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1
Bellak, Christian. "Economic Impact of Investment Agreements." WU Vienna University of Economics and Business, 2015. http://epub.wu.ac.at/4625/1/wp200.pdf.
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Based on a thorough analysis of theoretical arguments, this meta-analysis does not find a genuine empirical effect of Bilateral Investment Treaties on Foreign Direct Investment after correcting for publication selection bias.Series: Department of Economics Working Paper Series
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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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Steenkamp, Tania. "South Africa's new bilateral investment treaty policy : a reasonable response to a flawed regime?" Thesis, University of British Columbia, 2014. http://hdl.handle.net/2429/49945.
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In 2010 South Africa officially adopted a new Bilateral Investment Treaty Policy. The new policy brought to an end a policy review process that was initiated following an investor-State arbitration concerning legislation introduced in the South African mining sector, aimed at promoting equality in South African society, which allegedly breached South Africa’s international obligations in terms of the country’s Bilateral Investment Treaties with Italy and the Belgo-Luxemburg Economic Union respectively.
South Africa’s new policy was introduced in the wake of various concerns that have been raised against the investment law regime, specifically with regard to the way in which earlier Bilateral Investment Treaties limited a State’s right to regulate, which could, in turn, negatively impact on a State’s right to development. One of the main limitations on a State’s right to regulate is the overly expansive application of the provision prohibiting expropriation of investments of foreign investors. If applied to any form of taking, including takings resulting from proportional and non-discriminatory regulatory measures that are in the public interest, States face the risk of their actions being challenged in investor-State arbitration. If such an arbitration tribunal finds the disputed regulatory measures to violate a State’s international obligations, States who have not drafted their Bilateral Investment Treaties carefully, will be forced to pay compensation to the investor based solely on the market value of the investment in terms of the standard of paying prompt, adequate and effective compensation.
This thesis considers South Africa’s new policy against the background of these concerns. It focuses specifically on the standard for expropriation, the standard of compensation for expropriation and the role of investor-State arbitration in investment law. South Africa’s policy is placed in context through consideration of the Bilateral Investment Treaty policies of Canada and Brazil. Finally, through a study of various treaty models, the thesis considers ways in which these potentially problematic provisions could be drafted to address the concerns raised by South Africa. The thesis concludes that, despite legitimate concerns about the implementation of South Africa’s new policy, the policy itself is reasonable and appropriate in light of the country’s domestic priorities.Law, Faculty of
Graduate
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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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Mutsau, Sharon Chido. "Revisiting Bilateral Investment Treaties (BITs) in the 21st Century : a Kenyan and South African experience." Thesis, University of the Western Cape, 2015. http://hdl.handle.net/11394/4770.
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Magister Legum - LLMBITs signed prior to the 21st century are problematic. Some countries with BITs signed during this period have since reviewed those BITs and taken action to address the disadvantages the BITs held for the host nation or have either resorted to eradicating some of their BITs. In particular, developing countries that signed BITs with developed nations seem to be disproportionately disadvantaged in these agreements. This thesis highlights Kenya‟s current BIT situation and compares it in light of another developing country, South Africa, with regards to its BIT experience. Given that South Africa has undergone an extensive BIT review process and moves to change some of these BITs, this thesis compares and contrasts the Kenyan and South African experience. The study highlights the possible lessons that could be learnt from the South African BIT review experience and provides recommendations for the Kenyan government regarding its outdated BITs. The lessons and recommendations benefit not only Kenya but also other countries that are still to review their BITs as it adds to the literature on why it is important for countries with such BITs to revisit them and how best they can go about the review mechanism. In addition, the study is also significant in that it raises awareness of the use and effects of BITs, thereby enabling countries that enter into such agreements to make informed decisions.
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Söderman, Martin. "India's 2016 Model Bilateral Investment Treaty : A backlash to the Calvo doctrine and legal nationalism?" Thesis, Stockholms universitet, Juridiska institutionen, 2020. http://urn.kb.se/resolve?urn=urn:nbn:se:su:diva-183512.
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Cosmas, Julius. "A critical assessment of the legitimacy of the international investment arbitration system: a call for reform." University of the Western Cape, 2014. http://hdl.handle.net/11394/4389.
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Doctor Legum - LLDCurrently most international investment disputes are settled through arbitration. The origin of this dispute settlement system can be associated with the recent proliferation of over 3000 Bilateral Investment Treaties. Through this system disputes are settled by autonomous and differently constituted tribunals which have powers to render final and binding awards. The dissatisfied party has very limited opportunity to challenge the rendered award as there are no higher bodies in the hierarchy where a dissatisfied party can lodge an appeal, save for limited procedural challenges which are allowed under the system. These differently constituted tribunals at times reach diametrically opposed decisions on similar facts and those decisions stand side by side and all are considered valid. These inconsistent decisions are leading to lack of consistency and uniformity which in turn affects the legitimacy of the system as a whole. The rules of these institutions do not allow the proceedings to be held in public despite the fact that at times these tribunals question the regulatory powers of the state and state measures on service provision to its citizens. Another issue under the current system is that due to lack of coordination, arbitrators play dual roles: as counsels and arbitrators. This practice compromises the cherished principle of the rule of law. In the effort to address these concerns, stakeholders have suggested a number of possible solutions. The suggested solutions include: invoking res judicata and lis pendens principles; adopting the doctrine of precedent; applying the ‘fork in the road’ principle; adopting the margin of appreciation standard in interpretation of BITs; creating an appellate structure at ICSID and creating a treaty to treaty appellate body. This research submits that, the suggested solutions singularly and cumulatively don not address the legitimacy issues adequately. The research therefore calls for the establishment of a Multilateral Agreement on Investment (MAI) in order to address the legitimacy issues cumulatively. It is submitted that establishing a Multilateral Investment Agreement (MAI) which provides for creating a standing international investment court with an appellate court is the only solution which addresses all the issues haunting the international investment dispute settlement system. In addition, the research suggests interim solutions which will help to increase the legitimacy of the current system pending the establishment of the MAI and the courts. The interim solutions include: establishment of the investor – state dispute adjudication Centre; effective utilisation of host state courts; mandatory publication of all awards; enhancing the effective use of member states interpretative statement; and forming a working commission to provide basic interpretation and the scope of the basic international investment law principles. These measures are only meant to improve the current system pending the establishment of the MAI and the courts. The research concludes that for the betterment of international investment law, the reform is inevitable and that the benefits would outweigh any demerits.
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Chidede, Talkmore. "Entrenching the right to regulate in the international investment legal framework: The African experience." University of Western Cape, 2019. http://hdl.handle.net/11394/7582.
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Doctor Legum - LLDThe existing traditional international investment law regime which is largely based on the conventional European and North American Model Bilateral Investment Treaties (BITs) has come under intense criticism. The argument is that this regime, among other things, prioritises the protection of foreign investors and investments while sidelining significant public interest issues of the host countries. The inability to adequately accommodate public interest issues in the international investment law has unduly constrained the host countries’ sovereign right to regulate investments in public interests and pursue their public policy objectives.
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Jantjies, Dumisani Joseph. "Can a multilateral agreement on investment reduce double tax treaty abuse in developing countries?" University of the Western Cape, 2017. http://hdl.handle.net/11394/5680.
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Magister Philosophiae - MPhilOver the years, the world economy has experienced growth in foreign direct investments (FDI), with the role of developing countries becoming more evident as both recipients and investors alike. The proliferation of international investment has also led to more bilateral investment treaties (BITs) with their complex and often duplicated rules. The increase in BITs of this complex nature has thus resuscitated a less publicly debated course, although recently discussed within the United Nations Conference for Trade and Development (UNCTAD), is there need for multilateral agreement on investment (MAI), hosted within the multilateral institution(s)? Since the late 1990s, the discussion as to whether international investments require the MAI has been characterised by diverging interests of developed and developing countries, with neither willing to concede. Even in the immediate post-War II period, this standoff between developed and developing countries has dominated a discourse on whether there is a need for an international agreement on international investment. Yet developing countries, or African countries classified as least developing, continue to be left out of MAI discussions. For example, the Organisation for Economic Cooperation and Development (OECD) 1990's proposed plurilateral agreement excluded African countries.
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Lhoumeau-Aizpuru, Sébastien. "Le déséquilibre entre les droits et les obligations des entreprises pétrolières opérant dans les pays à faible gouvernance." Thesis, Aix-Marseille, 2019. http://www.theses.fr/2019AIXM0599.
