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Of Missionaries, Fanatics, and Lawyers: Some Thoughts on Investment Disputes in the Americas

Published online by Cambridge University Press:  27 February 2017

William D. Rogers
William D. Rogers*
Affiliation:
Of the District of Columbia Bar
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Extract

Sir Harold Nicholson had it about right. Diplomacy, he said,

is not a system of moral philosophy; it is, as Sir Ernest Satow defined it, “the application of intelligence and tact to the conduct of official relations between the governments of independent States.” The worst kind of diplomatists are missionaries, fanatics and lawyers; the best kind are the reasonable and humane sceptics.

Investment disputes have attracted their fair share of missionaries, fanatics, and lawyers in the Western Hemisphere. There may be evidence, though, that some relatively reasonable sceptics are making their voices heard.

Type
Research Article
Information
American Journal of International Law , Volume 72 , Issue 1 , January 1978 , pp. 1 - 16
Copyright
Copyright © American Society of International Law 1978

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References

1 H. Nicholson , Diplomacy 24 (3d ed. 1963).

2 Gantz, D. A., The Marcona Settlement: New Forms of Negotiation and Compensation for Nationalized Property, 71 AJIL 474 n.2 (1977)CrossRefGoogle Scholar. See also Gantz, D. A., The United States-Peruvian Claims Agreement of February 19, 1974, 10 Int. Lawyer 389 (1976)Google Scholar.

3 See text accompanying notes 6-9, infra.

4 Section 620(e) (i) of the Foreign Assistance Act of 1961, as amended, 22 U.S.C. §2370(e)(1) (1970 & Supp. V 1975).

5 Section 12 of the International Development Association Act, 22 U.S.C. §284(j) (Supp. II 1972), and Section 21 of the Inter-American Development Bank Act, 22 U.S.C. §283(r) (Supp. V 1975). See also Section 602(b)(4) of the Trade Act of 1974, 19 U.S.C. §1872 (Supp. IV 1974).

6 Calvo, C., Le Droit Theorique Et Practioue §§185–205 (5th ed. 1896)Google Scholar. For general discussion of Calvo Doctrine, see Shea, D., The Calvo Clause (1955)Google Scholar; Szasz, The Investment Disputes Convention and Latin America, 11 Va. J. Int. L. 256, 260–62 (1971)Google Scholar; Chiriboga, , International Arbitration, 4 Int. Lawyer 801, 804 (1970)Google Scholar.

7 See, e.g., Constitucion Art. 32 (Peru 1933, amended 1964). One version of the principle may be found in Article 21, paragraph 1, of the Venezuelan Constitution (1947): Aliens in Venezuela have, without prejudice to what is provided in international conventions, the duties and rights that this Constitution and the laws grant to them; but neither the one nor the other may be greater than those of Venezuelans. For a discussion of the various forms and phrasings of the doctrine, see Wesley, , The Procedural Malaise of Foreign Investment Disputes in Latin America: From Local Tribunals to Factfinding, 7 L.& Polʼy. Int. Bus. 813, 820–26 (1975)Google Scholar.

8 See Andean Foreign Investment Code (Codified Text as of Nov. 30, 1976), Common Regime of Treatment of Foreign Capital and of Trademarks, Patents, Licenses, and Royalties, 16 ILM 138, 153 (1971): Article 50. Member Countries shall not grant to foreign investors any treatment more favorable than that granted to national investors. Article 51. In no instrument relating to investments or the transfer of technology shall there be clauses that remove possible conflicts or controversies from the national jurisdiction and competence of the recipient country or allow the subrogation by States to the rights and actions of their national investors ·

9 See Dawson and Head, International Law, National Tribunals and the Rights of Aliens 174-75 (1971). It provides, passim, a comprehensive and elegant analysis of Calvo in theory and in practice.

10 Submitted to members of the World Bank on March 18, 1965, and entered into force on October 14, 1966. 17 UST 1270, TIAS No. 6090, 575 UNTS 159.

11 An excellent discussion of ICSID can be found in Amerasinghe, , Dispute Settlement Machinery in Relations Between States and Multinational Enterprises—with Particular Reference to the International Center for Settlement of Investment Disputes, 11 Int. Lawyer 45 (1977)Google Scholar. See also Szasz, supra note 6.

12 Doc. 39, Press Release No. 57 (Sept. 9, 1964) in 2(1) International Centre for Settlement of Investment Disputes, History of the Convention: Documents Concerning the Origin and the Formulation of the Convention 606 (1970).

13 Article 27, paragraph 1, of the Convention on the Settlement of Investment Disputes provides: No Contracting State shall give diplomatic protection, or bring an international claim, in respect of a dispute which one of its nationals and another Contracting State shall have consented to submit or shall have submitted to arbitration under this Convention, unless such other Contracting State shall have failed to abide by and comply with the award rendered in such dispute.

14 70 Dept. State Bull. 257 (1974).

15 Agreement dated August 24, 1974, reprinted in 15 ILM 1295 (1976).

16 Art. IV(2)&(4) of Basic Contract on Loans, id. 1299-1300 and Art. XVII(2) of Basic Contract on Sales, id. 1340.

17 See Murphy, , Oil Operations in Latin America: The Future of Private Enterprise, 9 Vand. J. Trans. L. 489, 500–02 (1976)Google Scholar.

18 GA Res. 3281, 29 GAOR, Supp. (No. 31) 50, UN Doc. A/9631 (1974).

19 Id. at 52.

20 Id

21 Id.

22 UN Doc. A/C.2/L. 1404 (1974).

23 Id. para. 1(e).

24 Id. para. 1(d).

25 Provisional Transcript, UN Doc. A/p.v. 2315/Corr. 1 at 43-46 (1974). The “no” votes were all cast by capital exporters—The United States, Belgium, Denmark, the Federal Republic of Germany, Luxembourg, and the United Kingdom. For an illuminating analysis of CERDS in the context of the general assault on alien protection, see Lillich, , The Diplomatic Protection of Nationals Abroad: an Elementary Principle of International Law Under Attack, 69 AJIL 359 (1975)CrossRefGoogle Scholar.

