scholarly journals International Investment Law, Time, and Economics: Fixing the Length of Economic Crises as a Costs-Allocation Tool between Host States and Foreign Investors

2019 ◽  
Vol 19 (1) ◽  
pp. 91-108
Author(s):  
Alberto Alvarez-Jimenez
Keyword(s):  
Risk Sharing ◽  
Case Law ◽  
International Investment ◽  
Economic Research ◽  
Economic Crises ◽  
Foreign Investors ◽  
International Investment Law ◽  
Normative Basis ◽  
Investment Law

AbstractThe case law on non-precluded measures clauses, when they are successful, and the customary rule of necessity, when it fails, transfers significant risks to foreign investors and host States, respectively, during severe economic crises. Some risk-sharing mechanisms should be explored to achieve a more balanced result. This article presents the policy reasons in support of this approach and its normative basis: the principle of acceptable compensation, and illustrates that one way to introduce such mechanisms is through the determination by investor/State tribunals of the length of the breakdown, which is marked by the dates for its beginning and end. The article discusses economic research on when crises conclude, which could be useful to tribunals, and explores the determination on the beginning of economic collapses as a risk-sharing tool and shows how decisions of the Argentinean saga have achieved this result.

Diligentia quam in suis as a Technique for a Contextual Application of the Full Protection and Security Standard: Considering the Level of Development of Host States in International Investment Law

2020 ◽  
Vol 28 (4) ◽  
pp. 596-611
Author(s):  
Nitish Monebhurrun
Keyword(s):  
International Law ◽  
International Investment ◽  
Due Diligence ◽  
Foreign Investors ◽  
International Investment Law ◽  
Local Means ◽  
Security Standard ◽  
Maximum Protection ◽  
Investment Law ◽  
Full Protection

With international investment law as the background to this study, the present article examines how the full protection and security standard can be construed from the perspective of developing states hosting foreign investments. The research delves into classical public international law to argue that the diligentia quam in suis rule can be used as a means of interpretation to strike a balance between foreign investors’ and developing states’ interests when construing the full protection and security standard. The rule provides that any expected due diligence from the state party is necessarily of a subjective nature. This means that developing host states must deploy their best efforts to offer maximum protection to foreign investors not on an in abstracto basis but as per their local means and capacity. Accordingly, the standard is presented as an adaptable and flexible one which moulds its contours as per the level of development of the host state. Such flexibility does not imply condoning states’ abuse and negligence. The article explains how the diligentia quam in suis rule enables a conciliation between the full protection and security standard and the host state's level of development while rationalising the standard's application to developing nations.

scholarly journals Private Actors, Public Goods and Responsibility for the Right to Water in International Investment Law: An Analysis of Urbaser v. Argentina

2018 ◽  
pp. 1-24
Author(s):  
Edward Guntrip
Keyword(s):  
Water Supply ◽  
International Law ◽  
International Investment ◽  
Human Right ◽  
Public And Private ◽  
Foreign Investors ◽  
International Investment Law ◽  
Investment Law ◽  
The Right ◽  
Water Supply Services

International investment law balances public and private interests within the broader framework of international law. Consequently, when water supply services, which constitute a public good, are privatized and operated by foreign investors, questions arise regarding whether foreign investors could be held responsible for the right to water under international law. This article considers how the tribunal in Urbaser v. Argentina allocated responsibility for compliance with the right to water between the host State and the foreign investor when resolving a dispute over privatized water services. It highlights how the tribunal in Urbaser v. Argentina supports different understandings of public and private based on whether the human rights obligation is framed in terms of the duty to respect or protect. The article argues that the tribunal’s rationale overcomplicates the process of allocating responsibility for violations of the human right to water when water supply services have been privatized.

scholarly journals Reverse Contributors? African State Parties, ICSID and the Development of International Investment Law 

2019 ◽  
Vol 34 (2) ◽  
pp. 434-454
Author(s):  
Olabisi D Akinkugbe
Keyword(s):  
African State ◽  
Case Law ◽  
International Investment ◽  
Critical Inquiry ◽  
International Investment Law ◽  
Academic Literature ◽  
Investment Law ◽  
Over Time

Abstract International investment disputes involving African States before the International Centre for the Settlement of Investment Disputes (ICSID) have generated significant critical inquiry. Yet, not enough academic literature has been devoted to accounting for the implications that arise from the disputes involving African States to the development of the ICSID case law and international investment law in general. This article addresses this gap by conceptualizing African States parties before ICSID tribunals as reverse contributors. While the article acknowledges the critiques of ICSID vis-à-vis African State parties, it contends that, over time, the involvement of African States in ICSID disputes has generated opportunities for the clarification, confirmation and development of ICSID jurisprudence. Although the article is not a case for African exceptionalism, it contributes to the dearth of materials that revisit the participation of African States before ICSID, while simultaneously acknowledging the need for reforms.

scholarly journals Preventing the Regulatory Chill of International Investment Law and Arbitration

2020 ◽  
Vol 9 (1) ◽  
pp. 85
Author(s):  
Atif M. Alenezi
Keyword(s):  
International Investment ◽  
Foreign Investors ◽  
International Investment Law ◽  
Regulatory Changes ◽  
Resolution System ◽  
Fair And Equitable Treatment ◽  
Investment Law ◽  
Foreign Corporations ◽  
Equitable Treatment ◽  
Legitimacy Crisis

