scholarly journals Sources of International Investment Law

2018 ◽  
Author(s):  
Stephan W. Schill
Keyword(s):  
International Law ◽  
Dispute Settlement ◽  
Free Trade Agreements ◽  
International Investment ◽  
International Investment Law ◽  
Investment Treaty ◽  
Investment Law ◽  
Settlement Of Disputes ◽  
Bilateral Treaties ◽  
Investment Treaty Arbitration

This chapter discusses the use of sources of international law in the settlement of disputes arising under bilateral, regional, multilateral investment treaties and investment chapters in free trade agreements, focusing specifically on particularities this field of international law displays in comparison to general international law. It first addresses the importance of bilateral treaties in international investment law and shows that their bilateral form is not opposed to the emergence of a genuinely multilateral regime that behaves as if it was based on multilateral sources. The chapter then considers the pre-eminent importance arbitral decisions assume in determining and developing the content of rights and obligations in the field. Next, the chapter looks at the increasing influence of comparative law and the influence of soft law instruments. It argues that the specific sources mix in international investment law is chiefly connected to the existence of compulsory dispute settlement through investment treaty arbitration and the sociological composition of those active in the field.

International Investment Law and Practice in the Kingdom of Cambodia: An Evolving ‘Rule Taker’?

2017 ◽  
Vol 18 (5-6) ◽  
pp. 942-973
Author(s):  
Romesh Weeramantry
Keyword(s):  
Foreign Direct Investment ◽  
Direct Investment ◽  
Free Trade Agreements ◽  
International Investment ◽  
Court System ◽  
International Investment Law ◽  
Investment Treaty ◽  
Investment Arbitration ◽  
Investment Law ◽  
Investment Agreements

Abstract Cambodia has undertaken several initiatives to attract foreign direct investment (FDI), which has been growing rapidly in recent years, particularly through participating in Association of South East Asian Nations (ASEAN) investment agreements and free trade agreements (FTAs). This article first outlines Cambodia’s arbitration law and practice, its Law on Investment, the court system, problems relating to corruption, and foreign direct investment (FDI) patterns. It then surveys trends in Cambodia’s comparatively belated signing of investment treaties, and their main contents (including recent treaties with India and Hungary, adopting very different models). The article then discusses the only investment arbitration instituted against Cambodia, which was successfully defended, followed by a comment on the future prospects for Cambodia’s investment treaty program.

An Overview of Sri Lanka’s Bilateral Investment Treaties: Status Quo and Some Insights into Future Modifications

2016 ◽  
Vol 7 (2) ◽  
pp. 287-318
Author(s):  
Dilini PATHIRANA
Keyword(s):  
Sri Lanka ◽  
Dispute Settlement ◽  
International Investment ◽  
Status Quo ◽  
International Investment Law ◽  
Global Context ◽  
Investment Treaty ◽  
International Investment Agreements ◽  
Investment Law ◽  
Investment Agreements

AbstractSri Lanka is the first country against which a foreign investor has had recourse to international arbitration based on the dispute settlement clause in a bilateral investment treaty (BIT). This was the case of AAPL v. Sri Lanka. Since then, the country has been challenged twice before the International Centre for Settlement of Investment Disputes (ICSID), while its latest encounter was in the case of Deutsche Bank AG v. Sri Lanka. In the intervening years between these two cases, Sri Lanka maintained silence and failed to alter its BITs in a global context where the conventional attitude on international investment agreements (IIAs) is being increasingly reconsidered. This paper provides an overview of Sri Lanka’s BITs, which highlights the urgency of reconsidering the country’s investment treaty-making practice. It suggests some modifications to align the country’s investment treaty-making practice with international investment law (IIL) developments.

