Bayview Irrigation District et al. v. United Mexican States

ICSID Reports ◽  
2021 ◽  
Vol 19 ◽  
pp. 168-182

168Jurisdiction — Foreign investor — NAFTA, Article 1101(a) — Interpretation — Territorial jurisdiction — Whether NAFTA protected domestic investors who made investments in their home State from measures adopted by another State — Whether there was a legally significant connection between the measures and the claimantsInterpretation — Travaux préparatoires — Jurisdiction — Investment — Foreign investor — Whether the drafters intended for NAFTA to protect domestic or only foreign investmentJurisdiction — Investment — NAFTA, Article 1139 — Interpretation — Territorial jurisdiction — Whether a protected investment must be made in a foreign territory rather than the investor’s home StateJurisdiction — Investment — NAFTA, Article 1139(g) — Interpretation — Other property — Water rights — Whether investment in the form of legal rights to extract water was within the definition of other property — Whether rights included water while it was in another State

ICSID Reports ◽  
2021 ◽  
Vol 19 ◽  
pp. 364-423

364Jurisdiction — Investment — Contract — Whether a dispute arising out of and in relation to sovereign bonds was an investment treaty dispute rather than a mere contractual dispute — Whether forum selection clauses influenced the place where the alleged investment was deemed to have been madeJurisdiction — Investment — Sovereign bonds — Contribution — Interpretation — Whether security entitlements derived from sovereign bonds constituted obligations or public securities within the definition of investment under the BIT — Whether the investors had made contributions leading to the creation of value that the contracting parties intended to protect under the BITJurisdiction — Investment — ICSID Convention, Article 25 — Interpretation — Salini test — Contribution — Whether the Salini test was the right approach to determine whether an investment had been made — Whether protection of security entitlements derived from sovereign bonds was consistent with the spirit and aim of the ICSID Convention — Whether the ICSID Convention sets the outer limits of consent given under the BITJurisdiction — Investment — Sovereign bonds — Legality — Whether the investment was made in compliance with municipal lawJurisdiction — Investment — Sovereign bonds — Territory — Economic development — Whether the investment was made in the territory of the host State — Whether it was sufficient for the invested funds to have supported the host State’s economic development — Whether it was necessary for investments of a purely financial nature to be linked to a specific economic enterprise or operation taking place in the territory of the host StateJurisdiction — Foreign investor — Nationality — Timing — Whether the investors held the nationality of the home State — Whether natural and juridical persons met certain requirements prior to the registration of the request for arbitrationJurisdiction — Foreign investor — Mass claim — Burden of proof — Whether the investors bore the burden to prove each of them met the requirements of jurisdictionJurisdiction — Foreign investor — Sovereign bonds — ICSID Convention, Article 25 — Whether a party that has purchased security entitlements derived from sovereign bonds through layers of intermediaries may still be classified as the party having made an investmentJurisdiction — Consent — Fraud — Whether the State may invoke the investor’s allegedly fraudulent consent to challenge the validity of the agreement to arbitrate the dispute365Jurisdiction — Consent — Mass claim — Procedure — Whether specific consent was required in regard to the procedure for arbitration in the form of collective proceedings or collective mass claimsJurisdiction — Consent — Prior consultation — Domestic litigation requirement — Whether prior consultation and domestic litigation requirements in the dispute resolution clause of a BIT were relevant to whether the host State consented to arbitrationAdmissibility — Mass claim — ICSID Convention — Denial of justice — Whether the mass aspect of a dispute was admissible under the current ICSID framework — Whether to deny the admissibility of mass claims would be a denial of justiceAdmissibility — Prior consultation — Domestic litigation requirement — Whether the failure to meet the requirements of prior consultation and domestic litigation rendered the claims inadmissible — Whether municipal courts would have resolved the dispute within 18 monthsProcedure — Mass claim — ICSID Convention — ICSID Arbitration Rules — Interpretation — Whether the silence of the ICSID framework in respect of collective proceedings was to be interpreted as a gap — Whether a tribunal may adapt the ICSID Arbitration Rules to enable the group examination of claims in accordance with the object and purpose of the ICSID Convention — Whether the claims of multiple claimants were identical or sufficiently homogeneous to allow for their group examination — Whether group examination would meet standards of due processProcedure — Withdrawal — Mass claim — ICSID Institution Rule 8 — Whether certain investors had withdrawn their consent prior to registration of the request for arbitrationProcedure — Discontinuance — Mass claim — ICSID Arbitration Rule 44 — Whether the request of certain investors for discontinuance should be granted — Whether discontinuance of some investors required the termination of the arbitrationAdmissibility — Abuse of rights — Agent — ICSID Arbitration Rule 18 — Whether the ulterior interests of a third party acting as agent in the arbitration constituted an abuse of rights by the investorsProcedure — Evidence — ICSID Arbitration Rule 25 — Request for arbitration — ICSID Convention, Article 36(2) — Whether updated annexes to the request for arbitration containing information related to each investor were admissible — Whether the introduction of evidence violated the requirements of the request for arbitration by unilaterally updating the identity of the parties366 Costs — Discontinuance — Whether investors who discontinued their participation in the proceeding should bear their own legal costs and a share of the arbitration costsInterpretation — ICSID Convention — Policy — Whether policy considerations were relevant to determine whether the tribunal had jurisdiction over claims arising from sovereign bonds — Whether policy considerations were relevant to determine whether mass claims were admissible