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Cette thèse se propose d’effectuer une analyse sectorielle de l’état des droits et des obligations des entreprises multinationales pétrolières en dehors des réglementations des pays d’investissement. Le choix de l’industrie pétrolière se fonde sur la place de ce secteur dans l’économie mondiale et ses caractéristiques particulières. Dans une première partie, nous constaterons que la protection des investissements est particulièrement efficace et que son effet négatif sur le développement des réglementations des États d’accueil des investissements est accentué. Le mouvement actuel de prise en compte de ce problème dans les TBI est insuffisant compte tenu du peu d’intérêt du Traité sur la Charte de l’énergie sur cette problématique et de la difficile évolution rédactionnelle des clauses de stabilisation. Dans un deuxième temps, cette thèse constatera que les obligations transnationales à la charge des entreprises pétrolières multinationales, en dehors du droit des investissements, semblent parfois moins enclines à jouer un rôle d’équilibre dans le secteur pétrolier. Les initiatives de soft law sont adaptées mais adoptées partiellement et les possibles sanctions semblent incertaines. Les mécanismes fondés sur l’extraterritorialité sont limités et la mise en place d’un devoir de vigilance peu adapté à l’organisation pétrolière. La prise en compte des spécificités pétrolières reste cantonnée au cadre du reporting et les outils juridiques propres à l’industrie ne prennent généralement en compte que la lutte contre la corruption. Enfin, les pressions politiques, des ONG et des médias sont centrées sur les entreprises dont le siège est situé dans un État occidentalThis thesis carry out a sectorial analysis of the state of the rights and the obligations of the multinational oil companies outside the regulations of the countries of investment. The choice of the oil industry is based on the place of this sector in the global economy and its characteristics. In the first part, we will note that the protection of investments is particularly effective and the potential negative effect on the development of the regulations of the host countries of investments is accentuated in the oil sector. Similarly, the current movement to take this problem into account in the bilateral investment treaties is insufficient given the lack of interest of the Energy Charter Treaty on this issue and the difficult evolution of the stabilization clauses. Secondly, this thesis will find that the transnational obligations borne by multinational oil companies, apart from investment law, sometimes seem less inclined to play a balancing role in the oil sector. The soft law initiatives are adapted but partially adopted and the possible sanctions seem uncertain. Mechanisms based on extraterritoriality are limited and the establishment of a duty of care do not really suit to the oil organization. The consideration of oil specificities is confined to the reporting framework and the legal tools specific to the industry generally only take into account the fight against corruption. Finally, the political pressures, the intervention of non-governmental organizations and the media are focused on companies whose head office is located in a Western State and transfer of oil interests are usual in the sector
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Ou, Jing. "The backlash against state's over-intervention in treaty- based investor-state arbitration proceedings-an examination of procedural transparency provisions in Canada-China bilateral investment treaty from Chinese persepctive." Thesis, McGill University, 2014. http://digitool.Library.McGill.CA:80/R/?func=dbin-jump-full&object_id=123321.
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This thesis endeavors to explore the role the state should play in the process of promoting transparency in treaty-based investor-state arbitration from Chinese perspective. After introducing the concept of transparency and relevant arbitration rules in UNCITRAL Rules, the ICSID Convention, NAFTA and the Model BITs of Canada and the U.S., this thesis explains why investment treaty arbitration requires transparency from the perspectives of civil society, investors and international dispute resolution institutions. It then reviews how the transparency rules have been applied and transformed in international arbitration practice over the last decade. Next, this thesis contrasts these findings with the arbitration rules in Chinese bilateral investment treaties, especially the Canada-China bilateral investment treaty signed on September 9, 2012, which designates the host State rather than the tribunal to decide on the transparency issue of arbitration proceedings. From this comparison, this thesis derives some preliminary ideas regarding a theory of reflexive legitimacy, arguing that the state should not directly intervene in the determination of procedural transparency issues during arbitration proceedings. Having analyzed the difficulties and feasibility for China to truly conform with the trend of transparency in investment treaty arbitration, this thesis proposes some suggestions for the upcoming Chinese bilateral investment treaty negotiations with the other states such as the U.S.Cette thèse cherche à explorer le rôle que l'État devrait jouer dans la promotion de la transparence en matière de l'arbitrage entre investisseurs et États fondé sur des traités, tout en adoptant une persective chinois. Après un survol sur le concept de la transparence et les règles d'arbitration connexes dans les règles d'arbitrage UNCITRAL, la convention ICSID, NAFTA et les BIT modèles du Canada et des États-Unis, cette thèse explique les raisons pour lesquelles l'arbitrage des différends relatifs aux traités d'investissement requièrent de la transparence au point de vue de la société civile, des investisseurs et des institutions de résolution des différends internationaux. Cet ouvrage poursuit ensuite avec un examen de l'application des règles sur la transparence et de leur incidence sur la pratique de l'arbitrage international dans la dernière décennie. Ensuite, cette thèse contraste ces conclusions avec les règles d'arbitrage dans les traités bilatéraux d'investissement chinois, avec une emphase sur l'accord sino-canadien sur la protection des investissements, signé le 9 septembre 2012, qui désigne le pays hôte au lieu du tribunal pour prendre en charge la question de transparence des procédures arbitrales. À partir de cette comparaison, cette thèse dérive quelques idées préliminaires sur une théorie de légitimité réflexive, soutenant que l'État ne doit pas intervenir directement sur la détermination de la question de transparence procédurale. Ayant analysé les contraintes dont la Chine fait face pour se conformer réellement avec la tendance de la transparence dans l'arbitrage fondé sur les traités d'investissement, cette thèse avance quelques suggestions pour les prochaines négociations chinoises de traité bilatéraux d'investissements avec d'autres pays tels que les États-Unis.
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Aljasim, Hesham. "Cryptocurrencies as Protected Invesments Under BITs : Is there a BIT of coin Protection?" Thesis, Uppsala universitet, Juridiska institutionen, 2021. http://urn.kb.se/resolve?urn=urn:nbn:se:uu:diva-443426.
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This research paper addresses the issue whether cryptocurrencies are protected investments under bilateral investment treaties (BITs). Through BITs a host state has a responsibility to protect the investments of the nationals of the other contracting state to the treaty. This governing relationship however may introduce several requirements for an investment to comply with, such as territorial links, the use of language under BITs compliance requirements. With this, cryptocurrencies being a new of age asset class may find several future hurdles in qualifying as an investment under BITs. Especially with the on-going confusion on an international scale in regulating and defining cryptocurrencies. In determining the afore-mentioned requirements, this research paper first identified a cryptocurrency and a comparison was first made in regards to money. Then, the research paper proceeded in comparing a cryptocurrency with the characteristics of digital assets. Followed by a general approach to the meaning of investment and an analysis to the definition of investment through past approaches taken by arbitral tribunals. Therefore, finally leading in deciding whether cryptocurrencies will qualify as an investment under BITs.
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Durosaro, Wuraola Olufunke. "Bilateral investment treaty and its implications on health and environmental rights protection : a case of the Niger Delta oil and gas sector." Thesis, University of Manchester, 2016. https://www.research.manchester.ac.uk/portal/en/theses/bilateral-investment-treaty-and-its-implications-on-health-and-environmental-rights-protection-a-case-of-the-niger-delta-oil-and-gas-sector(953f633d-3e15-4240-9541-86f87d1ab4f9).html.
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This research discusses the impacts of oil and gas extraction in the Niger Delta region of Nigeria on the right to health and the right to a healthy environment of the Niger Delta people. It highlights the importance of FDI in oil and gas sector development and the responsibility of multinational corporations towards human rights and environmental rights protection in developing host States where national laws and regulations may not be properly developed and adequate in protecting the people’s human rights. The work argues that BITs should rightly be employed in efforts to protect the right to health and a healthy environment against the excesses of oil and gas multinational corporations. The Niger Delta is used as a case study.
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Cantuarias, Salaverry Fernando, and Deville Jose Luis Repetto. "The international responsibility of States due to cancel or not to recognize awards." IUS ET VERITAS, 2014. http://repositorio.pucp.edu.pe/index/handle/123456789/123782.