International Law and Foreign Investment in Hydroelectric Industry: A Multidimensional Analysis

2016 ◽  
Vol 18 (3-4) ◽  
pp. 183-222
Author(s):  
Attila Tanzi
Keyword(s):  
International Law ◽  
Foreign Investment ◽  
Dispute Settlement ◽  
International Investment ◽  
Multidimensional Analysis ◽  
Private International Law ◽  
International Investment Law ◽  
Investment Law ◽  
Domestic Law

The main focus of the present article is on the entanglement between four bodies of international law sensitive to foreign investment in the creation and/or operation hydroelectric industry: i.e. international investment law, human rights law, international water law and private international law to the extent that public international law rules on conflict of laws on civil liability for transboundary damage are concerned. This horizontal approach to the analysis is supplemented by a vertical one looking at the interactions between international and domestic law. Consideration of the different bodies of international law in question is associated to that of the adjudicative, and non-adjudicative, means of dispute settlement available under each such bodies of law. On that score, the role of the foreign investor in a litigation scenery will be considered, primarily as claimant, but also, prospectively, in relation to the situation in the State hosting the investment is, or may become, respondent in inter-State litigation.

scholarly journals Chorzów Factory – intellectual property and the continuity of international law in investor-state dispute settlement

2020 ◽  
Author(s):  
P. Sean Morris
Keyword(s):  
Intellectual Property ◽  
Property Rights ◽  
International Law ◽  
Intellectual Property Rights ◽  
Dispute Settlement ◽  
International Investment ◽  
International Investment Law ◽  
Investment Arbitration ◽  
Fair Compensation ◽  
Investment Law

One of the most important cases in the jurisprudence of international law – Chorzów Factory – has a hidden secret, so much so that, even when in plain sight, legal post-mortems of the case fail to mention this well-kept secret. Chorzów Factory was about intellectual property rights, specifically patents and trade secrets, and this narrative has never been fully addressed. When the developments in international investment law and arbitration are fully considered it is worth looking back at Chorzów Factory to associate it with new streams of contemporary investor-state disputes that include issues such as intellectual property rights. Because Chorzów Factory has established the full reparation standard for unlawful expropriation, the standard has enabled a continuity of international law and underscores its importance for contemporary investment arbitration. However, the intellectual property narrative of Chorzów Factory has been neglected, and, in this article, I want to develop the intellectual property narrative of Chorzów Factory and to demonstrate the nexus between fair compensation, intellectual property rights and the continuity of international law.

scholarly journals Control, Capacity, and Legitimacy in Investment Treaty Arbitration

AJIL Unbound ◽  
2018 ◽  
Vol 112 ◽  
pp. 261-265
Author(s):  
Jeremy K. Sharpe
Keyword(s):  
International Investment ◽  
Law Reform ◽  
Institutional Choice ◽  
International Investment Law ◽  
Investment Protection ◽  
Investment Treaty ◽  
Trade Offs ◽  
Investment Law ◽  
States Experience ◽  
Investment Treaty Arbitration

Arbitration has long been the default mechanism for resolving international investment disputes. The traditional consensus favoring arbitration, however, has now given way, and reform proposals abound. The articles by Sergio Puig and Gregory Shaffer, on institutional choice and investment law reform, and by Anthea Roberts, on incremental, systemic, and paradigmatic reform of investor-state arbitration, helpfully situate the current controversies, debates, and reform options for states. Both articles reveal just how far and fast the debate has shifted in recent years. They also confirm states’ desire to exercise greater control over the regime for resolving international investment disputes. Many states continue to struggle to fully comply with their investment treaty obligations, to efficiently defend against investor claims, and to properly keep abreast of and shape developments in international investment law. Puig and Shaffer provide a useful framework for comparatively assessing possible institutional alternatives in light of their relative trade-offs. But any reform recommendations should draw lessons from states’ experience with the existing regime, including states’ significant problems of capacity. The merits of any reform proposals, therefore, should be measured in part by their ability to improve states’ capacity to cope with the existing investment protection regime and rapidly changing developments.

The Strategic Use of International Investment Law in Colombia – Textiles: Navigating within the International Regime Complex for Development

2020 ◽  
Vol 13 (1) ◽  
pp. 31-58
Author(s):  
Rafael Tamayo-Álvarez
Keyword(s):  
Dispute Settlement ◽  
Legal Protection ◽  
World Trade Organisation ◽  
International Investment ◽  
Dispute Settlement Mechanism ◽  
International Investment Law ◽  
Investment Treaty ◽  
Wto Dispute Settlement ◽  
Investment Law ◽  
Settlement Mechanism

