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1
Hossain, Mohammad Belayet, Asmah Laili Bt Yeon, and Bin Ahmad Shamsul Abd Aziz. "Environmental Protection and the Bilateral Investment Treaties of Malaysia and Netherlands: A Comparison." European Energy and Environmental Law Review 28, Issue 5 (October 1, 2019): 185–96. http://dx.doi.org/10.54648/eelr2019020.
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In absence of any global treaty, the bilateral investment treaties are playing an important role of regulating foreign investments in the host countries. According to the United Nations Conference on Trade and Development, there are 2361 bilateral investment treaties are in force and like other members of the World Trade Organization, Malaysia and Netherlands also signed bilateral investment treaties to facilitate trade. The primary purpose of economic globalization is the economic development of the developing and least-developed countries as well as to facilitate benefits of the home states. Malaysia foreign investment laws and bilateral investment treaties mainly protects foreign investors, however, neither of them has any specific provision of protecting environment. The Environmental Quality Act 1974 standard in Malaysia is not high like many developed countries such as Netherlands and significantly lack any provision to sustainable development. This article addresses two questions: (a) do the bilateral investment treaties of Malaysia and Netherlands has any specific provision to protect the environment? (b) should the environmental protection be considered during the entry of foreign investment in Malaysia and Netherlands? Using doctrinal research method, we critically analysed twenty-one bilateral investment treaties signed by both Malaysia and Netherlands with same countries to explore whether there is any reference of protecting environment. We find that the existing Malaysia and Netherlands bilateral investment treaties have provisions to promote and protect foreign investments but have no reference (except Netherlands-United Arab Emirates BIT) of protecting environment. Therefore, both governments should consider this important factor while signing any future bilateral investment treaties.
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Hossain, Mohammad Belayet, Asmah Laili Bt Yeon, and Ahmad Shamsul Bin Abd Aziz. "Sovereignty, National Interest & Security and the Bilateral Investment Treaties of Bangladesh and the Netherlands: a Comparison." African Journal of Legal Studies 12, no. 2 (December 19, 2019): 183–214. http://dx.doi.org/10.1163/17087384-12340049.
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Abstract In absence of any global treaty, the bilateral investment treaties are playing the important role of regulating foreign investments in the host countries. The primary purpose of economic globalization is the economic development of the developing and least-developed countries as well as to facilitate benefits of the home states. Bangladesh and the Netherlands also signed bilateral investment treaties to facilitate trade. Bangladesh foreign investment laws and bilateral investment treaties mainly protect foreign investors; however, neither include any specific provisions of protecting sovereignty, national interest, and security. The Netherlands generally follows EU foreign investment policies. This paper addresses two questions: (a) do the bilateral investment treaties of Bangladesh and the Netherlands include any specific provisions to protect the sovereignty, national interest, and security, and (b) should the sovereignty, national interest, and security be considered during the entry of foreign direct investment in Bangladesh and the Netherlands? Using doctrinal research method, a total of 25 bilateral investment treaties have been analysed in order to explore whether they protect the sovereignty, national interest, and security of Bangladesh and the Netherlands. Based on the findings, this study will recommend that the government of Bangladesh should consider this important factor as an entry condition, either through amending the existing laws or through the bilateral investment treaties.
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Hossain, Mohammad Belayet, Asmah Laili Bt Yeon, and Ahmad Shamsul Bin Abdul Aziz. "Screening of Foreign Investments and the Bilateral Investment Treaties of Bangladesh." Society & Sustainability 3, no. 2 (December 8, 2021): 37–53. http://dx.doi.org/10.38157/societysustainability.v3i2.310.
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Since 1960, about 2852 bilateral investment treaties (BITs) have been signed. Of them, 2298 BITs are in force at present. In the last 61 years, the WTO members failed to conclude a global treaty to regulate FDI in host countries, consequently, the BITs have played a significant role to regulate FDI. As a member of the WTO, Bangladesh has signed 31 BITs so far with various states to allow and increase the inflow of FDI into the country. Bangladeshi foreign investment laws and BITs mainly protect foreign investors. However, neither of them has any specific provision regarding the screening of foreign investments in Bangladesh. Two questions have been addressed in this paper: (a) Do the BITs of Bangladesh allow the host state for screening of foreign investments at the entry stage? (b) Should the screening of FDI be required during the pre-entry stage in Bangladesh? In this paper, a doctrinal research method has been used to critically analyze 15 BITs to explore whether there is any reference for screening of foreign investments in Bangladesh. We find that the existing Bangladesh BITs have provisions to promote and protect foreign investments but have no reference in relation to the screening of foreign investments. Therefore, the author has recommended that the Government of Bangladesh can consider specific provisions for screening of FDI in future BITs.
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Choudhury, Barnali. "Democratic Implications Arising from the Intersection of Investment Arbitration and Human Rights." Alberta Law Review 46, no. 4 (August 1, 2009): 983. http://dx.doi.org/10.29173/alr213.
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In the last two decades, investors have taken advantage of investment arbitration mechanisms in investment treaties to challenge state regulations, often implicating human rights issues. This article examines the conflict between states’ human rights obligations and their obligations under investment treaties. The first part of the article examines common obligations arising under investment treaties and the investment arbitration process created by the treaties. In the second part, the author examines the way in which investment treaties and arbitrations impact human rights concerns. In particular, the author reviews a number of human rights, including the right to water, the right to health, and rights related to culture. The author also examines common provisions of investment treaties that are particularly problematic in terms of human rights issues: expropriation and fair and equitable treatment. The author analyzes the democratic deficit inherent in the creation of investment treaties and the structure of investment arbitration, concluding that investment treaties generally lack true democratic consent, and that investment arbitration lacks sufficient transparency and protection for minority rights to reflect true democratic principles. The article concludes with suggestions for reform to address the democratic deficit of investment arbitration through both the provisions of investment treaties and the structure and procedure of arbitration.
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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.
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Nriezedi-Anejionu, Chinenyendo. "Could the Non-domestication of Nigerian Treaties Affect International Energy Investment Attraction into the Country?" African Journal of International and Comparative Law 28, no. 1 (February 2020): 122–44. http://dx.doi.org/10.3366/ajicl.2020.0305.
