LEGAL PROBLEMS OF INTERNATIONAL SETTLEMENT OF INVESTMENT DISPUTES AS A FACTOR OF FINANCIAL ENSURING BUSINESS SAFETY

2021 ◽  
pp. 122-131
Author(s):  
Oleksandr Bryhinets ◽  
◽  
Anastasiia Kovalova ◽  
Keyword(s):  
International Investment ◽  
Host State ◽  
Legal Problems ◽  
International Investment Agreements ◽  
The Subject ◽  
Judicial Authority ◽  
Investment Treaties ◽  
Private Investors ◽  
The Right ◽  
Investment Agreements

International investment disputes between states arise in connection with different interpretation and application of the provisions of international investment treaties and agreements. As the matter of fact, such disputes also appear from violations of the provisions of international investment agreements that may prejudice the rights of foreign private investors. Since a dispute arises from a violation of investor rights, most modern investment treaties provide for the right of investors to submit a dispute to an independent arbitration or judicial authority. Investment disputes between the host state and the investor, mostly, come from the violation of international investment treaties that may become the subject of an interstate dispute only by mutual consent of the host state and the investor state.

Mission Creep The Emerging Role of International Investment Agreements in Sovereign Debt Restructuring

2015 ◽  
Vol 6 (2) ◽  
Author(s):  
Rachel D. Thrasher ◽  
Kevin P. Gallagher
Keyword(s):  
Sovereign Debt ◽  
International Investment ◽  
Debt Restructuring ◽  
Mission Creep ◽  
Atlantic Trade ◽  
International Investment Agreements ◽  
Recent Financial Crisis ◽  
Private Investors ◽  
The Right ◽  
Investment Agreements

AbstractThe global community still lacks a regime for sovereign debt restructuring (SDR). However, the recent financial crisis has spawned numerous efforts to fill this glaring gap in global economic governance. At the same time however, there is increasing concern that international investment agreements (IIAs) have already begun to expand their reach into the realm of SDR. Indeed, private investors have attempted to use IIAs to recoup the full value of their bonds in order to circumvent debt restructurings in Argentina and Greece. In this paper we examine the extent to which IIAs are becoming tools for creditors to circumvent debt restructurings and whether new IIAs such as the Trans-Pacific Partnership and the Trans-Atlantic Trade and Investment Partnership will further advance the ability of creditors to do so. We find that contemporary IIAs are increasingly interpreting sovereign bonds as being under their jurisdiction. Thus, debt restructurings may be increasingly subject to claims filed by holdout creditors wishing to recoup the full value of their bonds through private tribunals under IIAs. That said, we also find that some treaties have begun to provide exceptions for certain types of debt restructurings. While such safeguards are a step in the right direction, they will need to become broader in scope and more widespread in application in order to not interfere with the orderly workout of debt problems in the world economy.

Canada’s Pro-Ban Stance on Double-Hatting: Playing the Long Game in ISDS Reform?

2021 ◽  
pp. 1-26
Author(s):  
CÉLINE LÉVESQUE
Keyword(s):  
Working Group ◽  
Dispute Settlement ◽  
Code Of Conduct ◽  
International Investment ◽  
Group Iii ◽  
Investment Promotion ◽  
Long Run ◽  
International Investment Agreements ◽  
The Subject ◽  
Investment Agreements

Abstract The practice of arbitrators and counsel in investor-state dispute settlement (ISDS) cases simultaneously playing both roles — known as “double-hatting” — has been the subject of much controversy in recent debates on ISDS reform, notably, at the United Nations Commission on International Trade Law’s (UNCITRAL) Working Group III where a Draft Code of Conduct for Adjudicators in International Investment Disputes is under discussion. While Canada has been less than consistent in its approaches to ISDS in recent international investment agreements (IIAs), its position against double-hatting has been rather constant. This article explores whether this stance reveals a commitment on the part of Canada towards increased judicialization of ISDS or reflects a “flavour of the month” reform likely to change with differing IIAs and negotiating partners. Analysis of Canada’s recent IIA practices, including its model Foreign Investment Promotion and Protection Agreement, released in May 2021, and the positions it has taken at UNCITRAL’s Working Group III, lead the author to conclude that Canada appears committed to increased judicialization of ISDS in the long run.

