The Impact of International Investment Agreements on Energy Regulation

Author(s):  
Markus Krajewski
Author(s):  
Julien Chaisse ◽  
Jamieson Kirkwood

AbstractThis chapter focuses on the impact of the international law of foreign investment on tax issues with a view to assessing the interactions between the two regimes and identifying potential signs of convergence. In particular, this chapter focuses on the operation of International Investment Agreements (IIAs) and assesses the role of IIAs from the perspective of foreign investors vis-à-vis National Tax Measures (NTMs). Part I of this chapter provides an understanding of the convergence between investment law and tax issues. This aids in an understanding of the key characteristics of IIAs (such as the definition of investment and the use of specific tax exceptions) and the relationship between currently existing IIAs and tax disputes. Part II analyzes, both quantitatively and qualitatively, the recent trends of tax disputes in investment arbitration. Part III assesses how tax can be seen as the last barrier to cross border investment. Part IV concludes.


Author(s):  
Josef Ostřanský ◽  
Facundo Pérez Aznar

Abstract This article presents selected findings on India relating to the effects of international investment agreements (IIAs) on national governance. Our research used ethnography-inspired methods to explore the often-voiced hypothesis that IIAs induce good governance reforms in their state parties. Our findings demonstrate that the good governance hypothesis is too sweeping and lacks subtlety, but they also bring forward new conceptualizations of the impact of the international investment regime on national governance. Our research shows that governance actors use IIAs selectively in order to advance various agendas and interests. The Indian case study shows that rather than acting like a monolith when reacting to the experience of IIAs, the state is instead a site of struggle between different actors with different motivations, agendas, and interests. In such context, IIAs produce various formal–institutional as well as ideological–discursive effects that have not been captured by the existing literature. First, IIAs lead to the simultaneous practices of internalization through external adjustment and internalization through accommodation. At the same time, these modes of internalization lead to rearrangements by internalization within the public administration. Second, governance actors resort to various narratives about IIAs, which we present in this article. Importantly, the deployments of various narratives about IIAs are context-dependent and are used by governance actors tactically as convenient tools in internal political struggles within the public administration. These findings have important consequences for the design and reform of international investment regulation, should such regulation have ambition, as it does, to promote good governance.


Author(s):  
Loris Marotti

Abstract Joint interpretation clauses (JICs) are among the most controversial control mechanisms on the interpretative powers of tribunals brought by the current wave of reform of the investor–State dispute settlement system (ISDS). Literally proliferating in the new generation of international investment agreements (IIAs), these clauses give contracting States the power to issue joint interpretations (JIs) that are expressly recognized as binding upon dispute settlement bodies and may even be issued in relation to matters pending before such bodies. This article discusses several issues raised by the ‘authentic interpretation’ enhanced by JICs. In the first part, JICs are assessed against the background of the general rule on treaty interpretation, including, in particular, subsequent agreements under article 31(3)(a) of the 1969 Vienna Convention on the Law of Treaties. The second part of the article addresses the tensions between judicial bodies and treaty parties sharing the interpretative authority over IIAs and investigates whether there are any limitations on the interpretative powers of States under JICs. The third part is devoted to the impact of JIs on the proper conduct of investment arbitration proceedings, considering the participation of private actors (the investors) in the proceedings and the ‘dual role’ of States (as treaty parties and respondents) in this field. The concluding part of the article speculates whether a greater institutionalization of the international investment regime is likely to prompt more frequent forms of judicial reactions against ‘ill-perceived’ JIs and fuel the tension between States and dispute settlement bodies.


2015 ◽  
Vol 16 (5-6) ◽  
pp. 869-898 ◽  
Author(s):  
Manjiao Chi ◽  
Xi Wang

China has concluded a large number of international investment agreements (IIAs), many of which include investor-State arbitration (ISA) clauses. These clauses can be divided in three types: narrow, broad and special ISA sections, each providing different admissibility requirements on disputes for ISA. While narrow ISA clauses allow disputes involving the amount of compensation for expropriation to be submitted to ISA, broad ISA clauses and special ISA sections generally allow a wider range of disputes for ISA. The evolution of the ISA clauses shows China’s shifting attitudes towards ISA from ‘cautious’ to ‘proactive’. Such shift seems in favor of ISA and investors, but the impact of this shift remains to be seen.


2014 ◽  
Vol 15 (3-4) ◽  
pp. 585-611 ◽  
Author(s):  
Christian J. Tams

Chapters on investor-State dispute settlement (isds) are among the controversial sections of international investment agreements. The chapter situates the evolving approach of the European Union (eu) to isds, and it does so in two steps: (i) It assesses the impact of the main eu actors on the formation of the eu’s investment policy and comments on the current backlash against investment arbitration, which has led the European Commission to engage in a public consultation. (ii) Against that background, the article provides a roadmap through the details of isds draft provisions put forward by eu actors. Its focus is on procedural aspects of dispute resolution (notafbly attempts to curtail options for parallel proceedings and certain types of claims) and on the question of consistency (which continues to prompt debate among treaty-makers).


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