Embedding the International Investment Regime

2017 ◽  
Author(s):  
Marcoux Jean-Michel
Keyword(s):  
Foreign Investment ◽  
Dispute Settlement ◽  
Social Protection ◽  
International Investment ◽  
International Investment Law ◽  
Economic Liberalism ◽  
Development Policies ◽  
Double Movement ◽  
Investment Law ◽  
Potential Impact

Amidst numerous calls for reform of international investment law, the United Nations Conference on Trade and Development (UNCTAD) has become a multilateral forum deeply involved in seeking responses to address a growing unease regarding the governance of foreign investment. Further to a focus on sustainable development policies and paths for reform of investor–state dispute settlement, UNCTAD’s efforts have culminated in a roadmap for reform. This chapter aims to explore the potential impact of this reform on the international investment regime. It argues that the reform proposed by UNCTAD reflects an unambiguous need to embed international investment law in social concerns, in line with the second part of a double movement between economic liberalism and social protection. Such a countermovement nevertheless remains weak, as the proposed reform appears to generally constitute a norm-governed change that is unlikely to shake the fundamental principles and norms underlying the international investment regime.

International Law and Foreign Investment in Hydroelectric Industry: A Multidimensional Analysis

2016 ◽  
Vol 18 (3-4) ◽  
pp. 183-222
Author(s):  
Attila Tanzi
Keyword(s):  
International Law ◽  
Foreign Investment ◽  
Dispute Settlement ◽  
International Investment ◽  
Multidimensional Analysis ◽  
Private International Law ◽  
International Investment Law ◽  
Investment Law ◽  
Domestic Law

The main focus of the present article is on the entanglement between four bodies of international law sensitive to foreign investment in the creation and/or operation hydroelectric industry: i.e. international investment law, human rights law, international water law and private international law to the extent that public international law rules on conflict of laws on civil liability for transboundary damage are concerned. This horizontal approach to the analysis is supplemented by a vertical one looking at the interactions between international and domestic law. Consideration of the different bodies of international law in question is associated to that of the adjudicative, and non-adjudicative, means of dispute settlement available under each such bodies of law. On that score, the role of the foreign investor in a litigation scenery will be considered, primarily as claimant, but also, prospectively, in relation to the situation in the State hosting the investment is, or may become, respondent in inter-State litigation.

scholarly journals The “Invisible” Local Communities: Foreign Investor Obligations, Inclusiveness, and the International Investment Regime

AJIL Unbound ◽  
2019 ◽  
Vol 113 ◽  
pp. 16-21 ◽  
Author(s):  
Nicolás M. Perrone
Keyword(s):  
Foreign Investment ◽  
Dispute Settlement ◽  
Blind Spot ◽  
International Investment ◽  
Local Communities ◽  
State Regulation ◽  
Regulatory Relationship ◽  
International Investment Law ◽  
Investment Projects ◽  
Investment Law

International investment law is relational. It is about how we define and govern the relationship between the actors involved in and affected by foreign investment projects. Most international investment law literature confirms the relational nature of this field. The scholarship has analyzed the resolution of specific disputes and the regulatory relationship between foreign investors and host states. As could be expected, some of the key issues that have emerged include states’ right to regulate, the risk of regulatory chill, and how to review state regulation. There is, however, an important blind spot in this relational approach. A look at many foreign investment disputes, particularly in the natural resource extraction sector, shows that local communities are also central protagonists of foreign investment projects. These communities have a lot at stake but have remained almost invisible to the international investment regime. Apart from the ability to submit amicus curiae briefs, they have neither rights nor remedies in this regime. This essay discusses international investment law from an inclusive relational perspective, and shows how, contrary to this perspective, recent awards in investor-state dispute settlement continue to render invisible local communities and their rightful aspirations.

