Abstract

This paper proposes two strategies to address the potential conflict between International Investment Law and the non-intervention principle in Latin America during the pandemic.

Regarding the International Investment Agreements in force, Latin American countries should consider that the standards of protection are based on principles similar to the general principles of the Latin American Administrative Law, as legitimate expectations, non-discrimination, transparency, good faith, arbitrariness prohibition, grossly unfairness, and violation of the due process. Rather than try to escape from International Law arguing the non-intervention principle, the region should move into an Administrative Law interpretation that reduces the risk of investment disputes. That interpretation also protects the right to regulate and the margin of deference -vague concepts that could have a more precise meaning through this interpretation methodology.

In addition, Latin America should consider the advantage of an Inter-American BIT model that promotes a balance between the right to regulate and the investor's protection, considering two characteristics of the region: state fragility and pervasive inequality.

This paper will be part of the TDM Special Issue on "The Future of Investment Law in Latin America". More information here www.transnational-dispute-management.com/news.asp?key=1842