Part II Guide to Key Preliminary and Procedural Issues, 6 Aspects of Procedure for Institution of Proceedings and Establishment of Tribunals in Investment Treaty Arbitration

2018 ◽  
Author(s):  
Kostadinova Milanka
Keyword(s):  
International Investment ◽  
Chamber Of Commerce ◽  
Trade Law ◽  
International Trade Law ◽  
Investment Treaty ◽  
International Investment Agreements ◽  
Investment Treaties ◽  
International Chamber Of Commerce ◽  
Investment Agreements ◽  
Investment Treaty Arbitration

The institution of treaty-based proceedings in a particular forum or under particular set of arbitration rules depends on the consent provisions of the underlying investment treaty. Some 767 arbitration cases have been initiated so far under the total of 3,324 bilateral investment treaties and other international investment agreements signed to date. This chapter provides an overview of the technical and fairly complex procedures for initiating proceedings and constituting tribunals in investment treaty arbitration. It examines the prevalent practices from the perspective of the International Centre for Settlement of Investment Dispute (ICSID) Convention and Rules, and other leading sets of international arbitration rules such as the United Nations Commission on International Trade Law Arbitration Rules, the Rules of Arbitration of the International Chamber of Commerce, and the Arbitration Rules of the Arbitration Institute of the Stockholm Chamber of Commerce, which are among the non-ICSID Rules more commonly referenced in investment treaties.

荷蘭2019年雙邊投資條約範本之法律分析－投資者權利與地主國公共利益的平衡

2020 ◽  
Vol 21 (21) ◽  
pp. 1-95
Author(s):  
林韋仲 林韋仲
Keyword(s):  
Public Interest ◽  
Free Trade Agreements ◽  
International Investment ◽  
Investment Environment ◽  
The Public ◽  
Host State ◽  
International Investment Agreements ◽  
Investment Agreements ◽  
Scope Of Protection ◽  
Dutch Model

傳統上，國際投資協定被認為是維護投資法律環境與鼓勵外國直接投資的重要法律工具。因此，當今國家締結有為數眾多的雙邊投資條約，或是於自由貿易協定中訂定投資專章。與此同時，各國通過有雙邊投資條約範本，以作為建構其保護與促進外國投資活動之法律網絡的基礎。然而，由於近年來投資者權利與地主國公共利益兩者的衝突不斷增加，國際投資協定因此開始進行改革，以平衡投資者與地主國之間的權利義務關係，而此趨勢亦展現在各國對於雙邊投資條約範本的修正。荷蘭於2019年通過之《投資互惠促進及保護協定範本》為近年來國際間所通過的新雙邊投資條約範本，其目的在取代2004年之《投資鼓勵及互惠保護協定範本》，以作為日後荷蘭與其他非歐盟成員國締結或修改雙邊投資條約的基礎文件。本文擬探討2019年荷蘭雙邊投資條約範本於何種程度上展現出對於國際投資協定過去單方面保護投資者權利的修正，以及其是否有助於地主國規制權的行使以確保公共利益。International investment agreements (IIAs) are traditionally regarded as important instruments for creating a stable investment environment and promoting foreign direct investment (FDI). As a result, States conclude a number of bilateral investment treaties (BITs) and include free trade agreements (FTAs) with investment provisions. States also adopt Model BITs as the bases for developing their extensive networks for the protection and promotion of foreign investment. However, with the conflict between the protection of the investor's rights and the public interest of the host State arise, IIAs concluded in recent years not only narrow down the scope of protection the investor used to enjoy, but also seek to ensure the host State's regulatory space for the public interest. This trend has also reflected in the amendment of Model BITs.Investment adopted by the Netherlands in 2019 (the 2019 Dutch Model BIT) aims at replacing the 2004 Model Agreement on Encouragement and Reciprocal Protection of Investment and will become the basic instrument for the Dutch Government to conclude BITs with non-EU countries. This article explores the extent to which the 2019 Dutch Model BIT has reflected the growing trend mentioned above, thereby achieving a better balance between the investor's right and the public interest of the host State.

