During the 90's began a period of neoliberal policies that begins with the Law Reform State and the Law Economic Emergency and continuous since 1991 with the Convertibility Plan, drifting in a process of economic liberalization, financial recovery, foreign ownership of the economy, industrialization, privatization of public assets, etc. with regressive social effects crystallized in the rise in unemployment, poverty, impoverishment of the popular sectors, widening social gaps, etc. denoting the exclusion of the state in order to guarantee the welfare of the population.
In this period of deregulation, attracting capital, "carnal relations" and functionality to the interests of transnational capital, the core countries and representatives of international organizations is that they signed 56 Bilateral Promotion and Protection of Foreign Investments (TBI).
During Menem management were concluded for at least 56 BITs of which 47 were approved by national law in the period 1992 -1999. The remaining 9 were ratified by national law, like other 2 signed during the Management Alliance. to December 2004 have been ratified by the national law of 58 TBI, surely a record for a host country for foreign direct investment "(Aspinall, p 48)
However, the case witness, and whose consequences still felt today as one of the factors of greatest conflict, is given from the BIT signed with France in 1991 and enacted in 1992, by which private investors were benefiting from the ability to use international courts without exhausting the local judicial precedent for future TBI to be signed, and differing from the 2 BITs signed by Italy and Germany, where foreign investors could only recourse to international courts have no local court ruling within 18 months into the lawsuit.
The BIT is an agreement between states subject to international public law, whereby investors of any of the signatory countries can use international courts to resolve disputes or controversies with the host state capitals. In short the legal equality between a private investor and a sovereign country. " Consequently, the signing of the BIT, which in itself denotes the government guarantee for the advance of transnational capital in the national economy result of the reforms mentioned above, expresses the policy of liberalization of regulations on foreign investment and deregulation , putting the spotlight on the protection of foreign investment, even over domestic investment, because while the latter in case of conflict must resort to local courts by submitting to the internal laws of the country, the former have the right to appeal international courts "as" of the applicants such as ICSID (World Bank-dependent), UNCITRAL, etc.. Once they were at their promoters of economic reforms and enactment of TBI. Importantly for understanding the complexity of the situation, which the awards are binding on the parties, have immediate executory force, the force of res judicata and are not subject to review by local courts, which demonstrates the legal submission against agencies international financial.
With the crisis and subsequent devaluation, the privatized companies they had achieved extraordinary gains in a decade, along with their parent companies, governments and international financial organizations that had struggled for a way out of dollarization of the currency, demanded a rate adjustment as well as the conservation of other benefits that help save high profit margins of the decade of 90, irrigation use international courts to be rewarded by the de-dollarization and de-indexation of tariffs. In this context, that are initiated both external and internal pressures on the government of Duhalde, who on a strategy of "dual and dilatory" in some cases accept the dollarization of rates and / or de-dollarized liabilities of the privatized, while others more related to public service and whose social effects were more noticeable, sought to extend until the inauguration of the Kirchner government. Also during the presidency of this, they implement a comprehensive and diverse that resulted in the termination of certain public services (Argentine waters, mail, San Martin line passenger trains, etc.), validation in some cases than by Duhalde administration, letters of understanding with several companies, including certain gains rate renegotiation and contract terms and disclaimers to ICSID, greater state control of investment etc.
Currently, Argentina has claims at ICSID by the privatized as a result of the devaluation, pesification and tariff freeze, which provides a sticky situation for the national financial interests. Against this background and noting that the termination of unfair imply continued for ten more years, is that the government has decided to continue with lawsuits against the knowledge of the few chances to win, looking to turn a legal framework to enable the review of adverse rulings by the Court Supreme.
The main provisions of BITs focus on a fair and equitable treatment to foreign investors, identical treatment to that accorded to the most favored nation, non-discriminatory treatment can not be punished as measures intentionally cause harm to them, a treatment no less favorable than for their counterparts in the national capital, free availability and transfer of foreign exchange restrictions inapplicable performance even when they were covered by national legislation, the possibility of using international arbitral tribunals with the same legal status state that the recipient of foreign investment, etc.
Clearly, the Argentina when ascribed to such treaties sided, turned by others vulnerable to future presentations to the ICSID opportunities not only for violations but also to the possibility of making decisions as a sovereign country on central issues concerning the economic and social policy: However among the major provisions of BITs argued by the privatized and threaten Argentina's defense can highlight the readiness of stabilization to a certain rule changes that foreign investors could considered as unfavorable to their interests will be the implementation of existing legislation at the time of signing the respective agreements or treaties, and the presence of specific compensation for various reasons that could affect foreign investors. Although several of the clauses mentioned affect the ability of the Argentina defense , the latter become more relevant on the reforms set out from the sanction of public emergency and exchange regime established in Law N National 25,561, as the main demands from ICSID privatized companies from the devaluation, even if during the term of the convertibility regime had witnessed extraordinary gains and breached its obligations especially concerning the degree of investment made, sought to maintain these extraordinary profits as a rate adjustment that holds those profit margins. Consequently the main arguments for the submission of claims before ICSID against Argentina, lie in the changes from the enactment of the National Law N 25,561 and the consequent results of the renegotiations to have privatized derived either deindexation and dollarization of rates, and even termination of contracts that according to the cases filed are part of a default by the Federal Government, as well as to amend the rules unfavorably on investment underwritten by what standards should govern the sign for the convertibility regime and therefore compensate these companies for any loss or inconvenience that may affect their investments.
respect, and although over time many claims were turned off: it is imperative to highlight that changing the exchange rate regime is the prerogative of a country as free and sovereign state and this one of the arguments Argentina's defense along with the economic and social emergency that the country lived and led to the devaluation . This process post devaluation and economic restructuring of the country, has generated in many sectors represented by 90, attack after recover lost profits, which is nothing more than an attack on the economic sovereignty of a country that has sought to rebuild despite them, the worst crisis in its history.
0 comments:
Post a Comment