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 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.

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.

Special Issue: International Investment Arbitration in Southeast Asia

2017 ◽  
Vol 18 (5-6) ◽  
pp. 767-792 ◽  
Author(s):  
Luke Nottage ◽  
Sakda Thanitcul
Keyword(s):  
Dispute Settlement ◽  
Free Trade Agreements ◽  
Trade Agreements ◽  
Case Law ◽  
International Investment ◽  
Member States ◽  
International Investment Law ◽  
Relative Paucity ◽  
Investment Arbitration ◽  
Investment Law

Abstract The dynamic economies of the Association of Southeast Asian Nations (ASEAN) have individually concluded many standalone bilateral investment treaties (BITs) and a growing number of bilateral and regional free trade agreements (FTAs), supplemented by intra-ASEAN and ‘ASEAN+’ agreements. These aim to facilitate and protect burgeoning foreign direct investment (FDI) flows, outlined in Part 2, including large outflows recently from several states. Part 3 outlines treaty-making trends, including considerable consistency from many member states as well as some interesting innovations, against the backdrop of persistent problems of poor governance. Part 4 highlights nonetheless the relative paucity of investor-state dispute settlement (ISDS) claims against ASEAN member states, with only a few adverse awards, which helps explain why treaty-based ISDS has not been abandoned. Part 5 also notes several contributions from this ISDS case law to international investment law, and Southeast Asia’s potential to keep influencing its trajectory.

Are Bondholders Investors? Sovereign Debt and Investment Arbitration afterPoštová

2017 ◽  
Vol 30 (2) ◽  
pp. 383-404 ◽  
Author(s):  
PIETRO ORTOLANI
Keyword(s):  
Sovereign Debt ◽  
Debt Crisis ◽  
Case Law ◽  
Legal Framework ◽  
International Investment ◽  
State Court ◽  
International Investment Law ◽  
Sovereign Bonds ◽  
Investment Treaty ◽  
Investment Law

AbstractAs a result of the 2010 sovereign debt crisis and the subsequent restructuring operations, bondholders have pursued different dispute resolution strategies. Litigation before US courts has proved to be a viable option, as demonstrated by the Argentine cases. State court litigation, however, is not the only available forum: in some cases, bondholders have commenced arbitration proceedings against the issuing state.Arbitral case law has been consistent in concluding that the holders of sovereign bonds issued by the host state qualify as investors and thus have standing to bring investment treaty-based claims. The recentPoštováaward, however, casts doubts over whether holders of sovereign bonds qualify as investors for the purposes of international investment law.This article illustrates the main problems revolving around the qualification of sovereign bonds as investments for the purposes of international investment law. The article summarizes the relevant legal framework and the solutions adopted by arbitral case law so far. Subsequently, the contents of thePoštovádecision are addressed in detail and the consequences of this decision are scrutinizsed.

Round-Tripping in International Investment Law: A Teleological Assessment

2021 ◽  
Vol 22 (3) ◽  
pp. 459-501
Author(s):  
Marc-Antoine Couet
Keyword(s):  
Dispute Settlement ◽  
Case Law ◽  
International Investment ◽  
International Investment Law ◽  
Domestic Capital ◽  
International Investment Agreements ◽  
Investment Law ◽  
Definition Of ◽  
Comprehensive Framework ◽  
Investment Agreements

Abstract This article addresses the issue of round-tripping investment in international investment law (IIL), which is domestic capital fleeing the home country and then flowing back in the form of foreign direct investment (FDI). It provides a functional definition of this concept and identifies why it may be considered a peculiar type of FDI. It also sets out a comprehensive framework for the treatment of round-tripping investment in IIL by analyzing whether international investment agreements do protect round-tripping investors and their investments and by reviewing how investor-State dispute settlement case-law has dealt with objections put forward by respondent States to round-tripping investors bringing their investment claims to international arbitration. Lastly, this article attempts to answer the question ‘should round-tripping investment be protected under IIL?’ by verifying whether the economic and legal reasons that justify according a differentiated treatment to foreign investors also apply in the case of round-tripping investors.

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