International Investment Law, Time, and Economics: Fixing the length of economic crises as a costs-allocation tool between host states and foreign investors

Abstract

The case law on non-precluded measures clauses, when they are successful, and the customary rule of necessity, when it fails, transfers significant risks to foreign investors and host States, respectively, during severe economic crises. Some risk-sharing mechanisms should be explored to achieve a more balanced result. This article presents the policy reasons in support of this approach and its normative basis: the principle of acceptable compensation, and illustrates that one way to introduce such mechanisms is through the determination by investor/State tribunals of the length of the breakdown, which is marked by the dates for its beginning and end. The article discusses economic research on when crises conclude, which could be useful to tribunals, and explores the determination on the beginning of economic collapses as a risk-sharing tool and shows how decisions of the Argentinean saga have achieved this result.