INTRODUCTORY NOTE TO THE DECLARATION OF THE 1ST MINISTERIAL MEETING OF THE LATIN AMERICAN STATES AFFECTED BY TRANSNATIONAL INTERESTS

摘要

In the past decade, Latin American States have begun to voice strong criticisms of the existing system for the settlement of disputes between foreign private investors and States through international arbitration based on investment treaties. Since the end of the nineties, said system has undergone an extraordinary development due to the direct right of action granted to foreign investors by investment treaties. Indeed, the great majority of the thousands of investment treaties existing today not only grant substantive protection to investments made by investors of one State party in the territory of the other State party to the treaty, but also contain investor-State dispute settlement provisions allowing investors to initiate arbitration proceedings against host States for an alleged breach of the treaty by the State. The practice of arbitration based on investment treaties has, however, generated many difficulties with respect to both the arbitral tribunals' application of the substantive protections provided for in the treaties and to the functioning of the arbitration proceedings. In response to those difficulties, Latin American States are seeking to set up regional legal and political cooperation initiatives to create alternatives to the existing system. The Declaration of the 1st Ministerial Meeting of the Latin American States Affected by Transnational Interests (Declaration) adopted in Guayaquil, Ecuador on April 22, 2013 is one recent example of such initiatives.