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Sinclair, Anthony Charles. "State contracts in investment treaty arbitration." Thesis, University of Cambridge, 2014. http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.648775.
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Pauker, Saar. "Characterization problems in investment treaty arbitration." Thesis, University of Cambridge, 2011. http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.609210.
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Florou, Aikaterini. "Contractual renegotiations and International investment arbitration : a relational contract theory interpretation of investment treaties." Thesis, Paris, Institut d'études politiques, 2017. http://www.theses.fr/2017IEPP0026.
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La relation entre les traites internationaux d’investissement et les contrats sous-jacents reste un sujet très contentieux dans le domaine du droit international de l’investissement. Cette thèse explore l’interaction entre le contrat et le traité en utilisant la renégociation des contrats règlementaires dans le secteur de l’infrastructure énergétique comme un exemple d’ « expérience naturelle », en se focalisant en particulier sur les litiges arbitraux découlant de la crise économique en Argentine. A cette fin, un cadre analytique original, s’inspirant de l’économie des coûts de transaction et la théorie du contrat relationnel. Le résultat de la combinaison originelle de ces deux cadres analytiques est la construction d’une méthodologie interprétative proposant une approche d’intégration entre les deux instruments – le contrat et le traité – d’une manière apportant plus d’équilibre entre les intérêts publics et privés souvent opposés. La thèse est fondée en particulier sur trois arguments : le premier est la nature des standards dynamiques des traités comme contrats relationnels exigeant la coopération des parties à long terme. Le deuxième est le statut de ces standards vagues comme règles par défaut, complémentés par les provisions des contrats sous-jacents, qui sont aussi relationnels et fonctionnent comme « gap fillers ». Le dernier argument, normatif, est que la relation entre ces règles (par défaut) des traites et les provisions contractuels doit être déterminée par l’économie des coûts de transaction, et en particulier le but d’économiser les coûts de transaction découlant de la rationalité limitée et l’opportunisme durant l’interprétation des standards relationnels des traitésThe relationship between international investment treaties and the underlying contracts remains a highly disputed matter in international investment law. This thesis explored the contract-treaty interaction by using the renegotiation of regulatory contracts in the sector of energy infrastructure as a natural experiment, with a particular emphasis on the arbitral disputes that arose from the Argentine crisis. It deployed to this end an original analytical framework drawing from transaction cost economics and relational contract theory. The result of the novel combination of these two analytical frameworks is the construction of an interpretative methodology that takes an integrated approach to the two instruments – the contract and the overarching treaty – in a way that achieves a more sustainable balance between the competing public and private interests. In particular, the thesis rests on three arguments: the first is the relational-contract nature of dynamic treaty standards, which require the long-term cooperation of the parties. The second is the status of these vague standards as default rules complemented by the provisions of the underlying contracts, which are also relational, and act as gap-fillers. The last, normative argument is that the relationship between these (default) treaty rules and the (gap-filling) contractual provisions should be determined by transaction cost economics, and specifically the goal of economizing on the transaction costs of bounded rationality and opportunism when and interpreting relational treaty standards
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Glowinski, Lars. "International Arbitration - protection of foreign direct investments and foreign investment dispute settlement under ICSID and the bilateral investment treaties." Master's thesis, University of Cape Town, 2014. http://hdl.handle.net/11427/4622.
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This thesis shall represent the arbitration regime under the International Centre for Settlement of Investment Disputes (ICSID) in connection with protection mechanism of Bilateral Investment Treaties (BITs). It shall analyse the achievements of ICSID and BITs and their influence of foreign direct investments, investors and the host country. Finally, this thesis will try to assess the achievements in this area and discuss advantages or disadvantages for the involved parties. Individuals and corporations are interested in foreign direct investments (FDI) to exploit new markets, to realize or to sell business ideas, and to raise their market value or personal wealth. Under an economical point of view, money or investments always found its way to the most efficient places on earth which were able to be reached in any century to produce a better or the same product or service for a better price. The raising of profit margins was the driving force to explore new markets; also foreign governments tried to attract investors from all over the world to create new jobs and import new technology for their economies to raise the capacity to compete on an international level. In the early nineteenth century the prevalent form of foreign direct investment was that carried out through loans and government bonds. In contrast, modern foreign investment is more characterized by direct investment on the spot: the building of infrastructure, like railroads or telephone networks, and the establishment of joint-ventures in the car industry, to name but two examples. Investment abroad also means to play in a new and unknown playground. Investors have to place their money in a foreign environment under different laws, different rights and duties, and with unknown future protection of their investments. This makes foreign direct investments an uncertain game, and uncertainty did always keep investors from direct investments in a foreign and unknown country. Furthermore, not only the unknown environment is an investment obstacle, investors also were faced with problems with governments in the foreign market. First foreign governments promoted foreign direct investments to raise their economic power. Large infrastructure projects had an important effect on the countries where they were constructed: they were the basis for a faster growing economy. Later the same governments or new political powers changed government positions regarding foreign investment and they restricted investment related money transfers of investors out of the investment area or they initiated measures and laws to expropriate the property of investors without financial compensation. The big infrastructure investments were seen as a necessity for the welfare of the citizens and as a security of the host state. Many host countries felt that these projects should be controlled by the government and not by foreigners. The treatment of aliens by governments was, and still is, dependent on political theories and influences. A change of the investment climate, the "political risk", can be a huge uncertainty for foreign direct investments. Every investor has to ensure that the investment is lucrative and that he has the possibility to reduce risks and cost in case of changes of the investment climate. In the past foreign investors had no direct way to enforce investments claims against a foreign state for its sovereign acts or for breach of customary international law. Instead, investors had to rely upon their own government taking up the claim on their behalf and try to solve the dispute by diplomatic measures. This dependence on others was inconvenient and unpredictable, and therefore dissatisfying for alien investors. The settlement of foreign investment disputes in the past was a question of political influence and economic power. Individuals or corporations had to influence their governments to take up their case on the state's behalf. This was only possible for very important and influential investors. The investor's state then sent warships to threaten the offending state until reparations were paid. This "gunboat diplomacy" was exercised frequently by European powers until the early twentieth century, for example when faced with Venezuela's default on its sovereign debt in 1902, the governments of Great Britain, Germany and Italy sent warships to the Venezuelan coast to demand reparation for the losses incurred by their nationals. The need for security and predictability for foreign investments was one of the main reasons to establish diplomatic relations with other states. Various ideas from the point of view of money receiving and money spending states were discussed and realized, from the Calvo doctrine - where contracts between the host state and foreign investors included an agreement in which the latter agreed to confine himself to the available local remedies without relying on diplomatic interference of his own state - to the principle of diplomatic protection - where a state espouses the claim of its nationals as a claim on its own behalf. With the Second International Peace Conference of The Hague in 1907, states agreed to a framework for the conclusion of bilateral arbitration treaties which were the basis for independent arbitration tribunals in case of a dispute between two states arising out of particular interests of its national investors. The right of diplomatic protection as mentioned above was still inadequate to promote foreign investments: the Latin American countries relied upon the Calvo Doctrine, which denied the possibility of interference under diplomatic protection principle. Also, the breach of investment treaties by states was still not sanctioned by public international law. Only expropriation was recognised quite early as a possibility for diplomatic protection claims. Furthermore diplomatic protection was only accessible for nationals of the claiming state. Questions arose what happens if transnational corporations claim protection? The obstacle for investors to convince their government to claim diplomatic protection for its nationals was very high and unpredictable to foresee. Also a claim against the home state to exercise diplomatic protection does not exist. Today, in our small world, where businesses are moved from the United States to India, industrial production is transferred from Europe to China, or new infrastructure projects are started in Central Africa, one cannot imagine international business without FDI. Foreign direct investments need security, investors need security. Security is necessary to promote foreign investment which is recognized as one of the driving forces in supporting development in developing and least developed countries. Investors want to know their rights regarding their investments and they want to enforce their rights directly in a fast and cost-effective way. The need for protection is the reason for various measures introduced by governments to secure investments. In the following the system of foreign dispute settlement under the International Centre for the Settlement of Investment Disputes (ICSID) in combination with Bilateral Investment Treaties (BITs) shall be highlighted. The ICSID is the result of the investor insecurity mentioned above. ICSID shall also support FDI in the developing countries. The focus shall be on the increased interest for BITs and the therefore increased interest in ICSID arbitrations. Why do states use BITs? Did the establishment of a neutral venue for investment dispute settlement reach its goal to depoliticise disputes? Is it used by investors, and what is protected? Do BITs play an important role in the system of dispute settlement and why? And how do they work together with the ISCID system?
