ABSTRACT: In December 2001 Argentina defaulted by publicly announcing the deferral of over US$100 billion of external bond debt owed to both non-Argentine and Argentine creditors. In September 2006, a group of 195,000 Italian creditors that rejected Argentina's exchange offer submitted a request for ICSID arbitration relying not in the bond contract, but in a Bilateral Investment Treaty ("BIT") between Argentina and Italy. More than ever before, in this moment of anxiety of a Greek sovereign default, the outcome of this decision can drastically change the dynamics of sovereign debt restructurings and of the investment arbitration regime. Thus, in light of these recent facts, this article shall assess whether ICSID tribunals should have jurisdiction to settle disputes arising under sovereign bonds by making a dual examination of the term "investment" in the ICSID Convention. And more importantly, notwithstanding the positive jurisdiction and admissibility decision rendered by the ICSID Tribunal in the present case, it is analysed whether tribunals should be competent to settle disputes related to a financial crisis.
Revista Brasileira de Arbitragem