scholarly journals The Private Law Critique of International Investment Law

2019 ◽  
Vol 113 (1) ◽  
pp. 1-53 ◽  
Author(s):  
Julian Arato
Keyword(s):  
Intellectual Property ◽  
Dispute Settlement ◽  
International Investment ◽  
Private Law ◽  
Legal Institutions ◽  
International Investment Law ◽  
Investment Law ◽  
Investment Treaties ◽  
Do So

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.

Malaysia and Investor-State Dispute Settlement: Learning From Experience

2017 ◽  
Vol 18 (5-6) ◽  
pp. 890-917 ◽  
Author(s):  
Sufian Jusoh ◽  
Muhammad Faliq Abd Razak ◽  
Mohamad Azim Mazlan
Keyword(s):  
Foreign Direct Investment ◽  
Direct Investment ◽  
Dispute Settlement ◽  
International Investment ◽  
Learning From Experience ◽  
International Investment Law ◽  
Investment Law ◽  
Investment Treaties

Abstract Malaysia is an important destination for foreign direct investment and has signed more than 70 investment guarantee agreements. Most allow investor-state dispute settlement (ISDS) and Malaysia has been subject to three claims, including two fully argued cases: Philippe Gruslin and Malaysian Historical Salvor. Yet Malaysian companies have also utilised ISDS provisions: in MTD Equity Bhd v Chile, Telekom Malaysia v Ghana, and Ekran Berhad v China (the first-ever ISDS claim against China). These cases provide lessons for Malaysia in becoming better prepared to negotiate newer generations of investment treaties, and to defend further potential cases. Malaysia has not reacted negatively to investment treaties despite the cases filed against the country. In fact, in light of its evolving interests Malaysia has become more of a rule-maker in international investment law rather than a rule-taker. Malaysia thereby continues to liberalise its investment regime and provide better transparency – the best defence against claims.

scholarly journals Chorzów Factory – intellectual property and the continuity of international law in investor-state dispute settlement

2020 ◽  
Author(s):  
P. Sean Morris
Keyword(s):  
Intellectual Property ◽  
Property Rights ◽  
International Law ◽  
Intellectual Property Rights ◽  
Dispute Settlement ◽  
International Investment ◽  
International Investment Law ◽  
Investment Arbitration ◽  
Fair Compensation ◽  
Investment Law

One of the most important cases in the jurisprudence of international law – Chorzów Factory – has a hidden secret, so much so that, even when in plain sight, legal post-mortems of the case fail to mention this well-kept secret. Chorzów Factory was about intellectual property rights, specifically patents and trade secrets, and this narrative has never been fully addressed. When the developments in international investment law and arbitration are fully considered it is worth looking back at Chorzów Factory to associate it with new streams of contemporary investor-state disputes that include issues such as intellectual property rights. Because Chorzów Factory has established the full reparation standard for unlawful expropriation, the standard has enabled a continuity of international law and underscores its importance for contemporary investment arbitration. However, the intellectual property narrative of Chorzów Factory has been neglected, and, in this article, I want to develop the intellectual property narrative of Chorzów Factory and to demonstrate the nexus between fair compensation, intellectual property rights and the continuity of international law.

scholarly journals Chorzów Factory – intellectual property and the continuity of international law in investor-state dispute settlement

2020 ◽  
Vol 10 (2) ◽  
pp. 179-199
Author(s):  
P Sean Morris
Keyword(s):  
Intellectual Property ◽  
Property Rights ◽  
International Law ◽  
Intellectual Property Rights ◽  
Dispute Settlement ◽  
International Investment ◽  
International Investment Law ◽  
Investment Arbitration ◽  
Fair Compensation ◽  
Investment Law

One of the most important cases in the jurisprudence of international law – Chorzów Factory – has a hidden secret, so much so that, even when in plain sight, legal post-mortems of the case fail to mention this well-kept secret. Chorzów Factory was about intellectual property rights, specifically patents and trade secrets, and this narrative has never been fully addressed. When the developments in international investment law and arbitration are fully considered it is worth looking back at Chorzów Factory to associate it with new streams of contemporary investor-state disputes that include issues such as intellectual property rights. Because Chorzów Factory has established the full reparation standard for unlawful expropriation, the standard has enabled a continuity of international law and underscores its importance for contemporary investment arbitration. However, the intellectual property narrative of Chorzów Factory has been neglected, and, in this article, I want to develop the intellectual property narrative of Chorzów Factory and to demonstrate the nexus between fair compensation, intellectual property rights and the continuity of international law.

