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Journal articles on the topic 'Investment Law'
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1
Schill, Stephan W. "Illegal Investments in Investment Treaty Arbitration." Law & Practice of International Courts and Tribunals 11, no. 2 (2012): 281–323. http://dx.doi.org/10.1163/157180312x640697.
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Abstract Investment treaty tribunals on numerous occasions have had to deal with the impact of breaches of domestic law by a foreign investor on the investment’s protection under an international investment treaty. In this context, tribunals had to interpret different “in accordance with host State law”-clauses contained in investment treaties, but also dealt with the effect of illegality in the absence of such clauses. The present article traces this increasingly complex jurisprudence and frames it as an issue of the relationship between domestic law and international investment law. Although different approaches exist, most importantly as to the effect of domestic illegality on the jurisdiction of investment treaty tribunals, the article suggests that there is considerable potential for convergence in arbitral jurisprudence, thus unveiling the contours of a doctrinal structure for dealing with illegal investments in international investment law and arbitration.
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TIPPET, JOHN. "ETHICAL INVESTMENT, CHURCH INVESTMENTS AND THE LAW." Economic Papers: A journal of applied economics and policy 20, no. 2 (June 2001): 36–45. http://dx.doi.org/10.1111/j.1759-3441.2001.tb00279.x.
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Schanz, Sebastian, and Deborah Schanz. "The Income Tax Paradox." Intertax 38, Issue 3 (March 1, 2010): 167–69. http://dx.doi.org/10.54648/taxi2010018.
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In non-neutral tax systems, levying taxes may have a paradoxical effect on investments: An investment’s value increases due to taxation. The so-called income tax paradox occurs when an investment’s after-tax net present value exceeds the net present value before taxes. In this article, we explain reasons for this paradoxal effect and demonstrate the income tax paradox using numerical examples. We show that occurrence of the tax paradox depends on taxation of interest income in the country where the investment project is carried out. Depending on the tax system, investments that are profitable (unprofitable) on a pre-tax basis can be unprofitable (profitable) due to taxes. Thus, an optimal investment decision can only be made by taking taxes into account.
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Varis, Ozge. "International Energy Investments: Tracking the Legal Concept." Groningen Journal of International Law 2, no. 1 (March 30, 2018): 81. http://dx.doi.org/10.21827/5a86a7ec7323e.
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International investment flows are rising firmly and rapidly on a daily basis throughout the world. In international investment flow energy plays a valuable role. The common point of international investment law regime and international energy law regime is, they remain many issues still to define and clarify in international investment law and energy law. In these undeveloped legal areas, the clarification of these basic issues has an essential role, as legal systems are established on the basis of clear terminology. While the significance of energy and energy-related issues in international investment law is mentioned above, there are still many blurred lines as to when “energy investments” in particular become relevant. In these situations, the limits of what may be considered an “energy investment” must be clarified. In order to explicitly explain references to “energy investments”, this article will firstly discuss the definition of international investments; secondly, the definition of energy will be analysed and then what is described as “an energy investment” will be thoroughly scrutinised. During these discussions, examples from other sectors’ investment disputes and other legal areas will also be examined and compared to provide more explicit answers as to the limits of the term.
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Petrofsky, Erica, Martin Dietrich Brauch, Yanick Touchette, Aaron Cosbey, Ivetta Gerasimchuk, Lourdes Sanchez, Nathalie Bernasconi-Osterwalder, Maria Bisila Torao Garcia, and Temur Potaskaevi. "Treaty on Sustainable Investment for Climate Change Mitigation and Adaptation: Aligning International Investment Law with the Urgent Need for Climate Change Action." Journal of International Arbitration 36, Issue 1 (February 1, 2019): 7–35. http://dx.doi.org/10.54648/joia2019002.
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The climate change mitigation and adaptation objectives set by the Paris Agreement under the United Nations Framework Convention on Climate Change (UNFCCC) and the broader Sustainable Development Goals (SDGs) under the Agenda 2030 create a need for an unprecedented shift from carbon-intensive to low-carbon investment projects. Investment and the legal regimes that govern it—including international investment law—are critical to this shift. To accelerate it, the authors propose the Treaty on Sustainable Investment for Climate Change Mitigation and Adaptation. One of the winners of the Stockholm Treaty Lab competition, the treaty has three building blocks: (1) encouraging Sustainable Investments; (2) discouraging Unsustainable Investments and eliminating new Unsustainable Investments; and (3) ensuring a just transition to sustainable and low-carbon economies and societies. It allows states to indicate, in schedules to the annexes of the treaty, which sectors will be defined as Sustainable or Unsustainable Investments. It protects and signals policy support for Sustainable Investments, while denying treaty-based procedural rights to Unsustainable Investments and committing states to agree on modalities and timelines for phasing out incentives for Unsustainable Investments, such as fossil fuel subsidies. It includes investor obligations and provides access to justice to individuals and communities through an accountability mechanism.
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Suradiyanto. "The Strategy to Increase Investment in Indonesia and Obstacles of Perfection of Investment Law." International Journal of Project Management and Productivity Assessment 8, no. 1 (January 2020): 66–76. http://dx.doi.org/10.4018/ijpmpa.2020010104.
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This study aims to examine and find barriers to the refinement of investment law development as an effort to implement strategies to increase investment in Indonesia. This article is qualitative research. Examine and find barriers to the refinement of investment law development as an effort to implement strategies to increase investment in Indonesia.The reconstruction of the capital investment law is conducted by the issuance of Law Number 25 Year 2007 regarding investments which regulate domestic investment and foreign investment. The consideration of the appointment of BKPM as the only government agency that handles investment activities in the framework of PMA and PMDN is in order to increase the effectiveness in attracting investors to invest in Indonesia. Previous researches have not discussed the strategy of increasing capital investment so that it becomes the difference between this research and previous research (originality).