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Yackee, Jason D. Oatley Thomas H. "Sacrificing sovereignty bilateral investment treaties, international arbitration, and the quest for capital /." Chapel Hill, N.C. : University of North Carolina at Chapel Hill, 2007. http://dc.lib.unc.edu/u?/etd,737.
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Thesis (Ph. D.)--University of North Carolina at Chapel Hill, 2007.Title from electronic title page (viewed Dec. 18, 2007). "... in partial fulfillment of the requirements for the degree of Doctor of Philosophy in the Department of Political Science (International Relations)." Discipline: Political Science; Department/School: Political Science.
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Weeramantry, Joseph Romesh Gregory. "The interpretation of treaties by foreign investment arbitral tribunals." Thesis, Queen Mary, University of London, 2010. http://qmro.qmul.ac.uk/xmlui/handle/123456789/28971.
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This thesis explores the rules of treaty interpretation as they are applied by foreign investment arbitral tribunals ("FIATs"). Its primary aims are: a) to determine whether FIAT treaty interpretation practice is generally consistent with other international courts and tribunals; b) to assess whether the treaty interpretation rules contained in the 1969 Vienna Convention on the Law of Treaties ("Vienna Convention") are suitable for application in investor-State treaty disputes; and c) to evaluate the contribution of FIAT treaty interpretation jurisprudence to international law. The body of the thesis provides a background to treaty interpretation rules in international law and then examines in detail the application of the rules of interpretation contained in the Vienna Convention by both international courts and tribunals and FIATs. It also explores modes of interpretation that have been deployed by these two groups which are not explicitly referenced in the Vienna Convention. Investigation is also made of some unique or notable aspects of FIAT jurisprudence that relates to treaty interpretation. The research was carried out primarily through the analysis of international court and tribunal decisions and FIAT awards. The principal findings of the thesis are that: a) a general congruence exists between the interpretative practice of FIATs and that of other international courts and tribunals; b) the application of the Vienna Convention rules on treaty interpretation are suitable for investment treaty arbitration, with some exceptions, e. g., in situations where investors have vastly disproportionate access to the preparatory work of treaties as compared with respondent States; and c) FIATs have made a significant contribution to the international law of treaty interpretation.
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Koch, Alexander. "The Interaction of Most-Favored-Nation (MFN) Clauses With Dispute Settlement Provisions in Investment Treaties : A New Continent to Discover?" Thesis, Stockholm University, Department of Law, 2007. http://urn.kb.se/resolve?urn=urn:nbn:se:su:diva-7197.
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The master thesis provides a comprehensive and comparative analysis of the scope of most-favoured-nation clauses, focusing on the application of such clauses to dispute resolution mechanisms in bilateral investment treaty’s (BIT).
The ICSID decision in Maffezini was the first in a series to extend the scope of an MFN clause to dispute resolution in such context. Traditionally, such a clause had been relied on regarding substantive rights. The debate evoked by this and subsequent decisions of arbitral tribunals, which often conflict with each other in their outcome and in their analytic methodology, illustrates the controversy of this issue.
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Ferreira, Agata. "How and why does Sustainable Development influence International Investment Law in the current Globalization Era. Compatibility or Irreconcilability?" Doctoral thesis, Universitat Ramon Llull, 2017. http://hdl.handle.net/10803/456675.
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El dret d'inversió internacional s'ha convertit en un instrument jurídic potent de la gestió econòmica mundial. Amb la seva cobertura global dels tractats internacionals d'inversió i un mecanisme d'arbitratge d'inversió efectiva, la llei d'inversió internacional ofereix als inversors estrangers potents eines per protegir els seus interessos econòmics en els països d'acollida. Tal ampli abast territorial del règim i la seva capacitat per envair l'espai polític dels estats d'origen i la capacitat d'interferir amb les preocupacions socials crítics de les qüestions ambientals per al patrimoni nacional, posa al dret internacional d'inversions en el punt de mira i subjectes a l'escrutini i la crítica. Fins al moment, el règim ha demostrat extraordinària resistència i capacitat d'adaptació a les noves circumstàncies geopolítiques globals.
Les preocupacions pel de desenvolupament sostenible es posen cada vegada més en el debat sobre el futur del règim d'inversió internacional. La globalització es caracteritza no només per l'augment de la connectivitat, sinó també per la prevalença dels intercanvis simbòlics i les relacions culturals. Aquesta tesi sosté que el concepte de desenvolupament sostenible personifica tensions entre la llei d'inversió internacional, impulsada per la ideologia neoliberal i la racionalitat econòmica i els valors universals i les necessitats humanes bàsiques de justícia i equitat. Aquesta tesi estudia la precària relació entre el dret internacional d'inversions i el desenvolupament sostenible, mirant als orígens i l'estructura del règim, la seva filosofia subjacent, la funcionalitat sistèmica i el paper dels moviments socials i els Estats sobirans, per tal de posar l'accent en els problemes de incompatibilitat i facilitar el discurs informat sobre el futur del desenvolupament sostenible dins de la llei d'inversió internacional.
Mai abans la llei d'inversió internacional ha estat tan entrellaçada amb les preocupacions de desenvolupament sostenible. Aquesta tesi pretén contribuir a l'enfocament estratègic per al futur del desenvolupament sostenible dins de la llei d'inversió internacional, posant de relleu els problemes irreconciliables i presentant àmplia perspectiva del règim en l'era de la globalització actual, inclouen tots els apresants problemes socials.El derecho internacional de la inversión extranjera se ha convertido en un instrumento jurídico potente de la gestión económica mundial. Con su cobertura global de los tratados internacionales de inversión y mecanismo de arbitraje de inversión efectiva, la ley de inversión internacional ofrece a los inversores extranjeros potentes herramientas para proteger sus intereses económicos en los países de acogida. Tal amplio alcance territorial del régimen y su capacidad para invadir el espacio político de los estados de origen y la capacidad de interferir con las preocupaciones sociales críticos de las cuestiones ambientales para el patrimonio nacional, pone el derecho internacional de las inversiones extranjeras en el punto de mira y sujetos al escrutinio y la crítica. Hasta el momento, el régimen ha demostrado extraordinaria resistencia y capacidad de adaptación a las nuevas circunstancias geopolíticas globales. Preocupaciones por el desarrollo sostenible se ponen cada vez más en el debate sobre el futuro del régimen de inversión internacional. La globalización se caracteriza no sólo por el aumento de la conectividad, sino también por la prevalencia de los intercambios simbólicos y las relaciones culturales. Esta tesis sostiene que el concepto de desarrollo sostenible personifica tensiones entre la ley de inversión internacional, impulsada por la ideología neoliberal y la racionalidad económica y los valores universales y las necesidades humanas básicas de justicia y equidad. Esta tesis estudia esta precaria relación entre el derecho internacional de inversiones y el desarrollo sostenible, mirando a los orígenes y la estructura del régimen, su filosofía subyacente, la funcionalidad sistémica y el papel de los movimientos sociales y los Estados soberanos, con el fin de hacer hincapié en los problemas de incompatibilidad y facilitar el discurso informado sobre el futuro del desarrollo sostenible dentro de la ley de inversión internacional. Nunca antes ha sido la ley de inversión internacional han estado tan entrelazada con las preocupaciones de desarrollo sostenible. Esta tesis pretende contribuir al enfoque estratégico para el futuro del desarrollo sostenible dentro de la ley de inversión internacional, poniendo de relieve los problemas irreconciliables y presentar amplia perspectiva del régimen en la era de la globalización actual, incluyendo todos los problemas sociales urgentes.
International investment law has become a potent legal instrument of global economic governance. With its global coverage of international investment treaties and effective investment arbitration mechanism, international investment law provides foreign investors with powerful tools to protect their economic interests in host states. Such extensive territorial reach of the regime and its capacity to encroach on policy space of home states and the ability to interfere with the critical social concerns from environmental issues to national heritage, puts international investment law in the spotlight and subject to scrutiny and criticism. So far, the regime has shown extraordinary resilience and adaptability to changing global geopolitical circumstances. Sustainable development concerns are increasingly brought into the debate about the future of international investment regime. Current era of globalization is characterised not only by increased connectivity but also by prevalence of symbolic exchanges and cultural relations. This thesis argues that sustainable development concept epitomises tensions between international investment law driven by neoliberal ideology and economic rationality and universal values and basic human needs of fairness and equity. This thesis studies this precarious relationship between international investment law and sustainable development, looking at the origins and structure of the regime, its underlying philosophy, systemic functionality and the role of social movements and sovereign states, in order to emphasise incompatibility issues and facilitate informed discourse about the future of sustainable development within international investment law. Never before has international investment law been so intertwined with sustainable development concerns. This thesis aims to contribute to strategic approach to the future of sustainable development within international investment law by highlighting irreconcilability issues and presenting broad perspective of the regime in the current globalization era, inclusive of pressing social concerns.
