I. INTRODUCTION
The Argentinean arbitrations, it has been said by some (if not
by many), do not cast a good light on the current condition of
investor-state arbitration as a meaningful method for resolving
treaty-based investment disputes.
After more than a decade since its economic crisis in 2001 and
2002, Argentina has yet to pay a single peso, let alone a nonpessified
cent, to any successful claimant under any ICSID or
UNCITRAL award. Like other states, Argentina’s defiant, if not
muscular, defence of its interests has so far succeeded, even if in
some arbitrations the day of reckoning for Argentina may now be
nearer than ever. Two days ago, the U.S. Government suspended
Argentina from the GSP programme for wilful non-payment of the
Azurix and CMS awards, a sanction thought unlikely (without
much more) to procure prompt payment of the amounts due,
totalling some US$ 300 million. And yet Argentina, together with
other States, remains a fierce critic of ICSID and the modern
system of investor-state arbitration.
As the current debate within UNCITRAL demonstrates, these
critics are not limited to developing or economically troubled
states. We can see from other continents the omission of any
provision for investor-state arbitration in the recent Free Trade
Agreement between China and Australia, itself following the
example set in Australia’s Free Trade Agreement with the U.S.
We may therefore have reached an important crossroads for
investor-state arbitration, like the two diverging roads in Robert