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Yearbook of Islamic and Middle East, Editors. "Draft Foreign Investment Law." Yearbook of Islamic and Middle Eastern Law Online 13, no. 1 (2006): 451–64. http://dx.doi.org/10.1163/22112987-91000199.
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Fraser-Sampson, Guy. "Pension fund investment law." Pensions: An International Journal 14, no. 2 (May 2009): 142–43. http://dx.doi.org/10.1057/pm.2009.2.
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Porter, M. P. "The Ethiopian Investment Law." ICSID Review 14, no. 2 (September 1, 1999): 362–80. http://dx.doi.org/10.1093/icsidreview/14.2.362.
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Hepburn, Jarrod, Martins Paparinskis, Lauge N. Skovgaard Poulsen, and Michael Waibel. "Investment Law before Arbitration." Journal of International Economic Law 23, no. 4 (December 1, 2020): 929–47. http://dx.doi.org/10.1093/jiel/jgaa037.
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ABSTRACT Investment law was not always about investor–state arbitration. Based on British and German archival materials from the Cold War, this paper shows how aims and priorities in the investment treaty regime changed over time. We find important differences in the role and relative importance of different legal rules then and now. Most notably, national treatment and free transfer clauses were key in early investment law, whereas fair and equitable treatment was regarded as relatively unimportant. At the same time, early drafters did anticipate some of the most contentious issues in modern investment law, including treaty shopping, shareholder protection, and the ‘no greater rights’ proviso.
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Meyer, Timothy, and Tae Jung Park. "Renegotiating International Investment Law." Journal of International Economic Law 21, no. 3 (July 2, 2018): 655–79. http://dx.doi.org/10.1093/jiel/jgy029.
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Wuschka, Sebastian, and Richard Happ. "Horror Vacui: Or Why Investment Treaties Should Apply to Illegally Annexed Territories." Journal of International Arbitration 33, Issue 3 (June 1, 2016): 245–68. http://dx.doi.org/10.54648/joia2016014.
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The 2014 Crimea crisis, in addition to issues of general international law, triggered questions relating to international investment law and arbitration. One of these is to what extent a state’s investment treaties bind that state on another state’s territory which it has put under its control by means of annexation. Starting from the assumption that annexation must not be recognized as legal, it seems necessary to adjust the application of this principle of non-recognition in the case that it ultimately benefits an aggressor. Such a situation might arise with respect to investment claims. Having impaired investments in an annexed territory, investors might want to hold the annexing state liable. However, as a jurisdictional hurdle, they need to satisfy a common criterion of investment treaties, which require investments in the territory of the contracting parties. A strict application of this territorial nexus by a tribunal would deprive investors of protection under international investment law. The interest of the international community to sanction illegal acquisition of territory thus clashes with the individual’s interest to have the investment protected under international law. The result might leave the investors in a legal vacuum. Addressing the issue on an abstract level, this article argues that an extension of a state’s investment treaties to annexed territories can well be founded in the law of treaties and is supported by custom and general principles.
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Zarowna, Agnieszka. "Effects of Disposal of Investments on Claims in Investment Arbitration." Journal of International Arbitration 36, Issue 2 (April 1, 2019): 231–58. http://dx.doi.org/10.54648/joia2019010.
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In case of a perceived violation of an investment treaty, an investor may no longer be interested in retaining their investment. They may be faced with strategic decisions as to whether to continue with their investment and whether and how the potential divestment will affect their recourse against the host State under the investment treaty. This article considers the situation of investors who decide to dispose of their investments and effects of such a disposal on the transferor’s claims in investment arbitration. It sets out international arbitral practice on point and considers certain issues pertaining to the effects of disposal of investments on the rights of the transferor. It also looks at the implications that the disposal of an investment may have on the quantum of any claim.
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Bakhshali Zeynalli, Nargiz. "SIGNIFICANCE OF UMBRELLA CLAUSES IN INTERNATIONAL INVESTMENT LAW." SCIENTIFIC WORK 65, no. 04 (April 23, 2021): 362–65. http://dx.doi.org/10.36719/2663-4619/65/362-365.
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A large number of investment treaties contain provisions, often referred to as ‘umbrella clauses’, that require host states to respect non-treaty commitments and obligations made to foreign investment covered by the treaty. This article examines the general nature of umbrella clauses, their historical background, the various forms that they can take, and their application by arbitral tribunals. In view of the unsettled state of the jurisprudence on umbrella clauses, the article concludes with a suggested framework of analysis for applying umbrella clauses to specific investments, setting out a number of questions which persons applying umbrella clauses should seek to address. Key words: arbitration, umbrella clauses, international treaty obligations, foreign investment, bilateral investment treaties, contractual obligations
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Couet, Marc-Antoine. "Round-Tripping in International Investment Law: A Teleological Assessment." Journal of World Investment & Trade 22, no. 3 (June 21, 2021): 459–501. http://dx.doi.org/10.1163/22119000-12340215.
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Abstract This article addresses the issue of round-tripping investment in international investment law (IIL), which is domestic capital fleeing the home country and then flowing back in the form of foreign direct investment (FDI). It provides a functional definition of this concept and identifies why it may be considered a peculiar type of FDI. It also sets out a comprehensive framework for the treatment of round-tripping investment in IIL by analyzing whether international investment agreements do protect round-tripping investors and their investments and by reviewing how investor-State dispute settlement case-law has dealt with objections put forward by respondent States to round-tripping investors bringing their investment claims to international arbitration. Lastly, this article attempts to answer the question ‘should round-tripping investment be protected under IIL?’ by verifying whether the economic and legal reasons that justify according a differentiated treatment to foreign investors also apply in the case of round-tripping investors.