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Mlauzi, Dumisani G. "Solutions to investor-state dispute settlement : Republic of South Africa vis-à-vis Australia." Thesis, University of the Western Cape, 2016. http://hdl.handle.net/11394/5520.
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Magister Legum - LLMThe main objective of this paper is to critically analyse the solutions that countries are currently implementing in response to the much-debated issue that the conventional investor-state dispute settlement (ISDS) regime limits a host-state's space to make regulations under public policy. Consequently, the paper makes recommendations on viable solutions that countries can implement as solutions to the ISDS problems. In order to conduct the study, this paper uses the solutions to ISDS problems that have been implemented by the Republic of South Africa (RSA) and Australia respectively. The paper also compares the solutions implemented by RSA and Australia with some internationally recognised solutions. Chapters two and three of the paper discuss the backgrounds and also analyse the solutions to ISDS that have been implemented by RSA and Australia respectively. Chapter four contains the main findings and arguments of the paper. It analyses the strengths and weaknesses of the ISDS solutions that have been implemented by RSA and Australia respectively. One of the main findings of the paper is that retaining the conventional ISDS regime is less beneficial to developing and least developed countries and more beneficial to developed countries, largely due to the differing levels of outward investments that are present in these categories of countries. The paper recommends, inter alia, that, unlike developed countries, developing countries and least-developed countries should abrogate the conventional ISDS regime and only retain it in particular circumstances as explained in chapter five. The paper recommends that ISDS should only be utilised where state-state arbitration would unnecessarily politicise an investment dispute. The paper also finds the use of domestic court as undesirable to investment disputes. The paper recommends mediation as a more balanced avenue for resolving investment disputes.
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Genest, Alexandre. "Performance Requirement Prohibitions in International Investment Law." Thesis, Université d'Ottawa / University of Ottawa, 2017. http://hdl.handle.net/10393/37013.
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Performance requirements act as policy instruments for achieving broadly-defined economic and developmental objectives of States, especially industrial and technological development objectives. Many States consider that performance requirements distort trade and investment flows, negatively impact global and national welfare and disrupt investment decisions compared to business-as-usual scenarios. As a result, a number of States have committed to prohibiting performance requirements in international investment agreements (“IIAs.”). Performance requirement prohibitions (“PRPs”) are meant to eliminate trade-distorting performance requirements and performance requirements which replace investor decision-making by State decision-making.
This thesis focuses on providing answers to two research questions: first, how do States prohibit performance requirements in IIAs? And second, how should PRPs in IIAs be interpreted and applied?
For the first time, this thesis: proposes a comprehensive understanding of PRPs in IIAs by drawing notably on the General Agreement on Tariffs and Trade (“GATT”) Uruguay Round of negotiations and on the United States Bilateral Investment Treaty (“BIT”) Programme; develops a detailed typology and analysis of PRPs in IIAs through the identification of systematically reproduced drafting patterns; conducts the first critical and in-depth analysis of all arbitral awards which have decided claims based on PRPs in IIAs; analyses interpretation and application issues related to provisions that exempt government procurement from PRPs and to reservations that shield sensitive non-conforming measures or strategically important sectors from PRPs; and anticipates the application of most-favoured nation (“MFN”) treatment clauses to PRPs in the future.
Finally, this thesis formulates proposals that can help interpret and apply existing PRPs and draft future PRPs in a more deliberate and informed way.
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吳思靜. "雙邊投資協定中保護傘條款的解釋適用之探折 : 兼論ICSID相關仲裁案例 = Reviewing the interpretation and application of umbrella clause in Bilatreral Investment Treaties : on the ICSID-related arbitration cases." Thesis, University of Macau, 2010. http://umaclib3.umac.mo/record=b2182063.
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Eichler, Stefan, and Jannik A. Nauerth. "Bilateral investment treaties and sovereign default risk." Technische Universität Dresden, 2021. https://tud.qucosa.de/id/qucosa%3A75267.
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This paper analyzes the impact of bilateral investment treaties (BITs) on sovereign bond returns of 25 emerging markets from 1993 to 2016. Under a BIT, foreign investors can use an international arbitration scheme to enforce compensation claims against the domestic government in case of direct or indirect expropriation. We focus on the so far unexplored effects of legal risk associated with BITs on sovereign creditworthiness. We find small unconditional effects of BITs on sovereign bond returns. Taking the heterogeneity of BITs and political regimes into account, we find robust and strong negative effects. In countries with high political risk of expropriation (measured by low executive constraints), we find that the implementation of investor-friendly BITs is associated with a significantly negative impact on sovereign bond returns, accounting for roughly 15% of bond returns’ standard deviation.
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Al-Louzi, Rawan. "A coherence perspective of bilateral investment treaties." Thesis, University of Manchester, 2013. https://www.research.manchester.ac.uk/portal/en/theses/a-coherence-perspective-of-bilateral-investment-treaties(289a0e95-5cd3-404b-90c3-c6870cc8d487).html.
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Foreign investment is mainly protected through national laws. However the wide-spreading network of bilateral investment treaties aims to ensure a certain standard of protection. These treaties demonstrate far-reaching implications at both treaty level and international level. The implications raise an important question as to whether bilateral investment treaties are coherent or not. Coherence can be viewed as an attempt to prettify the law and minimise the effect of politics which may leave the law incoherent. It is obvious that bilateral investment treaties need to be coherent for a number of reasons. Firstly, incoherent treaties may create problems in relation to the development policy of member countries. Secondly, coherence reassures that negotiators of such treaties would not encounter possible contradictions and inconsistencies amongst the countries’ agreement network as well as between the treaties and domestic laws. Thirdly, coherence is critical to treaty interpretation as it is necessary to avoid further complications which may arise from contradictory awards. The aim of this thesis is mainly to elucidate the meaning of coherence and use it to provide an understanding as to how coherent these treaties are. The coherence of bilateral investment treaties will be evaluated in a number of aspects: coherence between bilateral investment treaties and the fundamental principles of international investment law; coherence between bilateral investment treaties and their objectives of investment promotion and investment liberalisation; coherence within the bilateral investment treaties network; coherence between bilateral investment treaties and customary international law on foreign investment; coherence between bilateral investment treaties and free trade agreements; coherence between bilateral investment treaties’ obligations and non-investment obligations of states.
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Fathallah, Raed M. "International law in investment agreement arbitration." Thesis, University of Oxford, 2007. http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.439724.
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Bonnitcha, Jonathan Merrington. "How much substantive protection should investment treaties provide to foreign investment?" Thesis, University of Oxford, 2012. http://ora.ox.ac.uk/objects/uuid:5e74c893-2224-403f-b3d3-06f23ed5c28f.
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This thesis contributes to academic debate about the question: how much substantive protection should investment treaties (IITs) provide to foreign investment? Chapters 5 and 6 argue that arbitral tribunals have interpreted fair and equitable treatment and indirect expropriation provisions of existing IITs in several different ways. Each of these interpretations is sketched as a model level of protection that could be explicitly adopted by states in the future, either through inclusion in new IITs, or through amendment to existing IITs. In this way, the thesis defines a range of prospective options available to states concerning the level of protection to provide to foreign investment through IITs. The thesis evaluates the relative desirability of these different levels of protection. The thesis argues that different levels of protection should be evaluated according to their likely consequences. The thesis develops a framework for inferring and understanding the likely consequences of adopting different levels of protection. The framework proposes that the consequences of a given level of protection can be understood in terms of its likely effect on: economic efficiency; the distribution of economic costs and benefits; flows of foreign direct investment into host states; the realisation of human rights and environmental conservation in host states; and respect for the rule of law in host states. Within this framework, the thesis provides an assessment and synthesis of existing empirical evidence and explanatory theory so far as they relate to the consequences of IIT protections. It also specifies the normative criteria by which these consequences should be evaluated. Through the application of this framework, the thesis concludes that lower levels of protection of foreign investment are, in general, likely to be more desirable than higher levels of protection.
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Siegmann, Till. "The Impact of Bilateral Investment Treaties and Double Taxation Treaties on Foreign Direct Investments." St. Gallen, 2007. http://www.biblio.unisg.ch/org/biblio/edoc.nsf/wwwDisplayIdentifier/02218667001/$FILE/02218667001.pdf.
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van, Harten Hendrik Hugh Angus. "The emerging system of international investment arbitration." Thesis, London School of Economics and Political Science (University of London), 2005. http://etheses.lse.ac.uk/2405/.
