November 14th, 2012 · The New School · New York
Cecilia Minaverry from Córdoba, Argentina, successfully completed a two-week academic exchange at The New School. During this Fellowship, Cecilia focused on the question of international arbitration between investor and state, and the complicated case of Argentina following the economic crisis of 2001. She analyzed current mechanisms used for dispute resolution, and developed recommendations for reform of the current systems in place. Cecilia was the first Fellow of the 2012-2013 President Nestor Kirchner Fellowship to visit New York.
Minaverry is a Lawyer specialized in tax law from the Universidad de Buenos Aires. She holds a Masters in International Studies at the University of the Basque Country, and is a Doctoral candidate of Law and Social Sciences in Law and Social Sciences School at the Universidad Nacional de Córdoba. She is currently a lawyer in permanent staff at the Federal Public Revenue Administration, Province of Córdoba, Argentina.
Seminars with the The New School Community
During Cecilia’s two weeks at The New School, she was required to present her work during two closed-door seminars with New School faculty and students. These exchanges are opportunities for the Fellow to receive detailed feedback on their ongoing research and preparation for their final presentation.
On November 6, 2012, Cecilia had her first seminar with professors Barry Herman, Everita Silina, Michael Cohen, Coordinator Mandy Entrikin, and students Emily Miller, Santiago Arias, and Jacqueline Kataneksza. Questions regarding the legitimacy of the mechanisms of international arbitration arose, with specifically focused on international governance, power, and fairness during the creation of Bilateral Investment Treaties between states, as well as during the creation of the International Center for Investment Dispute. Shortcomings of these mechanisms were presented, and the group discussed alternative reforms for each system.
Professors Robert Buckley, Sakiko Fukuda-Parr, Chris London, and Christian Proaño attended the second seminar, held on November 12, 2012. This seminar focused on redefining the central question of Cecilia’s work. Having met with professional and academics in the field, her research had broadened, and with the help of faculty at hand, Cecilia restructured her argument with the key points at the center.
Interviews and Visits in New York
Cecilia spent most of her time meeting with experts in the field of international arbitration, Argentine foreign affairs, investor/state disputes, and international governance. She met with Pablo Pinto, School of International Public Affairs (SIPA) at Columbia University; Alejandro Garro, Adjunct Professor of Law; Senior Research Scholar, Parker School of Foreign and Comparative Law, Columbia University; Albert Bloomsbury, a private sector lawyer affiliated with the UN Commission on International Trade Law; Neil Grabois, Dean, Milano School of International Affairs, Management, and Urban Policy, The New School; Albert Fishlow, Columbia Institute of Latin American Studies; Ambassador José Luis Perez Gabilondo, Consul General of Argentina, New York; José Enrique Alvarez, Herbert and Rose Rubin Professor of International Law, NYU; and, Lise Johnson, Vale Columbia Center on Sustainable International Investment, Columbia University.
On November 14, 2012, PNK Fellow Cecilia Minaverry presented her research during her Public Lecture, “Unresolved Foreign Investment Disputes: The Challenge of International Institutions” held in the Orozco Room at The New School. New School President David Van Zandt and Consul General Ambassador Jose Luis Perez Gabilondo introduced Cecilia. President Van Zandt discussed the PNK Fellowship and noted the many applicants from throughout South America that applied for the Fellowship, which is now in its second year. The Ambassador stated that he was honored to be a part of this academic exchange, noting that the OLA brings together the best in academic thinking in the US and the South American region. He also stated that although Cecilia’s paper focuses on the example of Argentina, her topic is a very important issue currently being faced by all Latin American nations.
Cecilia presented her paper, clearly outlining that throughout her presentation she would demonstrate that the mechanisms currently used for international arbitration have not been as successful as promised, and the case of Argentina is an example of how the International Center for Settlement of Investment Disputes Bilateral Investment Treaties have not been sufficient in resolving state/investor disagreements. She explained the function of the International Center for Investment Disputes and the many Bilateral Investment Treaties that have initiated the need for such an international arbitration body. She then presented the case of Argentina and outlined the complicated nature of international arbitration between Argentina and international investors, due to the economic crisis of 2001.
Throughout her time in New York, Cecilia was able to develop the critiques of the systems in place: The lack of precedence set in these international settings; the inconsistent rulings in the case of Argentina; Conflict of interest of selected arbitrators; the lengthy and costly process of arbitration through ICSID results in potentially unfair results for small organization or smaller countries; lack of transparency; ill defined terms, including “investment”; no appeal process; and finally, the issue of enforcement of payment of awards. Cecilia concluded by suggesting reforms to the systems in place to resolve the shortcoming listed above. They include: hiring a permanent staff for ICSID; include case precedence and an appeal process; recusal for conflict of interest; Low Income Countries to have a support system to assist with appropriate legal defense; supporting settlement before arbitration; and finally, improving on transparency by making all arbitration proceedings public.
The Public Lecture ended with a lively discussion on Cecilia’s presentation. President David Van Zandt is a lawyer by training, and Abassador Gabilondo has had direct experience with the case of Argentina – both individuals led the discussion, asked expert questions and contributed to Cecilia’s responses in a collaborative and substantive way. Questions brought forward by the audience included: the issue of jurisdiction – a question related to the BITs of a country and the benefits a company can take by changing locality internationally; the issue of privatizing the justice system; the contestable and argued point that the convertibility crisis was instigated by Argentina – which has repercussions on the liability of Argentina in ordinance with the BITs signed with different states; The fairness of BITs during the neoliberal era and who they have truly benefitted in the end; the potential for different international bodies to take on the role of international arbitrator, as is being proposed by Ecuador; the question of whether BITs should exist at all; the unfair nature of BITs; and finally, that this discussion brings to light the need for improved mechanisms of resolving international disputes.
President David Van Zandt concluded the discussion by thanking everyone for the excellent discussion and commended the President Nestor Kirchner jurors of the 2012-2013 Fellowship for selecting such an excellent Fellowship winner to represent Argentina.