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In a bid to attract foreign direct investments (FDI) into the energy sector, Nigeria has signed many investment and energy-related treaties. However, many of these treaties have not been ratified and domesticated as required by the 1999 Nigerian Constitution and as such cannot be applied by domestic courts when necessary. This raises serious legal questions on the status of the various energy investment-relevant treaties Nigeria has signed. This is especially relevant to bilateral investment treaties (BITs) where their non-domestication renders their provisions not legally binding on domestic courts. It becomes problematic in situations where certain provisions in BITs such as the exhaustion of local remedies (ELR), fork-in-the-road (FITR), denial of justice and expropriation claims, require disputes to be addressed (at least initially) in domestic courts before international arbitration is accessed. This article provides an analysis of various ways non-domestication of treaties could affect the investment interests of a dualist country such as Nigeria that is actively seeking to attract FDI for the development of its energy sector. Pointing out the implications and various ways both investors' and Nigeria's interests could be undermined, it argues for a reform in the way treaties are implemented in Nigeria to facilitate their domestication.
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SINHA, Amit Kumar. "Non-Precluded Measures Provisions in Bilateral Investment Treaties of South Asian Countries." Asian Journal of International Law 7, no. 2 (April 28, 2016): 227–63. http://dx.doi.org/10.1017/s2044251316000023.
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AbstractThis paper provides a first-ever detailed study of NPM provisions in all stand-alone BITs which are in force in South Asian countries. It studies 147 BITs of South Asian countries in order to map the NPM provisions in them. It makes an in-depth analysis of the NPM provisions found in these BITs, and then makes an analysis of the consequences of not having NPM provisions in BITs. This follows the dissection of the NPM provisions found, so as to study each and every permissible objective and nexus requirement link in these provisions. This is followed by suggestions and conclusions, where the paper holds that NPM provisions are not sufficiently used in the BITs of these countries and these countries should incorporate this provision more frequently in order to ensure some much-needed regulatory latitude to these countries.
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Atanasova, Dafina. "Applicable Law Provisions in Investment Treaties: Forever Midnight Clauses?" Journal of International Dispute Settlement 10, no. 3 (June 14, 2019): 396–422. http://dx.doi.org/10.1093/jnlids/idz011.
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Abstract Building on the growing awareness that applicable law determinations are one of the places where the balance between investor and state interests is struck in investment disputes, the article probes the capacity of applicable law provisions (ALPs) in investment treaties to contribute to its regulation. Based on a large scale survey of treaty texts (1000+ treaties), the article argues that there is a misunderstanding of ALPs by negotiators despite greater engagement with these provisions. The article uncovers a mismatch between the questions of choosing among different potentially applicable laws and their proper interpretation, which are salient in investment arbitration, and the focus of ALP drafting. Even recent ALPs seem primarily used as tools to circumscribe tribunals’ jurisdiction, which leads to their redundancy. To bridge this gap, the article argues for a structural change bringing ALPs in investment treaties closer to choice of law provisions proper.
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Kurochkina, P. D., and V. L. Tolstykh. "Comparative Analysis of Bilateral Investment Treaties of the Russian Federation." Juridical science and practice 17, no. 3 (November 27, 2021): 39–46. http://dx.doi.org/10.25205/2542-0410-2021-17-3-39-46.
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The paper analyzes bilateral investment treaties, one of the parties to which is Russia. The article compares the provisions contained in the 1992 and 2001 model agreements of Russia, as well as the provisions of the 2016 Regulations. The concepts of “foreign investor” and “investment” are considered, discrepancies in the concepts and wording used in treaties with different states are revealed. In a comparative aspect, the authors explore the operation of treaties over time, the use of the standard of fair and equal treatment, and the application of provisions on expropriation. The features of the formulation of the national treatment standard and the most favored nation treatment standard, as well as the umbrella clause are revealed.
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Viktorova, N. N. "EVOLUTION OF THE LEGAL CONCEPT OF "FOREIGN INVESTMENT" IN A NETWORK SOCIETY." Lex Russica, no. 11 (November 22, 2019): 88–95. http://dx.doi.org/10.17803/1729-5920.2019.156.11.088-095.
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The paper deals with the problems of definition of the concept "investment" in multilateral and bilateral investment treaties. The author shows how the approach to the definition of "investment" in international investment agreements has changed over time, how this concept differs in modern agreements from those enshrined in agreements concluded more than ten years ago. It is noted that today we can talk about the trend of a broad definition of the concept of investment in international treaties, that is, investments are understood as any kind of property values; further the author specifies what applies to them.International treaties on the protection and promotion of investment also include the right to engage in business activities. It turns out that investment disputes can arise from ordinary commercial activities, for example from a contract of sale. However, there are documents that do not include monetary claims arising from commercial contracts, such as the 2012 model bilateral investment Treaty of the South African development Community.Generally, investment protection agreements do not distinguish between direct and portfolio investments. Therefore, portfolio investments also enjoy the protection of these investment treaties. However, some of the international investment agreements that are currently being concluded specify that portfolio investments are excluded from their scope, such as the Model bilateral investment Treaty of the South African Development Community.In the literature there are three approaches to the qualification of foreign arbitral awards as a foreign investment. According to one of them, the award is an investment, because it is part of the entire activity of the investor. Some modern international investment agreements contain provisions according to which arbitration, judicial decisions are not investments.
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Luca, Anna De. "TRANSFER PROVISIONS OF BITS IN TIMES OF FINANCIAL CRISIS." Italian Yearbook of International Law Online 23, no. 1 (November 17, 2014): 113–30. http://dx.doi.org/10.1163/22116133-90230040.
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This article discusses the provisions on investment-related transfers, which are routinely included in International Investment Agreements (IIAs) and Bilateral Investment Treaties (BITs). Under these transfer provisions the right of investors to transfer funds related to covered investments is apparently not subject to any explicit limitation. The article discusses the problems connected with the absence in many BITs of explicit derogations to the permitted transfers, and temporary exceptions to such transfers in case of balance of payments or macroeconomic difficulties. After having analysed the scarce case law on the matter, the article highlights the cautious approach, taken (at least until now) by arbitral tribunals in interpreting transfer provisions. Finally the article illustrates the growing trend in the international treaty practice towards the inclusion of transfer provisions, accompanied with safeguard provisions in case of serious balance-of-payments difficulties and external financial difficulties.
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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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Burger, Laurence. "Swiss Bilateral Investment Treaties: A Survey." Journal of International Arbitration 27, Issue 5 (October 1, 2010): 473–503. http://dx.doi.org/10.54648/joia2010027.
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This article focuses on Bilateral Investment Treaties (BITs) entered into between Switzerland and foreign countries, and introduces the key provisions contained in BITs, with concrete examples arising out of Swiss BITs. Switzerland has entered into more than one hundred BITs, and, as such, is one of the countries with the most BITs in force.
