There are two Latin American nations with over 25 pending investor arbitrations. One has never made any significant payment to settle an investor claim, and refuses to honor three awards it has lost. The other has showered a dozen foreign investors with more than $7.25 billion in settlements over the past five years, including a prompt payment of the one recent award it lost in a case arising out of expropriation.
The first country is Argentina. The second? Venezuela.
People can say whatever they want, says Venezuelas arbitration counsel, George Kahale of Curtis, Mallet-Provost, Colt & Mosle. The record shows that Venezuela has a history of granting reasonable compensation for nationalizations.
Sure, Hugo Chavez had an itchy trigger finger. The Venezuelan Confederation of Industries says he seized 1,168 companies from 2002 through 2012. He had a weakness for the economy's commanding heights (oil, steel, cement), but he wasn't too proud to seize cattle ranches, or the occasional yacht to convert into a crowd-pleasing tour boat.
It's also true that investor relations wasn't Chavez's forte. He called privatization a "neoliberal and imperialist plan." He called capitalism "the way of the devil and exploitation." In a less guarded moment, he even blamed capitalism for the absence of life on Mars: "[I]t would not be strange that there had been civilization on Mars, but maybe capitalism arrived there, imperialism arrived and finished off the planet."
Chavez seemingly seceded from the liberal world order last summer, when he withdrew from the World Bank's International Centre for the Settlement of Investment Disputes. But the catch is that Venezuela's 28 pending ICSID casesincluding a $30 billion claim by ConocoPhillips Company and an $18 billion claim by Exxon Mobil Corporationare completely unaffected. Virtually any new claim under Venezuela's investor treaties can be brought under the arbitration rules of the U.N. Commission on International Trade Law (UNCITRAL).
In his heart of hearts, Hugo Chavez was a student of expropriation law. (Indeed, one might say that he was its leading practitioner). He knew that a state is free to expropriate to its heart's delightwhether under constitutional law, human rights law, or international investment lawso long as it pays fair compensation. And when push came to shove, Chavez was a relatively reasonable man.
This article originally appeared in The AmLaw Daily.