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The system of international investment arbitration is established by hundreds of investment treaties that have the following key features: 1. States authorize foreign investors (read multinational enterprises) to make and enforce international claims for damages against states in disputes arising from the state's exercise of public authority, without those claims being filtered by the investor's home state or by an international organization; 2. States are subjected to broadly-worded international standards that apply to a wide range of governmental activity, affording arbitration tribunals broad discretion to award damages to investors and thus make decisions about the cost of government, with limited supervision by domestic courts; and 3. Disputes are resolved using a private model of adjudication based on rules of private arbitration and incorporating the enforcement structure of international commercial arbitration. The argument of this thesis is that investment arbitration, although commonly approached as a reciprocally consensual method of adjudication, should instead be viewed as a unique form of governing arrangement. Investment arbitration is a governing arrangement because it is established by a sovereign act of the state and because it is used to resolve regulatory disputes arising from the exercise of pubic authority. This distinguishes investment arbitration from conventional international adjudication (between states) or international commercial arbitration (between private parties). Further, investment arbitration is unique and open to criticism because it combines the prospective and far-reaching, yet selective, individualization of international claims with the use of a private model of arbitration. This distinguishes investment arbitration from other forms of international adjudication which allow individual claims. Overall, characterizing investment arbitration as a unique form of governing arrangement reveals the importance of the system as a means to control the exercise of public authority in the regulatory sphere.
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Ghaffari, Peyman. "Jurisdiction & admissibility in international investment arbitration." Thesis, Anglia Ruskin University, 2012. http://arro.anglia.ac.uk/297161/.
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For an investment treaty tribunal to proceed to adjudge the merits of claims arising out of an investment, it must have jurisdiction over the parties and the claims, and the claims submitted to the tribunal must be admissible. Inconsistent interpretations of substantive and procedural principles of international investment law that govern the existence and exercise of the arbitral tribunal’s supremacy to adjudge an investment dispute have caused incoherence in investment treaty arbitration. The thesis is an in-depth study of article 25 of the 1965 Washington Convention on the Settlement of Investment Disputes (ICSID), which articulates the Material, Personal and Consensual requirements for establishing the existence of the adjudicative power (Jurisdiction) for dispute resolution and to exercise that adjudicative power (Admissibility) under the aegis of ICSID. The main findings of the research are as follows: 1) ICSID’s double-filtering nature, which has been largely overlooked in ICSID jurisprudence, is fundamental to correct decision-making by arbitral tribunals when deciding on admissibility and jurisdiction issues. 2) ‘Fraudulent intent’ criterion, which borrows its rationale from the concurrent themes in international law jurisprudence, is instrumental to test compliance as required in the upper jurisdictional threshold. 3) ‘Bona fide investor’ test used to measure compliance with the objective requirements of article 25 of the ICSID runs counter to the object and purpose of the Convention. 4) ‘Dynamic’ test, rather than plain ‘objective’ test, would be the adequate pattern to ensure compliance with article 25 of the ICSID Convention for the contemplated investment due to evolving meaning of such generic term. 5) ‘Lex Juridictio’ or set of rules, principals and mechanisms governing jurisdictional and admissibility issues is required as foundation for legal unification and harmonization.
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Okpe, Felix Oghenekohwo. "Foreign direct investment and investment treaty arbitration with reference to Nigeria." Thesis, University of Aberdeen, 2014. http://digitool.abdn.ac.uk:80/webclient/DeliveryManager?pid=225327.
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This research analyzes investment treaty arbitration under the International Center for Settlement of Investment Disputes (ICSID) in the context of Nigeria's international investment law regime. The ICSID Convention establishes ICSID. The arbitration of investment claims in the context of investment treaty arbitration under the ICSID should reflect the purpose of the ICSID Convention. The nature of foreign investment disputes is implicated in any act or omission by the host State tantamount to expropriation or violations of applicable investment agreements. This implication is one of the considerations for the protection of foreign investments in the host State through mechanisms that support the theory of the 'internationalization of State contracts' and the interpretation of 'umbrella clauses' found in most Bilateral Investment Treaties (BITs) applicable to the settlement of investment disputes. There are questions with respect to the feasibility of the classical theory of foreign direct investment (FDI) and the postulation of 'treaty protagonists' that the core adjudicative element of investment treaty arbitration ought to be 'contribution to economic development.' The thesis argues that, while the international mechanisms for the conduct of FDI are not yet perfect, the mechanisms offer some ideas and experience on how to reform Nigeria's investment treaty mechanism using 'the law in context approach' as a basis for reforms. The uncertainty associated with the ICSID Convention, with respect to the definition of 'investment' and established foreign investment treatment standards found in Nigeria's BITs regime, provides an opportunity for Nigeria to design a legal mechanism that would enhance its competitiveness in attracting FDI for economic development. A legal framework for investment treaty arbitration conducted under the ICSID is proposed to promote economic development and avoid the costs associated with investment treaty arbitration.
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Manor-Percival, Yonit. "Bilateral investment treaties in a harmonious world : China's paradigm." Thesis, Queen Mary, University of London, 2014. http://qmro.qmul.ac.uk/xmlui/handle/123456789/8573.
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China’s ascent up the echelon of the contemporary interstate system is often debated by reference to its implications for the US designed neoliberal world order. A ‘cauldron of anxiety’ appears to be brewing around what is said to be a potentially contesting force that is at best shallowly integrated and at worse set on institutional reconstitution. US anxiety over the integrity of the order she landscaped and from which she benefits may be understood insofar as insufficient submission signifies the risk of a rising untamed competitor. Yet, against the background of China’s participation in the international financial institutions, membership of the World Trade Organisation and the conclusion of a prolific bilateral investment treaties (BITs) program, in what way can she be said to have remained resistant and untamed? This work seeks to contribute to the debate by looking at it from the perspective of discourse. It examines two interrelated discursive structures:those of paradigm and law. In relation to the former it looks at the US engendered neoliberal worldview more specifically formulated as a Washington Consensus on the one hand and China’s vision of a harmonious world of lasting peace and prosperity on the other. In relation to the latter, juridical institutions furnish legitimising mechanisms and the rules by which paradigms are to be practiced. Since treaties form part of the US designed world order, this work applies BITs as a prism through which the interiors of paradigms may be unpacked. BITs are creatures of the capitalist paradigm in its neoliberal configuration in that they articulate and provide rules for the material realisation of a homogenised world in which the spatial movement of capital is free of impediments and sovereign rights are subjugated to property rights. By contrast they are not creatures of the harmonious world paradigm with its resurrection of indigenous heritage. In the context of China they represent processes of importation and adaptation originally triggered by forcible rupture. Against this construct of two different paradigms that nevertheless share a juridical structure this work concludes that China does aspire to a reformed world order. However, only time will tell whether reformative ambitions can survive own integration and the expansive compulsions of neoliberalism.
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Söderberg, Ebba. "Investment Treaty Arbitration and Transparency : Transparency, confidentiality and the public interest in international investment disputes." Thesis, Uppsala universitet, Juridiska institutionen, 2019. http://urn.kb.se/resolve?urn=urn:nbn:se:uu:diva-384679.
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Investment treaty arbitration has borrowed a number of elements from commercial arbitration, including confidentiality. The scope of confidentiality in investor-state arbitrations can make it hard for amicus curiaeto participate in the arbitral proceedings. The rules regarding transparency in investor-state arbitration relates, among others, to access to information and documents, third-party participation and the publication of awards. Transparency in investor-state arbitrations is also related to changes in legislation that could affect the investor. Changes in legislation is a way of adapting to new circumstances as changes in government or an attempt to prevent health issues or fulfilling environmental goals in the interest of the public. The possibility of amicus curiaeparticipation and submissions make it possible for the public to affect what information the tribunal have in cases where public interests are discussed. Tribunals have, when they have found that the public interest is not only general, decided to allow amicus curiaesubmissions even without the consent of the parties. They have allowed such submissions in cases where the amicus curiaecould enlighten the tribunal or provide additional information about the merits. There is no binding case law in arbitration. Since the tribunal only have jurisdiction in the particular case, awards cannot be binding in other disputes. The lack of case law can lead to a lack of predictability for both investors and states. It has led to fewer changes in domestic regulation, the phenomenon is called the “chilling effect” and refers to states who make less changes (including changes in the interest of the public) in an attempt to avoid a violation of the FET standard. Transparency, i.e. making the dispute public, including the party’s identities, documents and the award, can help providing predictability to investment-treaty arbitration. The outcome of the case is not binding as case law for future disputes but could provide both states and investors knowledge about how certain treaties and actions might be interpreted by a future tribunal.
