Ecuador's Attainment of the Sumak Kawsay and the Role Assigned to International Arbitration
Katia Fach Gómez (University of Zaragoza)
Yearbook on International Investment Law & Policy, 2010-2011, Chapter 11
The Latin temperament has influenced the relationship of some Latin American countries with foreign investors. Although it is very difficult to apply policíes and achieve effects common to all Latín American countries, it can be argued that some countries of this regíon are currently undergoing, as in the past, a very complex connection with international investment, in general, and specifically with mechanisms to resolve investrnent conflicts. In recent years, sorne countries like Argentina, Venezuela, Bolivia, and Ecuador have used various legal mechanisms to disengage from an international investment regime that they consider to be too oppressive and biased. Many of these legal mechanísms, which have thus far achieved varying degrees of legal effect, have focused on getting these countries to disconnect from the International Center for Settlement of Investment Disputes (ICSID). Within this trend, this chapter will focus on analyzing the case of Ecuador, a country that has recently been particularly active and combative against international investment arbitration. The current study of the Ecuadorian position is especially interesting, because it helps to understand the decisions already made by other States, which have similar political tendencies to Ecuador. Additionally, a legal analysis of the latest Ecuadorian provisions on this topic may help to preemptively detect whether and to what extent other Latín American countries, such as Bolivia or Venezuela, have chosen a similar path to that traveled by Ecuador.
Rethinking the Role of Amicus Curiae in International Investment Arbitration: How to Draw the Line Favorably for the Public Interest
Katia Fach Gómez (University of Zaragoza)
Fordham International Law Journal, vol. 35 (2012) Issue 2, p. 510-564
This Article questions whether the regulation that currently exists on amicus briefs in international arbitration is optimal, or if these rules should be improved or even replaced by more efficient provisions. Part I discusses the importance of the amicus curiae institution in the national and international judicial spheres. Additionally, Part I shows that the use of amicus curiae has growing importance in the field of international investment arbitration, serving as a manifestation of the principle of transparency, which is being progressively introduced in this area. The analysis of a large number of provisions and some arbitration awards on this topic reinforces the idea that amicus curiae is a controversial institution, the importance of which is expected to further increase in the future. Part II explains the reasons why amicus curiae generate such controversy, by presenting in detail various arguments advanced by NGOs and by investors and their law firms to universalize or eliminate the use of amicus briefs. This dichotomy arises because, in many cases, the interests of investors from developed countries conflict with those of developing countries. Part III of this Article reflects on how the interests of the developing countries can be best-protected by the legal regulation of amicus brief submissions in investment arbitration. Part III offers suggestions, ranging from the improvement of the current system to the elimination of the current scheme. The proposed new regime could mean that amicus briefs are requested ex officio by the arbitral tribunal or sent automatically to court by an institution that specializes in protecting the public interest in investment arbitrations.
Katia Fach Gómez (University of Zaragoza)
Yearbook on International Investment Law & Policy, 2010-2011, Chapter 11
The Latin temperament has influenced the relationship of some Latin American countries with foreign investors. Although it is very difficult to apply policíes and achieve effects common to all Latín American countries, it can be argued that some countries of this regíon are currently undergoing, as in the past, a very complex connection with international investment, in general, and specifically with mechanisms to resolve investrnent conflicts. In recent years, sorne countries like Argentina, Venezuela, Bolivia, and Ecuador have used various legal mechanisms to disengage from an international investment regime that they consider to be too oppressive and biased. Many of these legal mechanísms, which have thus far achieved varying degrees of legal effect, have focused on getting these countries to disconnect from the International Center for Settlement of Investment Disputes (ICSID). Within this trend, this chapter will focus on analyzing the case of Ecuador, a country that has recently been particularly active and combative against international investment arbitration. The current study of the Ecuadorian position is especially interesting, because it helps to understand the decisions already made by other States, which have similar political tendencies to Ecuador. Additionally, a legal analysis of the latest Ecuadorian provisions on this topic may help to preemptively detect whether and to what extent other Latín American countries, such as Bolivia or Venezuela, have chosen a similar path to that traveled by Ecuador.
Rethinking the Role of Amicus Curiae in International Investment Arbitration: How to Draw the Line Favorably for the Public Interest
Katia Fach Gómez (University of Zaragoza)
Fordham International Law Journal, vol. 35 (2012) Issue 2, p. 510-564
This Article questions whether the regulation that currently exists on amicus briefs in international arbitration is optimal, or if these rules should be improved or even replaced by more efficient provisions. Part I discusses the importance of the amicus curiae institution in the national and international judicial spheres. Additionally, Part I shows that the use of amicus curiae has growing importance in the field of international investment arbitration, serving as a manifestation of the principle of transparency, which is being progressively introduced in this area. The analysis of a large number of provisions and some arbitration awards on this topic reinforces the idea that amicus curiae is a controversial institution, the importance of which is expected to further increase in the future. Part II explains the reasons why amicus curiae generate such controversy, by presenting in detail various arguments advanced by NGOs and by investors and their law firms to universalize or eliminate the use of amicus briefs. This dichotomy arises because, in many cases, the interests of investors from developed countries conflict with those of developing countries. Part III of this Article reflects on how the interests of the developing countries can be best-protected by the legal regulation of amicus brief submissions in investment arbitration. Part III offers suggestions, ranging from the improvement of the current system to the elimination of the current scheme. The proposed new regime could mean that amicus briefs are requested ex officio by the arbitral tribunal or sent automatically to court by an institution that specializes in protecting the public interest in investment arbitrations.
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