Data Localization and the National Treatment Obligation in International Investment Treaties

2021 ◽  
pp. 1-20
Author(s):  
Qianwen Zhang ◽  
Andrew Mitchell
Keyword(s):  
Foreign Investment ◽  
Data Transfer ◽  
International Investment ◽  
National Treatment ◽  
Domestic Legislation ◽  
Treatment Principle ◽  
Investment Treaties ◽  
Foreign Corporations ◽  
Definition Of ◽  
National Treatment Obligation

Abstract Data localization hurts foreign investment and brings potential economic advantages to domestic corporations relative to foreign corporations. This leads to the argument that data localization violates the national treatment principle in international investment treaties. By applying the ‘three-step’ approach to assess the legality of data localization with respect to the national treatment principle, this article finds that the legality of data localization depends on certain circumstances, including the domestic catalogues of foreign investment, the definition of data localization in domestic legislation, and whether international investment treaties explicitly or implicitly incorporate data protection through exceptions for the protection of the state's essential security interests, public order, or public morals. China's acceleration of its legislation processes to regulate cross-border data transfer has significant implications for the negotiations and modifications of Chinese international investment treaties.

India and Bilateral Investment Treaties

2019 ◽  
Author(s):  
Prabhash Ranjan
Keyword(s):  
Foreign Investment ◽  
Dispute Settlement ◽  
International Investment ◽  
Investment Protection ◽  
Economic Liberalism ◽  
Investment Treaty ◽  
Current State ◽  
Investment Treaties ◽  
Foreign Corporations ◽  
International Rule

Many countries have started contesting international investment treaties that allow foreign corporations to sue sovereign states for alleged treaty breaches at international arbitration forums. This contestation has taken the form of either countries terminating their investment treaties or walking out of the investor–state dispute settlement (ISDS) system. India has also jumped on the contestation bandwagon. As a consequence of being sued by more than 20 foreign investors, India terminated close to 60 investment treaties and adopted a new Model bilateral investment treaty (BIT) purportedly to balance investment protection with the host state’s right to regulate. This book critically studies India’s approach towards BITs by tracing the origin, evolution, and the current state of play. The book does so by locating it in India’s economic policy in general and policy towards foreign investment in particular. India’s approach towards BITs and India’s policy towards foreign investment were consistent with each other in the periods of economic nationalism (1947 to 1990) and economic liberalism (1991 to 2010). However, post 2010; India’s approach to BITs has become protectionist while India’s foreign investment policy continues to be liberal. In order to balance investment protection with the state’s right to regulate, India needs to evolve its BIT practice based on the twin framework of international rule of law and embedded liberalism.

China's International Investment Strategy

2019 ◽  
Keyword(s):  
Development Strategy ◽  
Foreign Investment ◽  
Developed Countries ◽  
Investment Strategy ◽  
International Investment ◽  
Bilateral Investment Treaties ◽  
Open Door Policy ◽  
Outward Fdi ◽  
Investment Law ◽  
Investment Treaties

The phenomenal story of China’s ‘unprecedented disposition to engage the international legal order’ has been primarily told and examined by political scientists and economists. Since China adopted its ‘open door’ policy in 1978, which altered its development strategy from self-sufficiency to active participation in the world market and aimed at attracting foreign investment to fuel its economic development, the underlying policy for mobilizing inward foreign direct investment (IFDI) remains unchanged to date. With the 1997 launch of the ‘Going Global’ policy, an outward focus regarding foreign investment has been added, to circumvent trade barriers and improve the competitiveness of Chinese firms, typically its state-owned enterprises (SOEs). In order to accommodate inward and outward FDI, China’s participation in the international investment regime has underpinned its efforts to join multi-lateral investment-related legal instruments and conclude international investment agreements (IIAs). China began by selectively concluding bilateral investment treaties (BITs) with developed countries (major capital exporting states to China at that time), signing its first BIT with Sweden in 1982. Despite being a latecomer, over time China’s experience and practice with the international investment regime have allowed it to evolve towards liberalizing its IIAs regime and balancing the duties and benefits associated with IIAs. The book spans a broad spectrum of China’s contemporary international investment law and policy: domestic foreign investment law and reforms, tax policy, bilateral investment treaties, free trade agreements, G20 initiatives, the ‘One Belt One Road’ initiative, international dispute resolution, and inter-regime coordination.

