Errónea aplicación del principio de proporcionalidad sobre el principio PACTA SUNT SERVANDA en el arbitraje internacional de inversiones. Análisis del caso OXY V. Ecuador.

Abstract

In November 2015 the case OXY v Ecuador came to an end upon denial of the request for annulment of award brought to courts by the respondent State, thus there were closed all legal choices to bring down the final solution of one of the investment disputes with the largest amount damages to pay. The most controversial argument handed down by the arbitrators focused on the validity of the principle of proportionality to assess the breach of the fair and equitable treatment standards by the host State under the bilateral investment treaty. This argument has been erected in exclusion of several theoretical, technical legal issues, among them, the Decreto de Caducidad, by which the Ecuadorian State terminated the investment project, was enacted according to attributions of public law on strategic economic activities, but most of all, according to the will of both parties as expressed in contract. In the same way, proportionality is not part of the State´s obligations to the investors according to international law. Both reasons should close every avenue the arbitral tribunal might consider to invoke proportionality to the case. In the XXth century, the law has witnessed the key role played by the principle of proportionality as the result of the praiseworthy task to submit to scrutiny administrative and legislative acts concerning fundamental rights. Such a growing presence has been moving from domestic to international law and from there to international investment arbitration in broad terms, and particularly to the fair and equitable treatment standard. The validity of this principle in such a context is a step forward to protect the investor´s legitimate expectations at the expense of the values which are the very foundation of the global system of investment dispute resolution. This is the consequence of some distinctive features which are preventing a strictly technical application of this principle to arbitration case-law: uncertainty, immeasurability and the counterproductive effect on the protection of fundamental rights in democratic societies and on the role expected to be played by markets to adjust the behavior of economic agents involved, as well.