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KATARÍNA CHOVANCOVÁ
CYIL 7 ȍ2016Ȏ
On the author: Assoc. Prof. JUDr. Katarína Chovancová, Ph.D., LL.M., MCIArb,
Institute of International and European Law, Faculty of Law, Pan European University
Bratislava. Katarína Chovancová is the 1998 graduate from the Faculty of Law of
the Comenius University in Bratislava, Slovakia and the 2011 graduate from the
University of London /PG LLM in IDR with merit/, where she currently continues
with her studies in international business law. She works as an associate professor at the
Faculty of Law of the Pan European University, where she lectures on the subject of
international commercial and investment arbitration, as well as international economic
law. She is the member of the CIArb /UK/, the Czech Society of International Law,
the CILS Congress of Fellows /Austria/ and the Slovak Society of International Law.
Assoc. Prof. Chovancová has already published several monographs, as well as numerous
studies on the international commercial and investment arbitration in Slovakia, the
Czech Republic, Hungary, the USA and the Netherlands.
1. Introduction and Basic Characteristics
In a meticulously perfect world, designed only for exquisitely polished relationships
between flourishing foreign investors and their generous host states, it might seem
unnatural to start an opening statement in an essay confined to non-precluded
measures
1
/“NPM”/ provisions in foreign investment law with a hint of caustic irony.
Nonetheless, reality speaks through available case law with such eloquence that it might
play the part of the Shakespearean consummate actor with her own sort of ironical
snigger, easily detectable behind a stage of international investment arbitration.
The underlying philosophy is that, had it not been for an onslaught of claims
brought by foreign investors against Argentina
2
due to its economic crisis over the past
two decades (which somehow still has no end),
3
it is highly likely that nowadays quite
a vivid revival of NPM clause invocation in international investment arbitration
would have dwarfed it instead, with an increase of voracious interest in international
arbitration theory being less steep and less perilous for overzealous investors.
4
1
These measures are sometimes addressed simply as “exceptional measures” or “exception clauses,”
or “derogation clauses.” See MARTIN, A.: Investment Disputes after Argentina’s Economic Crisis:
Interpreting BIT Non-precluded Measures and the Doctrine of Necessity under Customary International
Law,
Journal of International Arbitration
, 2012, Vol. 29, No. 1, pp. 49-70.
2
KASENETZ, E.D.: Desperate Times Call for Desperate Measures: The Aftermath of Argentina’s State of
Necessity and the Current Fight in the ICSID,
George Washington International Law Revue
, 2009–2010,
Vol. 41, pp. 79-747.
3
See
e.g.
CHOVANCOVÁ, K.: Reštrukturalizácia štátneho dlhu v kontexte medzinárodnej investičnej
arbitráže /2. časť/,
Justičná revue
, 2016, Vol. 68, č. 3, s. 293-304.
4
See a radical proposal to erase a compensation obligation in PAPARINSKINS, M.: Investment Treaty
Arbitration and the (New) Law of State Responsibility,
European Journal of International Law
, 2013,
Vol. 24, No. 2, pp. 617-647.