Jonathan C. Hamilton, comments in “Latin America Disputes,” Latin Business Chronicle (2009)

In the midst of the global recession of 2008-09, the Latin Business Chronicle queried leaders in international arbitration about the possible growth of Latin America-related cases filed at the World Bank.

Do you expect 2009 will see more Latin America-related cases filed at the ICSID? Why?

Jonathan C. Hamilton:  Yes.  There previously was a wave of cases attributable to certain acts taken by Argentina.  Latin American ICSID cases will continue to proliferate as long as states take acts in violation of their obligations to protect investments.

Will they be driven by populist government actions (i.e. nationalizations, etc) or private-sector disputes related to the growing crisis?

Hamilton:  Investment arbitration will continue to be driven by states that take acts against investments from abroad.  The way that states conduct themselves vis-à-vis investors during current economic conditions will shape the potential for additional cases.

Did your firm see more Latin America/ICSID work in 2008 compared to 2007? What were the most prominent cases?

Yes, we did.  White & Case handled the first case registered by ICSID against a Latin American state and has seen steady growth in Latin disputes work throughout this decade, including last year.  Among other cases, White & Case won a victory for Peru in an ICSID case focused on legal stability agreements and energy concessions (Aguaytia v. Peru).  The firm is handling the largest case against Argentina, representing 180,000 Italian holders of sovereign bonds.  The firm is also handling at present disputes in connection with investments across the region.

The way that states conduct themselves vis-à-vis investors during current economic conditions will shape the potential for additional cases.

Jonathan C. Hamilton