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In the framework of international treaties, with special emphasis on theBilateral investment treaty (Bit), various responsibilities for states that comprise arise. However , what happens when the courts of a country interfere contrary to international standards in full force and effect of an award, the impact caused in that state and that leading to be internationally liable to a Bit or FtA are studied in this essay. the author further analyze jurisprudence of investment arbitration tribunals in cases Saipem v. Bangladesh, ATA v. Jordan Frontier Petroleum v. Czech Republic and White Industries v. India, also focuses on the case of Peru; and urges members of a treaty respect the rules of the game.En el marco de los tratados internacionales, con especial énfasis en el tratado Bilateral de inversión (Bit), surgen diversas responsabilidades para los estados que lo conforman. sin embargo, el qué ocurre cuando los órganos jurisdiccionales de un país interfieren contrariamente a los estándares internacionales en plena validez y eficacia de un laudo y la repercusión que ocasionan en tal estado y que lo conllevan a ser responsable internacionalmente frente a un Bit o un tLC, son tratados en este artículo. el autor, además de analizar jurisprudencia de los tribunales arbitrales de inversiones en los casos Saipem v. Bangladesh, ATA v. Jordania, Frontier Petroleum v. República Checa y White Industries v. India, se centra también en el caso peruano; e insta a quelos países miembros de un tratado respeten las reglas del juego.
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Lerner, Diego Fraga. "Os regimes jurídicos de proteção ao investimento estrangeiro direto : o papel desempenhado pelos países emergentes." reponame:Biblioteca Digital de Teses e Dissertações da UFRGS, 2009. http://hdl.handle.net/10183/28631.
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O presente trabalho trata do sistema internacional de proteção ao investimento estrangeiro direto e do atual papel desempenhado pelos países emergentes em sua sistematização. Para tanto, faz uma abordagem histórica do tema da proteção ao investimento estrangeiro desde a década de quarenta até os dias atuais. Ressaltam-se as divergências históricas de entendimento mantidas entre países desenvolvidos (usualmente exportadores de capital) e países em desenvolvimento (historicamente importadores de capital) no que pertine ao nível de proteção que deve ser garantido ao investidor estrangeiro. Após, faz uma análise dos instrumentos internacionais de proteção ao investimento estrangeiro construídos especialmente durante as décadas de setenta e noventa e demonstra que o conteúdo desses instrumentos baseou-se na supremacia do entendimento dos países desenvolvidos. Em momento posterior, analisa o surgimento dos países emergentes como nações exportadoras de capital a partir da década de noventa e como esses países estão conciliando, por meio da assinatura de tratados bilaterais de investimento, a intenção de manter a soberania sobre seus assuntos internos e o interesse de proteger seus investidores no exterior. Por fim, retrata a tradicional posição brasileira com relação ao investimento estrangeiro direto e apresenta alguns contributos para futuras reflexões, baseados especialmente na atual postura adotada por outros países emergentes no que diz respeito à assinatura de tratados bilaterais de investimento.This paper deals with the international law on foreign direct investment and the current role played by emerging market countries on this matter. In this sense, it presents a historical approach on the protection of foreign investment from the 1940’s onwards. It focuses on the historical disagreements between developed countries (usually capital-exporting countries) and developing countries (historically capitalimporting countries) in what regards the level of protection that must be accorded to a foreign investor. Moreover, it discusses the international instruments for the protection of foreign investment designed between the 1970s and the 1990s and demonstrates that the content of such instruments is based primarily on the developed countries’ understanding of the issue. Furthermore, it analyses the rise of emerging market countries as capital exporting countries since the 1990s and how they are reconciling the will to keep their sovereignty over internal affairs and the willingness to protect their investors abroad through bilateral investment treaties. Finally, it discusses the traditional view held by Brazil on the protection of foreign direct investment and presents some contributions for further research on this issue, with an emphasis on other emerging market countries current attitude towards the signing of bilateral investment treaties.
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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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Holovan, Yelyzaveta. "Ukrainian Investors’ Extraterritorial Crimean Quagmire : How to Overcome Jurisdictional Hurdles, Litigation Tactics, and Non-Voluntary Compliance Presented by Russia." Thesis, Uppsala universitet, Juridiska institutionen, 2021. http://urn.kb.se/resolve?urn=urn:nbn:se:uu:diva-444084.
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In 2014 Russia took control over Crimea, and significant numbers of Ukrainian investors pursued investment claims against Russia regarding investments in Crimea made prior to the annexation.Thus, a fundamental concern is the applicability of the Ukraine-Russia BIT to such investments.The BIT empowers Ukrainian investors to initiate arbitration for compensation if Russia expropriates any Ukrainian investments on its territory. In order for the investors’ capital in Crimea to qualify as “investments” under the BIT, the tribunals had to determine whether Crimea constituted a part of the Russian “territory”. Even though Crimea was de facto controlled byRussia, de jure the Russian sovereignty over it had been questioned. As of time of the Thesis at least 10 cases were initiated and in seven of which decisions on responsibility and compensation were made. Investors are now enforcing the decisions in different jurisdictions facing jurisdictional challenges from Russia`s side. In 2019, Russia changed the strategy deciding to actively participate in the cases, which may play a decisive role on further developments of the disputes. The paper will examine whether investment tribunals in the Crimean cases have authority to hear them and the award to stand during set-aside/enforcement proceedings from the perspective of different enforcing jurisdictions, as well various litigation tactics and strategies presented by Russia.
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Fetais, Abdulmehsen. "Le cadre juridique des investissements directs étrangers au Qatar : mise en perspective avec les législations des Emirats Arabes Unis, de l'Egypte et de la Tunisie." Thesis, Paris 1, 2017. http://www.theses.fr/2017PA01D025.
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L'évolution des activités économiques internationales depuis la fin de la deuxième guerre mondiale a eu pour conséquence l'évolution du droit du commerce international. L’objectif du Qatar est d’entrer pleinement dans la modernité du droit des investissements directs étrangers en offrant un cadre sûr aux détenteurs de capitaux. tout en conservant son identité culturelle et juridique. La volonté du Qatar de sortir de la dépendance aux hydrocarbures et de permettre à sa population de bénéficier des effets positifs des investissements est un défi majeur pour l’avenir du pays, particulièrement dans un contexte de fluctuations du prix du pétrole depuis 2014, passant de 100$ à 50$. La comparaison avec d’autres pays arabes nous permet de positionner plus précisément le Qatar sur l’échiquier mondial. Les politiques dédiées aux IDE au Qatar, en Égypte, en Tunisie et aux Émirats arabes unis montrent que l’accueil et le contrôle des flux de capitaux étrangers servent des objectifs différents. La mise en place d’un régime d’investissement très libéral et très favorable aux investisseurs étrangers en Égypte répond davantage à des conditions posées par les institutions internationales (le FMI) contre l’obtention de prêts ou de réduction de la dette. En Tunisie, malgré un engagement dans une importante politique de libéralisation et d’intégration à l'espace européen, l'économie ne s’est pas modernisée suffisamment et n’a pas réussi à opérer une transformation vers des activités à plus haute valeur ajoutée. Enfin, la comparaison avec les Émirats arabes unis est beaucoup plus pertinente car les deux pays ont des économies plus semblables et œuvrent au sein du Conseil de Coopération du GolfeThe evolution of international economic activities since the end or the Second World War resulted in the development of international trade law. Qatar's objective is to fully integrate the modernity of foreign direct investment law by providing a secure framework for capital holders while maintaining its cultural and legal identity. Qatar's willingness to escape oil dependence and allow its people to benefit from the positive effects of investment is a major challenge for the country's future, especially in the lace of fluctuating oil prices since 2014, $ 100 to $ 50. Comparison with other Arab countries allows us to position Qatar more precisely on the world stage. FDI policies in Qatar. Egypt, Tunisia and the United Arab Emirates show that the reception and control of foreign capital flows serve different purposes. The establishment of a very liberal investment regime that is very favorable to foreign investors in Egypt responds more to conditions imposed by international institutions (the IMF) against obtaining loans or reducing debt. In Tunisia, despite a commitment to an important policy of liberalization and integration into the European area, the economy has not modernized sufficiently and has foiled to transform into higher value-added activities. Finally, the comparison with the United Arab Emirates is much more relevant because the two countries have more similar economies and work within the Gulf Cooperation Council
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Danic, Olivia. "L'émergence du droit international des investissements : contribution des traités bilatéraux d’investissement et de la jurisprudence du CIRDI." Thesis, Paris 10, 2012. http://www.theses.fr/2012PA100164.
