August Reinisch: Necessity in International Arbitration-An Unnecessary Split of Opinions in Recent ICSID Cases? Comments on CMS v. Argentina and LG&E v. Argentina

After the 2005 award in CMS v. Argentina, another ICSID tribunal had to address the necessity defence raised by Argentina in many of the over 30 pending investment arbitration cases. In October 2006, the LG&E v. Argentina tribunal came to similar conclusions as far as the questions of breaches of BIT standards were concerned. It differed sharply, however, on the various legal issues concerning the invocation of a state of necessity as a ground for precluding the wrongfulness of acts of the host state. Apart from acknowledging that, in principle, a state of necessity may arise ...