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State of Necessity in Investment Arbitration

As a circumstance precluding wrongfulness, the state of necessity or duress applied to financial crisis seems to enjoy growing acceptance in contemporary International Law. In the past, it played a marginal role in the management of economic crisis given that creditors States preferred to negotiate these issues by means of informal restructuring procedures. In the last few years, however, in the framework of the financial crisis suffered by Argentina, this excuse has been pleaded, arising important legal issues. The arbitral awards presented in this paper have in common the treatment of the state of necessity under both general international law and the emergency clause in investment treaties. The reasoning in some of these awards is cryptic and ambiguous given that some of these tribunals misinterpret the emergency clause using the strict requirements established in general international law. However, this does not prevent that custom could help in treaty interpretation. Despite its contradictions, these arbitral awards should not be underestimated given their contribution to solidify the customary nature of the state of necessity and its feasibility as a circumstance precluding wrongfulness in financial crisis.