Chapter 4. The Decision On Liability In Lg&E V. Argentina

Abstract

This chapter examines the adequacy of reasoning in the decision on liability in LGpE Energy Corp., LGpE Capital Corp.,and LGpE International, Inc. v. Argentine Republic, one of a series of International Centre for Settlement of Investment Disputes (ICSID) claims that has arisen out of Argentina's economic collapse in 2001. The author demonstrates how the tribunal's reasoning on the fair and equitable treatment claim is well-reasoned under Article 48(3) of the ICSID Convention and subsequently argues that inadequate reasons are provided with respect to three of the remaining four claims: arbitrary and discriminatory treatment, indirect expropriation, and the state of necessity. The chapter attempts to point out the critical gaps in the tribunal's reasoning and outlines the dangerous consequences of incoherent reasoning, including its potential to be seen as a failure to comply with the ICSID Convention.Keywords: arbitrary treatment; Argentina; Article 48(3); discrimination; ICSID Convention; indirect expropriation; LGpE Energy Corp