scholarly journals The Unworkability of “Balanced Treaties” and the Importance of Diversity of Approach Among the BRICS

AJIL Unbound ◽  
2018 ◽  
Vol 112 ◽  
pp. 223-227 ◽  
Author(s):  
M. Sornarajah
Keyword(s):  
South Africa ◽  
South African ◽  
Foreign Investment ◽  
International Investment ◽  
Recent Attempt ◽  
Traditional Role ◽  
Newly Industrializing Countries ◽  
Global North ◽  
Investment Treaties ◽  
The Third World

There is much rethinking being done about investment treaties. While some level of uniformity existed when there was institutional direction by the World Bank and hegemonic pressure exerted by states in the Global North, geopolitical power is now shifting in ways that are producing greater diversity in approaches to the field. The evidence seems to indicate that each state that is of sufficient size or power will seek to fashion its foreign investment policy in the context of its own circumstances. This is certainly true for Brazil, Russia, India, China, and South Africa (the BRICS). Within this group of newly industrializing countries, it is clear that a uniform approach to investment treaties will not emerge, despite avowals to the contrary. In this essay, I offer an assessment of the divergent paths some of these states have taken. I contend that China has emerged as a newly hegemonic actor in international investment in a way that undermines its traditional role as champion for the Third World, and that India's recent attempt to develop a “balanced approach” to investment treaties is unworkable. Only South Africa has developed an approach that seeks to protect its government's ability to serve the goals of its people by subjecting foreign investment disputes to South African law and courts.

scholarly journals Travelling the National Route: South Africa's Protection of Investment Act 2015

2018 ◽  
Vol 26 (2) ◽  
pp. 242-263
Author(s):  
Tarcisio Gazzini
Keyword(s):  
South Africa ◽  
South African ◽  
Foreign Investment ◽  
International Investment ◽  
Strong Response ◽  
Foreign Investors ◽  
Public Rights ◽  
Private And Public ◽  
Investment Treaties ◽  
Settlement Of Disputes

The South African Protection of Investment Act 2015 is a strong response to the perceived inadequacy of investment treaties, which are facing growing criticism for their unbalanced character, the undue restrictions on policy space and the shortcomings of the mechanism for the settlement of disputes. While other states have opted for a revision of their treaty models (i.e. India), concluded innovative BITs (i.e. the BIT between Morocco and Nigeria, not yet in force) or preferred facilitation agreements (i.e. Brazil), South Africa has taken a different route based on the assumption that domestic legislation is more appropriate than international legal instruments to regulate foreign investment. The Act is firmly anchored to the Constitution and provides a level of substantive and procedural protection that efficiently preserves South African sovereign prerogatives, but definitely falls short of that commonly ensured under international investment treaties. While states obviously need to balance the private and public rights and obligations at stake with a view to pursuing their economic and social development policies, it remains to be seen whether the drastic reduction in the protection of foreign investors operated by the Act was unavoidable and what impact it may have on the flow of foreign investment to South Africa. The article ultimately reflects on the implications of the Act from the standpoint of the protection enjoyed by foreign investors under both customary international law and investment treaties currently binding South Africa.

9 General Treatment Standards

2015 ◽  
Author(s):  
Salacuse Jeswald W
Keyword(s):  
International Investment ◽  
National Treatment ◽  
Host Countries ◽  
Treatment Standards ◽  
Degree Of Protection ◽  
Investment Treaty ◽  
Fair And Equitable Treatment ◽  
Investment Treaties ◽  
Equitable Treatment ◽  
Full Protection

In order to protect foreign investments against the political risk created b by placing assets under a host country’s jurisdiction, investment treaties stipulate obligations regarding the ‘treatment’ that host countries must give to investors and their investments. This chapter discusses the absolute and relative general forms of treatment most frequently accorded to investors and investments by international investment treaties. These include fair and equitable treatment, national treatment, most-favoured-nation treatment, full protection and security, and minimum treatment according to the standards of international law. However, the degree of protection afforded individual investments may vary significantly among treaties. Consequently, persons interpreting investment treaty provisions should give careful attention to the differing ways in which individual treaty texts articulate their protections.

