Mixing Methodologies in Empirically Investigating Investment Arbitration and Inbound Foreign Investment

2022 ◽  
pp. 315-364
Author(s):  
Shiro Armstrong ◽  
Luke Nottage
Keyword(s):  
Foreign Investment ◽  
Investment Arbitration

Musings on the legal framework for resolution of foreign investment disputes in Nigeria

2020 ◽  
Vol 6 (2) ◽  
pp. 251-259
Author(s):  
Princess Pat Ada Ajudua
Keyword(s):  
Foreign Investment ◽  
Service Providers ◽  
Legal Framework ◽  
Professional Service ◽  
Foreign Investments ◽  
Business Interests ◽  
Trade Dispute ◽  
Investment Arbitration ◽  
The Stability ◽  
Dispute Resolution Mechanism

Resolution of dispute arising from foreign investments in Nigeria is achieved through non-judicial and judicial mechanisms, otherwise known as arbitration and litigation in courts. Foreign investors are expected to seek redress using one of the aforementioned mechanisms. Although the principles of public international law seem to be in contention with the business interests of an investor and the host country, there has been a rapid growth and development in investment arbitration as a trade dispute resolution mechanism in the past years, and the courts in Nigeria, through her decisions, have made pronouncements regarding the disputes from foreign investments. Consequent to this, it has become critically important for investors, solicitors, professional service providers and trainers, to understand the intricate legal elements involved in the resolution of disputes involving foreign investment. This study examines the legal framework for resolution of foreign investment disputes in Nigeria. Concepts such as nationalisation and expropriation of foreign investments, stability clauses and foreign investment disputes, renegotiating and the stability of contractual agreement as well as legal infrastructure were discussed and fully analysed.

scholarly journals The Governance of Foreign Investment at a Crossroad: Is an Overlapping Consensus the Way Forward?

Global Jurist ◽  
2015 ◽  
Vol 15 (1) ◽  
pp. 1-28 ◽  
Author(s):  
Nicolás M. Perrone
Keyword(s):  
Foreign Investment ◽  
Developed Countries ◽  
International Investment ◽  
Overlapping Consensus ◽  
Customary International Law ◽  
Multilateral Cooperation ◽  
Rights Protection ◽  
Investment Arbitration ◽  
Property Rights Protection ◽  
Bilateral Treaties

AbstractThis article makes the claim that the present efforts to reform the international investment regime (IIR) will not save this field from the existing criticisms. Given the plural values at issue, it is unlikely that states – let alone local populations – will ever reach a consensus on the substantive questions surrounding foreign investment. Historically, the main characteristic of foreign investment governance has been the lack of multilateral consensus. This field remained dominated by diplomacy and customary international law until bilateral treaties and investment arbitration became the leading mechanism to resolve investment disputes in the 1990s. This highly legalized regime, however, has been subject to criticisms from developing and increasingly from developed countries. Most reform proposals fail to go beyond alternatives that have been unsuccessful in the past, such as a multilateral investment agreement (MIA) or state-to-state arbitration. This article takes a different approach to foreign investment governance, starting from its political economy. It claims that the IIR does not depoliticize foreign investment relations but rather promotes the politics of foreign investors’ property rights protection. Relying on property theory and pluralism as heuristic tools, this article analyses the resistance to investment arbitration, the obstacles to multilateral cooperation, and the possibility of an overlapping consensus on the institutions for foreign investment governance.

The illegality objection in investor–state arbitration

2021 ◽  
Author(s):  
Caline Mouawad ◽  
Jessica Beess und Chrostin
Keyword(s):  
Foreign Investment ◽  
Analytical Framework ◽  
Host State ◽  
Legal Standards ◽  
The Past ◽  
Investment Arbitration ◽  
Corrupt Conduct ◽  
Death Knell

Abstract In the past decade, the number of investment tribunals wrestling with allegations of investor illegality and corrupt conduct has soared. Much has been said and written about corruption in investment arbitration, but the treatment and import of objections on the basis of an investor’s illegal conduct other than corruption has not received equal attention. This article seeks to fill that void through a comprehensive, methodical review of investment awards to date that have grappled with the issue. Allegations of investor misconduct are richly diverse, ranging from the wilful disregard of local foreign investment restrictions to inadvertent administrative omissions a host State knowingly elected not to enforce. Recognizing that the factual matrices giving rise to the illegality objection are highly fact-specific, this article explores the contours of the illegality objection, its typology, the analytical framework tribunals apply, the evolving and competing applicable legal standards, the scenarios when illegality is fatal to jurisdiction or admissibility (or not), and the relevance of the State’s conduct in perhaps overcoming that death knell.