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Fahner, Johannes Hendrik, and Matthew Happold. "THE HUMAN RIGHTS DEFENCE IN INTERNATIONAL INVESTMENT ARBITRATION: EXPLORING THE LIMITS OF SYSTEMIC INTEGRATION." International and Comparative Law Quarterly 68, no. 3 (June 18, 2019): 741–59. http://dx.doi.org/10.1017/s0020589319000241.
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AbstractIn a variety of investment arbitration cases, respondent States have argued that measures impugned by investors were mandated by that State's human rights obligations. Tribunals have generally been reluctant to engage with such arguments and to interpret the relationship between investment law and human rights in a straightforward manner. This article discusses two other possibilities: harmonious interpretation and prioritization. Harmonious interpretation seeks to read provisions from investment treaties and human rights treaties together, whereas prioritization gives normative superiority to one provision over another. We conclude that harmonious interpretation is facilitated by the discretionary character of common treaty standards in both human rights and investment law, but that the final result is unlikely to be very different from prioritization, because even harmonious interpretation requires that one provision is read in the light of, and thereby subjugated to, the other.
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Petsche, Markus. "Restrictive Interpretation of Investment Treaties: A Critical Analysis of Arbitral Case Law." Journal of International Arbitration 37, Issue 1 (March 1, 2020): 1–26. http://dx.doi.org/10.54648/joia2020001.
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This article critically discusses the recourse to the principle of restrictive interpretation (in dubio mitius) by treaty-based investor-state arbitral tribunals. Although its status as a rule of international law is at best controversial, in dubio mitius has been applied by a number of arbitral tribunals interpreting umbrella clauses and most-favoured-nation (MFN) provisions contained in investment treaties. This article shows that restrictive interpretation is inappropriate and undesirable. It highlights, first of all, that no rational justification for in dubio mitius exists and that the sovereignty-based rationale put forward is obsolete, illogical and largely dysfunctional. It also shows that restrictive interpretation frequently clashes with other, more fundamental, rules of treaty interpretation and that in dubio mitius interpretation of investment treaties has an inherently discriminatory effect on investors. Investment Treaties, Treaty Interpretation, Restrictive Interpretation, In Dubio Mitius, Umbrella Clause, Mfn Provision, State Sovereignty, Investment Law
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Figueres, Dyalá Jiménez. "Investment Arbitration in Costa Rica." Journal of International Arbitration 29, Issue 4 (August 1, 2012): 453–72. http://dx.doi.org/10.54648/joia2012030.
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Costa Rica signed most of its investment treaties over the last two decades, providing substantive protection and an international means of dispute resolution to foreign investors of many countries. This article provides an overview of the salient provisions included in those treaties that deal with international arbitration, as well as of the cases in which Costa Rica has acted as respondent, in order to offer an outlook of the investment protection regime in force in this country.
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Weeramantry, J. R. "Investor-State Dispute Settlement Provisions in China's Investment Treaties." ICSID Review 27, no. 1 (September 1, 2012): 192–206. http://dx.doi.org/10.1093/icsidreview/sis012.
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Panjwani, Pratyush. "The Role of Travaux in Interpreting BIT Provisions: Are Tribunals Over-Prepared to Resort to Preparatory Works?" Journal of World Investment & Trade 20, no. 4 (August 27, 2019): 473–512. http://dx.doi.org/10.1163/22119000-12340140.
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Abstract While multilateral investment treaties have formed the centrepiece of much academic discourse, an uncharacteristic literary silence has eclipsed the issue of interpretation of bilateral investment treaties under the scheme of the Vienna Convention on the Law of Treaties (VCLT). This article travels this untraversed territory by revisiting the basics of the principles encapsulated in the hierarchical set-up of Articles 31 and 32 VCLT, and juxtaposing this foundational set-up against its frequent oversights by investment tribunals. These oversights are exemplified by the divergent interpretative analyses afforded to umbrella and most-favoured-nation clauses, and emanate from a premature resort to the travaux préparatoires of investment treaties under Article 32 VCLT. Ultimately, the article argues that a proper application of the VCLT would go a long way in eliminating the contradictions tainting the understanding of the aforesaid clauses.
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Alshahrani, Sarah M. "What Should We Know About the Origins of International Investment Law?" International Journal of Legal Information 48, no. 3 (2020): 122–31. http://dx.doi.org/10.1017/jli.2020.27.
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AbstractInternational investment law, particularly the global backlash against investment treaties, has evolved recently. This article aims to clarify how international investment law evolved over history, from the early Arab traders in the 7th century to the Ottoman Empire, to understand its hidden aims. It investigates the practice of signing investment treaties, which appear first during the Fatimid Caliphate2 and Mamluk Sultanate3 periods. It then explains when control over foreign investment started to diminish during the Ottoman Empire period.4 Further, it explains the links between the USA Friendship, Commerce and Navigation treaties (FCNs), and current investment treaties, explaining the impact of colonization and imperialism on drafting treaty provisions. Within this historical context, this article illustrates the need to understand the roots of international investment law in order to urge Arab countries to terminate or renegotiate current bilateral investment treaties (BITs) as a number of developing and developed countries have done.
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Franceschelli, Ferdinando. "PROTECTING ITALIAN INVESTMENTS IN LIBYA’S CHANGING ENVIRONMENT." Italian Yearbook of International Law Online 23, no. 1 (November 17, 2014): 147–72. http://dx.doi.org/10.1163/22116133-90230042.
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Italy is both the main trading partner and the State that has the most sizeable foreign direct investment interests in Libya. However, the outbreak of armed conflict in Libya in 2011 resulted in extensive damage to Italian investors. In order to obtain proper redress Italian investors may seek to rely upon investment protection provisions contained in treaties previously concluded between these two States, notably the BIT of 2000 and the Treaty of Benghazi of 2008. Crucially, however, the outbreak of the armed conflict and the subsequent regime change that took place following the Gaddafi’s removal from power raise doubts about the effectiveness of such treaties. This article firstly reviews both the relevant rules of international law and the investment treaties in force between Italy and Libya. Then, it examines the relationship between Italy and Libya during and after the events of 2011 and comes to the conclusion that such treaties are still effective and as such Italian investors may invoke the provisions contained therein, including those envisaging resort to international investment arbitration.
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Titi, Catharine. "Most-Favoured-Nation Treatment: Survival Clauses and Reform of International Investment Law." Journal of International Arbitration 33, Issue 5 (October 1, 2016): 425–40. http://dx.doi.org/10.54648/joia2016034.