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La relation dialectique qui unit les traités bilatéraux d’investissement et la jurisprudence du Centre International de Règlement des Différends relatifs aux Investissements (CIRDI) a fait émerger un droit international des investissements. La rencontre de ces deux dynamiques a permis de dépasser leur caractère a priori isolé et fragmenté, pour aboutir à un véritable système juridique international, doté d’une structure, d’une logique et de principes propres. En effet, rien ne pouvait laisser envisager une telle évolution, le régime de l’investissement international se fondant sur une multitude de traités bilatéraux et sur une instance arbitrale ne faisant qu’héberger des tribunaux éphémères. Les mouvements de va-et-vient qui unissaient ces deux phénomènes ont permis de lui donner des normes quasi-universelles, mais aussi un véritable juge à la compétence extensive et surtout de lui insuffler l’unité, l’efficacité, la cohérence et la complétude, faisant de plus en plus ressembler le droit international des investissements à un véritable ordre juridique qui, même s’il relève du droit international, lui permet également d’évoluerThe relashionship between bilateral investment treaties and the case-law of the International Centre for Settlement of Investment Disputes (ICSID) has led to the emergence of international investment law. It seems surprising, at first, that these two distinct phenomena, being isolated and fragmented, would reach a certain degree of unity so that a real international legal order could appear, with its own structure, reasoning and principles. No one could foresee such an evolution, the regime of international investment being founded on a large number of bilateral treaties and on an international institution which only provides facilities for arbitration of international investment disputes. The unity of the system has been discovered through the back and forth movements between treaties and arbitration which gave rise to international investment law. This system has now almost universal norms, an international judge and satisfies the criteria of unity, efficiency, consistency and completeness, producing a real legal order functioning in accordance with its own logic. There is no doubt that this evolution will influence the course of international law
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Medelius, Hanna. "Ett särskilt investeringsskydd på EU:s inre marknad : Relationen mellan intra-EU BIT och EU-rätten med hänsyn till principen om ömsesidigt erkännande och förtroende." Thesis, Linköpings universitet, Affärsrätt, 2018. http://urn.kb.se/resolve?urn=urn:nbn:se:liu:diva-147641.
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När en investerare vill investera utomlands finns många risker som måste beräknas, analyseras och hanteras. Utöver olika ekonomiska risker finns politiska risker. En investerare kan, för att hantera dessa politiska risker, välja att investera i en stat med vilken Sverige har ett bilateralt investeringsskyddsavtal. Dessa avtal reglerar både materiellt investeringsskydd, det vill säga hur en investerare ska behandlas, och processuellt skydd, det vill säga möjligheten för en investerare att väcka talan mot staten investeraren investerar i genom ett internationellt skiljeförfarande. Sverige har idag 66 stycken bilaterala investeringsskyddsavtal i kraft, varav tolv stycken är slutna med länder inom EU. Antalet bilaterala investeringsskyddsavtal slutna mellan EU-länder, intra-EU BIT, ökade avsevärt i och med att unionen utvidgades år 2004 och 2007. Sedan dess har avtalens förenlighet med EU-rätten diskuterats i litteraturen, i skiljedomstolar och nyligen även i EU- domstolen i det så kallade Achmea-målet. I uppsatsen kartläggs och analyseras argumenten i diskussionen om relationen mellan intra-EU BIT och EU-rätten. Vidare analyseras vilken del av investeringsskyddet som intra-EU BIT-förespråkare anser vara mest betydelsefull. Från resonemanget och analysen i uppsatsen dras slutsatsen att det är ISDS-systemet, tvistelösningssystemet där en investerare kan väcka talan mot en stat, som kan anses utgöra den mest betydelsefulla delen av investeringsskyddet i intra-EU BIT:en. Därefter analyseras huruvida ett investeringsskydd innehållande ett ISDS-förfarande kan vara förenligt med principen om ömsesidigt erkännande och förtroende. I uppsatsen konstateras att ISDS-förfarandet inte kan vara förenligt denna princip och att problematiken inte kan lösas genom en juridisk debatt utan måste diskuteras på en politiskt hög nivå.When investing abroad, an investor is faced with many risks that need to be thoroughly analysed in order to be mitigated. Risks are not only financial, but also political. An investor may, to mitigate these risks, choose to invest in states with which Sweden has a bilateral investment treaty, a so called BIT. BIT do not only regulate treatment of the investor and the investment, which is the material investment protection; but also the jurisdictional possibility of the investor to raise charges against the state of in which the investment has taken place in case of violation of investment rights, procedural investment protection. Today, Sweden has 66 BITs in force, out of which twelve are concluded with EU member states, so called intra-EU BIT. The number of intra-EU BITs grew significantly as a result of the enlargement of the union in the year of 2004 and 2007. Since then, the agreements’ compatibility with the EU legislation has been a subject of discussion within literature, investment arbitrations and recently in the European Court of Justice in the Achmea case. This thesis aims to establish and analyse the context of the discussions flourishing the relationship between the intra-EU BITs and the EU legislation. Additionally, the author intends to identify which argumentation regarding investment protection, that by intra-EU BIT praisers is considered to be the most impactful. As a result, the conclusion of the thesis is that it is the ISDS-system, the investor- state dispute settlement, in which an investor can raise charges towards a state, that is the most valuable part of the investment protection given by the intra-EU BITs. Accordingly, it is analysed weather investment protection containing an ISDS-system can be compatible with the principle of mutual trust and recognition. In the thesis it is concluded that the ISDS-system cannot be considered to be compatible with the principle and that this problem should be debated on a high political level and cannot be solved through a legal debate.
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Dadras, Peyman. "Le droit des investissements et la révision des traités bilatéraux d'investissement en Iran : le modèle des TBI français et américains." Thesis, Paris 1, 2014. http://www.theses.fr/2014PA010253.
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Le rôle du droit international des investissements est bien connu dans le monde entier. Afin de développer l'économie interne d'un pays, nous avons besoin de fonds étrangers dans le cadre d 'un investissement et pour réaliser cet objectif, nous avons étudié la place des traités bilatéraux des investissements vis-à-vis de l'investisseur étranger. En réalité, nous proposons un modèle adéquat pour les traités bilatéraux des investissements (TBI) iraniens, malgré les défauts qui existent au sein de ces traités et qui résultent du droit interne. Nous comparons les TBI iraniens avec les TBI français et américains car, d'un côté, les sociétés américaines sont parmi les plus grands investisseurs étrangers dans le monde et de l'autre côté, le régime juridique français a influencé le droit iranienThe role of international law is well known worldwide. To develop the domestic economy of a country, we need foreign within an investment and to achieve this goal, we studied the role of bilateral investment treaties vis-à-vis the foreign investor. In fact, we suggest a suitable model for Iranian bilateral investment treaties (BIT), despite the flaws that exist within these treaties and resulting from domestic law. We compare the Iranian BIT with the French and American BIT because, on the one other hand, US companies are among the largest foreign BIT because, on the other band, the French legal system has influenced Iranian law
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Söderlund, Erik. "Transnational Corporations and Human Rights : Assessing the position of TNCs within international human rights law, and the appropriateness of an international treaty on business and human rights." Thesis, Uppsala universitet, Juridiska institutionen, 2018. http://urn.kb.se/resolve?urn=urn:nbn:se:uu:diva-363144.
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Transnational corporations are playing an important role in the global economy of today. Many of these corporations have great economic resources and have the possibility of contributing to the development of societies in developing states. At the same time, in their search for profit, the activities of TNCs have proven fatal to some of the individuals employed by them, or otherwise in contact with their activities. Within the international legal framework, corporations are not traditionally treated as subjects and if a TNC allocates its production to a state with lax human rights protection, no binding international standards exist to regulate the conduct of the corporation. In my thesis I will assess the position of TNCs under the present core human rights instruments and soft law initiatives. I will also analyze a draft treaty text produced by the Intergovernmental Working Group on Business and Human Rights, released in July 2018, to reach a conclusion on whether such an instrument would affect the international legal status of TNCs and provide a more robust protection of international human rights.
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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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Ngouadje, Maliendji Diane. "Le standard minimum du traitement juste et équitable en droit international des investissements. Essai sur une technique conventionnelle de régulation substantielle." Thesis, Paris 2, 2014. http://www.theses.fr/2014PA020081.
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Tanchinwuttanakul, Kamol. "Ochrana investic na základě dvoustranné ochrané investiční smlouvy mezi Thajskem a Českou republikou." Doctoral thesis, 2017. http://www.nusl.cz/ntk/nusl-370442.