Part VI The Post-Award Phase, 28 Review of non-ICSID Awards by National Courts

2018 ◽  
Author(s):  
Hobér Kaj ◽  
Eliasson Nils
Keyword(s):  
United States ◽  
Czech Republic ◽  
The Netherlands ◽  
Foreign Investment ◽  
The United States ◽  
National Courts ◽  
Investment Treaty ◽  
Investment Arbitration ◽  
Energy Charter Treaty ◽  
Investment Law

In investment arbitration, just as in private commercial, the final award is often merely the starting shot for challenge and/or enforcement proceedings that may take as long as, or even longer than, the prior proceedings. This chapter discusses the challenge and review of investment treaty awards in municipal courts, based on 38 cases from 12 different jurisdictions: Belgium, Canada, Czech Republic, England, France, Germany, The Netherlands, Russia, Sweden, Switzerland, Singapore, and the United States. Most Canadian and US cases challenge NAFTA awards, whereas most European cases challenge bilateral investment treaty awards. The remaining cases challenge awards under the Energy Charter Treaty, one challenge of a decision on jurisdiction under the Kyrgyz Foreign Investment Law, and two challenges of awards under the CIS Convention for the Protection of Investors Rights. These jurisdictions are frequently chosen as the seat of non-ICSID arbitrations.

Proportionality and Human Rights Protection in International Investment Arbitration: What’s Left Hanging in the Balance?

2020 ◽  
Vol 89 (3-4) ◽  
pp. 343-363
Author(s):  
Daria Davitti
Keyword(s):  
Human Rights ◽  
Foreign Investment ◽  
International Investment ◽  
Human Rights Protection ◽  
Rights Protection ◽  
Competing Interests ◽  
Investment Arbitration ◽  
International Investment Agreements ◽  
Protection Of Human Rights ◽  
Investment Agreements

Abstract This article focuses on the proportionality analysis carried out by international investment tribunals when the protection of foreign investment adversely impacts the protection of human rights. International investment arbitrators are increasingly called to adjudicate awards which require a ‘balancing’ between the so-called rights of investors, protected as they are by relevant international investment agreements (iia), and the rights of third parties affected by foreign investment. Such balancing often entails, at its core, a controversial juxtaposition between investment protections and human rights protections. In this article, I argue that a balancing between investors’ rights and human rights is neither possible nor desirable. This argument is crucial to demystify existing assumptions surrounding the use of balancing and proportionality in international investment arbitration as a way of successfully reconciling competing interests as well as conflicting protection obligations vested upon a host State.

The (Mis)framing of Arab Commercial Adjudication: The Sharīʿah, Political Contestation, and Due Process

2020 ◽  
pp. 1-33
Author(s):  
Abdulmalik M. Altamimi ◽  
Cecile Abi Tayeh
Keyword(s):  
20Th Century ◽  
Free Trade ◽  
Foreign Investment ◽  
Due Process ◽  
Islamic Law ◽  
International Arbitration ◽  
Investment Arbitration ◽  
Due Process Of Law ◽  
Legal Contexts ◽  
Founding Principle

Abstract This article argues that the claims that international commercial adjudication is inconsistent with Islamic law, or, in the Arab context, is born out of the 20th century petroleum concession disputes, are unfounded. First, the early Arab-Islamic trade interactions, in their multicultural and legal contexts, established transnational commercial adjudication. These interactions were facilitated by flexible Islamic regulations regarding free trade and adjudication, especially the freedom to arbitrate. Second, there have been profound international and inter-Arab political contestations since the 1950s that have affected international arbitration. These contestations could render the petroleum disputes irrelevant to the evolution of Arab commercial adjudication and foreign investment arbitration. However, international arbitration can be traced back to the principle of due process of law beyond the State; the perceived founding principle of Arab commercial adjudication. Recognising this history is important for researchers to assess the successes and flaws of arbitral due process in the Arab context.

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