentinos ante el CIADI

Abstract

A number of questions concerning the interpretation and scope of the state of necessity have recently acquired greater importance following their emergence in matters related to the international protection of foreign investments. Over the last few years, several cases arising from Argentina’s economic crisis in which the state of necessity has been invoked have come to arbitration. This resurgence of the state of necessity in International Investment Law underpins the analysis conducted here, which focuses primarily on the interpretation given to exemptions of responsibility. This article focuses its attention on the interpretation and application of the state of necessity and its relation to «measures not precluded» clauses contained in some BITs. The study, which provides an initial discussion of the defence of necessity and a brief review of leading precedents in the field, assesses some of the risks that originate from the diversification and expansion of International Law.