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Shamshir Aliyeva, Aytan. "PROTECTION OF FOREIGN INVESTMENT IN THE EUROPEAN: EU INVESTMENT LAW SOURCES." SCIENTIFIC WORK 52, no. 03 (February 28, 2020): 47–50. http://dx.doi.org/10.36719/aem/2007-2020/52/47-50.
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PEKKANEN, SAADIA. "Investment regionalism in Asia: new directions in law and policy?" World Trade Review 11, no. 1 (December 13, 2011): 119–54. http://dx.doi.org/10.1017/s1474745611000383.
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AbstractAlthough Asian regionalism has commanded much attention from academics and policymakers, it has largely been restricted to the trade and financial realms. This paper focuses specifically on the scope and limits of ‘investment regionalism’ involving Asia. A combination of regional foreign direct investment (FDI) stakes and international socialization patterns has led Asian actors to mark investments as a key issue in their regionalism strategy overall. As elsewhere, they too have moved toward a mode of governance favoring the formal legalization of investments in terms of the precision, obligation, and delegation of rules. Already the endeavors of both the middle and dominant economies in the region have shifted from just concluding Bilateral Investment Treaties (BITs) and investment-related chapters in Free Trade Agreements (FTAs) to designing region-wide investment agreements and initiatives by-and-for Asian countries. Although the legal effectiveness of this rule-making change will play out in the long run in and across Asian societies, the more immediate policy implication relates to its potential impact on the evolution of Asian regionalism as a whole.
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Burgstaller, Markus, and Giorgio Risso. "Due Diligence in International Investment Law." Journal of International Arbitration 38, Issue 6 (November 1, 2021): 697–922. http://dx.doi.org/10.54648/joia2021033.
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The obligation to exercise due diligence – which is commonly understood as the degree of care that is legally required or that is to be reasonably expected – emerged in international law in the seventeenth century to mediate inter-State relations. Due diligence then developed throughout the nineteenth and twentieth centuries in the context of the protection of aliens. Against this background, the article analyses the obligation to exercise due diligence in international investment law. The analysis shows that due diligence plays an important role in several aspects of the protection of foreign investments. First, it is accepted that investors should act with due diligence to: (1) benefit from the standards of protection set out in investment treaties; and (2) ensure compliance with host State law. Second, host States are expected to exercise due diligence with regard to substantive standards of protection, particularly the full protection and security (FPS) standard. While investment tribunals have clearly identified the scope of investors’ and host States’ due diligence, there is no conclusive indication as to the precise requirements to comply with the obligation to exercise due diligence. Due diligence, fair and equitable treatment standard, legitimate expectations, host State law, full protection and security standard
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Sabahi, Borzu, Ian A. Laird, and Giovanna E. Gismondi. "International Investment Law and Arbitration: History, Modern Practice, and Future Prospects." Brill Research Perspectives in International Investment Law and Arbitration 1, no. 1 (February 1, 2018): 1–64. http://dx.doi.org/10.1163/24055778-12340001.
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AbstractInternational Investment Law is one of the most dynamically growing fields of International Law as shown by the volume of Bilateral Investment Treaties (bits), and investment chapters in a growing numbers of regional and mega-regional trade agreements. This paper explores the origin, evolution and operation of International Investment Law. It discusses the main actors, the protections afforded to foreign investments and investors, and the content of modernbits. The legal issues and challenges International Investment Law faces today are brought into perspective. Particularly, this paper provides an assessment of the measures put forth by the European Union aimed at transforming the traditional investor-State arbitration system to an Investment Court System. An examination of thenaftare-negotiations is also presented, including the impact thatceta, a trade deal between theeuand Canada could have in the outcome of the current re-negotiations.
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Zugliani, Niccolò. "HUMAN RIGHTS IN INTERNATIONAL INVESTMENT LAW: THE 2016 MOROCCO–NIGERIA BILATERAL INVESTMENT TREATY." International and Comparative Law Quarterly 68, no. 3 (May 23, 2019): 761–70. http://dx.doi.org/10.1017/s0020589319000174.
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AbstractThe 2016 Morocco–Nigeria bilateral investment treaty (BIT) stands out from other such treaties because of its innovative human rights approach to the protection and promotion of foreign direct investment. Human rights permeate its approach to the regulation of investment in a manner which is most unusual in international investment agreements (IIAs). As a result, this is the most socially-responsible BIT currently concluded. Although it remains exceptional within the investment-treaty framework, the treaty reflects African initiatives to ensure that the next generation of BITs encourages more responsible investments. As such, it shows that human rights-compliant investment treaties can find fertile ground in developing African countries and it sets an example for current and future negotiations aimed at fostering respect for human rights in investment activities.
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Calisto Pato, António, and Priscila Goes Seize. "EC Law and Investment Funds: The Aberdeen Case." EC Tax Review 18, Issue 3 (June 1, 2009): 114–21. http://dx.doi.org/10.54648/ecta2009016.
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The present article addresses the issue of discriminatory taxation of investments through investment funds from a source country perspective. It focuses on the pending case of Aberdeen Property Fininvest Alpha Oy and analyzes the recently released opinion of Avocat Général Mzák. The authors defend a specific comparability criterion to be applicable when investment funds are involved, in order to establish whether or not there is a discrimination that hinders the European Community (EC) fundamental freedoms and, if so, which of them.
