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In Case of Fire, Please Denounce the ICSID Convention: The Legal Sociological Risks of Adopting a Pro-State Approach towards Articles 71-72 Dealing with Sovereign Repeat Players

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The purpose of this article is to discuss the socio-legal risks arising from the interpretation made by the Owens-Illinois Tribunal (ICSID Case No. ARB/12/21, Fábrica de Vidrios Los Andes CA & Owens-Illinois de Venezuela, C.A. vs. Venezuela) in situations involving a sovereign repeat player in the arena of investment treaty arbitration, either at the pre- or post-dispute stage.

Based on a previous case study conducted on Venezuela as a repeat player in the ICSID regime, I intend to illustrate how by adopting a pro-state approach (i.e., a narrowed interpretation) towards Articles 71 and 72 of the ICSID Convention (as was taken by the Owens-Illinois Tribunal), the prospective respondent-state’s position is improved and strengthened.

My premise is that the tribunal’s own vision of the dynamics behind the process of denouncing a treaty, such as the ICSID Convention, and the forces around the decision-making by such sovereign nation when opting - out to a treaty-based arbitration – in the case of a repeat player like Venezuela – would add another perverse characteristic commonly attributed to that kind of actor in complex, lengthy, and expensive litigation, coupled with a multi-claim scenario.

Furthermore, as will be shown below, that same vision will foster and tolerate the manipulation and abuse of the complexities of the ICSID system by politically motivated actors, such as Venezuela.