A Study On The Revival Of The Calvo Doctrine

In the 1860 s, European powers thought that volatile Mexico, Argentina and Uruguay infringed interests of their investors owning to disputes resulted from contracts among investors, and adopted diplomatic channels to oppress their countries and even launched gunboats to claim debts. These behaviors caused common indignation of Latin American countries. At that time, a jurist of Argentina, Carlos Calvo, put forward the core idea of being “equal of national sovereignty” and “equal of civil rights” in his certain book against intervention of force of European countries with their own advantages for disputes resulted from contracts between private person and host government. The Calvo doctrine was thereby created.At the beginning of creation of the Calvo doctrine, there were just some ideas in the books, and specified names and clear intensions were not provided. The Calvo doctrine was created and developed through following generalization and extraction of scholars. This is why different scholars have different opinions on the Calvo doctrine.It can be known from induction that the essence of the Calvo doctrine is the noninterference and the complete equality between foreigners and their citizens,which has three components including substantial element as “anti-supernational treatment” and program element as “local remedy with exclusiveness” and “exclusion of diplomatic protection”.From the beginning of creation, the Calvo doctrine was highly praised and adopted by Latin American countries, and its influences were used by United Nations General Assembly to contribute to confirm the status of establishment of documents on declaration and action program of new international economic order movement reaching the peak. However, since 1990 s, economic globalization wave swept across the globe. The Calvo doctrine was on the wane because of incompatibility with general idea of international arbitration and strengthening of foreign capital protection required by liberalization of investment. In recent years, unilateral investment protection and disadvantages of liberalization of investment have become moreobvious. Various countries in the world are taking measures, and a series of legal practice faintly contains color of the Calvo doctrine. Therefore, some scholars propose the revitalizationism of the Calvo doctrine. Some problems, such as what is the present status of the Calvo doctrine, whether the Calvo doctrine is revitalized, to what extent of renaissance and influences of renaissance of Calvo doctrine on investment treaty arbitration, etc, deserve to be studied.The judgment of the present condition of the Calvo doctrine is mainly based of the legal practice of different countries. Defining the Calvo doctrine connotation through these three dimensions including tense dimension, regional dimension and degree dimension, and investigating legal practices of nations through classifications with these three element including “anti-supernational treatment”, “exclusive local remedy” and “exclusion of diplomatic protection” as starting points, we can see that the original Calvo doctrine has not revived. The Calvo doctrine is being revived after a change in some of the elements in some countries, and it is a growing trend. For instance, as for components, national treatment overtaken is being converted to national treatment; as for national scope, there are also revival signs in the United States and other developed countries; as for revival degree, there are factors and signs of revival only in some ways generally.The author holds negative attitude towards whether the revival of the Calvo doctrine will be continued and whether revival can be thorough. The trend of the Calvo doctrine revival will not be changed as pursuit for equality value and safeguard for national rights emphasized by the Calvo doctrine are in accordance with the mainstream of the times. However, thorough revival is impossible. Especially in the aspect of “exclusive local remedy”, existing arbitrations under international investment treaties really have disadvantages, and an effective balance can not be obtained between benefits of investors and public interests of host country, but the behavior of changing the Calvo doctrine back to national law can not solve problems and is not in accordance with the trend of economic globalization. Instead of using the Calvo doctrine to replace arbitration under investment treaties, it is a more sensible choice to use factors of the Calvo doctrine that are in line with the era development for reference and seek a balance point between investors and hostcountry through the reforming the existing international investment system.