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Feria-Tinta, Monica. "Like Oil and Water? Human Rights in Investment Arbitration in the Wake of Philip Morris v. Uruguay." Journal of International Arbitration 34, Issue 4 (August 1, 2017): 601–30. http://dx.doi.org/10.54648/joia2017029.
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Whether considered ‘wholly distinct, autonomous, or even antagonistic legal domains’, or seen as two sets of legal regimes belonging to the same legal system with ‘meaningful relationships between them’, the international law of investments and the law of human rights appear to have, in the practice of arbitration, an uneasy, tense, strained relationship. For some commentators, public international law (of which human rights is a part) and international investment law would have ‘structural differences’, which have ‘led investment tribunals to grant precedence to the contractual rules that have been agreed upon by host states and investors’. For others, human rights are ‘a marginal issue in investment law’, ‘peripheral at best’, to fulfil ‘no more than an ancillary role in the settlement of investorstate disputes’. This article looks into the fundamental relationship between human rights and investment law in the wake of the recent Philip Morris v. Uruguay and Urbaser v. Argentina cases. In doing so it addresses questions such as: Are human rights and investment arbitration animals of a different nature? Are human rights arbitrable within an investment claim?
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Suradiyanto, Suradiyanto. "The investment law development to increase investment in Indonesia." International Journal of Law and Management 61, no. 1 (February 11, 2019): 17–23. http://dx.doi.org/10.1108/ijlma-11-2017-0270.
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Purpose The law development, especially in the field of investment, is not only directed to achieve the vision of Indonesia 2030, but it is directed to make Indonesia a great nation, protect the potential and plurality of Indonesia and realize the welfare of the nation, both economically independent and having qualified human resources. Based on the description, the purpose of this paper is to examine and find forms of refinement in the investment law development of Indonesia in accordance with the global order. Design/method This paper is qualitative research. This paper examines and finds forms of refinement in the investment law development of Indonesia in accordance with the global order. Findings The refinement form of investment law development in Indonesia in accordance with the global order begins with Law Number 1 of 1967 on Foreign Investment (PMA) and Law Number 6 of 1968 concerning Domestic Investment (PMDN), which is then followed by the issuance of Presidential Decree Number 29 of 2004 concerning the Implementation of Investment in Foreign Capital Investment (PMA) and Domestic Investment (PMDN) through One Stop Service System. The reconstruction form of the capital investment law is by the issuance of Law Number 25 of 2007 regarding Investment which regulates the domestic investment and foreign investment. The authorized official to coordinate the implementation of investment in Indonesia is the Investment Coordinating Board (BKPM). The consideration of BKPM appointment as the only government agency that handles investment activities of PMA and PMDN is to increase the effectiveness in attracting investors to invest in Indonesia. Therefore, by one stop service, it is expected that the service to the investors will be faster than the previous implementation. One Stop Service System means that the implementation of investment consists of policies and planning of investment development, promotion and investment cooperation, approval services, licensing and investment facilities, control of investment implementation and management of investment information system. Approval services, licensing and investment facilities on PMA and PMDN shall be implemented by BKPM, based on the delegation of authority from the Minister/Head of Non-Department Institution which handle the relevant investment business fields through one stop service system. Originality/value This paper only focuses on the investment law development in Indonesia that has never been done before (originality).
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Kulms, Rainer. "Trusts as Vehicles for Investment." European Review of Private Law 24, Issue 6 (December 1, 2016): 1091–118. http://dx.doi.org/10.54648/erpl2016065.
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Financial markets have become the main drivers for legal change. Investors are interested in in funds which promise high returns while assuring protection from moral hazard and immunity against third party claims, irrespective of whether the fund is organized as a trust, a corporate entity or contractual investment scheme. Global finance has forced legislators into regulatory competition for the most investor-friendly regulatory pattern, including trusts or trust-like structures. Most civil law jurisdictions are newcomers to the law of trusts and fiducie. This provokes the policy question to what extent the market for investments into trusts should be regulated without frustrating investors and organizers of funds. The US regulatory approach towards investment trusts will be explored before the analysis moves to the European Union (EU)’s law on Undertakings for Collective Investment Schemes in Transferable Securities (UCITS). The transposition of the EU’s UCITS law by Ireland and the United Kingdom is assessed in order to explore the interface between trust law, the freedom of contract and mandatory capital market law. A regulatory choice emerges that supplements trust law by mandatory standard terms for the trust deed in the interest of market transparency and investor protection.
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Schill, Stephan W., Christian J. Tams, and Rainer Hofmann. "Oceans and Space: New Frontiers in Investment Protection?" Journal of World Investment & Trade 19, no. 5-6 (October 15, 2018): 765–74. http://dx.doi.org/10.1163/22119000-12340119.
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Abstract This article provides background and introduces into the overarching themes of the contributions to the Special Issue dealing with investment protection in areas beyond territorial jurisdiction at sea and in outer space. It explains that fast-paced commercialization, evolving technological advances, and the inevitable need for regulatory intervention make the oceans and space into an increasingly important topic in international investment law. At the same time, investment lawyers, as well as experts in the law of the sea and space law, have largely ignored the legal issues foreign investments raise in these spaces. The article sketches out a framework for addressing the underlying issues from an investment law perspective, pointing out both familiar conceptual approaches and novel challenges.
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Upreti, Pratyush Nath. "The Role of National and International Intellectual Property Law and Policy in Reconceptualising the Definition of Investment." IIC - International Review of Intellectual Property and Competition Law 52, no. 2 (January 27, 2021): 103–36. http://dx.doi.org/10.1007/s40319-020-01009-7.