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Poulsen, Lauge N. Skovgaard. "Sacrificing sovereignty by chance : investment treaties, developing countries, and bounded rationality." Thesis, London School of Economics and Political Science (University of London), 2011. http://etheses.lse.ac.uk/141/.
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One of the striking features of modern globalization is the rising prominence of international law as governing institution for state-market relations. Nowhere has this been as pronounced as in the international investment regime. Although hardly known to anyone but specialized international lawyers merely 15 years ago, bilateral investment treaties (BITs) have today become some of the most potent legal tools underwriting economic globalization. This thesis seeks to explain why developing countries adopted investment treaties as part of their governing apparatus. The study combines econometric analysis with archival work as well as insights from more than one hundred interviews with decision-makers in the international investment regime. On this basis, it finds ‘traditional’ explanatory models of international policy diffusion insufficient to account for the BIT-movement. Instead, both qualitative and econometric evidence strongly indicates that a bounded rationality framework is best suited to explain the popularity of BITs in the developing world. Although careful cost-benefit considerations drove some developing countries to adopt investment treaties, this was rare. By overestimating the benefits of BITs and ignoring the risks, developing country governments often saw the treaties as merely ‘tokens of goodwill’. Many thereby sacrificed their sovereignty more by chance than by design, and it was typically not until they were hit by their first claim, officials realised that the treaties were enforceable in both principle and fact. The thesis is relevant to a wide range of literature. Apart from being the first comprehensive international relations study on investment treaties, its multimethod approach provides a robust and nuanced view of the drivers of international policy diffusion. Moreover, the study is the first major work in international political economy literature applying insights on systematic – and thus predictable – cognitive heuristics found in the behavioural economics discipline.
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Hussein, Amr Abbas Mohamed Adel Abbas Aly. "Bilateral investment treaties treatment of international capital movement : time for reform?" Thesis, Queen Mary, University of London, 2012. http://qmro.qmul.ac.uk/xmlui/handle/123456789/2514.
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While the freedom to move capital is necessary for foreign investors, the power of the state to regulate capital transfers is necessary to prevent volatile capital from causing financial crises as well as to mitigate such crises when they occur. Thus, in regulating international capital movement, a balance should be made between the right to transfer funds and the state’s right to protect the stability of its economy. It is in relation to achieving this balance that this thesis argues that bilateral investment treaties’ (BITs) regulation of capital transfers is deficient, both substantively and procedurally. On substance, this thesis identifies three substantive defects that affect obligations under BITs: absoluteness, immediacy, and breadth. First, many BITs adopt an absolute approach in liberalizing capital that does not permit any restrictions or exceptions, nor does it distinguish between different kinds of capital, or between the right to import capital and the right to repatriate capital. Second, the obligation to permit transfers is immediate and does not allow for a gradual liberalization of capital. Third, many BITs’ terms and obligations are broad and therefore vague, such as the broad definition of investment, or the obligation to grant fair and equitable treatment, which is also broad and interpreted in a manner that restricts the regulatory powers of the host state. Such results could have been partly mitigated if there were a dispute settlement mechanism with the power to create precedent and with it a clearer and more coherent body of rules. But BITs’ investor-state arbitration is also deficient since it consists of ad hoc tribunals, which are not bound by precedent; and their decisions are not generally subject to substantive review. This leads to an inconsistent and incoherent body of law that protects neither the state’s regulatory powers nor the legitimate expectation of investors
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Malmsten, Johan. "Informal Reliance on Previously Rendered Awards : An Efficient Means to Promote Consistency on the MFN Question?" Thesis, Uppsala universitet, Juridiska institutionen, 2013. http://urn.kb.se/resolve?urn=urn:nbn:se:uu:diva-205317.
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Stan, Grigore-Octav. "Valuation approaches in investment arbitration : an analytical and comparative study." Thesis, King's College London (University of London), 2015. https://kclpure.kcl.ac.uk/portal/en/theses/valuation-approaches-in-investment-arbitration-an-analytical-and-comparative-study(8f929d14-8689-443f-84d3-79cb9ca6cf68).html.
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The rapid development of investment arbitration, especially during the last two decades, has been followed by extensive academic research and scholarly writings in this field. However, these have focused mainly on the legal documents that allow investment arbitration, grounds for the claims brought before investment tribunals, jurisdiction of arbitral tribunals, remedies available to foreign investors, and other similar topics. The calculation of the applicable monetary compensation payable to investors and the assessment of the value of investments have not received extensive attention in such writings even though the main point of interest for the parties involved in investment arbitration usually consists in how much they can gain (in the case of investors) or how much they can lose (in the case of host states) as a result of the arbitration. As the monetary compensation payable to investors as an outcome of investment arbitrations is directly linked to the value of the investments that are negatively affected by host states, the assessment of the value of investments at the centre of arbitral disputes is important for both investors and host states. Given its importance, the present research examines the valuation approaches and methods which may be employed in investment arbitration in order to assess the value of investments. The thesis focuses on the main approaches for the valuation of investments at the centre of disputes (namely the market based, the income based and the asset based valuation approaches); the corresponding valuation methods through which such approaches are implemented; and the basis for their application. The research includes a comparative analysis of the existing valuation instruments. This shows why certain approaches may be used to assess the value of investments in particular arbitration circumstances while others may not. Also, the research points out the importance of correctly correlating the application of the valuation instruments to the context of each investment dispute by reference to at least the type of investment involved, the category of available evidence, and the type of damage incurred by investors. The research uncovers the main advantages and disadvantages of the valuation instruments used in investment disputes. This indicates that the valuation instruments demonstrate a mutual superiority, and also that no complete valuation instrument currently exists. The thesis concludes that the current practice of arbitration tribunals in relation to valuation matters can be improved from several perspectives (i.e. from regulatory, administrative, judicial and theoretical perspectives), and formulates suggestions in this respect.
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Jentsch, Valentin. "The Impact of Bilateral Investment Treaties on Foreign Direct Investment Importance and Alternatives from an Entrepreneurial Perspective /." St. Gallen, 2007. http://www.biblio.unisg.ch/org/biblio/edoc.nsf/wwwDisplayIdentifier/04603635001/$FILE/04603635001.pdf.
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Boyce, Gizelle Marie. "An examination of whether the protection of Investment Act represents a successful alternative to bilateral investment treaties." Master's thesis, University of Cape Town, 2017. http://hdl.handle.net/11427/25200.
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The aim of this thesis is to examine whether South Africa's recently promulgated Protection of Investment Act represents a viable alternative to the bilateral investment treaty regime. In undertaking this examination, the bilateral investment treaty regime which preceded the Protection of Investment Act was first reviewed and some of the typical clauses found in these treaties were examined. Pursuant to this examination, the Foresti arbitration, through which a group of Italian and Luxembourgish investors challenged South Africa's affirmative action measures in the mining industry on the basis of the bilateral investment treaties that South Africa had entered into, was then introduced. The author examined the claim made in Foresti, South Africa's response and the final award. The next Chapter then turned to the effects of the Foresti arbitration, which set in motion South Africa's review of the BITs it had entered into, and then the eventual termination of these BITs and replacement with the Protection of Investment Act. In answering the central question of this thesis, a clause by clause analysis of the Protection of Investment Act was conducted in order to determine whether that Act is able to satisfy the deficiencies highlighted in the BIT review pursuant to Foresti. In conducting this analysis, the author highlighted some notable omissions in the Protection of Investment Act. Through this review and comparison, it was concluded that the Protection of Investment Act fails as a viable alternative to the bilateral investment treaty regime for a number of reasons, and in particular for crystallising the flawed BIT regime through a legislative savings provision. A better alternative for South Africa would have been renegotiating historical BITs based on a Model BIT incorporating the necessary amendments to rectify the perceived BIT limitations as highlighted in South Africa's BIT review.
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Ezejiofor, Obianuju Chioma. "Domestic courts and international investment arbitral tribunals : nurturing a profitable and symbiotic relationship." Thesis, Queen Mary, University of London, 2014. http://qmro.qmul.ac.uk/xmlui/handle/123456789/8964.