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In the last decade, international investment law has been on a trajectory of rapid evolution with reform high on agenda priorities. Reform requires a reconciliation of competing interests, which is generally so difficult to achieve that it is often unclear whether an option constitutes ‘reform’ or unwanted change. Two specific treaty provisions, the most-favoured-nation (MFN) treatment and survival clauses, can interfere with the reform process and become an impediment to changing the rules of the game. This is particularly true when political will is present. The MFN treatment, a guarantee of non-discrimination present in the quasi-totality of investment treaties, can have far-reaching ramifications for newly negotiated provisions, especially where international investment agreements confer pre-establishment rights and a clause expressly covers ‘all matters’ within a treaty. Survival clauses, a type of provision that extends the validity of an investment agreement beyond its termination, can delay the onset of the new options for an average of between five and twenty years after expiry of the treaty’s minimum period of application. This article explores these two types of clauses and discusses their potential impact on the reform of international investment law.
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Chaisse, Julien, and Jamieson Kirkwood. "CHINESE PUZZLE: ANATOMY OF THE (INVISIBLE) BELT AND ROAD INVESTMENT TREATY1." Journal of International Economic Law 23, no. 1 (February 13, 2020): 245–69. http://dx.doi.org/10.1093/jiel/jgz047.
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Abstract This article makes a major contribution to the emerging Belt and Road Initiative scholarship (and international economic law) by highlighting that (i) China’s existing investment treaty network along the Belt and Road is dated, (ii) many or most of those treaties include Most Favored Nation provisions, (iii) these treaties have hitherto been subject to a static three generations analysis which does not reflect the reality, and (iv) there is significant authority supporting the use of the Most Favoured Nation provisions by Chinese investors to upgrade the Belt and Road Initiative investment treaty network. This article demonstrates that an investment treaty for the Belt and Road Initiative already exists via the Most Favored Nation clause present in China’s bilateral investment treaties. Moreover, the article further identifies that China’s treaty network is unique (by being so extensive) and assesses the potential for investment claims in light of Belt and Road Initiative jurisdictions past involvements in Investor–State Dispute Settlement, and by doing so, the article sheds a new light on the predicted increased use of such procedure by Chinese investors.
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Lubambo de Melo, Murilo. "Protection of Domestic Investors under the WTO and International Investment Regimes." World Trade Review 19, no. 4 (May 26, 2020): 589–604. http://dx.doi.org/10.1017/s1474745620000142.
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AbstractThis paper analyses how international economic law regulates measures aimed at the protection of domestic investors against foreign investors. It evaluates the logic of investment protectionism and assesses the incentives behind foreign entry barriers. It analyses and evaluates WTO GATS cases that dealt with the issue. It then develops a framework on how the facts of the China–Electronic Payments Panel decision could be assessed in international investment treaties. Several provisions common to those treaties would be applicable to the situation and the recent US–China Economic Agreement explicitly deals with the issue. However, adjudication under investment treaties would only be possible if some procedural conditions were present. The paper concludes that international economic law already covers a range of situations related to entry barriers to foreign investments. It also suggests that states can carefully tailor both substantive and procedural treaty rules to allow for coverage, or not, of situations involving domestic monopolies.
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Nguyen, Tho Thi Anh. "Host States’ Counterclaims on Human Rights in Practical Investment Arbitration." Asian Journal of Law and Policy 2, no. 2 (July 8, 2022): 57–73. http://dx.doi.org/10.33093/ajlp.2022.5.
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This paper analyzes the potential hindrance to the positive results of counterclaims on human rights protection in the practical investment arbitration, then evaluates whether ASEAN Comprehensive Investment Agreement and other treaties with investment provisions would be acceptable legal grounds to enable such counterclaims. This paper argues that to ensure more sustainable investment, future investment treaties should directly provide explicit states’ rights to make counterclaims on human rights protection. As such, these explicit provisions will create better legal grounds for host state to defend their legitimate rights on protecting human right, guarantee the predictability, and avoid the inconsistent interpretation or the reluctance of tribunals. This paper will delve in four substantial issues, including: (i) overview on counterclaims in international investment disputes; (ii) international and municipal regulations on human right protection in investment activities; (iii) host states’ counterclaims on protection of human rights in practical investment arbitration; (iv) control future commitments on states’ counterclaims on human rights.
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Ejims, Okechukwu. "The 2016 Morocco–Nigeria Bilateral Investment Treaty: More Practical Reality in Providing a Balanced Investment Treaty?" ICSID Review - Foreign Investment Law Journal 34, no. 1 (2019): 62–84. http://dx.doi.org/10.1093/icsidreview/siz001.
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Abstract The law governing international investment comprises primarily treaties between individual States and regional arrangements focusing on investment provisions that protect and promote foreign investment and the principles of customary international law that govern it. Recently, there has been rapid growth in such agreements, and growing criticism of bilateral investment treaties (BITs) due to their unbalanced content and the vague and broad investment protection standards that can be interpreted in ways that prioritise investment protection over the right of host States to regulate. In this context, the Morocco–Nigeria BIT has been applauded as a balanced and innovative example of the genre and a response to the global backlash against BITs. This article shows how this BIT has taken a bold step towards such reconciliation, by attempting to balance investor protection with series of obligations placed on the investor on human rights, and environmental and social impact assessment, effectively safeguarding the host State’s regulatory space in relation to social and environmental matters. Whether this step has resolved the issue of balancing the interests of investment protection and the preservation of the regulatory interest of the host State is unlikely, given that some substantive provisions are drafted so as not to strike a proper balance between private and public interests. The discussion also shows that many provisions remain vague and, hence, continue to grant discretion to investor–State dispute settlement (ISDS) tribunals to determine the meaning of these provisions.
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Hossain, Mohammad Belayet, Asmah Laili Yeon, and Ahmad Shamsul Abdul Aziz. "SOVEREIGNTY, NATIONAL INTEREST AND SECURITY IN BILATERAL INVESTMENT TREATIES OF MALAYSIA." Journal International Studies 16 (December 30, 2020): 39–58. http://dx.doi.org/10.32890/jis2020.16.3.
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At present, the BITs are playing a significant part in regulating foreign direct investment (FDI) in the host countries and like other members of the World Trade Organisation (WTO) Malaysia have also signed BITs to facilitate trade. Malaysia’s FDI laws and BITs mainly protect foreign investors, however, neither of them has any specific provision on the protection of sovereignty, national interest and security. This paper addresses the question, to what extent are sovereignty, national interest and security protected through BITs during entry of FDI into Malaysia? Using non-doctrinal socio-legal research method, the authors critically analyzed 15 BITs to explore whether they protect the sovereignty, national interest and security of Malaysia. The findings show that the existing Malaysian BITs contain provisions to promote and protect foreign investments but lack specific references to protect sovereignty, national interest and security, therefore, the government should consider these important factors when signing future BITs.
