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Revisiting the Calvo Doctrine in Latin America

The attitude of Latin American countries toward international investment arbitration has been skeptical nowadays and this phenomenon has been referred to as ‘revival’ or ‘resurgence’ of the Calvo Doctrine. The Calvo revival may be distinguished with the backlash against the current international investment regime, however, they are closely related to each other. Moreover, as this phenomenon in Latin America is leading the change in the field of international investment law, a close look at the development of Calvo Doctrine would be helpful to understand the ongoing discussion on the reform of the international investment regime. According to the analysis of the international treaties, contracts, and national laws of Latin American countries, it could be argued that the current phenomenon is not only a ‘revival’ but also a ‘rediscovery’ of the Calvo Doctrine as the Doctrine has existed in the legal instruments of some countries even after the 1990s. In addition, some Latin American states have proposed new draft articles of the bilateral investment treaties or revised their national laws by including new provisions that resemble the Calvo Clause in order to reduce the use of international investment arbitration. However, this trend cannot be understood as reflecting the Calvo Doctrine in its origin, but as demonstrating modified versions of the Doctrine since the Latin American countries are no longer only the capital importing countries but also the host states of the investors. Nevertheless, it is certain that the Calvo Doctrine has once again drew the world’s attention, and thus, examining the development of treaties and national laws in Latin American countries will be an important step to better understand the new trend in international investment arbitration.