Intellectual Property and International Investment Agreements

2017 ◽  
Author(s):  
Henning Grosse Ruse-Khan
Keyword(s):  
Intellectual Property ◽  
Dispute Settlement ◽  
International Investment ◽  
Foreign Investor ◽  
National Treatment ◽  
Ip Protection ◽  
International Investment Law ◽  
International Investment Agreements ◽  
Investment Law ◽  
Investment Agreements

This chapter examines selected issues on the scope of intellectual property (IP) protection under international investment law and contrasts this with the approach of the international IP system. It first reviews the extent to which IP amounts to a protected investment. The chapter then analyses the operation of national treatment and most favoured nation (MFN) in international investment agreements (IIAs) and international IP treaties. Some of the absolute standards of treatment owed by a host state to a foreign investor under most IIAs are examined in their application to IP rights. Finally, this chapter scrutinises the extent to which obligations from the international IP system can be subject to investor–state dispute settlement (ISDS).

Investment Treaties and the Legal Imagination

2021 ◽  
Author(s):  
Nicolás M. Perrone
Keyword(s):  
World War Ii ◽  
Dispute Settlement ◽  
International Investment ◽  
Dispute Settlement Mechanism ◽  
Foreign Investors ◽  
Origin And Evolution ◽  
International Investment Law ◽  
Investment Law ◽  
Investment Treaties ◽  
The 1950S

Foreign investors have a privileged position under investment treaties. They enjoy strong rights, have no obligations, and can rely on a highly efficient enforcement mechanism: investor–state dispute settlement (ISDS). This extraordinary status has made international investment law one of the most controversial areas of the global economic order. Unsurprisingly, its origin and evolution have been the subject of a long debate. This book adds to the discussion by showing that foreign investor rights are not the result of unpredicted arbitral interpretations, but rather the likely outcome of a world-making project realized by a coalition of business leaders, bankers, and their lawyers in the 1950s and 1960s. Some initiatives that these norm entrepreneurs planned for did not concretize, such as a multilateral investment convention, but they were successful in developing a legal imagination that gradually occupied the space of international investment law. They sought not only to set up a dispute settlement mechanism but also to create a platform to ground their vision of foreign investment relations. Tracing their normative project from the post-World War II period, this book shows that the legal imagination of the norm entrepreneurs is remarkably similar to present ISDS practice. Common to both is what they protect—such as foreign investors’ legitimate expectations—as well as what they silence or make invisible. Our canon of imagination, of adjustment and potential reform, remains closely associated with the world-making project of the norm entrepreneurs of the 1950s and 1960s.

What Should We Know About the Origins of International Investment Law?

2020 ◽  
Vol 48 (3) ◽  
pp. 122-131
Author(s):  
Sarah M. Alshahrani
Keyword(s):  
Ottoman Empire ◽  
Historical Context ◽  
Developed Countries ◽  
International Investment ◽  
Arab Countries ◽  
International Investment Law ◽  
The Usa ◽  
Investment Law ◽  
Investment Treaties ◽  
The Impact

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.

The protection if intellectual property rights under international investment law

2021 ◽  
Vol 9 (17) ◽  
pp. 238-240
Author(s):  
Juan Manuel Rivero Godoy
Keyword(s):  
Intellectual Property ◽  
Property Rights ◽  
Intellectual Property Rights ◽  
International Conflict ◽  
International Investment ◽  
International Arbitration ◽  
International Investment Law ◽  
Present Book ◽  
Investment Law

The present book is a masterpiece on both international arbitration and intellectual property features where the authors have achieved to address the attention to substantial and procedural elements when an international conflict arises between different actors such as states, companies, individuals, etc.

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