It is now a commonplace to argue that ISDS is currently going through a legitimacy crisis. Whilst the critique against ISDS has extended throughout the globe the origins of such critique can be traced to Latin America. This paper shows how Latin American States are finding novel ways to reform ISDS. It goes beyond false dichotomies and reflects upon the realities of ISDS reform. Three factors play into such an argument. First, Latin America is the biggest client of ISDS. A majority of ISDS claims have targeted Latin American States. Second, the biggest backlash against the current state of affairs in ISDS has come from Latin American States. Third, the new generation of investment agreements concluded by Latin American Sates are already taking into account the systemic deficiencies that led to the crisis and providing innovative solutions that, not surprisingly, are being downplayed at the multilateral level.
The relationship between IEL and climate change is only bound to increase in the next years. Latin American States have built a sizeable toolbox to fight against Climate Change . Though the toolbox includes orthodox tools like adaptation and mitigation, it also envisages, more innovative measures closely intertwined with trade and investment flows. This paper argues that Latin American States are a fertile ground to innovate in the fight against climate change. Specifically, this paper shows how the new international trade and investment agreements, and domestic legislation adopted in the Latin American region in the last years are reflecting the increasing impact that Climate Change is having in the regulation of trade and investment in the region. The paper also posits that the Latin American approach to the relationship between trade, investment and climate change can serve as a template for the Global South.
Traditionally, Latin American countries have combined their efforts to create customs unions and look-like free trade areas with the pursuit of other societal values, traditionally related to social aspects (labour issues) and the safeguard of human rights and, more recently, environmental protection. All these agreements together make understanding the dynamics of trade and regional integration in Latin America vital to understanding the current context in which International Economic Law (IEL) operates within the region. This paper examines the basic rules and principles of IEL which are applied in the Latin American context so as to show how there might be a specific Latin American approach to IEL. Though Latin American countries have traditionally been considered to be the ‘rebels without (or perhaps with) a cause’, this rebel nature has also opened the door for further change and innovation when it comes to International Economic Law.
International Economic Law (IEL) is law. But is it just law? Is it an exclusively legal phenomenon? Or is it a mere rhetorical tool? The Latin American experience, has taught us not to over-legalize international economic law. IEL is a social phenomenon and, as such, is necessarily linked to politics. IEL is born out of diplomatic negotiations and exists in a political context. Even though in Latin America, the political and diplomatic nature of many economic integration projects may have not been all that evident back in the 1990’s, the Latin American experience has not only echoed, but amplified and perhaps even forecasted what would happen at the WTO. An understanding that the essence of IEL is linked to other spheres, and especially to the sphere of international politics and diplomacy. Latin American scholarly debate and the practice of Latin American international economic law have arguably made a significant contribution in this regard.