Investment treaty practice

Model BIT

Does the state have a model BIT?

At the time of signing BITs, no practice was in place for a model BIT to be considered, therefore each of the BITs has its own structure with some common ground (see question 5). While some contain fork-in the-road clauses, others, such as the ones with Spain and Germany, choose prior submission to local courts of the investment dispute for a limited amount of time after which arbitration may follow. In some of these BITs, umbrella clauses or similar guarantees (the international commitment to grant the investor the best of either the local contracts and legal regime benefits, or the BIT ones) may be available.

Preparatory materials

Does the state have a central repository of treaty preparatory materials? Are such materials publicly available?

Public records of parliament’s (Congress and Senate) debates exist (in parliamentary reports), but preparatory materials have not been made public.

Scope and coverage

What is the typical scope of coverage of investment treaties?

In some BITs, specific investments are excluded (for example, telecommunications), though they may be reintroduced by applying most-favoured-nation clauses to utilise other BITs that do allow them. BITs generally include broad definitions of the investor and of the investment, superseding the contentious issues of the Barcelona Traction case. National protection is extended to companies and affiliates incorporated in the signatory country, or to local subsidiaries, provided they are controlled by the former. The nature of the investment has been discussed in some cases, the last one being the Abaclat case, mentioned above, where the decision affirming the jurisdiction under the ICSID and BIT rules acknowledged that investments in the financial field were considered within the scope of the applicable BIT. The Italian bond holders collective case was settled (100 per cent of capital and half of such amount as interest) in February 2016, as with the rest of the holdouts.

Protections

What substantive protections are typically available?

See question 5.

Dispute resolution

What are the most commonly used dispute resolution options for investment disputes between foreign investors and your state?

BITs generally grant choices of different arbitration venues, including ICSID Rules and institutional arbitration, or UNCITRAL Rules. The UNCITRAL Rules remain the only choice in some cases (such as the UK), but the ICSID Additional Facility Rules may also be used.

Confidentiality

Does the state have an established practice of requiring confidentiality in investment arbitration?

As acts of the state are supposed to be available for scrutiny by the public, there may be constitutional objections to the state requiring such confidentiality.

Insurance

Does the state have an investment insurance agency or programme?

Law No. 23101 provides for the promotion of exports, though it is a regime ridden with difficulties in its application.