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American Review of International Arbitration - ARIA - Vol. 15 No. 2 2004
American Review of International Arbitration - ARIA - (U.S. Price)
American Review of International Arbitration - ARIA (International Price)
ARIA Vol. 15 No. 2 2004
“[A]rbitration claims to be free. The will of the parties . . . will be
overriding. No rules shall be applied, no control exercised — at least until
enforcement is sought.”1
The aim of this article is to examine the extent to which the principle of party
autonomy a) is respected in ICSID2 arbitration and b) helps investors structure a
dispute resolution mechanism that will facilitate the resolution of disputes with a
host state. We will examine these issues using the example of a hypothetical U.S.
investor, Potable Inc. (“Potable”), which is contemplating whether to resolve its
dispute with the Republic of Argentina through ICSID arbitration. Before we
proceed further, let us consider the background to the dispute, and the other
dispute resolution mechanisms available to Potable.
Since the early 1990s, Potable, a company specializing in water services, was
keen to penetrate the Latin American market. Argentina had been identified as a
“sweet spot”3 as its newly elected President, Carlos Menem, was trying to
privatize Argentina’s state-owned water services and expand the water and
Anoosha Boralessa - Solicitor (non-practicing); Member of N.Y. Bar (retired); LL.B. (LSE); PG Dip.
ICA with distinction (London). This article was written in fulfillment of a Diploma in
International Arbitration in May 2004. I thank Prof. Garro for a very helpful discussion,
Dr. Asouzu for his constant encouragement, but most of all Dr. and Dr. Boralessa for their
generosity of spirit.