2021 ◽  
Vol ahead-of-print (ahead-of-print) ◽  
Author(s):  
Mohamad Ali Helalat

Purpose This paper aims to indicate that the foreign investment system in Jordan includes many provisions that create an appropriate environment for encouraging foreign investments and grant a distinctive treatment for the foreign investor that allows them the status equal to the national investor. Design/methodology/approach This study deals with the protection provided by the Jordan Government for foreign investments to attract foreign investment by studying the guarantees given by Jordan including many legal principles that encourage investment. The legal guarantees for the foreign investor enhance the confidence of the foreign investor in the host country. Findings The system provides a lot of guarantees with respect to non-commercial risks to which the foreign investor may be exposed. Originality/value The paper also clarifies that the role played by bilateral agreements in the field of investments, as these agreements give foreign investments a measure of protection through the guarantees and they are considered as incentives for the investor.


Significance Tax cuts were announced earlier this month for foreign investment in infrastructure, including transport, energy, water and communication. The move follows concerns that spending on infrastructure is too low for Australia’s projected population growth. Impacts The stimulus does not involve any new spending and will require the support of state governments, which co-fund some projects. Tax concessions will help ease a competitive disadvantage faced by foreign investors, but there will still be market barriers. Uncertain confidence in the current government could depress foreign investor interest. If it maintains the budget surplus, the government will keep backbenchers’ support.


2021 ◽  
Vol 3 (1) ◽  
pp. 349-360
Author(s):  
Bouchra ZELACI ◽  

Longer investment is one of the most important international sources for financing and developing economic activities, and this is why international interest in it has increased, especially kamame countries, including the Arab ones, and Algeria is among these countries that have gone through a series of reforms in light of the sluggish economy, fed up with legal reforms, the most recent of which was Law N°09/16 of 2016 related to investment promotion, and Law n°08/09 of 2008 related to civil and administrative procedures, these laws in which the Algerian legislator has devoted the space for international or international commercial arbitration as an alternative and subversive choice for resolving investment contract disputes, as it is a protective guarantee that the foreign investor can reassure in the state Algerian host of his capital. This is the guarantee that Algeria has made in its international agreements, even if that is at the expense of the national judiciary that has the primary competence to resolve such disputes, and the breach of balance between the interest of the state and the desire of the foreign investor to use it for arbitration.


Author(s):  
Rivkin David W ◽  
Friedman Mark W

This chapter discusses the status of financial products as qualifying investments under bilateral and multilateral treaties that contain protections for foreign investment, including the signatory States' consent to submit investor-State disputes to international arbitration. It first describes how an investor and a State consent to proceed to arbitration under such a treaty. Second, it discusses how a qualifying investment is generally defined for purposes of investor-State treaty arbitration. Third, it addresses significant treaty and case law developments relating specifically to financial products — such as loan agreements, sovereign bonds, and derivatives — as qualifying investments. These developments shed light on the key questions of whether an investment exists; whether the investment was made in the territory of the host State; and whether the investment was made by the claimant investor. The chapter concludes with comments on the trend favouring inclusion of financial instruments within the definition of investment.


Subject Panama corruption allegations. Significance State Prosecutor Rigoberto Gonzalez announced on August 8 the launch of a probe into allegations made against President Juan Carlos Varela, by Brazilian-Spanish lawyer Rodrigo Tacla Duran. Tacla’s remarks, made in a July 27 article in Spanish newspaper El Pais, suggest Varela was involved in corruption linked to Brazilian construction firm Odebrecht. Although not formally a direct investigation of the president, the inquiry, and any potential charges that come out of it, will increase popular criticism of Varela’s government and further undermine his political standing. Impacts Spanish investigations into Odebrecht’s consortium partners could spark a related probe into the financing of the Panama subway project. Investigations into Panama’s financing and infrastructure sector may discourage potential foreign investment plans. The government’s falling popularity will encourage the opposition to step up legislative challenges ahead of the 2019 elections.