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This thesis proposes that conscious and increased co-operation and coordination of the relationship between investment tribunals and domestic courts can greatly improve the efficacy of the international investment arbitration system, and further the rule of law. The extent of the power both forums wield, the level of influence both systems have on each other and the critical roles both systems play in the resolution of investment disputes warrant a systematic approach to cooperation and coordination. This study finds justification for this proposition by analyzing the policy implications of investment arbitration outcomes. It goes on to explore the relationship between domestic courts and investment tribunals by examining the roles they play and the areas of jurisdictional friction between the two systems. The core issues addressed include the jurisdiction and competence of international investment tribunals and domestic courts in the resolution of investment disputes; the support roles of domestic courts; anti-suit/anti-arbitration injunctions; pre-conditions to arbitration; the effects and implications of the review of investment tribunals’ decisions by domestic courts, and the review of the lawfulness of the conduct of domestic judicial systems by investment arbitration tribunals. In addressing these issues, the work examines the extent to which domestic courts and international arbitration tribunals should accord deference to each other with respect to their involvement in the resolution of investment disputes. Based on the analysis of the areas of intersection between the domestic and international investment dispute settlement systems, instances of ‘positive interactions’ are highlighted and encouraged. The study also proposes ways in which further cooperation and coordination can take place. In making these proposals, and acknowledging the differences that exist, this thesis considers the collaboration between other international adjudicatory bodies and domestic courts so as to distill lessons for the international investment arbitration system.
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Wunder, Thomas. "Recognition, Enforcement, and Execution of arbitral awards under the ICSID convention : The debate and problems in the differentiation between execution and enforcement regarding questions of sovereign immunity." Thesis, Uppsala universitet, Juridiska institutionen, 2020. http://urn.kb.se/resolve?urn=urn:nbn:se:uu:diva-411833.
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This thesis analyses the conundrum at the intersection of (i) recognition, (ii) enforcement, and (iii) execution of investment treaty arbitral awards pursuant to the ICSID convention. Orienting between recognition, enforcement, and execution has recently stirred quite some debate. This culminates in the question of, on the one hand, whether it is necessary to differentiate between “enforcement” and “execution” in light of the plea of sovereign immunity, and how to do so, on the other hand. In this context, the concept of sovereign immunity in general and as a potential objection within the ICSID enforcement proceedings will be analysed in particular. This thesis does so by analysing scholarly work, the ICSID history and as a result of municipal case law vis-à-vis sovereign immunity and ICSID enforcement. A particular emphasis will be put on statutory interpretations, for example on ICSID enforcement regime and its terminology. In this light, a terminological analysis of language is instrumental given that the ICSID convention has three original languages.
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Assaduzzaman, Assad Khan. "Agreements of state-entity and state liability in international investment arbitration." Thesis, University of Southampton, 2013. https://eprints.soton.ac.uk/348851/.
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Most often in an investment agreement between a State entity and a foreign investor the arbitral tribunal is faced with the question of the liability of the State for the conduct of its entities. To make it precise the crucial findings of this research is whether or to what extend the States hall be liable for the commercial conduct of its entities? State affiliates in general includes, ‘state organ, ‘state agency’, ‘instrumentality’, ‘state-owned entity’, ‘state-owned company’, ‘publicly owned corporation’, ‘government business enterprise’, ‘public sector undertaking’ and ‘parastatal entity’. ‘State entities’ with separate legal personality do not include the ‘state organ’, ‘agency’ and ‘political subdivision’ for which a State is responsible under the principle of customary international law. The main highlights of this research is whether the State shall be liable for the commercial, non-governmental activities of ‘State entities’ with separate legal personality having substantial structural and functional government control over them while they enter into investment agreements with foreign investors. This leads to the critical arguments to establish in the first place whether the State is a party to the investment agreements of its separate legal entities with foreign investors. To respond this, findings of this research leads to the point that has been highlighted in relation to the true separation of these State entities from the government. It is that the significance of structural and functional control by the governmental over the habitual affairs of these entities. For this purposes two significant reasons are taken into consideration. First, whether the government officials or members of the cabinet preside as the head of the corporations or entities? Second, whether they administer the daily affairs of the entities such as participating in the negotiation and decision making process while entering into the agreement with foreign investors. If that is satisfied then the requirement for a State to be a party to the investment agreement of its entities is considered fulfilled. The most striking point of this research is then whether the State and its entities are entitled to immunity both from jurisdiction and execution. However, following the greater participation of State through State entities in the international trade and foreign investment the restrictive approach of immunity has seen a resultant raise in relation to the jurisdiction of arbitral tribunal. As regard to immunity from the enforcement measure the final stumbling block is the process of identification of public assets which are held by the State to perform its sovereign non-commercial functions often mixed with the assets allocated for commercial purpose against which enforcement can be done, is continued to be an issue at large. The emphasis of this research has been extended to have a closer look at the State immunity laws internationally in relation to the limitations of various conventions and codifications and judicial precedent that address the issue of enforcement in investment arbitration.
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Devaney, Margaret. "The remedies stage of the investment treaty arbitration process : a public interest perspective." Thesis, Queen Mary, University of London, 2015. http://qmro.qmul.ac.uk/xmlui/handle/123456789/8928.
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As the investment treaty arbitration regime matures, consensus is emerging as to the need for public interest considerations to be taken into account in resolving disputes under international investment agreements (IIAs). However, the question of how such considerations should be reflected remains contentious. This thesis proposes that the remedies stage of the process can, and should, play a role in taking account of public interest considerations and so in easing the tension between host state regulatory sovereignty and investment protection that lies at the heart of the investment treaty regime. Thus, this thesis argues that, while, on the one hand, there is a need to introduce an element of reciprocity into the investment treaty arbitration process in order to ensure continuing state co-operation and to reflect the broader underlying purposes of IIAs, on the other, the primary object of the system remains the protection of foreign investors. These competing imperatives can lead to difficulties in taking account of public interest considerations at the merits stage of the arbitration process. Therefore, in order to reconcile these competing imperatives and to achieve an optimal balance between host state regulatory sovereignty and investment protection, this thesis proposes that public interest considerations should be recognised at the remedies stage where such considerations cannot be taken into account either sufficiently or at all at the merits stage and identifies a number of situations in which this approach would be appropriate. Potential doctrinal bases for implementation of this approach are also examined and the conclusion reached that, given the significant degree of discretion afforded to tribunals in applying the full reparation principle and the role that equity can permissibly play in quantifying damages, this approach can, save in the case of lawful expropriations, be implemented within the parameters of existing legal principles.
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Kumas, Abdullah. "Essays on the bilateral tax treaties, foreign direct investment and withholding tax rates." Ann Arbor, Mich. : ProQuest, 2008. http://gateway.proquest.com/openurl?url_ver=Z39.88-2004&rft_val_fmt=info:ofi/fmt:kev:mtx:dissertation&res_dat=xri:pqdiss&rft_dat=xri:pqdiss:3323580.
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Thesis (Ph.D. in Economics)--S.M.U.Title from PDF title page (viewed Mar. 16, 2009). Source: Dissertation Abstracts International, Volume: 69-07, Section: A, page: 2806. Adviser: Daniel L. Millimet. Includes bibliographical references.
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Lövgren, Frisk Tove. "The Effectiveness of Labour Provisions in Bilateral Investment Treaties and their Future Potential." Thesis, Uppsala universitet, Juridiska institutionen, 2018. http://urn.kb.se/resolve?urn=urn:nbn:se:uu:diva-351963.
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Kuang, Yingqiu. "Instrumental liberalization : China's new practice in bilateral investment treaties in the 2000's." Thesis, University of British Columbia, 2014. http://hdl.handle.net/2429/50402.
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The spread of Bilateral Investment Treaties in the past decades, as a popular way to promote and protect foreign direct investment between countries, is no doubt a vivid example that displays the triumph of globalization and the diffusion of liberalization. By the end of 2013, most countries of the world have participated and signed 2,857 such treaties (UNCTAD, 2013). China, among them, is definitely a latecomer and a distinct player. Until 1982, which is 23 years later than Germany’s first treaty with Pakistan, China started its BIT program, and soon has become the world’s second largest contract party. As of its particularity, from the very beginning, China became one of the few developing economies (BRICS states in particular) that were able to sign treaties favoring their own economic interests and sovereignty; soon after, China is also the first and the only country among them that chose to abolish such privileges and started its new, liberalized practice. Stemming from China’s unique development trajectory, my research question asks: what has motivated Chinese government to make such unprecedented change? What was the rationale behind this behavior so distinct from other BRIC countries? The emerging causal narrative comes from Steve Vogel’s theory of “asymmetric regulation” in competitive markets, with the analysis of the specific domestic political and economic constraints within China. This paper argues that China’s new, liberalized practice in BITs is first a policy outcome to increase the international competitiveness of the national industry; more than that, it is also an instrumental liberalization effort made by the central government to strengthen the political control over the locals and to re-shape China’s understanding of the international order, especially the South-South cooperation.Arts, Faculty of
Political Science, Department of
Graduate
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Li, Chen [Verfasser], and Monika [Akademischer Betreuer] Schnitzer. "Locations of foreign direct investment : the role of immigrants, bilateral investment treaties and patents / Chen Li ; Betreuer: Monika Schnitzer." München : Universitätsbibliothek der Ludwig-Maximilians-Universität, 2017. http://d-nb.info/113251097X/34.