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Shan, Wenhua, and Sheng Zhang. "Market Access Provisions in the Potential EU Model BIT: Towards a “Global BIT 2.0”?" Journal of World Investment & Trade 15, no. 3-4 (July 28, 2014): 422–53. http://dx.doi.org/10.1163/22119000-01504005.
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One of the defining features of the new generation of European investment treaties is the inclusion of market access provisions. It remains to be seen, however, whether and to what extent this might become a standard practice of the eu. This article attempts to answer this question first by reviewing the development of market access policy in the eu and then by analyzing treaty practice on market access both at the eu level and at Member State level. Subsequently, it discusses the more specific issues that may be involved in market access provisions in the potential eu Model bit. It concludes that the world is witnessing a new generation of investment treaties (“Global bit 2.0”) with the eu and other major economic players accepting concrete market access or investment liberalisation commitments, which shall to a considerable degree help pave the way towards a multilateral investment treaty (mit).
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Romero, Eduardo Silva, and Ana Carolina Simões E. Silva. "The Declaration of the 1st Ministerial Meeting of the Latin American States Affected by transnational interests." International Legal Materials 52, no. 6 (December 2013): 1321–26. http://dx.doi.org/10.5305/intelegamate.52.6.1321.
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In the past decade, Latin American States have begun to voice strong criticisms of the existing system for the settlement of disputes between foreign private investors and States through international arbitration based on investment treaties. Since the end of the nineties, said system has undergone an extraordinary development due to the direct right of action granted to foreign investors by investment treaties. Indeed, the great majority of the thousands of investment treaties existing today not only grant substantive protection to investments made by investors of one State party in the territory of the other State party to the treaty, but also contain investor-State dispute settlement provisions allowing investors to initiate arbitration proceedings against host States for an alleged breach of the treaty by the State. The practice of arbitration based on investment treaties has, however, generated many difficulties with respect to both the arbitral tribunals’ application of the substantive protections provided for in the treaties and to the functioning of the arbitration proceedings. In response to those difficulties, Latin American States are seeking to set up regional legal and political cooperation initiatives to create alternatives to the existing system. The Declaration of the 1st Ministerial Meeting of the Latin American States Affected by Transnational Interests (Declaration) adopted in Guayaquil, Ecuador on April 22, 2013 is one recent example of such initiatives.
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Allee, Todd, and Clint Peinhardt. "Evaluating Three Explanations for the Design of Bilateral Investment Treaties." World Politics 66, no. 1 (December 29, 2013): 47–87. http://dx.doi.org/10.1017/s0043887113000324.
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Although many features of bilateral investment treaties (BITs) are consistent from one agreement to the next, a closer look reveals that the treaties exhibit considerable variation in terms of their enforcement provisions, which legal scholars have singled out as the central component of the treaties. An original data set is compiled that captures three important treaty-design differences: whether the parties consent in advance to international arbitration, whether they allow treaty obligations to be enforced before an institutionalized arbitration body, and how many arbitration options are specified for enforcement. Drawing upon several relevant literatures on international institutions, three potentially generalizable explanations for this important treaty variation are articulated and tested. The strongest support is found for the theoretical perspective that emphasizes the bargaining power and preferences of capital-exporting states, which use the treaties to codify strong, credible investor protections in all their treaties. Empirical tests consistently reveal that treaties contain strong enforcement provisions—in which the parties preconsent to multiple, often institutionalized arbitration options—when the capital-exporting treaty partner has considerable bargaining power and contains domestic actors that prefer such arrangements, such as large multinational corporations or right-wing governments. In contrast, there is no evidence to support the popular hands-tying explanation, which predicts that investment-seeking states with the most severe credibility problems, due to poor reputations or weak domestic institutions, will bind themselves to treaties with stronger investment protections. likewise, little support is found for explanations derived from the project on the rational design of international institutions, which discounts the identities and preferences of the treaty partners and instead emphasizes the structural conditions they jointly face. In sum, this foundational study of differences across investment treaties suggests that the design of treaties is driven by powerful states, which include elements in the treaties that serve their interests, regardless of the treaty partner or the current strategic setting.
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Cherepovskyi, K. V. "Interstate investment legal treatment as a factor of investment attractiveness." ACTUAL PROBLEMS OF THE LEGAL DEVELOPMENT IN THE CONDITIONS OF WAR AND THE POST-WAR RECONSTRUCTION OF THE STATE, no. 13 (October 1, 2022): 434–38. http://dx.doi.org/10.33663/2524-017x-2022-13-69.
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The theses are devoted to one of the key components of international investment agreements – investment legal treatment, since an even fluent analysis of international investment arbitrations with participation of states and subjects of economic activity with investments from abroad delivers understanding that standards and guarantees of investment legal treatments have fundamental character at least for the mentioned legal practices. Kind of argument for this could be found in a position of agreed provisions of investment treatments at bilateral investment treaties, which usually follows introduction norms for investment permitting and admitting, being set from the very beginning of such treaties. But, is this fundamental character of investment legal treatments being remained in other important rules of international investment implementation? Scientific questions about corresponding dualism are likely the key at these theses, because the concept of investment legal treatment is quite deeply studied in the framework of international law and general law theories, but leaves a number of insufficiently disclosed scientific and practical issues regarding the specifics of this concept in certain branches, including international investment law in the first place. The analysis defines main practical problems of international investment law, including the legal protection of international investment and the delimitation of actions of states that constitute expropriation or the measures taken by states under the right to regulate within public interest. Separate researching attention also paid to legal interaction between the concepts of the investment legal treatment as legal instrument of an international lawyer, and the state guarantees for the protection of foreign investment – as remedy and element of specialist in domestic law practices. Provided research significates investment legal treatment importance as a factor of local investment attractiveness, it also outlines importance of development of state guarantees for protection of foreign investments by delivering progressive European approaches as the examples, focusing on effective balance reaching within the corresponding regulation. Scientific and practical conclusions on the most important legal sources in the field of international investment activities are made, the direction for the next stage of researching work is preoutlined. Key words: international investment law, international investments, investment legal treatment, bilateral investment treaties, international investment arbitration, state guarantees for the protection of foreign investments.
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Bishop, R. Doak. "Introductory Remarks by R. Doak Bishop." Proceedings of the ASIL Annual Meeting 111 (2017): 43–44. http://dx.doi.org/10.1017/amp.2017.58.