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The commercial and investment relations between Thailand and the Czech Republic are longstanding. Currently, the Czech Republic imports a number of agricultural products and food from Thailand, and Thailand imports industrial technology from the Czech Republic. As a result, there are opportunities for Czech companies to invest in and establish business cooperation with Thai businesses with agreements to guarantee stable commercial investment relations between Thailand and the Czech Republic. Because of this, the Bilateral Investment Treaty (BIT) between both countries facilitates further development. The dissertation deals with research about the Protection of Investments under the Bilateral Investment Treaty between Thailand and the Czech Republic. The first BIT between Thailand and the Czech Republic was the 'Agreement between the Government of the Czech and Slovak Federal Republic and the Government of the Kingdom of Thailand for the Promotion and Protection of Investments (1991)' which was replaced by the 'Agreement between the Government of the Kingdom of Thailand and the Government of the Czech Republic for the Promotion and Protection of Investments (1994) (BIT between Thailand and the Czech Republic 1994), and this BIT is still in force and has not been modified or amended. The object of...
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Ngwenya, Mtandazo. "The promotion and protection of foreign investment in South Africa : a critical review of promotion and protection of Investment Bill 2013." Thesis, 2015. http://hdl.handle.net/10500/20667.
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At the dawn of democratic rule in the period 1994–1998, South Africa concluded 15 bilateral investment treaties (BITs), mostly with European nations. Some of these treaties were concluded before the Constitution of 1996. The country has since concluded a total of 47 BITs, with the majority not in effect as they were not ratified per the required constitutional processes. The policy decision to enter into BITs was taken by the African National Congress (ANC) government, led by the late former state president Nelson Mandela. The BITs were seen as an important guarantee to attract foreign investment into the country. The aim was to provide added assurance that foreign investments were safe in a democratic South Africa after many years of international isolation and sanctions.
The conventional wisdom at the time was that BITs would increase foreign investor appetite to invest and the country would experience rising levels of foreign direct investment (FDI) as a result. This would facilitate economic growth and the transition of the country into the global economy. South Africa concluded BITs with seven of the top ten investor countries. In October 2013 the South African government cancelled a number of BITs with these European countries invested in South Africa. These countries – namely Belgium, Luxembourg, Spain, Switzerland, Germany and the Netherlands – complained of lack of consultation by the South Africans. On 1 November 2013 the Minister of Trade and Industry published, in Government Gazette No 36995, the Promotion and Protection of Investment Bill (PPIB or Investments Bill) as the proposed primary legislative instrument for the protection of foreign investments.
This created much uncertainty among many European nations as well as in the United States of America (US), who were concerned about the motivation for cancelling bilateral treaties in favour of domestic legislation. BITs had been a part of the policy instruments regulating foreign investments in the country for over 20 years. Globally these treaties have been used to regulate foreign investments in a number of areas, and to provide protection to investments such as full protection and security, guaranteed pre-establishment rights, ease of repatriation of funds, most-favoured nation, fair and equitable treatment, national treatment and efficient dispute settlement mechanisms, among other provisions.
In most cases international arbitration via the International Centre for the Settlement of Investment Disputes (ICSID) and other international arbitral mediums has been a standard provision in the treaties. This has allowed foreign investors to bypass host countries’ legal systems. The latter is believed to be a significant inducement for foreign investors, guaranteeing that should a dispute arise, or if an expropriation occurs, the investor could institute an international arbitral process against the host government. International arbitration is preferred by foreign investors for the reason that, in some cases, domestic courts may lack independence from the state, and may make partial rulings that do not protect investors.
Furthermore, international arbitration processes are more efficient and produce rulings faster than domestic courts, which are usually burdened with bureaucratic procedures and limited resources. In cases where delay exacerbates injury, prompt resolution of disputes is preferable. This study evaluates the Investments Bill and the rationale applied by the government of South Africa to cancel BITs with major trade and investment partners in favour of this legislation. The thesis focuses on the Investments Bill, in light of the objective provided by the Department of Trade and Industry (DTI) for its enactment to law. The Investments Bill is subjected to a constitutional analysis to determine its compliance therewith. Comparisons are also made between the Investments Bill provisions and the prevailing international law principles on foreign investments.
The Investments Bill is then critically evaluated against emerging trends on FDI regulation on the African continent to determine its congruence or lack thereof with best practice recommendations at regional economic community (REC) and African Union (AU) level. The thesis concludes with a set of policy recommendations to the DTI on how to improve South African policies related to the regulation of foreign investments taking into account the national imperative as well as Southern African Development Community (SADC) and other broader African continental objectives of harmonisation of FDI regulation, including the Tripartite Free Trade Area (FTA) implementation. The timing of this thesis is significant for South Africa. It adds to various deliberations that are taking place as the Investments Bill is set to makes its way through the legislative approval processes in 2015.
The Bill has been met with opposition from some segments of society. Others have expressed support – including several state departments, the ANC, the South African Communist Party (SACP) and other political formations. The summary of findings contained in the thesis will be presented to the DTI to influence policy directions of the state in terms of foreign investment regulations. Should the Bill be enacted, the Minister of Trade and Industry is required to promulgate the dispute resolution mechanism that will govern investment disputes. The findings of this study will be important to the determination of how such dispute resolution mechanisms may function. Furthermore, in 2010 Cabinet instructed the DTI to develop a model new-generation BIT Template to be utilised by South Africa, should a compelling reason arise to enter into bilateral agreements.
The research results will assist policy-makers to develop policies that are consistent with and align with the overarching Africa strategy that has been heavily promoted by South Africa. The country faces a number of challenges, particularly those related to low economic growth, high levels of poverty, unemployment and record levels of inequality. The gap between the rich and poor, in terms of the Gini coefficient, was 0,67 based on the World Bank Development Research Group Report of 2010. It is reported as one of the highest in the world and is believed to have worsened since the dawn of democracy.Public, Constitutional and International Law
LL. D. (Public, Constitutional and International Law)
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Huang, Tung-Kuan, and 黃棟冠. "Bilateral Investment Treaty and Environmental Governance: An Experiment on Greenhouse Gas Emission." Thesis, 2018. http://ndltd.ncl.edu.tw/handle/bhvw3n.
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碩士國立臺灣大學
政治學研究所
106
Environmental governance is widely discussed by studies on government policy-making. Its importance is also stressed by numerous international environment conventions. In recent years, environmental governance also become a hotspot of international investment law studies. In particular, greenhouse gas emission is one of the most attentive subject to environmental governance studies. Governments set various regulations to ease off the worsening condition of global warming according to international environment conventions. International treaty other than environmental ones might still have an effect on environmental governance. With studies proving the positive relation between greenhouse gas emission and investors, it seems interesting to clarify the correlation between BIT and environmental governance. We conduct a series of statistical test on greenhouse gas emission and BIT. Greenhouse gas emission is taken as dependent variable, and treaty obligation of BIT is taken as independent variable. The following literature provides a proof that complying with higher BIT obligation could result in higher greenhouse gas emission. However, government’s will on environmental protection which is taken as a moderator in our models could ease the worsening environmental governance. In order to gain economic benefit, treaty parties comply with BIT obligation. Complying with BIT is proved by numerous studies to enhance the regulatory quality in a state, but it also means partial restriction of state regulatory right. Especially in the realm of environmental protection, “centering effect” constraints state environmental regulatory right in a certain condition. If states stress on the importance of the balance between environmental protection and investor protection, it’s possible to diminish the impact on environment which is brought by BIT.
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Mpshe, Koena Herbert. "Redressing the asymmetries of international investment treaty regime from a South African perspective." Diss., 2016. http://hdl.handle.net/2263/58732.
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The recent investment policy shift, by the South African government, including, termination of bilateral investment treaties with some developed countries, is illustrative of the continued discontent by most developing countries with the status quo in the realm of international investments agreements (IIAs) regime.
Balancing governments' sovereign right to implement domestic policies, in order to achieve socio-economic goals, for overall sustainable development, and the corresponding duty to protect foreign investments within the host state seems perpetually elusive, within the current bilateral investment treaty (BIT) regime. The parallel rising of free trade agreements (FTAs) incorporating investment chapters to BITs and the withdrawal from international investment arbitration by some countries, is symptomatic of continued disgruntlement with the current investment regime. South Africa is amongst the front runners of this discontentment and has voiced its concerns with the system, by cancelling some of its BITs and substituting same with adopting a new domestic investment regime instead, the investment Act of 2015. This study analyses the government's policy shift, with a view to find the extent to which the current BIT regime constrained the government's policy space towards economic transformation. This is achieved by analysing the substance and objective of the policy reform as against the international standards. Consequently, after probing the global investment regime and more in particularly the country's economic and political architecture, the study found that although South Africa's investment policy shift was labelled 'drastic and regressive' by critics, the latter is rational when subjected to substantive approach to the rule of law. Author however, concludes that it is the implementation thereof that is disproportional, as the same objectives underpinning the policy reform can be achieved through a less contentious approach. Finally author suggests a renegotiation of a model BIT as a less onerous and proportionate tool, to achieve the balance sought, and recommends policy options for enhancing international investment regime to address the challenges identified.tm2017
Centre for Human Rights
LLM
Unrestricted
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Hung, Hui-Chung, and 洪慧中. "An Analysis on the Application of Bilateral Investment Treaty and ICSID to SWF Investment under the Framework of International Investment Law." Thesis, 2017. http://ndltd.ncl.edu.tw/handle/n92zq4.