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AbstractThis article analyses the role of national and international intellectual property (IP) law in assessing IP as a protected investment. It offers two approaches for controlling investment arbitration related to intellectual property rights (IPRs), followed by an examination of the implications and challenges of those approaches. Its main argument is that even if a dispute arises from an investment (IP as an investment), it does not necessarily fall under the jurisdictional requirements of investment arbitration. Rather, assessing IP as an investment must be done by referring to national laws. This is more relevant in the case of IPRs as they are territorial. This means that rights and obligations are derived from national IP legislation. Essentially, only those IPRs that are “protected” by national regimes should be treated as investments. This article also examines the language used in investment agreements and arbitral awards to analyse the role of national law, particularly in determining the validity and scope of IP investments. Then it examines three IP-related arbitral cases to discuss how arbitral tribunals have used national law. Finally, it suggests approaches for controlling investment arbitration by integrating the territoriality principle and the social objectives and bargains achieved through international IP treaties.
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SORNARAJAH, M. "Sovereign Wealth Funds and the Existing Structure of the Regulation of Investments." Asian Journal of International Law 1, no. 2 (January 27, 2011): 267–88. http://dx.doi.org/10.1017/s2044251310000330.
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The strategic investments made by SWFs in vital economic sectors of the developed states have caused national security concerns. The existing law on foreign investment, which was designed by the developed states to permit liberal flows of foreign investment and emphasize protection against government interference, sits uneasily with recent moves to control SWF investments. The developed states may have to dismantle to a significant extent the international law they had created to protect foreign investment and retreat into principles of sovereignty earlier advocated by the developing states. This will result in dramatic changes to customary law as well as treaty norms and significantly undermine the present structure of investment protection: a complete reversal of the neoliberal vision may occur. This phenomenon provides an opportunity for the examination of how events that lead to the quick making of legal rules in line with a legal theory favoured in a particular political context are, equally quickly, replaced by another set of rules to suit rapid changes in the power balances.
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Sattorova, Mavluda. "Investor Rights under EU Law and International Investment Law." Journal of World Investment & Trade 17, no. 6 (November 24, 2016): 895–918. http://dx.doi.org/10.1163/22119000-12340021.
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Are investors entitled to the same level of protection under investment treaties and EU law? This article will examine some of the principal differences and overlaps in the level and scope of protection which foreign investors can enjoy under intra-EU international investment agreements (IIAs) and EU law. The primary focus of analysis will be on key substantive protection standards which intra-EU IIAs offer and their counterparts in EU law. Comparative analysis of intra-EU investment treaties with EU rules on investment protection offers a fresh opportunity to revisit the origins and history of international investment agreements, trace their recent transformation and analyse their interactions with other international and supranational rules to which investors can also resort to protect their economic rights vis-à-vis host states.
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Daradkeh, Lafi. "Commercial Arbitration under Investment Treaties and Contracts: Its Importance and Danger in the Arab World." Arab Law Quarterly 27, no. 4 (2013): 393–413. http://dx.doi.org/10.1163/15730255-12341269.
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Abstract Given the importance of investments, a number of international and regional conventions have been set up in order to protect the parties to investment contracts by adopting arbitration as a method to resolve any dispute that might arise from such contracts. Despite the importance of commercial arbitration for foreign investment treaties and contracts, the process of its application has revealed many of the risks investment poses to the host, particularly Arab, country. This is because commercial arbitration has often been used as a legal means to protect foreigners from the harmful consequences that their investments have had on the environment. The most negative aspects of international commercial arbitration for foreign investment contracts are the modern trends that have been adopted in the field of arbitration, where host countries must comply even when their local laws and public policies are being violated.
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Trevisanut, Seline, and Nikolaos Giannopoulos. "Investment Protection in Offshore Energy Production: Bright Sides of Regime Interaction." Journal of World Investment & Trade 19, no. 5-6 (October 15, 2018): 789–827. http://dx.doi.org/10.1163/22119000-12340111.
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Abstract At the international law level, the regulation of offshore energy projects does not fall neatly into one global regime. On the contrary, it is subject to a plethora of overlapping legal regimes, including the law of the sea, international environmental law, international economic law, and international energy law. The present article addresses the question how regime interaction affects investment protection in the offshore energy sector. Specifically, it investigates whether cross-fertilization between regimes also has ‘positive’ effects on the protection of investments in offshore energy or whether fragmentation consists of both a perceived and actual challenge. We submit that, even though regime interaction poses challenges to investment protection, the influence of the overlapping legal frameworks is not necessarily a ‘threat’ to investment protection. To the contrary, regime interaction can contribute to widen the objectives of international investment law.
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Blair, Margaret M., and Lynn A. Stout. "Specific Investment and Corporate Law." European Business Organization Law Review 7, no. 2 (June 2006): 473–500. http://dx.doi.org/10.1017/s1566752906004733.
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KOKOTT, Juliane, and Christoph SOBOTTA. "Investment Arbitration and EU Law." Cambridge Yearbook of European Legal Studies 18 (July 5, 2016): 3–19. http://dx.doi.org/10.1017/cel.2016.5.
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AbstractInvestment arbitration is based on international agreements and operates in parallel to the EU legal and judicial system. Therefore conflicts between EU law and investment protection are possible. These may result from the substantial investment protection standards, but also from the operation of a parallel system of judicial protection. The EU law position on such conflicts will depend on whether the investment agreement was concluded between Member States, between Member States and other countries, or between the EU and other countries.
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COTULA, LORENZO. "Democracy and International Investment Law." Leiden Journal of International Law 30, no. 2 (March 6, 2017): 351–82. http://dx.doi.org/10.1017/s0922156517000152.
