Mass Procedures as a Form of "Regulatory Arbitration" - Abaclat V. Argentine Republic and the International Investment Regime

By Strong, S. I. | Journal of Corporation Law, Winter 2013 | Go to article overview

Mass Procedures as a Form of "Regulatory Arbitration" - Abaclat V. Argentine Republic and the International Investment Regime


Strong, S. I., Journal of Corporation Law


I. Introduction

II. Abaclat v. Argentine Republic

II. Regulatory Litigation

   A. Regulatory Litigation Defined

   B. Transnational Regulatory Litigation

IV. Regulatory Arbitration

   A. Class, Mass, and Collective Arbitration

   B. Regulatory Arbitration in Practice

     1. Concerns Relating to Arbitrability

     2. Concerns Relating to Party Autonomy

V. Regulatory Arbitration in the Investment Context

   A. Intent

   B. A Substantive Norm

   C. A Rule or Remedy

     1. Issues Relating to Novelty

        a. Procedural Inquiries

        b. Risk-Related Issues

     2. Issues Relating to Silence

VI. Conclusion

I. INTRODUCTION

Although final determination of the merits of the dispute is still several years in the making, Abaclat v. Argentine Republic (1) has already been declared one of the most controversial arbitrations to arise in recent years. (2) The proceedings address several noteworthy items as a matter of first impression, including the question of whether sovereign bonds constitute an "investment" (3) under the relevant treaties. (4) However, much of Abaclat's notoriety is due to the unusually large number of claimants in this case, 60,000 Italian bondholders who were seeking to join their claims together in a single proceeding. (5) While both the claimants and a majority of the arbitrators were quick to note that the arbitration was not brought on a classwide basis, (6) the framing of the procedure as involving "mass" rather than class claims has done little to diminish concerns that U.S. litigation techniques, most particularly the dreaded class action, are currently making their way into international investment law. (7)

Although Abaclat marks the first time that an investment tribunal has accepted jurisdiction over a proceeding of this nature, (8) it is not the first time that a large-scale claim has been brought in the context of treaty-based arbitration, (9) nor is it likely to be the last. Two other group claims against Argentina are currently pending, (10) and commentators have speculated about opportunities for mass investment arbitrations in other contexts. (11)

While there is still a long way to go before the jurisdictional awards rendered in Abaclat can be considered final, (12) the majority and dissenting awards will doubtless prove groundbreaking on a number of important issues. Certainly there will be extensive analysis regarding the arbitrability of sovereign debt concerns, the interpretation of silence in an investment treaty, and a variety of related matters. (13) However, this Article focuses on perhaps the most challenging and controversial issue, namely the question of the propriety of mass procedures from an international regulatory law perspective.

The idea of investment law as a form of international regulation is not new. (14) Indeed, a growing number of commentators have framed the international investment regime as reflecting a type of "global administrative law" (15) or "global governance." (16)

However, most of the analysis has centered on the way in which the various treaties and international agreements are said to constitute a type of "international legislation." (17) While there is a continuing need to consider the ways in which international investment law constitutes a form of traditional regulation, this Article brings a new critical perspective--that of new governance theory--to bear on the question of mass procedures in investment arbitration. (18)

New governance analysis reflects "a widespread movement away from a top-down approach in public governance to an increasingly hybrid interaction of public and private actors." (19) One area of inquiry involves the concept of regulatory litigation, which arises when a "diffuse set of regulators," including "private citizens, public regulatory bodies, nongovernmental organizations, and private market agents[,] ... regulate social harm" (20) by "us[ing] litigation and the courts to achieve and apply regulatory outcomes to entire industries.

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

Mass Procedures as a Form of "Regulatory Arbitration" - Abaclat V. Argentine Republic and the International Investment Regime
Settings

Settings

Typeface
Text size Smaller Larger
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Full screen

matching results for page

Cited passage

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited passage

Welcome to the new Questia Reader

The Questia Reader has been updated to provide you with an even better online reading experience.  It is now 100% Responsive, which means you can read our books and articles on any sized device you wish.  All of your favorite tools like notes, highlights, and citations are still here, but the way you select text has been updated to be easier to use, especially on touchscreen devices.  Here's how:

1. Click or tap the first word you want to select.
2. Click or tap the last word you want to select.

OK, got it!

Thanks for trying Questia!

Please continue trying out our research tools, but please note, full functionality is available only to our active members.

Your work will be lost once you leave this Web page.

For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

Already a member? Log in now.