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碩士國立交通大學
科技法律研究所
105
After the result of the Mortgage Crisis, many developing countries' investment vehicles,"Sovereign Wealth Fund" (SWF), mostly from the Middle East and Asia, enter US markets through indirect investment, purchasing the stocks of long-established financial institutions. The SWF Phenomenon that the developed countries have transformed from capital-exporting countries to capital importing countries is recognized as a provocation to the European and US dominated international investment market. This newly-formed State Capitalism has led to European and U.S host state's concerns that there could be some political strategy behind SWF's acquisitions. SWFs are 100 % controlled by their state governments. Due to SWF’s sovereign nature, the close relationship with governments’ lack of transparency for investment information, unsound governance structure, SWF's legal position within international investment law and their suitable legal structure remain to be a topic of discussion. As for the legal structure of SWF varying from state to state, they can be categorized as three types: 1) a pool of State's assets 2) an entity with pubic legal personality 3) an entity with private legal personality. The three types of SWF influences the status of SWF under international investment law, the application of state immunity, and the standing resorts to International Centre for Settlement of the Investment Disputes (ICSID). This paper demonstrates the position of governing SWF investment, in reviewing how The Foreign Investment and National Security Act 2007 (FINSA) of US applies to foreign investment. Indeed, it is a state's inherent privilege to legislate regulation regarding foreign investment. Nvertheless, facilitating strict unilateral acts may lead to trade protectionism of international investment, increase the cost of investment, and decrease the efficiency of international capital flows. Furthermore, it is not generally acceptable to regulate SWF investment through unilateral acts. This paper proposes that even though of The OECD Declaration and Santiago Principle don't not having legal binding force, it can served as the boundaries of domestic regulations of the host state. Given SWF’s practice, SWF has been a longterm investor and willing to obey host-state’s regulation, since SWF has a strong motivation to corporate with host states commercially. This paper concludes that Bilateral Investment Treaty (BIT) can serve as a framework to discuss investment protection to SWF. Considering the application of BIT to SWF Investment, following issues shall be developed: Whether SWF benefits from those investment protection clauses－ National Treatment, Most-Favored-Nation Treatment, Fair and Equitable Standard and Indirect Expropriation clauses against host state depends on the definition of " investor " and " investment "in the relative BIT . On the contrary, from the standpoint of host states, how to invoke Essential Security Exception Clause to legalize its actions. Furthermore, whether SWF may act as claimant in ICSID arbitration will be analyzed in depth in this article.
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Hsiao, Fei-Chen. "A Discussion of Patent Protection of Pharmaceutical Drugs and Plant Varieties under a Bilateral Investment Treaty." 2004. http://www.cetd.com.tw/ec/thesisdetail.aspx?etdun=U0001-2207200406523900.
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Hsiao, Fei-Chen, and 蕭斐甄. "A Discussion of Patent Protection of Pharmaceutical Drugs and Plant Varieties under a Bilateral Investment Treaty." Thesis, 2004. http://ndltd.ncl.edu.tw/handle/76912025786426519155.
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碩士國立臺灣大學
法律學研究所
92
“Most [bilateral investment treaties] are between developed and developing countries, with Europe and Asia having signed the largest share. But a full quarter are now brokered between developing countries themselves. In essence, these deals set up rules for the entry, protection and exit of investments between two countries – and ‘investment’ in these treaties specifically includes intellectual property. Parties are expected to open their borders to foreign investments, provide the ‘highest international standards’ of [IPRs] protection for them in their domestic territories under the mantra of ‘national treatment’ and ‘Most Favoured Nation’(MFN) principles …. This is frightening in and of itself because the terms of the treaties are imprecise and open-ended. It’s not clear whose law or whose standards are being referred to or are meant to apply. It’s not even clear whether these BITs cover established investments or potential investments. With respect to intellectual property, the sky seems to be the limit.” Not only the standard of IPRs protection as pinpointed by the GRAIN in cooperation with the South Asia Network for Food, Ecology and Culture (SANFEC) is a concerned issue, but also the fact that the developed country required the host developing countries to indirectly accelerate their compliance with the standard provided by the Agreement on Trade-Related Aspects of Intellectual Property Rights (thereafter is called, “the TRIPS Agreement “) in a number of bilateral investment treaties (thereafter is called “BITs”) deserves attention. These subjects highlight the problems that are not only revealed in the negotiation of a BIT during which a country of the strong bargaining power controls the pace and tension, but they are also shown in the very results of the negotiation process in which each contracting party persists to consolidate their national developments and promote economic progression. Based on the very imbalanced bargaining powers of both contracting parties to a BIT, the power to choose the standard of IPRs protection for its domestic markets, to a certain extent, is influenced. Although the nature of a BIT is bilateral and it is certain that the inclusion of the phrase “highest international standards” of the IPRs protection is subject to the intention of the contracting parties, the application of the phrase may be vague. It is because the phrase may refer the TRIPS Agreement or the standard as expected by the developed countries. In addition, there are some implications underlied by such a phrase, and one of the implications indicates that under the most-favoured nation treatment clause, the host developing country is usually supposed to provide the same level of protection for the investor’s IPRs as the investor would enjoy in his home country. Although that implication indicates certain expectation of a technologically-advanced and wealthy home country and the conclusion of a BIT is subject to the intentions of both parties there are doubts on what the phenomena of this type of BIT (a number of them are patterned on a similar model text) tends to imply. In spite of the reference to the “highest international standards” in the BIT, the references specifically to plant breeders’ rights as incoming investments to a developing country, accession to the International Convention for the Protection of New Varieties of Plants (thereafter is called “the UPOV”), patentable inventions (products or processes that are not under formal legal protection anywhere yet) and implement the TRIPS Agreement in full far earlier then the end of the transition period have also been considered under the BITs concluded by the developing and developed countries. On the face of the BITs, it seems that there is nothing wrong with the incorporation of those provisions, taking into consideration the need to stimulate creative process for future technological and innovative developments. Nevertheless, after one perceives deeply the potential harms that may cause to the nationals of the developing countries with respect to their wellbeing in health and to farmers who assist in giving life, then the aforesaid references become problematic. In other words, although the extent of application of these references is not limited to patent protection and there may be the generation of adverse consequences from implementing the higher standard of protection of other IP-related rights, human life relies mostly on two main ingredients, essential medicines and plants - and therefore the strategies in patenting drugs and plants are in need of thorough planned, especially in poor developing countries and least-developed countries. However, with the increasing protection on the foreign investors for their IP model of investments, the situations on how the nationals of developed countries, developing countries and least-developed countries can respectively benefit from such ways of incorporation of the IPRs provisions in the BITs and respectively benefit from the BITs as a whole, become even more complicated. In addition to those aspects, the references to the MFN treatment and the national treatment, as mentioned in BITs, imply a need to look for a balance of benefits and costs with respect to the related issues on patenting drugs and plants by each player (contracting parties to a BIT and a third party who is not party to the bilateral treaty). It is noted that there are 147 Members of the World Trade Organization. By being the Members of the WTO, they have to comply with the provisions of the TRIPS Agreement. In effect, the TRIPS Agreement requires those Members to implement IPRs measures not lower than its standard. They have to comply with the provisions of the TRIPS Agreement that provides the minimum requirements. Upon keeping the core issues as pinpointed in the previous paragraphs in mind, if the contracting parties to a BIT are the Members of the WTO, then the inclusion of the IPRs provision in the standard higher than that of the TRIPS Agreement in the BITs may pose an essential question in relation to the reference of the authorities. For example, should the provisions of the TRIPS Agreement be considered as an authority to govern the practices of the IPRs provisions as incorporated under the BITs by the contracting parties, or should those IPRs provisions under the BITs be binding the contracting parties over the provisions provided by the TRIPS Agreement? This paper is, therefore, designed to answer the concerned issues that were stated in the previous paragraphs and that may be encountered by the contracting parties to those specific types of BITs. Exploring the following questions listed as follows should be able to answer these issues: 1. What are the reasons for IP to be protected specifically under a bilateral investment agreement? 2. Can BITs solve the problems of the IP model of investment (patent in particular)? Are the multilateral agreements on IPRs helpful to solve the problems, such as the health protection and the protection of the farmers’ rights? 3. Should there be IPR provisions in a BIT? Should there be a division of IPR provision to be incorporated in a BIT, i.e. the incorporation of a separate exclusion phrase with respect to patent protection on drugs and plant varieties? 4. Can the TRIPS Agreement solve the problems effected by applying the IP model of investment? 5. Can the TRIPS Agreement strike a balance on patent protection? 6. Finally, will it be possible to incorporate some provisions with respect to investment-related patent issues in the TRIPS Agreement?