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AbstractThe expanding reach of international investment law and the negotiation of major economic treaties between democratic polities have prompted new debates about the relationship between democracy and the international investment regime. This article develops an analytical framework for understanding that relationship. It first unpacks the concept of democracy, exploring the ‘rules-based’ and ‘action-based’ conceptions that emerge from political theory and their relevance to international investment law. It then examines three themes that frame the relationship between democracy and international investment law: the interface between the investment regime and national democratic space; the place of democratic processes in investment treaty making; and public participation in the settlement of investment disputes. The interplay between rules- and action-based dimensions provides a common thread across the three themes. The article concludes that there is a gap between formal rules and citizen action in promoting democratic oversight, and significant scope to develop more effective mechanisms to install democratic governance in the creation and implementation of international investment law.
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Schill, S. W. "Principles of International Investment Law." European Journal of International Law 20, no. 2 (April 1, 2009): 471–73. http://dx.doi.org/10.1093/ejil/chp019.
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Mahmassani, M. S. "Poland's New Foreign Investment Law." ICSID Review 4, no. 1 (March 1, 1989): 100–103. http://dx.doi.org/10.1093/icsidreview/4.1.100.
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Viñuales, Jorge E. "CUSTOMARY LAW IN INVESTMENT REGULATION." Italian Yearbook of International Law Online 23, no. 1 (November 17, 2014): 23–48. http://dx.doi.org/10.1163/22116133-90230036.
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This article explores the expression of State sovereignty through customary norms in a regulatory space dominated by investment treaties. It argues that, because most of the actionable concepts expressing sovereignty in international law are general (not specific to a “branch”) andcustomary, misunderstanding the role of customary law in investment regulation amounts to confining sovereignty to a few narrow carve-outs and exceptions in investment treaties. However, customary concepts operate autonomously and in parallel to treaties, unless specifically excluded by the latter. The lex specialis principle does not necessarily command the exclusion in toto of relevant customary rules. The article discusses the work of the Institut de Droit International in this regard and then analyses the investment case law relating to the application of the police powers doctrine, necessity, countermeasures and transnational public policy. It shows that failure to address specifically the articulation of treaty and customary norms even in the event the former apply as lex specialis is subtly eroding, without clear legal grounds,the customary expression of sovereignty in foreign investment disputes.
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El-Malik, El-Walied M. H. "Minerals Investment Under Shari'a Law." Arab Law Quarterly 8, no. 2 (1993): 106–40. http://dx.doi.org/10.1163/157302593x00032.
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Xiaoyang, Zhang. "China’s New Foreign Investment Law." Amicus Curiae 2, no. 1 (October 23, 2020): 79–94. http://dx.doi.org/10.14296/ac.v2i1.5212.
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China’s legal framework for governing foreign investment has recently been considerably streamlined in comparison to its former self. The newly promulgated Foreign Investment Law of the People’s Republic tends to level the investment playing field in the country so that foreign investors can no longer enjoy significant privileges that have been unavailable to domestic firms and entrepreneurs. Operating a relatively nondiscriminatory mechanism, such as has been introduced, will in practice mean reliance on a negative list approach to confine inflows of overseas capital to specifically identify sensitive sectors. As China has committed its market to opening up on a much grander scale in the foreseeable future, the new foreign investment regime and accompanying ideology may not necessarily deter foreign investors from looking for opportunities in the foreseeable future.
Keywords: China; foreign investment; negative list; market opening-up
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Burgstaller, Markus. "European Law and Investment Treaties." Journal of International Arbitration 26, Issue 2 (April 1, 2009): 181–216. http://dx.doi.org/10.54648/joia2009010.
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The interrelation between European law and investment treaties is becoming ever more important. Recently,international arbitral tribunals had to consider questions such as the validity of bilateral investment treaties (BITs) concluded or in force between EU Member States and the applicability of EC law in investment disputes. An Advocate General (AG) at the European Court of Justice (ECJ) opined that some of Austria’s and Sweden’s BITs would violate EC law. In the course of the most recent enlargement processes of the EU, the Commission demanded adjustments to BITs of the now new Member States. In addition, the Commission’s Minimum Platform on Investment (MPoI) encroaches upon Member States’ competence to conclude and amend their BITs. Both the Communities and the Member States are parties to the Energy Charter Treaty (ECT). Under this treaty, third state nationals may bring claims against both the Communities and the Member States, but whereas EU nationals are barred from bringing claims against the Communities, they may still bring claims against other Member States. While the fate of the Treaty of Lisbon is still unclear, its entry into force would have fundamental consequences for international investment law.
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Piontek, Eugeniusz. "Polish Foreign Investment Law 1988." Journal of World Trade 23, Issue 5 (October 1, 1989): 5–26. http://dx.doi.org/10.54648/trad1989034.
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Arato, Julian. "The Private Law Critique of International Investment Law." American Journal of International Law 113, no. 1 (January 2019): 1–53. http://dx.doi.org/10.1017/ajil.2018.96.
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AbstractThis Article argues that investment treaties subtly constrain how nations organize their internal systems of private law, including laws of property, contracts, corporations, and intellectual property. Problematically, the treaties do so on a one-size-fits-all basis, disregarding the wide variation in values reflected in these domestic legal institutions. Investor-state dispute settlement exacerbates this tension, further distorting national private law arrangements. This hidden aspect of the system produces inefficiency, unfairness, and distributional inequities that have eluded the regime's critics and apologists alike.
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Adinolfi, Giovanna. "Soft Law in International Investment Law and Arbitration." Italian Review of International and Comparative Law 1, no. 1 (October 15, 2021): 86–112. http://dx.doi.org/10.1163/27725650-01010005.