International investment law has increasingly come under attack because it does not put host states on par with foreign investors. Foreign investors can evoke broad investment rights and pursue investment arbitration. The threat of substantial arbitral awards can result in host states not enacting policies, regulations, laws or reaching decisions, despite them being needed in order to protect a variety of important public interests. The concern is, therefore, that international investment law, including the investor-state dispute resolution system, causes a regulatory chill. The paper examines how the asymmetric relationship between foreign investors and host states can be remedied, so that trust in international investment law is strengthened and its legitimacy crisis is overcome. One core issue with international investment law is that the customary international minimum standard and its therein subsumed full protection and security, and fair and equitable treatment and compensation principles are inherently vague, thereby contributing to the overprotection of foreign investors. Arbitral cases further highlight how regulatory changes can result in host states incurring liability and thus enable foreign corporations to shift potential costs and risks. International, and national solutions to prevent the regulatory chill of international investment agreements are spelled out.

The Application of the Principle of Proportionality to Assess Compensation: Some Reflections Arising from the Case of Joseph Charles Lemire v. Ukraine

2014 ◽  
Vol 13 (2) ◽  
pp. 199-222
Author(s):  
Sondra Faccio
Keyword(s):  
Case Law ◽  
International Investment ◽  
International Human Rights Law ◽  
Human Rights Law ◽  
International Investment Law ◽  
Investment Treaty ◽  
Fair And Equitable Treatment ◽  
Investment Law ◽  
Principle Of Proportionality ◽  
Equitable Treatment

In the last few years, the principle of proportionality has appeared with a certain frequency in international investment case law: arbitrators have employed it to determine whether the State’s regulatory measure under scrutiny represents a form of indirect expropriation, to assess violations of the fair and equitable treatment (‘fet’) standard, to counterbalance competing obligations drawn from international investment law and international human rights law, and to assess compensation. This article will focus on the so-called “quantum phase” – the part of the award devoted to the assessment of the monetary compensation due to the foreign investor for the breach of the investment treaty provision – and will discuss whether the principle of proportionality can effectively play a role in the assessment of compensation. The work will start from the analysis of the case of Joseph Charles Lemire v. Ukraine, where arbitrators expressly resorted to proportionality to verify whether the indemnity awarded to the claimant for the breach of the fet standard was adequate in light of the specific characteristics of the investment lato sensu and the investor, to then approach the issue of proportionality more in detail.

Transnational Public Policy as an International Practice in Investment Arbitration

2019 ◽  
Vol 10 (3) ◽  
pp. 496-515
Author(s):  
Jean-Michel Marcoux
Keyword(s):  
Public Policy ◽  
International Relations ◽  
International Relations Theory ◽  
International Investment ◽  
Legal Basis ◽  
Foreign Investors ◽  
International Investment Law ◽  
Investment Arbitration ◽  
Investment Law

Abstract International investment arbitration tribunals have used the doctrine of transnational public policy to prevent claimants whose investments are tainted with illegality from obtaining redress. Whereas tribunals generally have the authority to apply transnational public policy when deciding a claim, they have often assumed rather than demonstrated the obligation for foreign investors to comply with the doctrine. This article proposes an interdisciplinary account that draws upon ‘international practices’ in International Relations theory to understand the normative pull toward this obligation. It does so by shedding light on tribunals’ general lack of consideration for a proper legal basis to impose an obligation on foreign investors to comply with transnational public policy. It then suggests that the normativity of the doctrine primarily rests on a practice that is reproduced and reinforced by tribunals themselves. Understanding transnational public policy as an international practice ultimately illustrates the role of tribunals to reform international investment law.

scholarly journals The Security of International Investments: a Synthesis of Impacts on Public Policies and Domestic Law of Host States

2021 ◽  
Author(s):  
◽  
Livia Costanza
Keyword(s):  
Public Policies ◽  
Legal Framework ◽  
International Investment ◽  
Public And Private ◽  
Foreign Investors ◽  
International Investment Law ◽  
Investment Treaty ◽  
Investment Law ◽  
Investment Treaties ◽  
Domestic Law

<p>The subject of this dissertation is the relationship between the protection of foreign investors' investments under international investment law and the domestic law of host states. Two questions arise in this connection. First, is the promotion and protection of investments comprised in investment agreements compatible with states' domestic law? Second, public policies of host states may appear to be in contradiction with an increased international security of investments. When such a conflict is challenged by foreign investors, what are the consequences for both parties? In general, investments are transactions that are private in nature, whose aim is to generate a positive rate of return. Investments can have pervasive consequences on countries' welfare, including, for example, the consequences on sustainable development; the use and protection of natural resources; and employment, to name a few. It is the role of the governments to balance these sometimes conflicting public and private interests. As of today, it seems that the regime established according to investment treaties does not strike an appropriate balance between the various interests concerned. After a brief look at the legal framework protecting foreign investments, the conflict areas between investment treaty provisions and domestic public policies of host states are explored through an empirical analysis of some case studies and recent arbitrations. Finally, this dissertation holds that, at a substantive level, investment law is a part of international law. Thus it must be consistent with its norms and it has to be interpreted in accordance with customary rules of treaty interpretation. The dissertation concludes by suggesting the creation of a state-investor relationship and advocates, in part, the establishment of development objectives in investment treaties as well as the inclusion of rights and obligations for all parties involved.</p>

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