4 A History of International Investment Treaties

2015 ◽  
Author(s):  
Salacuse Jeswald W
Keyword(s):  
International Law ◽  
International Investment ◽  
Negotiation Process ◽  
Historical Background ◽  
Foreign Investments ◽  
Foreign Investors ◽  
Customary International Law ◽  
History Of ◽  
Investment Treaties

Since the inception of international investment, foreign investors have sought assurances from the sovereigns in whose territory they invest that their interests will be protected from negative actions by the sovereign and local individuals. This chapter begins with a historical background of the treatification process, which came about due to the perceived weaknesses of customary international law applying to foreign investments. It then discusses the objectives of the movement to negotiate investment treaties; the primary and secondary objectives of investment treaties; long-term goals of investment treaties; the treaty negotiation process; and the consequences of investment treaties, including the growth in investor–state arbitration cases to settle investment disputes.

4 A History of International Investment Treaties

2021 ◽  
Author(s):  
Salacuse Jeswald W
Keyword(s):  
International Law ◽  
International Investment ◽  
International Treaties ◽  
Host Countries ◽  
Colonial Era ◽  
Foreign Investors ◽  
Post Colonial ◽  
International Investment Law ◽  
History Of ◽  
Investment Treaties

This chapter traces the history and considers the purposes and consequences of the movement by states to negotiate investment treaties. In the post-colonial era of nationalizations and contract renegotiations, the economic facts of life in host countries struggled against the form of various legal commitments made to foreign investors. To change the dynamics of this struggle so as to protect the interests of their companies and investors, capital-exporting countries began a process of negotiating international investment treaties that, to the extent possible, would be: (1) complete; (2) clear and specific; (3) uncontestable; and (4) enforceable. These treaty efforts took place at both the bilateral and multilateral levels, which, though separate, tended to inform and reinforce each other. As a result of this process, a widespread treatification of international investment law took place in a relatively short time. By the end of the second decade of the twenty-first century, foreign investors in many parts of the world were protected primarily by international treaties rather than as previously by customary international law alone. For all practical purposes, treaties have become the fundamental source of international law in the area of foreign investment.

MFN Standard as Substantive Treatment

2019 ◽  
Author(s):  
Mira Suleimenova
Keyword(s):  
International Law ◽  
International Investment ◽  
Third Party ◽  
International Investment Law ◽  
International Investment Agreements ◽  
History Of ◽  
Investment Law ◽  
Investment Treaties ◽  
Investment Agreements ◽  
Comprehensive Study

‘Most favoured nation’ (MFN) treatment is an integral part of virtually all modern investment regimes. MFN clauses in international investment agreements signal to investors that a given state protects them from discrimination; however, in practice, enforcing such guarantees may be challenging. This book represents a comprehensive study on how ‘most favoured nation’ treatment operates as a substantive standard of international investment law. Starting with a history of the development of the concept in international law, the author provides an overview of existing state practices in negotiating MFN clauses in bilateral and international investment treaties. Finally, the work analyses the ability of MFN treatment clauses to prevent de facto discrimination and allow for the ‘import’ of third-party substantive protections in international investor state arbitration. Dr Mira Suleimenova, LL.M. is an international investment lawyer based in Vienna, Austria.

Protection of Domestic Investors under the WTO and International Investment Regimes

2020 ◽  
Vol 19 (4) ◽  
pp. 589-604
Author(s):  
Murilo Lubambo de Melo
Keyword(s):  
International Economic ◽  
International Investment ◽  
Entry Barriers ◽  
Foreign Investments ◽  
Foreign Investors ◽  
Electronic Payments ◽  
Economic Law ◽  
International Economic Law ◽  
Investment Treaties ◽  
Economic Agreement

AbstractThis paper analyses how international economic law regulates measures aimed at the protection of domestic investors against foreign investors. It evaluates the logic of investment protectionism and assesses the incentives behind foreign entry barriers. It analyses and evaluates WTO GATS cases that dealt with the issue. It then develops a framework on how the facts of the China–Electronic Payments Panel decision could be assessed in international investment treaties. Several provisions common to those treaties would be applicable to the situation and the recent US–China Economic Agreement explicitly deals with the issue. However, adjudication under investment treaties would only be possible if some procedural conditions were present. The paper concludes that international economic law already covers a range of situations related to entry barriers to foreign investments. It also suggests that states can carefully tailor both substantive and procedural treaty rules to allow for coverage, or not, of situations involving domestic monopolies.