MFN Standard as Substantive Treatment

2019 ◽  
Author(s):  
Mira Suleimenova
Keyword(s):  
International Law ◽  
International Investment ◽  
Third Party ◽  
International Investment Law ◽  
International Investment Agreements ◽  
History Of ◽  
Investment Law ◽  
Investment Treaties ◽  
Investment Agreements ◽  
Comprehensive Study

‘Most favoured nation’ (MFN) treatment is an integral part of virtually all modern investment regimes. MFN clauses in international investment agreements signal to investors that a given state protects them from discrimination; however, in practice, enforcing such guarantees may be challenging. This book represents a comprehensive study on how ‘most favoured nation’ treatment operates as a substantive standard of international investment law. Starting with a history of the development of the concept in international law, the author provides an overview of existing state practices in negotiating MFN clauses in bilateral and international investment treaties. Finally, the work analyses the ability of MFN treatment clauses to prevent de facto discrimination and allow for the ‘import’ of third-party substantive protections in international investor state arbitration. Dr Mira Suleimenova, LL.M. is an international investment lawyer based in Vienna, Austria.

scholarly journals Ending International Investment Agreements: Russia's Withdrawal from Participation in the Energy Charter Treaty

AJIL Unbound ◽  
2017 ◽  
Vol 111 ◽  
pp. 461-466 ◽  
Author(s):  
Tania Voon ◽  
Andrew D. Mitchell
Keyword(s):  
Legal Framework ◽  
International Investment ◽  
Investment Protection ◽  
International Investment Agreements ◽  
Energy Charter Treaty ◽  
Recent Developments ◽  
Investment Treaties ◽  
Process Energy ◽  
Investment Agreements

When states withdraw from bilateral investment treaties or denounce multilateral treaties related to foreign investment, a range of intersecting questions arise in domestic and international law. Recent developments have demonstrated potential incongruities between domestic and international approaches to investment protection, including as regards the effectiveness of withdrawal and the implications for existing investments. This essay reflects on international and domestic disputes involving the withdrawal of the Russian Federation from participation in the Energy Charter Treaty (ECT) to highlight these interactions. These issues have become particularly pertinent today because more than 1,500 international investment agreements (IIAs) are nearing expiry of their initial term, providing an opportunity for termination. Moreover, some states have begun to terminate or denounce investment treaties, while many more are engaging in a process of renegotiation and reform. The Russian case study also highlights the potentially far-reaching effects of a state simply signing a treaty, even many years after the state has expressed its decision to withdraw from it, and notwithstanding tensions with the domestic legal framework.

Multinational Enterprises and Investment Treaties

2017 ◽  
Author(s):  
Feldman Mark
Keyword(s):  
Global Economy ◽  
Multinational Enterprises ◽  
International Investment ◽  
First Century ◽  
Production Networks ◽  
International Production ◽  
International Investment Agreements ◽  
Economic Reality ◽  
Investment Treaties ◽  
Investment Agreements

Over the past few decades, a few thousand international investment agreements have been concluded. One cornerstone of those treaties has been a straightforward model of foreign investment: an investor based in a home state that has made an investment located in the territory of a host state. Under that model, treaty protections operate reciprocally, protecting the investments of each treaty party’s nationals made in the territory of another treaty party. That model, however, often does not capture current economic reality. Foreign investments by multinational enterprises routinely involve multiple jurisdictions in which inputs are traded and through which capital is channeled. The reliance by multinational enterprises on international production networks and transit investment has challenged the reciprocal foundation of investment treaties. This chapter responds to that risk by developing strategies for policymakers and decision makers to preserve the reciprocal foundation of investment treaties in a twenty-first-century global economy.