AbstractTrade-based money laundering (TBML) is a major concern in Colombia, where criminal organisations employ under-invoicing to conceal drug-trafficking proceeds. In response, Colombia imposed a compound tariff on certain Panamanian importations that were considered linked to this phenomenon. Alleging that the policy measure infringed Colombia’s tariff concessions, Panama activated the World Trade Organisation (WTO) dispute settlement mechanism. The dispute revolved around Article II:1 of the General Agreement on Tariff and Trade 1994. Colombia argued that this norm should be interpreted as to encompass licit trade only. Colombia looked for normative support in the investment treaty regime by establishing a parallel between undervalued imports and illegal investments. Therefore, just as investment treaty tribunals abstain from extending international legal protection to illegal investments, the WTO adjudicating bodies should not extend tariff concessions to importations linked to TBML activities. This article contends that by transplanting a more favourable doctrine of legality from the investment treaty regime to the multilateral trade regime, Colombia engaged in strategic regime shifting. Accordingly, drawing on regime complexes analysis, the article argues that by considering development a common issue-area, it is possible to articulate strategic connections between both regimes.

Africa and the Rethinking of International Investment Law

2018 ◽  
Author(s):  
Makane Moïse Mbengue ◽  
Stefanie Schacherer
Keyword(s):  
Sustainable Development ◽  
International Law ◽  
Dispute Settlement ◽  
International Investment ◽  
Reform Process ◽  
International Investment Law ◽  
Pan African ◽  
International Investment Agreements ◽  
Investment Law ◽  
Investment Agreements

This chapter seeks to present and to contextualize the Pan-African Investment Code (PAIC) by taking a comparative international law approach. Such approach allows us to assess whether the PAIC is an Africa-specific instrument and whether it is unique today in how it incorporates sustainable development concerns. This is particularly interesting for the ongoing global reform process of international investment law. The chapter is divided into five main sections. Section II provides an overview of international investment agreements concluded by African States. Section III presents the origins of the PAIC. Section IV addresses the important question as to what extent the PAIC incorporates traditional investment standards or breaks with them. Section V explores the most innovative aspects of the PAIC. Section VI examines the PAIC and dispute settlement.

Attribution in International Investment Law

2020 ◽  
pp. 96-178
Author(s):  
Carlo de Stefano
Keyword(s):  
International Law ◽  
Dispute Settlement ◽  
International Investment ◽  
Critical Discussion ◽  
Single Test ◽  
Public International Law ◽  
Customary International Law ◽  
International Investment Law ◽  
Investment Law

Chapter III elucidates the application of attribution rules by international investment tribunals. This chapter is similar in structure to Chapter II, which is a consequence of the proximity of international investment law to public international law with regard to the topic of attribution of conduct to a party. In addition, this chapter contains critical discussion on investor–State dispute settlement (ISDS), chiefly on the dialectics between lex generalis (customary international law) and lex specialis (international investment law) as to the resolution of attribution issues, and on the distinction between treaty claims and contract claims for the purposes of the operation of so-called ‘umbrella clauses’. More generally, the chapter critiques the reasoning of arbitrators who have applied the test for attribution of conduct under ARSIWA Articles 4, 5, and 8 in a holistic way, rather than implementing each single test autonomously.

Evolution, Evaluation and Future Developments in International Investment Law

2021 ◽  
Keyword(s):  
International Law ◽  
Dispute Settlement ◽  
Practical Importance ◽  
International Investment ◽  
Political Issues ◽  
International Investment Law ◽  
Investment Protection ◽  
Future Developments ◽  
Current Reform ◽  
Investment Law

The law on the protection of foreign investments is situated at the crossroads of international law and diplomacy in the context of a globalized economy. It is therefore not surprising that investment law has undergone fundamental changes in the last decade. The exponential growth of arbitration cases has illustrated a number of complex legal and political issues that have called into question the efficiency and legitimacy of investor State dispute settlement (ISDS). Thus, even for experts in the field it is challenging to keep track with the rapid and fundamental changes of what is often described as one of the most dynamic fields of international law. Against this background, the present volume provides an ‘Evolution, Evaluation, and Future Developments in International Investment Law’. World leading academics and practitioners shed light on the most important developments such as the evolution of investment law and its relationship to general international law, the practical importance of State contracts, the role of investment protection in the age of climate change, and current reform projects under the auspices of ICSID and UNCITRAL. The volume is based on six keynote speeches held at the 10 Year Anniversary Conference of the International Investment Law Centre Cologne.

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