1972 ◽  
Vol 36 (2) ◽  
pp. 184-191 ◽  
Author(s):  
Francisco C. Velasco ◽  
Pedro Molina-Negro ◽  
Claude Bertrand ◽  
Jules Hardy

✓ During stereotaxic procedures for the treatment of tremor, the simple introduction of a 1-mm diameter electrode in the subthalamus may arrest the tremor on the contralateral side. Placement of the electrodes in relation to the ventricular system and intercommissural (AC-PC) line was studied radiologically in 88 cases operated on. The proximity of the medial lemniscus and pyramidal fibers was assessed by means of electrical monopolar stimulation. A proportional reduction of the AC-PC line was made in all cases by dividing it in 10 equal parts. The resultant 10ths were squared to divide the areas above and below the line. The place where the tremor was arrested corresponded to a small area that extended just in front of the area of sensory responses and medial to the area of motor responses. It seemed to have a topographical organization, as the tremor could be selectively arrested in the arm or the leg. Analysis of results on anatomical grounds showed the area in question corresponded to the prelemniscal radiations that extend caudally as far as the mesencephalic tegmentum and end at the level of the AC-PC line.


2016 ◽  
Vol 8 (4) ◽  
pp. 56
Author(s):  
Javad Hoseinzadeh ◽  
Amin Rostamzadeh

<p>The law makers are trying to compile special and independent commerce law pertinent to each other in the form of law for attracting foreign investment in their countries to grow foreign commerce and attract foreign investor and merchant.</p><p>Comparative discussion of law maker point of view in “foreign investment law approved 2002 of Iran” and “new draft trade law of Iran approved 2011” from legal definition of foreign investor and merchant especially in cases pertinent to intervention and referred to each other are of the most important issues of this article.</p><p>Based on result, as for necessity of attraction Iranian and Non-Iranian merchant by investment with foreign origin, criticism was taken to the new draft trade law of Iran approved 2011 as new law which fundamentally should have dynamic and reliability property based on the needs of modern business and international trade, lack of explicitly pointing to legal gap about legal discrimination between foreign investor and Iranian investor qualified is in the form of foreign investor which in these conditions Iranian investor must be have legal description merchant in discriminatory approach that it is between an Iranian and foreign investor in terms of providing documentation from Iranian and this legal description must be evaluated from a legal standpoint by new draft trade law of Iran approved 2011, to benefit from Iran’s foreign trade facilitation and the way of law enforcement is contrary to the manner of foreign investment and this is the other ambiguity cases law which is discriminate with foreign investment low and needs restoration.</p><p>Specifically suggest this article, separation, adding and determine the condition of subjects the definition of foreign investor and merchant and clarification of the relationship between foreign investment law approved 2002 of Iran and new draft trade law of Iran approved 2011 as commercial law.</p>


Jurnal Hukum ◽  
2016 ◽  
Vol 31 (2) ◽  
pp. 1833
Author(s):  
Rihantoro Bayu Aji