The Republic of Ghana and Bilateral Investment Treaties: A Burgeoning Expert?

2020 ◽  
Author(s):  
Gracious Avayiwoe
Keyword(s):  
International Investment ◽  
Current Status ◽  
Bilateral Investment Treaties ◽  
Investment Treaty ◽  
Pan African ◽  
International Investment Agreements ◽  
Investment Treaties ◽  
The Republic ◽  
Investment Agreements

Abstract In this note, I categorize and review the bilateral investment treaties (BITs) concluded by the Republic of Ghana. I identify the current status of Ghana in the BIT sphere as being that of neither a novice nor a fully-fledged expert. The country is, nevertheless, progressively exhibiting some level of innovation and negotiation influence. Notwithstanding, all generations of its BITs remain very broad in scope, and, also, share laconic and vaguely-worded provisions. Furthermore, contemporary models of international investment agreements (IIAs) as contained in Ghana’s latest BIT—the earlier generations having lacked such innovations—is not as robust as those in emerging IIAs of Africa. Towards sustainability and systemic coherence of the BITs and the new African IIA paradigm, Ghana, certainly, needs to reform its existing BITs and reorient its future investment treaty practice. In the interim, I propose the Pan-African Investment Code (PAIC) as the benchmark.

The Right to an Unchanging World – Indirect Expropriation in International Investment Agreements and State Sovereignty

ICL Journal ◽  
2016 ◽  
Vol 10 (2) ◽  
Author(s):  
Ivan Pupolizio
Keyword(s):  
Supreme Court ◽  
International Investment ◽  
Global Scale ◽  
State Sovereignty ◽  
Property Rights Protection ◽  
International Investment Agreements ◽  
The Us ◽  
Us Supreme Court ◽  
The Right ◽  
Investment Agreements

AbstractThis paper examines indirect expropriation in international investment agreements and compares current foreign investments protection with property protection in the XIXth century USA, when the US Supreme Court adhered to an abstract and de-physicalized conception of property later contested by legal realists. Its central claim is that investor state arbitration poses a serious and underestimated challenge to state sovereignty, granting arbitrators a ‘proto-constitutional’ power of judicial review on regulatory powers, including the legislative one. Moreover, the indeterminacy of indirect expropriation leads to a potential transformation of property rights protection that could eventually give transnational enterprises a new ‘right to an unchanging world’, as the US Supreme Court did more than a century ago, albeit this time on a global scale.

TRANSFER PROVISIONS OF BITS IN TIMES OF FINANCIAL CRISIS

2014 ◽  
Vol 23 (1) ◽  
pp. 113-130
Author(s):  
Anna De Luca
Keyword(s):  
Financial Crisis ◽  
Case Law ◽  
International Investment ◽  
Balance Of Payments ◽  
Bilateral Investment Treaties ◽  
International Treaty ◽  
Financial Difficulties ◽  
International Investment Agreements ◽  
The Right ◽  
Investment Agreements

This article discusses the provisions on investment-related transfers, which are routinely included in International Investment Agreements (IIAs) and Bilateral Investment Treaties (BITs). Under these transfer provisions the right of investors to transfer funds related to covered investments is apparently not subject to any explicit limitation. The article discusses the problems connected with the absence in many BITs of explicit derogations to the permitted transfers, and temporary exceptions to such transfers in case of balance of payments or macroeconomic difficulties. After having analysed the scarce case law on the matter, the article highlights the cautious approach, taken (at least until now) by arbitral tribunals in interpreting transfer provisions. Finally the article illustrates the growing trend in the international treaty practice towards the inclusion of transfer provisions, accompanied with safeguard provisions in case of serious balance-of-payments difficulties and external financial difficulties.

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