Examination of the Approach of ICSID Arbitration Tribunals to Necessity Defense and Exception Clause: Contemplating on Argentine Gas Cases

In the late 90s and the early 21st century, Argentina faced a severe economic and social crisis, and to deal with it, the government took various measures. These actions have led to the formation of various claims by investors against that State in several arbitrations, including arbitration under the rules of the Investment Dispute Resolution Center (ICSID), hence tribunals that have considered the claims brought against Argentina, sometimes issued contradictory award, despite same facts and (almost) similar defenses of the country. The most important disagreements between the arbitration tribunals concerned with interpretation and implementation of the necessity defense by the Argentine government and its invocation to exception clause contained in some bilateral investment treaties as an excuse for its actions. Considering the importance of the issue and the possibility of occurrence of similar cases, in this paper, we considered the relevant awards in the light of necessity defense and exception clause. Finally it became clear that the mixing of necessity defense and exception clause was the most important factor causing differences in the above-mentioned cases and this was due to the lack of attention to the distinction of these two concepts and distinct effects of either of them.