 AbstractActually the existence of foreign investment in Indonesia is not new phenomenon, due to foreign investment exist since colonialism era.The existence of foreign investment is still continuing to Soeharto era until reformation era. Spirit of foreign investment in colonialism era, Soharto era, and reformation era are different. Foreign investment in colonialsm era just explore of nation asset and ignore of nation welfare, and this matter is different from the character of foreign investment in Soeharto era also reformation era. Eventhough the involvement of foreign investor have any benefits to the host country, but on the other hand foreign investment have business oriented only whether the investment is secure and may result of profit. Refer to The Law Number 25 Year of 2007 Concerning Investment (hereinafter called UUPM) can not be separated from various interest that become of politic background of the law, even the law tend to liberalism of investment. Liberalism in the investment sector particularly of foreign investment basically exist far from issuing of UUPM, and the spirit of liberalism also stipulate in several rules among others The Law Number 5 Year of 1999 Concerning Prohibitation of Anti Trust and Unfair Competition, The Law Number 22 Year of 2001 Concerning Oil and Gas, The Law Number 7 Year of 2004 Concerning Water Resource, and also The Law Number 30 Year of 2009 Concerning Electricity.   Many rules as mentioned above has liberalism character and also indicator opposite wit the right to manage of the state to nation asset that relate to public interest as stipulated in the Indonesia Constitution. Actually the issuing of UUPM in case of implementation of article 33 Indonesia Constitution (UUD NRI 1945). Due to opportunity by Government to foreign investment as stipulate by article 12 UUPM and also the existence of many rules as well as The Law Number 5 Year of 1999 Concerning Prohibitation of Anti Trust and Unfair Competition, The Law Number 22 Year of 2001 Concerning Oil and Gas, The Law Number 7 Year of 2004 Concerning Water Resource, and also The Law Number 30 Year of 2009 Concerning Electricity, so the foreign investment that relate to public service is more exist in Indonesia. The existence is reflected many foreign companies. Free of foreign investment relate to public service is opposite with spirit of article 33 Indonesia Constitution. Keywords: Foreign Investment, Right of  State, Article 33 Indonesia Consitution AbstrakEksistensi penanaman modal asing (investasi asing) di Indonesia sebenarnya bukan merupakan fenomena baru di Indonesia, mengingat modal asing telah hadir di Indonesia sejak zaman kolonial dahulu.   Eksistensi penanaman modal asing terus berlanjut pada era orde baru sampai dengan era reformasi. Tentunya semangat penanaman modal asing pada saat era kolonial, era orde baru, dan era reformasi adalah berbeda. Penanaman modal asing pada saat era kolonial memiliki karakter eksploitatif atas aset bangsa dan mengabaikan kesejahteraan rakyat, hal ini tentunya berbeda dengan karakter penanaman modal asing pada era orde baru, dan era reformasi. Sekalipun kehadiran investor membawa manfaat bagi negara penerima modal, di sisi lain investor yang hendak menanamkan modalnya juga tidak lepas dari orientasi bisnis (oriented business), apakah modal yang diinvestasikan aman dan bisa menghasilkan keuntungan. Melihat eksistensi Undang–Undang Nomor 25 Tahun 2007 tentang Penanaman Modal (UUPM) tidak dapat dilepaskan dari beragam kepentingan yang mendasari untuk diterbitkannya undang–undang tersebut, bahkan terdapat kecenderungan semangat dari UUPM lebih cenderung kepada liberalisasi investasi. Liberalisasi pada sektor investasi khususnya investasi asing pada dasarnya eksis jauh sebelum lahirnya UUPM ternyata juga tampak secara tersirat dalam beberapa peraturan perundang–undangan di Indonesia. Perundang–undangan tersebut antara lain Undang–Undang Nomor 5 Tahun 1999 tentang Larangan Praktek Monopoli dan Persaingan Usaha Tidak Sehat, Undang–Undang Nomor 22 Tahun 2001 tentang Minyak Dan Gas Bumi, Undang–Undang Nomor 7 Tahun 2004 tentang Sumber Daya Air, dan Undang–Undang Nomor 30 Tahun 2009 tentang Ketenagalistrikan.Banyaknya peraturan perundang–undangan yang berkarakter liberal sebagaimana diuraikan di atas mengindikasikan bahwa hak menguasai negara atas aset bangsa yang berkaitan dengan hajat hidup orang banyak sebagaimana diamahkan oleh Undang–Undang Dasar 1945 (Konstitusi) mulai “dikebiri” dengan adanya undang–undang yang tidak selaras semangatnya. Padahal, UUPM diterbitkan dalam kerangka mengimplementasikan amanat Pasal 33 Undang–Undang Dasar Negara Republik Indonesia Tahun 1945 (UUD NRI 1945). Dengan adanya peluang yang diberikan oleh pemerintah kepada investor asing sebagaimana yang diatur dalam Pasal 12 UUPM ditambah lagi dengan adanya Undang–Undang Nomor 5 Tahun 1999 tentang Larangan Praktek Monopoli dan Persaingan Usaha Tidak Sehat, Undang–Undang Nomor 22 Tahun 2001 tentang Minyak Dan Gas Bumi, Undang–Undang Nomor 7 Tahun 2004 tentang Sumber Daya Air, dan Undang–Undang Nomor 30 Tahun 2009 tentang Ketenagalistrikan, maka investasi asing yang berhubungan dengan cabang– cabang yang menguasai hajat hidup orang banyak semakin eksis di Indonesia. Terbukanya investasi asing atas cabang–cabang produksi yang menguasai hajat hidup orang banyak tentunya hal ini bertentangan dengan konsep hak menguasai negara sebagaimana diatur dalam Pasal 33 UUD NRI 1945. Kata Kunci: Investasi Asing, Hak Menguasai Negara, Pasal 33 UUD NRI Tahun          1945


Think India ◽  
2019 ◽  
Vol 22 (3) ◽  
pp. 72-83
Author(s):  
Tushar Kadian

Actually, basic needs postulates securing of the elementary conditions of existence to every human being. Despite of the practical and theoretical importance of the subject the greatest irony is non- availability of any universal preliminary definition of the concept of basic needs. Moreover, this becomes the reason for unpredictability of various political programmes aiming at providing basic needs to the people. The shift is necessary for development of this or any other conception. No labour reforms could be made in history till labours were treated as objects. Its only after they were started being treating as subjects, labour unions were allowed to represent themselves in strategy formulations that labour reforms could become a reality. The present research paper highlights the basic needs of Human Rights in life.


Sign in / Sign up

Export Citation Format

Share Document