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10 Limits of Autonomy in International Investment Arbitration: Are Contractual Waivers of Mass Procedures Enforceable?

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Chapter Summary

A majority of arbitrators in Abaclat v. Argentine Republic handed down a preliminary award on jurisdiction and admissibility that allowed 60,000 Italian claimants to proceed jointly against Argentina. This chapter begins the discussion by analyzing certain salient features of Abaclat v. Argentine Republic so as to provide some understanding of how mass claims can arise in the investment setting. It considers the propriety of waivers in the investment context, first by describing how such waivers are likely to arise as a practical matter and what form those provisions are expected to take. The chapter outlines the various legal issues that are likely to arise if and when a waiver is attempted, including matters relating to conflict of laws, methods of interpretation, admissibility versus jurisdiction, and the distinction between contract claims and treaty claims. It concludes by drawing together the various strands of argument and providing some proposals for the future.

Keywords: Abaclat; Argentina; investment setting; jurisdiction; law; waivers



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