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Salehi, Meysam. "Investment Treaty Arbitration as a Public and Unilateral Dispute Settlement : A redefinition of the autonomy of disputing parties and arbitral tribunals in the process of investment treaty arbitration." Thesis, Uppsala universitet, Juridiska institutionen, 2020. http://urn.kb.se/resolve?urn=urn:nbn:se:uu:diva-412159.
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Over the last decade, investment treaty arbitration has been confronted with relatively extensive and fundamental criticisms. The problem with the system in fact boils down to a misconception by tribunals of the nature of investment treaty arbitration. Many scholars and tribunals have perceived and treated investment treaty arbitration as a reciprocal arrangement with a private function. This is so mainly because of the way they formulate the establishment of investment treaty arbitration. To put it simply, it has been though that investment treaty arbitration, similar to international commercial arbitration, is founded upon a reciprocal contract made through a merger of intentions of the host State and the foreign investor. This perception would necessarily lead to the application of the principle of party autonomy as the main governing principle over the process of arbitration; a principle that is well tailored to adjudications with private function. Contrary to this, a careful examination of the nature of investment treaty arbitration reveals not only the public dimensions of the system, but also the unilaterality of the framework on which the system stands. These two characteristics require a shift in paradigm; otherwise, the system will expose to more and more legitimacy crises. The present research, therefore, tends to make a clear distinction between the two systems of international commercial and investment treaty arbitration, and explore the implications of this paradigm-shifting for the process of investment treaty arbitration, in particular, the way tribunals interpret the instrument of consent and the autonomy of tribunals in the course of the arbitration.
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Kuprieieva, Anna. "Regulatory Freedom and Indirect Expropriation: Seeking Compatibility with Sustainable Development in New Generation Bilateral Investment Treaties." Thesis, Université d'Ottawa / University of Ottawa, 2015. http://hdl.handle.net/10393/32447.
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One of the most notorious dilemmas of international rules on the protection of foreign investment is how to decrease the tension between a state’s regulatory freedom and private property rights in addressing indirect expropriation. Bilateral investment treaties need to achieve a crucial balance: to protect the interests of foreign investors and support rights of states to regulate in pursuit of sustainable development. In dealing with indirect expropriation past tribunals relied on different approaches and adopted mutually inconsistent positions. By demonstrating this incoherence, this thesis reviews the most recent BITs and identifies an archetype of investment treaty provisions and language that may result in the interpretation of indirect expropriation most compatible with states being free to act to achieve sustainable development.
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Jean, Guillaume-André. "Le droit des investissements internationaux face à l'Union européenne." Thesis, Paris Sciences et Lettres (ComUE), 2016. http://www.theses.fr/2016PSLED031.
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Le droit des investissements internationaux et l'Union européenne constituent deux systèmes juridiques qui sont désormais en interaction. La convergence de ces systèmes a été révélée lors de l'entrée en vigueur du Traité de Lisbonne, qui a initié un transfert de compétence en matière d'Investissement Direct Étranger et accorde donc la compétence à l'Union européenne pour conclure de nouveaux accords d'investissement. Dans le cadre d'un chapitre préliminaire, l'analyse tente tout d'abord d'expliquer pourquoi et en quoi le droit des investissements internationaux, tel que résultant de la pratique conventionnelle bilatérale des États membres, et l'Union européenne constituent deux systèmes juridiques en interaction. La méthodologie juridique nécessaire à l'étude des manifestations de la mondialisation juridique est quant à elle décrite. Par la suite, en distinguant les aspects matériels des aspects procéduraux du droit des investissements internationaux, cette thèse s'intéresse aux évolutions des rapports de ces deux systèmes et aux résultats des interactions normatives en cours. La première partie vise à démontrer que le droit matériel des investissements internationaux a fait l’objet d’une approche de la Commission européenne, mise en place dès les années 1990. Quant au droit procédural des investissements internationaux, il ressort que ses liens avec l'Union européenne ont été plus distendus et qu'il n'a fait l’objet que d'un volet qui a été attaché à l’approche européenne du droit matériel des investissements internationaux, à partir de l'entrée en vigueur du Traité de Lisbonne.Sur ces fondements, l'analyse met en exergue le processus d’européanisation en cours du droit des investissements internationaux, qui est relatif au mode de création de la norme internationale, à son contenu et à la participation de l’Union européenne à la procédure de règlement des différends, en vertu d’une procédure arbitrale devant être construite selon la configuration investisseur tiers-Union européenneInternational investment law and the European Union constitute two legal systems that are from now on in interaction. The convergence of these systems has been revealed by the entry into force of the Lisbon Treaty, which has initiated a transfer of competence in the field of Foreign Direct Investment and thus grants competence to the European Union for the conclusion of new investment treaties. Within the framework of a preliminary chapter, the analysis first attempts to explain why and how international investment law, as it results from the bilateral conventional practice of Member States, and the European Union constitute two interacting legal systems. The legal methodology that is necessary for the study of the manifestations of legal globalisation is described. Subsequently, by distinguishing between the substantive and the procedural aspects of International Investment Law, this thesis focuses on the evolutions of the relations between these two systems and on the results of the ongoing normative interactions. The first part aims to demonstrate that substantial international investment law has been the object of an approach from the European Commission, put in place as soon as the 1990s. As for procedural international investment law, it appears that its links with the European Union have been more tenuous and that it has only been the object of a component which has been attached to the European approach of material international investment law, as soon as the entry into force of the Lisbon Treaty. On these foundations, the analysis highlights the ongoing Europeanisation process of International Investment Law, which is related to the mode of creation of the international standard, its content and the participation of the European Union in the procedure of dispute resolution, by virtue of an arbitral procedure which should be constructed according to the foreign investor-European Union configuration
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Esan, Adenike Oluwatoyin. "Stability guarantees in investment treaty arbitration : a question of balancing competing rights." Thesis, University of Aberdeen, 2018. http://digitool.abdn.ac.uk:80/webclient/DeliveryManager?pid=239415.
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Karlsson, Yberthia. "Data as Protected Investment Under International Investment Law." Thesis, Uppsala universitet, Juridiska institutionen, 2021. http://urn.kb.se/resolve?urn=urn:nbn:se:uu:diva-443419.
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Over the last decades technological companies have grown significantly and impacted our societies both politically and economically.The significant amount of user data these companies collect and manage have economic as well as political impacts on our societies. The busines model of social media companies has raised alerts and provoked calls for regulatory measures. The thesis investigated whether social media platforms ‘data’ can constitute a protected investment under a Bilateral Investment Treaty, and what is the position of the international investment law if any about the digital economy. The author made an analysis of data localization regulation to determine if tech companies can claim protection under a BIT to avoid potential issues of a domestic regulation. After the analysis of international legal instruments, BITs and scholar literature the results of the study concluded that data could constitute a protected investment under the wording of certain BITs.
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Petkova, Kunka, Andrzej Stasio, and Martin Zagler. "On the relevance of double tax treaties." WU Vienna University of Economics and Business, Universität Wien, 2018. http://epub.wu.ac.at/6071/1/SSRN%2Did3126593.pdf.
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This paper investigates the effects of double tax treaties (DTTs) on foreign direct investment (FDI) after controlling for their relevance in the presence of treaty shopping.
DTTs cannot be considered a bilateral issue, but must be viewed as a network, since FDI can flow from home to host country through one or more conduit countries. By accounting
for treaty shopping, we calculate the shortest (i.e. the cheapest) tax distance
between any two countries allowing the corporate income to be channelled through
intermediate jurisdictions. We differentiate between relevant and neutral DTTs - i.e.
tax treaties that offer investors a financial advantage - and irrelevant DTTs and use these data to derive two important results. First, only relevant and neutral tax treaties increase bilateral FDI, whereas irrelevant DTTs do not. We can quantify the increase of FDI due to a relvant DTT at around 22%. Second, significant tax reductions due
to treaty benefits will lead to an increase in FDI.Series: WU International Taxation Research Paper Series
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Narancio, Victoria, and del Prado Fabio Núñez. "International Arbitration under debate." IUS ET VERITAS, 2017. http://repositorio.pucp.edu.pe/index/handle/123456789/122726.