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Welcome to our roundtable discussion on the balancing of rights and obligations of states and investors. In the past fifteen years, the number of investor-state disputes has grown exponentially, mainly as a result of arbitration clauses contained in investment treaties. The significant number of publicly available decisions and awards has allowed us to form views—and concerns—about both process and outcomes. Some of the concerns have led to the introduction of changes, not only in treaties but also in underlying investment policies. In some instances, states have issued interpretations of particular provisions. In recent years, multilateral initiatives have developed recommendations on how future investment treaties might be improved.
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Hossain, Mohammad Belayet, Asmah Laili Yeon, and Ahmad Shamsul Abd Aziz. "ENVIRONMENTAL PROTECTION AND THE BILATERAL INVESTMENT TREATIES OF MALAYSIA." IIUM Law Journal 30, no. 1 (July 7, 2022): 105–34. http://dx.doi.org/10.31436/iiumlj.v30i1.576.
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Since the 1990s, globalisation has been a widely accepted concept all over the world. Among the original aims of economic globalisation were to improve the host states' economies and provide benefits to the foreign investors' home countries. Due to the absence of an international treaty in the host states, the Bilateral Investment Treaties (BITs) play a significant role in controlling or regulating the Foreign Direct Investments (FDIs). According to the United Nations Conference on Trade and Development (UNCTAD), different countries have signed 2896 BITs so far, in which, at present, 2361 BITs are in force. As a member of the World Trade Organisation (WTO) and following other states, Malaysia also signed 71 BITs to facilitate the trade, of which 54 are in force at present. Malaysian FDI laws and BITs mainly protect foreign investors. However, most BITs lack the specific provision for protecting the environment. This paper addresses two questions: (a) Do the Malaysian BITs allow the host state to take measures to protect the environment? (b) How could the environment be protected against degradation during the pre-entry stage of FDIs in Malaysia? In this study, the doctrinal research method has been used to critically analyse fifteen BITs, with the aim to find out whether they contain any specific provision regarding the protection of the environment in Malaysia. The findings of this study suggest that the existing Malaysian BITs have provisions to promote and protect foreign investments but have no reference (except the Malaysia-Germany BIT) to the protection of the environment. Therefore, this study recommends that the government of Malaysia should consider inserting a specific provision regarding the protection of the environment in Malaysia while signing any future BITs.
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Ranjan, Prabhash. "Comparing Investment Provisions in India’s FTAs with India’s Stand-Alone BITs." Journal of World Investment & Trade 16, no. 5-6 (November 13, 2015): 899–930. http://dx.doi.org/10.1163/22119000-01606005.
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Rising investment treaty arbitration claims against India have resulted in India taking first steps towards a new investment treaty practice. This article argues that this practice should aim at reconciling investment protection with investment regulation. By comparing the formulation of key jurisdictional and substantive provisions in India’s stand-alone bilateral investment treaties (BITs) with those in investment chapters in India’s free trade agreements (FTAs), this article shows that formulations in FTAs investment chapters often present a better textual basis to reconcile investment protection with investment regulation. This could be made part of India’s new investment treaty practice. The article also assesses the provisions in the 2015 draft Model Indian BIT and concludes that the draft tilts the balance too much in favour of the host State’s regulatory power.
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АБАДИХА, Мостафа, and Наталия Сергеевна ЛАТЫПОВА. "THE INVESTMENT PROTECTION AT SEA UNDER THE INVESTMENT TREATIES: TACKLING THE PROBLEM OF TRANSNATIONAL INVESTMENTS." Rule-of-law state: theory and practice 17, no. 2(64) (November 30, 2021): 150–66. http://dx.doi.org/10.33184/pravgos-2021.2.13.
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According to the provisions of investment agreements, one of the terms of investment at sea is the nexus between the investment and the maritime zones of the host state. Therefore, an investment is under treaty protection when it is under the geographical realm of states. Hence, the protection status beyond the state maritime boundaries is facing problems. Today, lack of clear rules in this filed can create challenges for the future investments as well. Purpose: to show how investment protection of international investment agreements beyond the states jurisdiction at sea can be created. Methods: general scientific methods of theoretical knowledge, as well as general logical methods and research techniques are used in analyzing existing investment agreements and ICSID awards. Results: the paper proposes a solution for extending the investment protection of treaties to the high sea that it is the cross-border nature of some investments that can find in the Energy Charter Treaty (1994) and the ICSID decision on Deutsche Bank AG v. Democratic Socialist Republic of Sri Lanka. Ultimately, the article shows what is the cross- border nature and how it resolves the problem of investment at high sea.
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Eilmansberger, Thomas. "Bilateral investment treaties and EU law." Common Market Law Review 46, Issue 2 (April 1, 2009): 383–429. http://dx.doi.org/10.54648/cola2009019.
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Recent developments have highlighted the complexity and potential for conflict in the relationship between bilateral investment treaties (BITs) and EC law. This article attempts to explore the intersection between these two norms. Its first part examines the division of powers between the EC and the Member States with regard to the conclusion of such treaties, both under the regime which would be introduced by the Lisbon Treaty and the present legal framework for external relations. The second part looks at the relationship between these agreements and the internal law of the EC. It seeks to identify those types of EC law provisions which, at least potentially, interfere with specific investment protection guarantees typically contained in bilateral investment treaties, and it then suggests rules for the resolution of such conflicts. In this regard a distinction between Member State BITs with third countries (which are considered to prevail over conflicting EC law), and BITs concluded between two Member States (which, both under relevant EC law and International Law principles, are subject to the supremacy of EC law) is made.
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ANTHONY, Yvette. "The Evolution of Indirect Expropriation Clauses: Lessons from Singapore’s BITs/FTAs." Asian Journal of International Law 7, no. 2 (August 17, 2016): 319–36. http://dx.doi.org/10.1017/s2044251316000199.
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AbstractThis paper examines the evolution of expropriation provisions contained in Singapore’s bilateral investment treaties and free trade agreements from the 1970s until now. It will be seen that whilst earlier treaties contained skeletal expropriation provisions, the later treaties have sought to guide the exercise of tribunals’ discretion by providing a non-exhaustive list of factors to be taken into account when indirect expropriation is alleged. The consequences of this evolution in Singapore’s treaty-making practice are considered in the light of customary international law. The paper postulates a framework for analyzing Singapore’s treaty practice and this author concludes by submitting that the later treaties arguably go one step further in limiting the scope of indirect expropriation.
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Mathison, Eduardo, and Mariana Pendás. "TPP and Investor-State Dispute Settlement: An Intertwined Spectrum of Options for Investors?" Global Trade and Customs Journal 11, Issue 4 (April 1, 2016): 157–64. http://dx.doi.org/10.54648/gtcj2016019.