2 The Nature and Significance of International Investment

2021 ◽  
Author(s):  
Salacuse Jeswald W
Keyword(s):  
International Economic ◽  
International Investment ◽  
Economic Life ◽  
Legal Person ◽  
Foreign Investments ◽  
International Investments ◽  
Foreign Investors ◽  
Investment Treaties ◽  
Private Investors ◽  
Basic Level

This chapter explains the nature and significance of international investments and investors. All international investment treaties focus on two subjects: (1) investments, particularly international or ‘foreign investments’; and (2) investors, especially international or ‘foreign investors’. An understanding of these two phenomena is fundamental to understanding the growing role and significance of investment treaties in international economic life. The meaning of the term ‘investment’ at its most basic level is the commitment of resources by a physical or legal person to a specific purpose in order to earn a profit or to gain a return. Meanwhile, there are four basic categories of investors: private investors; state investors; international organizations; and mixed enterprises. The chapter then looks at the different forms of international investment.

Article: Investment Treaties and Transition from Authoritarian Rule

2014 ◽  
Vol 15 (5-6) ◽  
pp. 965-1011 ◽  
Author(s):  
Jonathan Bonnitcha
Keyword(s):  
International Law ◽  
Political Science ◽  
Political Change ◽  
Market Value ◽  
Authoritarian Rule ◽  
Foreign Investments ◽  
Foreign Investors ◽  
Investment Treaty ◽  
Democratic Regimes ◽  
Investment Treaties

Following recent events in Egypt, Libya, Myanmar (Burma) and Tunisia, foreign investors have lodged international claims under investment treaties. Several of these cases follow a common fact pattern. They concern foreign investments acquired from authoritarian governments substantially below market value through transactions that were not arms’ length. Subsequently, new governments sought to renegotiate these contracts and concessions, or to change the regulatory arrangements that govern them. The investors then invoked the protections of an investment treaty. This article draws on political science scholarship on transition. It argues that investment treaties risk constraining the ability of incoming democratic regimes to consolidate their position, and questions the normative justifications for applying the principle of full market value compensation to situations in which investments were not acquired on a full market value basis. These conclusions are relevant to wider debates about the tension between legal stability and political change in international law.

The Law of Investment Treaties

2015 ◽  
Author(s):  
Salacuse Jeswald W
Keyword(s):  
International Law ◽  
Dispute Settlement ◽  
International Investment ◽  
Foreign Investments ◽  
Operational Conditions ◽  
Monetary Transfers ◽  
Judicial Proceedings ◽  
The Law ◽  
Investment Treaties ◽  
International Investors

The rapid growth in investment treaties has led to a burgeoning number of international arbitration decisions that have applied and interpreted treaty provisions in disputes between investors and states concerning their respective rights. This flurry of treaties and arbitral decisions has seen the creation of a new branch of international law - the law of investment claims. In this revised second edition, Jeswald Salacuse examines the law of international investment treaties, specifically in relation to its origins, structure, content, and effect, as well as their impact on international investors and investments, and the governments that are parties to them. Specific topics include conditions for the entry of foreign investment and general standards of treatment of foreign investments; monetary transfers; operational conditions; protection against expropriation; dispossession and compensation for losses; dispute settlement, including negotiation, arbitration, and conciliation; and judicial proceedings.

Nondiscrimination in Trade and Investment Treaties: Worlds Apart or Two Sides of the Same Coin?

2008 ◽  
Vol 102 (1) ◽  
pp. 48-89 ◽  
Author(s):  
Nicholas DiMascio ◽  
Joost Pauwelyn
Keyword(s):  
International Law ◽  
Global Business ◽  
Foreign Investments ◽  
Private Companies ◽  
Customary International Law ◽  
Trade Sanctions ◽  
Investment Treaties ◽  
Two Sides ◽  
Trade And Investment ◽  
Do So

For global business, international trade and investment are bound at the hip. When businesses trade internationally, goods or services cross borders; when they invest, it is capital and other factors of production that do so. Companies trade to supply their foreign investments; they invest to facilitate and diversify their trade. In contrast, international law addresses trade and investment separately and regulates them in ways that are dramatically different. First, trade has been governed multilaterally since 1947 through what today is the World Trade Organization (WTO), whereas close to 2,600 separate bilateral investment treaties (BITs), which mushroomed only in the 1980s and 1990s, now regulate foreign direct investment (FDI). Second, hundreds of increasingly sophisticated WTO rules discipline trade, whereas a mere handful of principles cover investment—many of which derive from customary international law. Third, trade agreements are enforced exclusively between states, with reciprocal trade sanctions as the remedy of last resort; under investment treaties, private companies have standing to claim monetary damages from host country governments.

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