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Is the choice of the arbitral seat still an important decision in international arbitration? Should arbitral awards be subject to greater judicial scrutiny? Should the appeal be in international arbitration? Is it possible that an annulled arbitral award is recognized under the New York Convention? Should the New York Convention be amended to achieve CNY 2.0? Is investment arbitration a system that works? Are the criticisms of investment arbitration valid? In this interview, Gary Born responds to each of these questions by addressing many controversial current issues in international arbitration.¿Es la elección de la sede del arbitraje todavía una decisión importante en el arbitraje internacional? ¿Deberían los laudos estar sometidos a un mayor escrutinio judicial? ¿Debería existir la apelación en el arbitraje internacional? ¿Es posible que en virtud de la Convención de Nueva York se reconozca un laudo anulado? ¿Debería enmendarse la Convención de Nueva York para lograr una CNY 2.0? ¿Es el arbitraje de inversiones un sistema que funciona? ¿Son las críticas al arbitraje de inversiones válidas? En la presente entrevista, Gary Born responde cada una de estas interrogantes tratando muchos temas polémicos de actualidad en el arbitraje internacional.
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Ratz, Peter [Verfasser]. "International and European Law Problems of Investment Arbitration involving the EU / Peter Ratz." Baden-Baden : Nomos Verlagsgesellschaft mbH & Co. KG, 2017. http://d-nb.info/1160321434/34.
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Mamani, Sanabria Israel. "Blockchain: An alternative approach for recognition and enforcement of Investment Treaty Arbitration awards." Thesis, Uppsala universitet, Juridiska institutionen, 2021. http://urn.kb.se/resolve?urn=urn:nbn:se:uu:diva-443526.
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An issue in investment treaty arbitration is the extreme effort needed to obtain recognition and enforcement of an arbitral award. Even though the 1958 New York Convention was signed to simplify the process of recognition and enforcement of a foreign arbitral award, in the new digital world, the recognition and enforceability risks of authenticating an investment treaty arbitral award need to be reconsidered. Ultimately, it is the enforceability of the award that gives credence to the entire arbitration process and justifies the costs and time that the parties of a dispute have invested in the resolution process. Thus, upcoming technologies like blockchain could be a part of the future in Investment Treaty Arbitration (ITA) to provide more efficiency and benefits for the rendering an arbitral award. With blockchain, ITA awards could be rooted in digital code, stored in a transparent platform, and protected from removal, tampering, and modification, resolving the necessity to prove the existence of a duly rendered award, previnting additional costs and procedures. The thesis discusses how blockchain could solve recognition and enforcement issues in an investor-state dispute resolution (ISDS) scenario. It introduces legal aspects of the possible application of blockchain technology in investment treaty disputes. It has the purpose to study the possible benefits that blockchain could bring to Investment Treaty Arbitration with particular attention to the recognition and enforcement of investment treaty arbitration awards. The peculiarity of blockchain technology is that it might represent an opportunity to restructure the investments protection paradigm by implementing a trustworthy, transparent, more affordable, highly standardized, time-stamped and automated recognition and enforcement of ITA arbitral awards. Finally, blockchain might not be the solution to all the problems of ISDS. However, it offers a foundation that can bring a new entire value chain by guaranteeing immediate recognition and enforceability of arbitral awards and getting rid of the deficiencies that the actual system has. This would give more legal certainty to the parties of the ITA in the recognition and enforcement of award on investor-state disputes.
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Daza, Vargas Ana. "The protection of foreign investment and its implications for the regulation of water resources : challenges for international investment arbitration." Thesis, University of Dundee, 2014. https://discovery.dundee.ac.uk/en/studentTheses/6dd7a5d8-4d4e-45d2-94f5-9b925ee96e3c.
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Baltag, Crina Mihaela. "Jurisdictional limits of the Energy Charter Treaty and its interplay with related treaties and arbitration rules : the notion of investor." Thesis, Queen Mary, University of London, 2011. http://qmro.qmul.ac.uk/xmlui/handle/123456789/8415.
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The boom of bilateral investment treaties and trade agreements came with an increasing number of disputes between investors and states related to actions and omissions of states in respect of the protection of investors and their investments. These instruments made a significant contribution to the development and implementation of an economic and legal framework for the promotion and safeguard of investors and investments. They also played an important part in and improved the access of investors to dispute resolution mechanisms – and, in particular, to arbitration – for the protection of their investments. In this vast network of treaties and agreements aspiring to offer investors proper conditions for a stable and predictable investment environment, the Energy Charter Treaty (ECT) stands out as a unique multilateral treaty aimed at facilitating transactions and investments in the energy field. The ECT came to life soon after the fall of the communist regimes across Europe and the dissolution of the Soviet Union, and it was motivated by the desire of the Western European states to secure their access to the much needed natural resources of the Eastern countries. This Thesis undertakes the challenging task of clarifying the notion of ‘Investor’ within the ECT’s framework and its related treaties and arbitration rules. The notion of ‘Investor’ is essential for the substantive and procedural protection of Investors and their Investments. Although the ECT provides for a definition of Investor, the notion of ‘Investor’ goes beyond this definition: it is shaped not only by the provisions of the ECT, but also by the related treaties and rules under the Investor–Contracting Party dispute resolution mechanism. It is also fundamental for the understanding of the notion of ‘Investor’ to consider it as it naturally interacts with the concepts of ‘Contracting Party’ and ‘Investment’. The notion of ‘Investor’ has two essential characteristics: it is challenging to assign it with a precise definition – any attempt to define this notion will not comprehensively encompass all its features; and it is a flexible notion, tailored to suit the treaties and rules interacting with the ECT. The intrinsic complexity of the notion of ‘Investor’ is amplified by web of provisions of the ECT, not always comprehensible and straightforward. The speed of the ECT’s negotiation was the determinant factor that contributed to the entry into force of the ECT, but also led to a compromise treaty. In this context, it is mandatory that the proper interpretation and analysis of the notion of ‘Investor’ be made in the light of the rules of treaty interpretation of the Vienna Convention on the Law of Treaties.
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Esra, Yildiz. "Facilitating enforcement of international investment dispute awards." Thesis, University of Exeter, 2017. http://hdl.handle.net/10871/31157.
Full textAbstract:
In the current investment climate, most investor-state disputes are settled through investment arbitration. Investor-state arbitration enables the foreign investor to bring a case before a neutral forum, whose decision is binding and enforceable in countries across the world. In instances where the dispute is governed by an arbitration clause, the clause places the disputing parties under the jurisdiction of an arbitral tribunal. In the event of achieving a victory, the investor may nonetheless come up against the obstacle of state sovereignty, even though the state party has ostensibly waived sovereign immunity from jurisdiction. If a state rejects to comply with an award, then investors must commence a worldwide search (forum-shopping), with a view to retrieving the assets that have been awarded. In instances where the state party is victorious, there is a danger that the award payment will not be made if the foreign investor has already declared bankruptcy. Although there are two Conventions (ICSID and the New York Convention) that facilitate the enforcement of arbitral awards, neither one is sufficient to preclude the emergence of the enforcement issue. In both instances, this issue is damaging as it wastes time and money, ultimately contributing to wider inefficiencies and uncertainties in investor-state arbitration. In addressing themselves to this problem and aspiring to the reduction of the obstacle of sovereign immunity from execution, scholars and practitioners have put forward two practical solutions; firstly, a hybrid sovereignty act has been proposed; secondly, it has been suggested that the World Bank could take punitive action, refusing to provide the state party with further loans until the award is resolved. However, these proposals have, to date, not been practically applied or developed. This thesis has two primary objectives: firstly, it attempts to analyse previous solutions that have been addressed to the enforcement issue of ICSID awards: secondly, it addresses itself to two alternatives: 1) that the ICSID Administrative council can review compliance with awards; 2) that countermeasures can be initiated against the failing state under the law of state responsibility (the ILC Articles on State Responsibility). In concluding, the thesis will consider the various advantages and disadvantages associated with each of the aforementioned solutions, ultimately proposing an approach that is best-suited to upholding the interest of the victorious party at the enforcement stage.
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Ke, Jie Jing. "Analysis of Chinese bilateral investment treaties : focusing on provisions of performance requirements and national treatment." Thesis, University of Macau, 2011. http://umaclib3.umac.mo/record=b2287820.
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Yahaya, Shamsu. "Multilateral investment treaties : is the energy charter treaty an effective instrument for protecting international investments?" Thesis, University of Dundee, 2009. http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.510625.
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Dünnwald, Sonja [Verfasser]. "Bilateral and Multilateral Investment Treaties and Their Relationship with Environmental Norms and Measures. / Sonja Dünnwald." Berlin : Duncker & Humblot, 2015. http://d-nb.info/1238435173/34.
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