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Abstract In the more recent decades, international investment law (“iil”) and arbitration have been going through a process of recalibration prompted by both the intensification of cross-border capital flows and the States’ growing concerns over the potential restraints iil may impose upon the pursuit of public interests. The present contribution will pay attention to a specific feature that can be observed within these developments, i.e. the role played by soft law in investment arbitration and, more generally, under iil, also with a view to assessing the impact on the formation of binding international law of instruments formally devoid of normative force within the international legal order. After an introduction (Section 1), the contribution is articulated into four sections. Section 2 will first define the field of investigation. The case law of investment tribunals and the treaty practice under the more recent iia s will be then explored as to the reliance on soft law instruments for the purposes of settling procedural (Section 3) and substantive issues (Section 4). Some final remarks will close (Section 5).
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Elrifai, Silke Noa, Hans Rusinek, and Simon R. Sinsel. "A Model Multilateral Treaty for the Encouragement of Investment in Climate Change Mitigation and Adaptation." Journal of International Arbitration 36, Issue 1 (February 1, 2019): 71–94. http://dx.doi.org/10.54648/joia2019004.
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The Paris Agreement sets out to limit global warming to below 2°C, yet the pathway to reach that goal is unclear. This specifically applies to the mobilization of investment for climate change mitigation and adaptation. One way to mobilize foreign investments is to create a favourable investment climate with the help of multilateral investment treaties. In this article, a model treaty is proposed to considerably increase climate-friendly investments while maintaining regulatory flexibility for signatory states. Building on Design Thinking principles, key challenges for the success of such a treaty are identified and provisions are crafted incorporating feedback from twenty-five experts from finance, policy, and legal domains. The proposal addresses four key challenges: (1) define climate change mitigation and adaptation investments; (2) decrease the barrier of limited access to capital due to perceived and actual risks; (3) combat insufficient investor trust in long-term contracts; and (4) retain states’ ability to regulate. The treaty proposal addresses these challenges by proposing, inter alia, a definition for mitigation and adaptation investments that establishes a link to the Nationally Determined Contributions under the Paris Agreement, an innovative financing mechanism, a conversion of host country subsidies to investment grants, and a performance verification using latest distributed ledger technology.
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Savarese, Eduardo. "THE COHERENCE OF EU LAW: THE PROMOTION OF INVESTMENTS VS. THE PROTECTION OF HUMAN RIGHTS." Italian Yearbook of International Law Online 23, no. 1 (November 17, 2014): 91–112. http://dx.doi.org/10.1163/22116133-90230039.
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Among the challenging legal questions which the new competence of the European Union (EU) in the field of investments abroad raises, one deserves particular attention, namely coherence between the protection of investments and the promotion of human rights and democracy within EU law. After examining general EU policy, the paper then examines the normative and procedural relationship between investment law and human rights law that emerges from arbitral case law. While areas of convergence exist, these two regimes appear to operate within a legal framework of mutual indifference. However, human rights law and related concerns represent both general principles of EU law and EU policy of paramount importance in the development of external relations. As a result, EU institutions must ensure the coherence of investment policy with human rights law and policy. The issue of coherence may be viewed from a policy perspective, with particular regard to the specific powers entrusted to the Commission, the Parliament and the Council of Europe and the current exercise of such powers. In this regard, the more the standards of investors’ protection under investment agreements are premised on clear definitions, exceptions and limitations, the more the adoption of State measures for the protection of human rights will fall within the circumstances precluding wrongfulness. In addition, the coherence issue has a normative component which concerns the compatibility of future EU International Investment Agreements (IIAs) with primary and secondary EU law. Conflicts between future EU IIAs and EU law may undermine the uniform application of EU law. Similarly, these conflicts may lead the assertion of the supremacy of EU law resulting in the violation of EU IIAs. Normative conflicts can and ought to be minimized.Among the challenging legal questions which the new competence of the European Union (EU) in the field of investments abroad raises, one deserves particular attention, namely coherence between the protection of investments and the promotion of human rights and democracy within EU law. After examining general EU policy, the paper then examines the normative and procedural relationship between investment law and human rights law that emerges from arbitral case law. While areas of convergence exist, these two regimes appear to operate within a legal framework of mutual indifference. However, human rights law and related concerns represent both general principles of EU law and EU policy of paramount importance in the development of external relations. As a result, EU institutions must ensure the coherence of investment policy with human rights law and policy. The issue of coherence may be viewed from a policy perspective, with particular regard to the specific powers entrusted to the Commission, the Parliament and the Council of Europe and the current exercise of such powers. In this regard, the more the standards of investors’ protection under investment agreements are premised on clear definitions, exceptions and limitations, the more the adoption of State measures for the protection of human rights will fall within the circumstances precluding wrongfulness. In addition, the coherence issue has a normative component which concerns the compatibility of future EU International Investment Agreements (IIAs) with primary and secondary EU law. Conflicts between future EU IIAs and EU law may undermine the uniform application of EU law. Similarly, these conflicts may lead the assertion of the supremacy of EU law resulting in the violation of EU IIAs. Normative conflicts can and ought to be minimized.Among the challenging legal questions which the new competence of the European Union (EU) in the field of investments abroad raises, one deserves particular attention, namely coherence between the protection of investments and the promotion of human rights and democracy within EU law. After examining general EU policy, the paper then examines the normative and procedural relationship between investment law and human rights law that emerges from arbitral case law. While areas of convergence exist, these two regimes appear to operate within a legal framework of mutual indifference. However, human rights law and related concerns represent both general principles of EU law and EU policy of paramount importance in the development of external relations. As a result, EU institutions must ensure the coherence of investment policy with human rights law and policy. The issue of coherence may be viewed from a policy perspective, with particular regard to the specific powers entrusted to the Commission, the Parliament and the Council of Europe and the current exercise of such powers. In this regard, the more the standards of investors’ protection under investment agreements are premised on clear definitions, exceptions and limitations, the more the adoption of State measures for the protection of human rights will fall within the circumstances precluding wrongfulness. In addition, the coherence issue has a normative component which concerns the compatibility of future EU International Investment Agreements (IIAs) with primary and secondary EU law. Conflicts between future EU IIAs and EU law may undermine the uniform application of EU law. Similarly, these conflicts may lead the assertion of the supremacy of EU law resulting in the violation of EU IIAs. Normative conflicts can and ought to be minimized.