26 See Gantz, The United States-Peruvian Claims Agreement, supra note 2.

27 Id. at 489.

28 The New York Times reported the Venezuelan actions in the back pages. Venezuelan President Carlos Andres Perez’ announcement of the forthcoming nationalization was mentioned in a small paragraph in the Business Briefs section on page 66. N.Y. Times, Sept. 24, 1974, at 66, col. 3. The presentation of a draft bill to President Perez was likewise reported on page 27. Id. Dec. 24, 1974, at 27, col. 3. The formal occurrence of nationalization was noted on page 35. Id. Jan. 2, 1976, at 35, col. 5. See also id., Oct. 10, 1974, at 70, col. 2; Oct. 18, 1974, at 70, col. 2; Oct. 18, 1974. at 65, col. 4; Oct. 23, 1974, at 73, col. 7; Oct. 25, 1974, at 61, col. 4; Dec. 2, 1974, at 33, col. 6.

29 A discussion of the law, and the text of the key provision, can be found in an article by Felix P. Rossi-Guerrero, Venezuelan Minister Counselor for Petroleum Affairs, The Transition from Private to Public Control in the Venezuelan Petroleum Industry, 9 Vand. J. Trans. L. 475, 478-79 (1976).

30 See, e.g., Restatement (Second) of the Foreign Relations Law of the United States §188 (1964).

31 For general discussions of the alternative approaches, see Weigel, and Weston, , Valuation Upon the Deprivation of Foreign Enterprise: A Policy-Oriented Approach to the Problem of Compensation Under International Law, in 1 The Valuation of Nationalized Property in International Law 3, 15–37 (Lillich, R. ed. 1972)Google Scholar; Smith, , The United States Government Perspective on Expropriation and Investment in Developing Countries, 9 Vand. J. Trans. L. 517, 519 (1976)Google Scholar.

32 See, e.g., Weigel and Weston, supra note 31, at 15-18; McCosker, , Book Values in Nationalisation Settlements, in 2 The Valuation of Nationalized Property in International Law 26 (Lillich, R. ed. 1973)Google Scholar.

33 See, e.g., United States Department of State Press Release No. 630 of Dec. 30, 1975, reprinted in 15 ILM 186 (1976).

34 See, again, Rossi-Guerrero, supra note 29, at 479-80.

35 A collection of the various authorizing acts may be found in Sutton, , American Claims Against Cuba, 3 Int. Lawyer 741, 746–49 (1969)Google Scholar.

36 78 Stat. 1110, amending International Claims Settlement Act of 1949, 22 U.S.C. §1621 (1964) (current version at 22 U.S.C. §1643 (1970)). A discussion of Title V may be found in Re, , The Foreign Claims Settlement Commission and the Cuban Claims Program, 1 Int. Lawyer 81 (1967)Google Scholar; and Foreign Claims Settlement Commission of the United States, Annual Report to the Congress of the United States, 18, 18-19 (1975) [hereinafter cited as FCSC Rep.]..

37 International Claims Settlement Act of 1949, 78 Stat. 1110, §503, as amended 79 Stat. 988 (1965) (current version at 22 U.S.C. §1643 (1970)).

38 Section 501 specifically stated that “[t]his title shall not be construed as authorizing an appropriation or as any intention to authorize an appropriation for the purpose of paying such claims.” Id. §501.

39 Id. §507.

40 See, e.g., Hearings Before the Subcomm. on Inter-American Affairs of the House Comm. on Foreign Affairs on Claims of U.S. Nationals Against the Government of Cuba, 88th Cong., 2d Sess. 9 (1964) (statement of Rep. Fascell). Representative Fascell stated that the proving and determination of claims through the already established channels of the Foreign Claims Commission will also constitute a major step toward the clarification of our position vis-a-vis the Castro government.

41 See Foreign Claims Settlement Commission of the United States, Summary of the Cuban Claims Program (undated). See also FCSC Rep., supra note 36, at 23.

42 See, e.g., FCSC Rep., supra note 36, at 21-23; Special Study Mission to Cuba. Report: Toward Improved United States-Cuba Relations, 95th Cong., 1st Sess. 11 (1977) thereinafter cited as Mission Rep.]..

43 N.Y. Times, March 29, 1977, at 1, col. 2.

44 This is based on the personal knowledge of the author, who was the U.S. spokesman at these discussions. See also N.Y. Times, March 29, 1977, at 1, col. 2.

45 Address by President Carter before the Permanent Council of the Organization of American States, in Pan American Union Building, Washington, D.C. (April 14, 1977) [hereinafter cited as Address before OAS]. Reprinted in 13 Weekly Comp. of Pres. Docs. 523, 526 (April 18, 1977).

46 See Mission Rep., supra note 42, at 3, 11-12. Senator McGovern has reported that Castro made similar statements to him in May of 1975. McGovern reported that

47 Address before OAS, supra note 45, at 525.

48 Both, for example, now allow presidential waivers, 22 U.S.C. §2370(e)(2) (1970& Supp. V 1975), 22 U.S.C. §283(r) (Supp. II 1972).

49 Reprinted in 8 Weekly Comp. of Pres. Docs. 64 (Jan. 24, 1972), 66 Dept. State Bull. 152 (1972).

50 Draft Convention on Collective Economic Security for Development, OEA Ser. G./CP/doc. 604/76 rev. 1 (Nov. 19, 1976) (original in Spanish).