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Chen, Yen-yu, and 陳彥佑. "A Comparative Study of the PRC’s Model Bilateral Investment Treaty and Its Law on Protection of Investment by Compatriots from Taiwan." Thesis, 2006. http://ndltd.ncl.edu.tw/handle/75712567350079827430.
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碩士國立中正大學
法律所
94
This research would analyze the changing interactions between the world economic environment and the needs of nation-states in the following subsequences. First, this paper introduces the new development of world-wide economic globalization and the change of international investment law. Second, this paper examines the uprising of regional economic integrations and its influence. Third, this paper inspects the investment and trade situations and problems between the Taiwan Strait since the 1980s. And last, this paper studies the development policies of the ROC government in accordance with the above-mentioned backgrounds. Technology and innovation lead to waves of globalization. This also changes the ways how international business are conducted. Generally, technologic innovation in transportation, computer and communication results in the so-called time-space compression. This advance creates a whole new international production network. Transnational corporations use this opportunity to establish their own network through the use of foreign direct investment (FDI). And the economic relation between the Taiwan Strait is of no exception. Due to such a trend, the main stream of Taiwanese politics and academic opinions is for the two governments to sign a bilateral investment treaty. This research would review all the arguments from the two sides included some international debates. Based on previous studies, this research would look at this subject from five aspects: first, the change and development in international investment law; second, the change of the Chinese legal system; third, the view from international political economy; forth, the economic and political relations between the Taiwan Strait; and fifth, the needs for the Taiwanese government to adapt its national policies accordingly. Finally, this research would provide 19 points of proposals to improve the thinking between the Strait on this subject. Five conclusions would be presented in order to give the concerned governments, businesses and people advice. Consequently, we hope this study could advance a cross-strait peaceful interaction and generally benefit all the people on both sides.
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Kuchmiienko, Olga. "To BIT or not to BIT? : The effects of changes in effective control and temporal scope on investment tribunal jurisdiction under Ukraine - Russia BIT." Thesis, 2019. http://urn.kb.se/resolve?urn=urn:nbn:se:uu:diva-384573.
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The thesis answers the question "How does the change in effective control affect investment protection mechanisms in the Ukraine - Russia BIT against the temporal scope of when investment was made?". The essence of the Tribunal's jurisdiction, territorial and temporal scope of the Ukraine - Russia BIT were analyzed according to the rules of Vienna Convention on the Law of Treaties. Relevant case law, doctrine and available information on the awards in "Crimean cases" were also parts of the analysis. A conclusion was made that changes in effective control activate BIT protection for Ukrainian investors in Crimea against actions of Russian Federation. As a result, investment arbitral tribunals have jurisdiction in cases where investment has not been initially made in the territory of the host state. The date of Russian Federation consent to arbitrate with Ukrainian investors in Crimea is the date of actual change in effective control.
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Leeks, Annie. "The relationship between bilateral investment treaty arbitration and the wider corpus of international law: The ICSID approach." 2007. http://link.library.utoronto.ca/eir/EIRdetail.cfm?Resources__ID=452957&T=F.
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Štamberk, David. "Investiční politika Evropské unie - ochrana přímých zahraničních investic." Doctoral thesis, 2017. http://www.nusl.cz/ntk/nusl-354451.
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Investment Policy of the European Union - protection of foreign direct investment Abstract One of the changes brought about by the Lisbon Treaty is the explicit inclusion of foreign direct investment and its protection in the common commercial policy of the European Union. This is one of the areas of exclusive competence of the EU. The European Union has subsequently stated negotiating bilateral agreements governing, inter alia, investment issues. However, it has not been spared from controversy and negative publicity that has been accompanying especially the TTIP and the CETA. This work aims to analyse the investment policy of the EU and mutual interaction of its institutions with the Member States and third parties. After general introduction to the topic of international investment law and EU law (chapters II. and III.), it is devoted to the issue of protection of foreign investment in the internal market. Its regime is then compared with the BIT regime (chapter IV.). Attention is then focussed towards the EU's external relations in the field of investment protection. Its competence is subjected to further analysis (chapter V.) and current results of efforts of the Commission and the EU as such are also discussed (chapter VI.). It is so in the light of possible impacts of foreign investment in terms of...
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Fecák, Tomáš. "Mezinárodní dohody o ochraně investic a právo Evropské unie." Doctoral thesis, 2015. http://www.nusl.cz/ntk/nusl-351052.
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The relationship between international investment agreements and EU law has attracted increased attention in past few years. The aim of this thesis is to bring a detailed analysis of various aspects of this complicated relationship. In attainment of this aim it proceeds in the following steps. After a short introduction (Chapter I.), Chapter II. briefly overviews typical content of bilateral investment treaties, following with a more detailed analysis of relevant EU law rules concerning foreign investment and subsequent comparison of both sets of rules. Chapter III. deals with investment agreements to be concluded by the EU, in particular with questions of external competence for foreign investment, responsibility for breaches of investment agreements concluded by the EU and the future shape of EU investment policy. The status of existing bilateral investment treaties concluded between EU member states and third countries is analyzed in Chapter IV. Chapter V. tackles various issues related to investment treaties concluded between member states (so called intra-EU BITs).
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Poništiak, Ondrej. "Zásahy státu do majetkových práv zahraničních investorů." Master's thesis, 2012. http://www.nusl.cz/ntk/nusl-306937.
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VI Abstract International investment activity plays in the capitalistic globalized world, which is aimed at sustainable economic growth, an important role. Effort of the states to ensure the most favourable investment conditions for foreign investors strikes in some spheres on legitimate regulatory state measures, which are adopted with reference to the international law principle of state sovereignty. Expropriation or nationalisation together with the seizure represented in the past the most compelling taking of foreign investor property rights and their identification didn't make pronounced troubles. It's clear that confiscatory or nationalizing states measure doesn't increase its investment attractivity and so states are nowadays in the sphere of takings into foreign investor property interests much more careful and more inventive. The task of submitted work is among other things to characterize these takings referred to by notion indirect expropriation and to differentiate them from legitimate state measures regarding the general social aims and social interests, which don't require any compensation in contrast to indirect expropriation. By reason that the right to expropriate is seen to be part of customary international law, there was especially a developed states effort to regulate the conditions of...
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Rychtrová, Lenka. "Ochrana zahraničních investic." Master's thesis, 2011. http://www.nusl.cz/ntk/nusl-379574.
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Foreign Investment Protection One of the signs of globalization is the flow of foreign investment, which continually increases. Because of the benefit that it can bring, there is an interest in its protection. The purpose of my thesis is to analyse the protection of foreign investment in the Czech Republic, focusing on dispute resolution. The first chapter deals with the definition of foreign investment. It is focused on this legal term in multilateral international agreements and bilateral investment treaties. The second chapter contains the sources of relevant law. The main part of the thesis is the third chapter. It characterises the concept of resolving disputes in the field of investment. The first part of the chapter describes litigation between states especially within the framework of the World Trade Organisation. The second part explains the resolution of conflicts between the investor and the target State though the International Centre for Settlement of Investment Disputes (ICSID) and it examines particular provisions of the ICSID Convention. The third section of the chapter is focused on investment disputes brought before the arbitration body. The majority of bilateral investment treaties refers to the arbitration rules of UNCITRAL, which regulates the procedure. The text also discusses...
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Štefánková, Iveta. "Ochrana mezinárodních investic před vyvlastněním." Master's thesis, 2012. http://www.nusl.cz/ntk/nusl-311312.