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Smirnov, E. "What Should Be the Law on Investment Insurance for Individuals?" Auditor 7, no. 12 (January 14, 2022): 3–9. http://dx.doi.org/10.12737/1998-0701-2021-7-12-3-9.
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For consideration by the State Duma of the eighth convocation passed by inheritance from the deputies of the seventh convocation already adopted by them in the fi rst, i.e. conceptual reading the draft law «On insurance of investments of individuals in individual investment accounts.» According to many fi nancial analysts, the adoption of this legal act would help to solve serious problems in the private investment market.
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Ngwasiri, C. N. "The Effect of Legislation on Foreign Investment—the Case of Cameroon." Journal of African Law 33, no. 2 (1989): 192–204. http://dx.doi.org/10.1017/s0021855300008135.
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There is no doubt that the investment climate in every country is conditioned to a great extent by non-legal factors. Nevertheless, many developing countries have, to varying degrees, relied on legislation as a means of attracting foreign investment. When Cameroon attained independence in 1960, it enacted an Investment Code that same year with the aim of attracting investment which the young state needed so much for the realisation of its development objectives. When after two decades the said Code no longer responded to the needs of the state, a new one was instituted on 4 July, 1984. The common feature of Investment Codes is that they contain various incentives aimed at channelling investments to areas which the authors regard as top priority. In this article, an attempt will be made to show to what extent the Cameroonian government has succeeded in its effort to direct investments to desired regions of the country through a statute wherein incentives cohabit with regulations on matters such as imports, exports, price fixing, foreign exchange, etc., which foreign investors consider as repellent. The study is subdivided into two parts. The first part is based on the Investment Codes and the second deals with the country's regulatory environment.
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Zheng, Yawen. "China’s New Foreign Investment Law and Its Contribution Towards the Country’s Development Goals." Journal of World Investment & Trade 22, no. 3 (June 21, 2021): 388–428. http://dx.doi.org/10.1163/22119000-12340213.
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Abstract This article analyses China’s new foreign investment legal regime and assesses its contribution to the country’s development goals. Fulfilment of the goals entails an increase in ‘good’ investment flows and more effective regulation and management thereof. This article finds that the reform makes some positive progress towards the development goals. First, administrative control over foreign investments is eased, since a less burdensome report mechanism is established, while foreign investments not included on negative lists are exempt from the approval procedure. Second, a new system is established to strengthen post-entry supervision of foreign investments. Third, equal treatment of foreign investments as well as investment promotion and protection are strengthened. Fourth, the rules have become clearer and more transparent. However, due to certain regulatory flaws, problematic implementation, and a lack of ambition, the progress may be slower than intended. Therefore, the recent reform is only an incremental step towards China’s development goals.
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Silva, E. M. D., and B. R. S. Campos. "Possible Legal Cooperation for a BRICS Perspective on International and Transnational Economic Law." BRICS Law Journal 8, no. 4 (December 6, 2021): 31–37. http://dx.doi.org/10.21684/2412-2343-2021-8-4-31-37.
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This research paper seeks to identify and analyze the regulations that rule the economic life of the BRICS countries in the fields of foreign investment’s law, competition law and global administrative law, and further to identify points of convergence and divergence among them in order to indicate the possibilities of legal cooperation to facilitate economic exchanges and investments flow among them. We believe that the possible bottlenecks in trade and investment can be overcome mostly by exchange of experiences, to mitigate the lack of knowledge on national laws and regulations, and by the creation of cooperative mechanisms that facilitate the economic flow among them.
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Ziadé, Roland, Claudia Annacker, and Robert T. Greig. "How Bilateral Investment Treaties Can Protect Foreign Investors in the Arab World or Arab Investors Abroad." Journal of International Arbitration 25, Issue 2 (April 1, 2008): 257–73. http://dx.doi.org/10.54648/joia2008018.
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Bilateral investment treaties generally provide investors with neutral, effective protections when investing abroad. Arab countries have been active in entering such treaties and at present the Arab world offers one of the world’s largest bilateral investment treaty networks. This article discusses the substantive protections and the procedural remedies available to foreign investors in the Arab world or to Arab investors abroad and presents ways of structuring investments in order to maximize bilateral investment treaty protections.
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Polkinghorne, Michael, and Michael Polkinghorne. "The Legality Requirement in Investment Arbitration." Journal of International Arbitration 34, Issue 2 (April 1, 2017): 149–68. http://dx.doi.org/10.54648/joia2017010.
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Many investment treaties require foreign investments to be made or owned ‘in accordance with’ or ‘in conformity with’ the laws of the host State. Some treaties incorporate this ‘legality requirement’ in the definition of investment, whereas in other treaties it can be found in substantive provisions on investor protection. This article explores three specific issues with respect to the legality requirement in investment arbitration: what is the source of the legality requirement, what is its scope, and is legality a jurisdictional or a merits issue? The article provides an overview of the answers that arbitral tribunals have given based on a selection of awards.