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Once ratified, Chapter 9 of the TPP (the Investment Chapter) will provide important protections to investors through the Investor-State Dispute Settlement (ISDS) system. While the Investment Chapter has triggered certain criticism, TPP members have relied for years on the ISDS system as an effective mechanism to solve disputes under pre-existing international investment agreements (IIAs). The new ISDS provisions are not revolutionary but reflect an effort by TPP members to regulate and include public concerns in the Investment Chapter. There is, however, a remarkable absence in the TPP: there is no provision addressing the “coexistence” between TPP and preexisting IIAs. This absence—which very likely will result in investor-State treaty shopping— will offer alternatives to investors to bring arbitration claims under preexisting investment treaties.
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Ortino, Federico. "Federico Ortino." Proceedings of the ASIL Annual Meeting 112 (2018): 67–68. http://dx.doi.org/10.1017/amp.2019.70.
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Even when it comes to investment, despite appearances to the contrary, it does not seem to me that there is a shift to the non-discrimination principle. First, there is no doubt that absolute standards such as fair and equitable treatment or the provision on expropriation have by far overshadowed the relative standards, in particular national treatment. Second, while the MFN standard has, on the other hand, been a key provision in investment treaty arbitration, particularly as an instrument to expand the scope of the ISDS system (based on more favorable provisions found in third-party treaties), there are clear signs in recent investment treaties of the willingness to curtail the use of the MFN provision as a way to extend the procedural and substantive protections of investors. This seems to be the current position, for example, of both the United States and the European Union (EU). Third, when it comes to the apparent disappearance of the absolute standards of treatment in some of the treaties being negotiated by the European Union (such as with Japan), this is more simply due to a question of the nature of the EU external competence in commercial matters. In its recent opinion on the EU-Singapore FTA, the Court of Justice of the EU has determined that the EU does not have exclusive competence to conclude agreements covering non-FDI and ISDS. The EU has thus responded to such opinion by splitting investment protection (with ISDS) from the rest of the trade agreement, thus keeping investment liberalization (including market access and national treatment) in the latter. In this way, while the trade agreement will fall under the exclusive competence of the EU, the former will still require ratification by each member state. While it is not clear whether the backlash vis-à-vis investment protection and ISDS in some quarters within some of the member states will eventually lead to the end of EU investment treaties, a decision in this sense has not yet been taken by EU institutions.
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Campbell, Christopher. "House of Cards: The Relevance of Legitimate Expectations under Fair and Equitable Treatment Provisions in Investment Treaty Law." Journal of International Arbitration 30, Issue 4 (August 1, 2013): 361–79. http://dx.doi.org/10.54648/joia2013024.
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This article examines the common practice of considering the relevance of an investor's 'legitimate expectations' in determining whether they have been afforded fair and equitable in investment treaty law disputes. The legitimate expectations doctrine has been divined from fair and equitable treatment provisions commonly found in international investment treaties. This article examines the different types and sources of fair and equitable provisions from which the legitimate expectations doctrine has been derived, and examines the development of both the customary international law minimum standard and the development of the law in arbitral practice. On examination, it is considered that neither customary international law nor the standard fair and equitable treatment provisions found in international investment treaties provide a sufficient basis for the consideration given to an investor's legitimate expectations in investment treaty law; this has been rather an invention of arbitrators. Furthermore, many arbitral tribunals have been severely lacking in grounding their decisions in law, generally citing other tribunal decisions which do not create law, or no law at all. Finally, it is considered that in addition to being a doctrine that has made its way into the canon of investment treaty law without any legal basis, the expectations of investors should be disavowed as an inappropriate standard by which to judge state conduct.
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Allee, Todd, and Clint Peinhardt. "Delegating Differences: Bilateral Investment Treaties and Bargaining Over Dispute Resolution Provisions." International Studies Quarterly 54, no. 1 (March 2010): 1–26. http://dx.doi.org/10.1111/j.1468-2478.2009.00575.x.
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Tucker, Andrew E. L. "The Energy Charter Treaty and ‘Compulsory’ International State/Investor Arbitration." Leiden Journal of International Law 11, no. 3 (September 1998): 513–26. http://dx.doi.org/10.1017/s0922156598000375.
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The Energy Charter Treaty came into force on 16 April 1998. The Treaty contains far-reaching provisions on trade and investment liberalisation within the energy sectors of 49 signatory states. The Treaty arguably offers a basis for multilateral agreement on micro-economic reform of the energy sectors. Some of the most significant initiatives contained in the treaty are the provisions for resolution of disputes. This article examines in detail the provisions dealing with arbitration of disputes between investors and states. These mechanisms build on models developed in other recent multilateral investment treaties. The limitations and potential offered by these provisions are discussed and some conclusions drawn.
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Parra, A. R. "Provisions on the Settlement of Investment Disputes in Modern Investment Laws, Bilateral Investment Treaties and Multilateral Instruments on Investment." ICSID Review 12, no. 2 (September 1, 1997): 287–364. http://dx.doi.org/10.1093/icsidreview/12.2.287.
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Frenkel, Michael, and Benedikt Walter. "Do bilateral investment treaties attract foreign direct investment? The role of international dispute settlement provisions." World Economy 42, no. 5 (December 2, 2018): 1316–42. http://dx.doi.org/10.1111/twec.12743.
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Aniodoh, Adaeze Agatha. "Host States’ Monetary Sovereignty Within the Construct of Bilateral Investment Treaties." Journal of African Law 65, no. 1 (January 15, 2021): 1–23. http://dx.doi.org/10.1017/s0021855320000339.
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AbstractThis article considers assertions of the diminution of the monetary sovereignty of host states when they sign bilateral investment treaties. It discusses monetary transfer provisions in the model BITs of South Africa and Egypt and how their construction can affect states’ rights to regulatory autonomy in mitigating financial crises. This has become imperative in light of recent discussions on the possibilities for a systemic overhaul of BIT provisions, by pushing back against the diminution of host states’ sovereignty in order to respond to the force of globalization. Achieving this would require reform of existing model BITs to introduce appropriate exceptions in order to ensure policy space to protect the public interest.
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Wehland, Hanno. "INTRA-EU INVESTMENT AGREEMENTS AND ARBITRATION: IS EUROPEAN COMMUNITY LAW AN OBSTACLE?" International and Comparative Law Quarterly 58, no. 2 (April 2009): 297–320. http://dx.doi.org/10.1017/s0020589309001067.