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International investment law has become increasingly prominent in the international legal order. This thesis explores specific and topical problem of international expropriation law, with the main focus on the vast network of international investment agreements (IIAs) supplemented by the general rules of international law. The thesis traces the context and evolution of the protection of foreign investments in response to the transformation of state liability in international law. Particular consideration is given to the relationship between the International Minimum Standard (IMS) and the Calvo Doctrine as two clashing descriptive statements of customary international law governing the treatment of foreigners and their assets. With the onset of the BIT generation, the economical accountability of states is examined in compliance with the scope and conditions defined in clauses and provisions of the contemporary investment treaties. In addition, the thesis focuses on the substantive protection accorded to foreign investors and investments. The aim is to identify the limits of the state's right to expropriate foreign investments by imposing legality requirements standard. The requirements for lawful expropriation are addressed with a thorough examination of jurisprudence of international courts and...
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Mhlongo, Lindelwa Beaulender. "The effect and impact of national and international law on foreign investment in South Africa." Diss., 2017. http://hdl.handle.net/10500/23717.
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Foreign Direct Investment (FDI) is one of the factors that can influence the growth and development of the economy of a country, but on the other hand, it could have a negative effect if not regulated properly by the host country. States must ensure that FDI is properly regulated in the best interests of the country and the foreign investor itself. South Africa has reviewed its foreign investment legal framework and during this process, it terminated most of its bilateral investment treaties that previously regulated foreign investment in the country. In turn, it introduced the Protection of Protection of Investment Act that regulates both domestic and foreign investment. This study analyses the way in which national and international investment law affect FDI inflow and the economy of South Africa. The study also deals with the determinants of foreign investment in the host country and the extent to which they have an influence on the inflow of FDI.Public, Constitutional and International Law
LL. M.
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Svoboda, Ondřej. "Vliv společné evropské investiční politiky na systém mezinárodního investičního práva." Doctoral thesis, 2020. http://www.nusl.cz/ntk/nusl-434654.
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1 The Influence of EU Common Investment Policy on the System of International Investment Law Abstract Extending exclusive European Union (EU) competence to foreign direct investment (FDI) in the Lisbon Treaty has had profound implications. The EU began to develop its own investment policy, including negotiating either international investment agreements or comprehensive trade and investment agreements with third parties. Taking into account the magnitude of the EU economy and the fact that EU Member States have concluded almost 1 400 bilateral investment treaties (BITs) out of roughly 3 300 in force worldwide, the potential of European influence over the system of international investment, based principally on BITs, is enormous. The aim of this dissertation is to assess how and in which way the new EU competence changes the system. The EU investment policy has developed a specific approach towards investment protection and investment dispute mechanism which does not envision content declared at its beginning. According to initial documents such as the European Commission's Communication Towards a comprehensive European international investment policy, the Union should have followed the available best practices of the Member States. Nevertheless, during the first bilateral negotiations with Canada and...
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Constantino, Ana Carina Galveias. "A arbitragem de investimento." Master's thesis, 2015. http://hdl.handle.net/10071/10777.
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O objetivo do presente trabalho consiste em analisar de forma transversal as várias questões levantadas pela arbitragem de investimento.
Em primeiro lugar, e por ser essencial para a compreensão do tema, começaremos por apresentar uma noção de arbitragem de investimento e a respetiva evolução história, expondo as características que a diferenciam em especial da arbitragem comercial.
Seguidamente, faremos uma análise do Centro Internacional para a Resolução de Diferendos sobre Investimentos (ICSID), instituído pela Convenção de Washington, celebrada em 1965. Abordaremos, questões como o conceito de investimento, os requisitos das partes e a necessidade e forma de consentimento. Pela sua importância, não poderíamos deixar de examinar as características e efeitos da decisão arbitral proferida no âmbito do ICSID, fazendo uma breve referência às regras do Mecanismo Complementar.
Pretende-se também analisar a importância dos tratados bilaterais e multilaterais de investimento, assinados pelos Estados, em especial na década de 90, para a promoção e proteção de investimentos. Neste âmbito, daremos especial enfoque aos standards gerais de tratamento eàsumbrellas clauses.A exemplo destes tratados multilaterais de investimento propomo-nos abordar, ainda que de forma sintética, o North American Free Trade Agreement e o Tratado da Carta da Energia, destacando a recente decisão Yukos proferida pelo Tribunal de Arbitragem Permanente em Haia, em Julho de 2014.
Terminaremos com um último capítulo fazendo uma análise do Transatlantic Trade and Investment Partnership, em torno do qual é hoje discutido o futuro da arbitragem de investimento.The scope of this study is to examine the various issues underlying the investment arbitration. Firstly, in order to understand the subject under review, we will discuss and introduce an investment arbitration notion and its respective historic evolution, as well as expose the features that distinguish it, in particular, from the commercial arbitration. Secondly, we will analyse the International Centre for the Settlement of Investment Disputes (ICSID), established by the Washington Convention, signed in 1965, and we will cover issues such as the concept of investment, the requirements of the parties and the need and form of consent.Furthermore, we will identify the characteristics and effects of the arbitration award under the ICSID, and we will briefly cover the ICSID Additional Facilities. Then, we will focus on the bilateral and multilateral investment treaties, for the promotion and protection of investments, particularly on the general standards of treatment and on the umbrellas clauses. As examples of multilateral investment treaties we will address the North American Free Trade Agreement and the Energy Charter Treaty, highlighting the recent Yukos decision rendered by the Permanent Court of Arbitration in The Hague, in July 2014. Finally, we will assess the Transatlantic Trade and Investment Partnership, around which the future of investment arbitration is now under discussion.
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Olík, Miloš. "Ochrana investic v Evropské unii." Doctoral thesis, 2017. http://www.nusl.cz/ntk/nusl-368717.
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1 Abstract This dissertation deals with investment protection in the European Union from several points of view. The first part deals with the history of investment protection and its main basis and grounds for current legislation and proposals for future regulation, particularly within the EU. In subsequent parts, current legislation and intra-European Union investment protection is analysed in detail, including the question of validity and applicability of Intra-EU BITs, i.e. bilateral treaties concluded between two EU Member States. The analysis is made from the perspective of EU law, as well as from the point of view of public international law. The dissertation further deals with their relationship and demonstrates contradictions between them in two crucial cases, Eureko/Achmea and Micula. Additional themes of this dissertation are the powers of the European Union regarding investment protection and the conclusion of international treaties such as CETA and TTIP. This dissertation further deals with the status, jurisdiction and functioning of the International Centre for Settlement of Investment Disputes (ICSID), demonstrating the relatively smooth and widely accepted investment dispute settlement mechanism. In this regard, the proposed EU Multilateral Investment Court project in analysed, including a...
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Černý, Filip. "Dispozice s investičním nárokem." Doctoral thesis, 2017. http://www.nusl.cz/ntk/nusl-373166.
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Disposal with an Investment Claim JUDr. Filip Černý International investment protection is very special legal discipline which stands at the borderline between public and private, international and national (domestic) law. The intersections between these legal areas produce a vast range of questions on the applicable law and the nature of the legal institutes inherent to investment protection. The legal system of investment protection is founded on a matrix consisting of bilateral and multilateral treaties and simultaneously shares some of the customary origins inherent to diplomatic protection of foreigners. The particularity of the investment protection system is given by the existence of the diagonal relations between the host state and the investor of the other state. The combination of the public international law sources and the diagonal relations developing inside the public international law matrix induce questions on the nature of such rights and obligations arising inside of the investment protection system among its actors. Author analyses these relations with an aim to determine the nature of the investment claim as a prerequisite for a volitional disposal of the investment claim by the investor.
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Lyapina, Elmira. "Ochrana investic v plynárenském sektoru: Perspektivy právních vztahů mezi Evropskou unií a Ruskou federací." Doctoral thesis, 2017. http://www.nusl.cz/ntk/nusl-368008.
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The absence of a relevant legal basis between huge commercial partners such as the EU as a single entity and the Russian Federation promoted the emergence of a legal vacuum. The long term cooperation between Russia and the EU has only one bilateral agreement - the Agreement on Partnership and Cooperation signed in 1994, which is however obsolete, and does not meet the contemporary needs. The adequate legal basis for Russia-EU cooperation in the gas sector is still missing. The protection of investments in the gas sector is being realized by bilateral agreements between Russia and EU member states, soft law and general international agreements, without any specifications for those two partners. The only international instrument covering the energy relations of these two partners - Energy Charter Treaty cannot be considered as a reliable mechanism, as Russia withdrew from it more than 8 years ago. The reasons of the withdrawal and the Yukos case as an illustrative example are discussed in this paper. In order to avoid uncertainty in such strategic area as gas investment relations and unpredictable decisions between the states represented by the commercial entities, there is a need to design a substantive legal basis, and a need to consider on the adequate dispute resolution body. In this thesis, key...