8 Arbitration under Investment Treaties

2015 ◽  
Author(s):  
Blackaby Nigel ◽  
Partasides Constantine ◽  
Redfern Alan ◽  
Hunter Martin
Keyword(s):  
Foreign Investment ◽  
International Investment ◽  
The State ◽  
Bilateral Investment Treaties ◽  
Arbitration Process ◽  
Investment Agreement ◽  
Investment Law ◽  
Investment Treaties ◽  
Bilateral Treaties ◽  
Dramatic Growth

This chapter describes the arbitration process under international investment treaties, in particular under the Washington Convention of 1965. This Convention aimed primarily to create a new arbitral forum for the resolution of disputes between investors and states by means of the inclusion of arbitration clauses in state contracts. The travaux préparatoires of the Convention also made clear that the consent of the state to arbitration could be established through the provisions of an investment law, which prompted many states to develop a programme of bilateral treaties for the promotion and protection of investments, so-called bilateral investment treaties (BITs), which set out protections in favour of foreign investment. The dramatic growth of BITs since the mid-1980s has led to the adoption of similar provisions in the ‘investment chapters’, or collateral agreements, to multilateral economic cooperation treaties, such as the Association of Southeast Asian Nations (ASEAN) Comprehensive Investment Agreement.

Part IV Guide to Key Substantive Issues, 21 The National Treatment Obligation

2018 ◽  
Author(s):  
Bjorklund Andrea K
Keyword(s):  
Historical Development ◽  
National Treatment ◽  
Foreign Investors ◽  
Host State ◽  
Investment Treaty ◽  
Investment Treaties ◽  
National Treatment Obligation ◽  
Investment Agreements

Most investment agreements contain a national treatment obligation, which requires that a host State treat foreign-owned investments at least as well as similarly situated national investments, or foreign investors as well as domestic investors. This chapter first explores the historical development of the national treatment obligation. It then addresses national treatment in practice, with particular reference to the investment treaty practice of the last decade and a half. As part of that examination, it sets forth the difficult and unresolved issues in the national treatment jurisprudence, including the hurdles that claimants face in establishing a national treatment claim. Finally, it addresses some of the reservations to national treatment that States have included in their investment treaties.

ISSUES OF STATE IMMUNITY IN LEGISLATIVE AND JUDICIAL PRACTICE OF THE USA

2016 ◽  
pp. 0-0
Author(s):  
Станислав Бородкин ◽  
Stanislav Borodkin
Keyword(s):  
International Cooperation ◽  
Foreign Investment ◽  
International Investment ◽  
State Sovereignty ◽  
Application Of Law ◽  
State Immunity ◽  
Judicial Practice ◽  
Legal Problems ◽  
The Usa ◽  
Definition Of

Protection of foreign investment is the basis of modern international investment relations. At the level of state acts such protection primarily means the adoption of investment legislation, which is a manifestation of a state sovereignty and the related with it immunity from actions of other states. In the USA the Foreign Sovereign Immunities Act was adopted in 1976. The law solves main legal problems: gives the definition of the term “foreign country”, establishes cases of the immunity and refusal to grant it, the procedural aspects of the proceedings on granting immunity. The complexity of the application of law leads to attempts to change it and to prohibit similar legal doctrines. Act as an expression of a unilateral will of the State may not always resolve the issues related to international cooperation. For regulation of state immunity was developed and opened for signature the UN Convention, which may become a fundamental international instrument in the field of State immunity.

9 General Treatment Standards

2021 ◽  
Author(s):  
Salacuse Jeswald W
Keyword(s):  
International Law ◽  
International Investment ◽  
General Treatment ◽  
National Treatment ◽  
Treatment Standards ◽  
Strong Similarity ◽  
Fair And Equitable Treatment ◽  
Investment Treaties ◽  
Equitable Treatment ◽  
Full Protection

This chapter addresses the general standards of treatment in investment treaties. General treatment standards consist of two types: (a) absolute standards, which are not contingent upon specified factors, happenings, or government behaviour towards other investors or persons; and (b) relative standards, which are dependent upon the host government's treatment of other investments or investors. The chapter discusses the absolute and relative general treatment standards used most frequently in international investment treaties. These include full protection and security, fair and equitable treatment, minimum treatment according to international law, most-favoured-nation treatment, and national treatment. That these standards exist in one form or another in most investment treaties gives the treaties a strong similarity. It must also be acknowledged, however, that not all treaties include all of these general standards and that significant differences exist in the way individual treaties articulate them.

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