Africa’s International Investment Law Regimes

2020 ◽  
Author(s):  
Won Kidane
Keyword(s):  
Foreign Investment ◽  
Dispute Settlement ◽  
International Investment ◽  
Integrated Treatment ◽  
Western World ◽  
Major Work ◽  
Historical Experience ◽  
International Investment Law ◽  
Emerging Trends ◽  
Investment Law

Unified by a long history of a subordinate position within the global economic and political hierarchy, African nations have had a remarkably similar reckoning of international investment laws and institutions. Apart from the incidence of geography, the historical experience and existing economic conditions have allowed an integrated treatment of Africa’s investment law regimes in the literature with some success. The existing writings on Africa and international investment law generally attempt to accomplish two principal objectives: (1) situate Africa in the global and regional international investment legal order, and (2) postulate emerging trends in the governance of Africa’s economic relationship beyond its traditional economic partners. Corresponding to the two general areas, writings on Africa’s international investment law tend to focus on Africa’s historical experience with the treatment of foreign investment at the multilateral level and with its traditional economic partners of the Western world. In this regard, the most important source of materials discussed in the literature relating to the substantive rules comes from the more than 135 international investment law cases involving African states in the investor-state arbitrations constituted under the International Centre for the Settlement of Investment Disputes (ICSID). Such discussions are African, however, inasmuch only as they feature treaties and fact patterns originating in Africa. The more recent literature puzzles over Africa’s circumstances in attracting and retaining foreign investment beyond its traditional economic partners in the West such as China and India, and speculates about the suitability of the traditional rules and institutions for the ordering of intra-Africa and other Africa-related South-South economic relations. Significantly, the Africa-specific literature on international investment law is a critique of the existing rules and institutions and the evaluation of emerging trends. Overall, the general literature in the area of international investment law suggests that Africa-related matters are an integral part of the doctrinal underpinnings, the substantive rules, and dispute settlement mechanisms at the global level. Each major work in the area of international investment law generally profiles African treaties and cases as an essential and inextricable part of the existing and emerging global international investment law regime.

Introduction

2021 ◽  
pp. 1-16
Author(s):  
Nicolás M. Perrone
Keyword(s):  
World War Ii ◽  
Foreign Investment ◽  
Professional Associations ◽  
International Investment ◽  
Business Leaders ◽  
International Investment Law ◽  
Progressive Development ◽  
Investment Law

The role of the business leaders, bankers, and lawyers who promoted investment treaties and ISDS in the post-World War II period remains controversial. The introductory chapter argues that these norm entrepreneurs and their professional associations created a legal imagination about foreign investment relations which remains alive and well in both international investment law and ISDS awards. Their contribution to the progressive development of the law consisted of ideas as much as practice, particularly the way in which they collated their ideas into a vision of foreign investment relations. The chapter introduces the main features of this legal imagination, including the relevance of certain interpretations of property and contracts. It claims that grasping this imagination calls for a transnational law method, and concludes with an overview of the book.

Malaysia and Investor-State Dispute Settlement: Learning From Experience

2017 ◽  
Vol 18 (5-6) ◽  
pp. 890-917 ◽  
Author(s):  
Sufian Jusoh ◽  
Muhammad Faliq Abd Razak ◽  
Mohamad Azim Mazlan
Keyword(s):  
Foreign Direct Investment ◽  
Direct Investment ◽  
Dispute Settlement ◽  
International Investment ◽  
Learning From Experience ◽  
International Investment Law ◽  
Investment Law ◽  
Investment Treaties

Abstract Malaysia is an important destination for foreign direct investment and has signed more than 70 investment guarantee agreements. Most allow investor-state dispute settlement (ISDS) and Malaysia has been subject to three claims, including two fully argued cases: Philippe Gruslin and Malaysian Historical Salvor. Yet Malaysian companies have also utilised ISDS provisions: in MTD Equity Bhd v Chile, Telekom Malaysia v Ghana, and Ekran Berhad v China (the first-ever ISDS claim against China). These cases provide lessons for Malaysia in becoming better prepared to negotiate newer generations of investment treaties, and to defend further potential cases. Malaysia has not reacted negatively to investment treaties despite the cases filed against the country. In fact, in light of its evolving interests Malaysia has become more of a rule-maker in international investment law rather than a rule-taker. Malaysia thereby continues to liberalise its investment regime and provide better transparency – the best defence against claims.