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AbstractBilateral Investment Treaties (BITs) between Member States of the EU have long been all but non-existent. However, with the two most recent rounds of EU enlargement about 190 BITs have become intra-EU. This has not only raised doubts about the conformity of these BITs with EC law, but has also prompted some (including the European Commission) to question the admissibility of arbitral proceedings brought under these Treaties. The article assesses the mechanisms through which a conflict between intra-EU BITs and EC law can become relevant from an arbitration perspective. It then analyses the principal alleged inconsistencies between BIT provisions and EC law: differing substantive standards of investment protection, unequal treatment of investors from different Member States and the lack of control by the ECJ. The discussion of these issues in the light of the relevant EC Treaty provisions shows that EC law should not, in fact, be regarded as an obstacle to intra-EU investment arbitration.
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Guarín Duque, Gustavo. "The Termination Agreement of Intra-EU Bilateral Investment Treaties: A Spaghetti-Bowl with Fewer Ingredients and More Questions." Journal of International Arbitration 37, Issue 6 (December 1, 2020): 797–826. http://dx.doi.org/10.54648/joia2020038.
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This article deals with the issue of the implementation of the Achmea judgment of the Court of Justice of the European Union (CJEU) through the Termination Agreement of Bilateral Investment Treaties (‘Termination Agreement’, TA) between some Member States of the European Union (EU). The article focuses on the analysis of the TA provisions that terminate Bilateral Investment Treaties (‘intra-EU BITs’) and investor-State dispute settlement (ISDS) among EU Members. It also describes TA provisions regulating concluded, new, and pending arbitration proceedings having as a reference the date the CJEU issued the Achmea judgment. Also, it examines how the TA regulates pending arbitration proceedings and discusses how TA Members are allowed to resort to transitional measures to resolve their dispute, throughout an amicable resolution proceeding, if they fulfil some conditions. Further, the article analyses some systemic issues of the TA, some related to the EU investment protection regime, others regarding the legal implications for intra-EU BIT provisions for EU Member States which did not sign the TA. Further, the article examines some possible issues related to the legal nature of the TA under international law and EU law.
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Li, Yuwen, and Cheng Bian. "China’s Stance on Investor-State Dispute Settlement: Evolution, Challenges, and Reform Options." Netherlands International Law Review 67, no. 3 (December 2020): 503–51. http://dx.doi.org/10.1007/s40802-020-00182-3.
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AbstractChina is one of the most active states in concluding bilateral investment treaties (BITs) globally. Its BITs can be categorized into three generations based on the homogeneity of the investor-state dispute settlement (ISDS) provisions within each generation. The China–EU Comprehensive Agreement on Investment and the China–US BIT under negotiation are expected to inaugurate a fourth generation, although China’s stance on ISDS in both treaties remains indeterminate. This article elaborates on the distinctive characteristics of ISDS provisions by mapping three generations of Chinese BITs, presenting the challenges that these ISDS provisions have brought to light in investor-state adjudication as well as in the context of the Belt and Road Initiative, and expounding on China’s policy options in ISDS reform. The on-going intense debate on ISDS reform presents China with an opportunity to shift from its traditional role of a rule-taker to a rule-maker in redesigning the ISDS mechanism. However, China’s current policy and practice do not demonstrate an ambition for such a transformation. Looking forward, it may well be in China’s long-term interest to endorse a Multilateral Investment Court as vigorously advocated by the EU.
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Lu, Yue, Linghui Wu, and Ka Zeng. "Economic Policy Uncertainty, Bilateral Investment Treaties, and Chinese Outward Foreign Direct Investment." Pacific Affairs 94, no. 3 (September 1, 2021): 519–57. http://dx.doi.org/10.5509/2021943519.
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This paper examines the effect of bilateral investment treaties (BITs) in promoting Chinese outward foreign direct investment (COFDI) in the presence of rising economic policy uncertainty in China's partner countries. We postulate that the signing of BITs should help stimulate COFDI because the treaties send a credible signal to foreign investors about the host country's intent to protect Chinese investment, and make it more difficult for the host country to violate its treaty obligations. BITs that contain rigorous investment protection and liberalization provisions, in particular, should be more likely to encourage COFDI as they directly influence Chinese investors' expectations about the stability, predictability, and security of the host market. However, while BITs generally promote COFDI, host country economic policy uncertainty may also limit their effectiveness. This is because uncertainty tends to undermine investor confidence, trigger capital flows from high- to low-risk countries, and dampen commercial activities. Poisson pseudo-maximum likelihood (PPML) estimation models of the determinants of COFDI to 188 countries between 2003 and 2017 lend substantial support to our conjectures.
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Gehring, Markus, and Marios Tokas. "Synergies and Approaches to Climate Change in International Investment Agreements." Journal of World Investment & Trade 23, no. 5-6 (December 16, 2022): 778–812. http://dx.doi.org/10.1163/22119000-12340270.
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Abstract International investment agreements have always been in the center of critique with regards to the incompatibility of international economic law with climate change policies. The overly simplistic bilateral investment treaties have been gradually being replaced by more textually complex agreements that include specific provisions or chapters on sustainable development and climate change. The European Union has been very active in this process. The present article seeks to provide an overview of the recent treaty practice of the European Union and its present negotiations of future treaties. There it will examine particular approaches in treaty-making practice, i.e. investment protection as enshrined in the fair and equitable treatment standard, and investment liberalization as provided, among others, by the recent EU–UK Trade and Cooperation Agreement. Lastly, it examines how investment liberalization and regulation approaches to investment agreements synergize with climate change policies.
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Uttama, Nathapornpan Piyaareekul. "International Investment Agreements Provisions and Foreign Direct Investment Flows in the Regional Comprehensive Economic Partnership Region." Economies 9, no. 1 (March 2, 2021): 28. http://dx.doi.org/10.3390/economies9010028.
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The international investment agreements (IIAs) are a strategic policy instrument that member countries could use to achieve win-win cooperation. Meanwhile, the extension of the Association of Southeast Asian Nations (ASEAN) membership toward the Regional Comprehensive Economic Partnership (RCEP) membership has induced the rich and deep investment agreement that challenges the ASEAN countries to take advantage. This study demonstrates the effects of investment provisions in international investment agreements on the bilateral foreign direct investment (FDI) in the RCEP economies. It also investigates the effect of ASEAN membership on investment creation and investment diversion toward the RCEP region. Using panel data on RCEP countries during the period 2009 to 2018 and a Driscoll-Kraay standard errors estimator, the results show that the re-lationship between inward FDI and investment provisions in IIAs are positive and significant. Likewise, the investment protection, and promotion provisions in bilateral investment treaties have positive and significant effects on the inward FDI. Moreover, the findings indicate that the ASEAN membership tends to cause the investment creation toward the RCEP region; and it is a stepping stone on the road to the investment policy framework for sustainable development.