Sources of International Investment Law

2018 ◽  
Author(s):  
Jorge E. Viñuales
Keyword(s):  
International Law ◽  
Foreign Investment ◽  
International Investment ◽  
The State ◽  
Conventional Theory ◽  
International Investment Law ◽  
Basic Understanding ◽  
Investment Law ◽  
Practical Implications

This chapter addresses the challenges posed by the practice of international investment law to the conventional theory of the sources of international law. After a brief overview of the main ‘sources’ of ‘international investment law’, the chapter examines three challenges to this basic understanding, which arise from the need to account for the domestic laws governing different aspects of foreign investment transactions, the detailed jurisprudential norms generated by investment tribunals to specify broadly formulated norms, and the norms of general international law expressing the sovereignty of the State. For each category of norms, the chapter selects several problems that put the most widely accepted understanding of the sources of international law to test. It then explains why the problems examined have potentially important practical implications. The chapter concludes with some observations on the interactions between practice and the theory of the sources of international law.

An Overview of Sri Lanka’s Bilateral Investment Treaties: Status Quo and Some Insights into Future Modifications

2016 ◽  
Vol 7 (2) ◽  
pp. 287-318
Author(s):  
Dilini PATHIRANA
Keyword(s):  
Sri Lanka ◽  
Dispute Settlement ◽  
International Investment ◽  
Status Quo ◽  
International Investment Law ◽  
Global Context ◽  
Investment Treaty ◽  
International Investment Agreements ◽  
Investment Law ◽  
Investment Agreements

AbstractSri Lanka is the first country against which a foreign investor has had recourse to international arbitration based on the dispute settlement clause in a bilateral investment treaty (BIT). This was the case of AAPL v. Sri Lanka. Since then, the country has been challenged twice before the International Centre for Settlement of Investment Disputes (ICSID), while its latest encounter was in the case of Deutsche Bank AG v. Sri Lanka. In the intervening years between these two cases, Sri Lanka maintained silence and failed to alter its BITs in a global context where the conventional attitude on international investment agreements (IIAs) is being increasingly reconsidered. This paper provides an overview of Sri Lanka’s BITs, which highlights the urgency of reconsidering the country’s investment treaty-making practice. It suggests some modifications to align the country’s investment treaty-making practice with international investment law (IIL) developments.

The Role of Regional Courts in the Development of International Investment Law: The Case of NAFTA Chapter 11 Dispute Settlement Framework and ECtHR

2018 ◽  
Vol 11 (1) ◽  
pp. 77-95
Author(s):  
Collins C. Ajibo
Keyword(s):  
Human Rights ◽  
Dispute Settlement ◽  
International Investment ◽  
International Investment Law ◽  
European Court ◽  
Margin Of Appreciation ◽  
Investment Law ◽  
Nafta Chapter 11

AbstractRegional courts have synthesized, articulated, and elucidated certain principles of law that influence the development of international investment law. The contributions of NAFTA Chapter 11 dispute settlement framework and European Court of Human Rights (ECtHR), in particular, have been outstanding. For instance, NAFTA jurisprudence has guided investor-state dispute settlement (ISDS) tribunals through influential precedents. Similarly, the doctrine of proportionality and the margin of appreciation doctrine which emerged from the ECtHR jurisprudence have become embedded in international investment law. Indeed, given the unique contributions of regional courts and their rapid proliferation, it can be predicted that they will play even more significant roles in the future development of principles of international investment law. Arguably, such emergent principles should be subjected to a prior scrutiny and filtering by ISDS institutions as a precondition to full incorporation into international investment law to foster their legitimacy and credibility.

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