International Investment, Political Risk, and Dispute Resolution

Investment Protection ◽

Political Risks ◽

Theoretical Approaches ◽

Previous Edition ◽

Risk Insurance

This second edition explores the multi-layered legal framework for the protection of foreign investment against political risk. The chapters analyze some of the key issues surrounding this subject, such as structuring transactions to minimize political risk, political risk insurance, State responsibility, treaties protecting foreign investmentand international arbitration between States and investors. Since the previous edition, far more attention has been paid to some of these issues, in particular investor–State arbitration.All chapters have been revised to take into account the number of new arbitration awards that have come to light and the massive volume of commentary on the subject of international investment arbitration since the first edition. The authors have carefully considered the latest theoretical approaches to foreign investment protection and the most intellectually challenging awards issued in the intervening decade, as well as the most recent practical guidance on the procedural recourse available to investors who face political risks. The book is written to appeal to lawyers and non-lawyers alike. It is suitable as a primer for non-specialist practitioners seeking to familiarize themselves with international law pertaining to political risk. It is also suitable for students who intend to specialize in international investment law.

Investment Protection in Disputed Maritime Areas

The Journal of World Investment & Trade ◽

10.1163/22119000-12340112 ◽

2018 ◽

Vol 19 (5-6) ◽

pp. 828-859

Author(s):

Peter Tzeng

Keyword(s):

Dispute Settlement ◽

Political Risk ◽

Joint Development ◽

Investment Protection ◽

International Investment Agreements ◽

Protection Mechanisms ◽

United Nations Convention ◽

Risk Insurance ◽

Investment Agreements

Abstract Disputed maritime areas are often sources of valuable natural resources, but they are also often sources of conflict. It is thus important for investors investing in such areas to know the array of investment protection mechanisms available to them. This article examines four such mechanisms (dispute settlement under international investment agreements (IIAs), dispute settlement under the United Nations Convention on the Law of the Sea (UNCLOS), dispute settlement under contracts, and political risk insurance) in the context of three scenarios of disputed maritime areas (unregulated areas, joint development areas, and provisionally delimited areas). It concludes that dispute settlement under IIAs and UNCLOS face significant obstacles not only on jurisdiction and admissibility, but also on the merits. As a result, the most practical solution for investors is to rely on dispute settlement under contracts or political risk insurance to protect their investments.

The Protection of the Environment in International Investment Agreements – Recent Developments and Prospects for Reform

European Investment Law and Arbitration Review ◽

10.1163/24689017_015 ◽

2020 ◽

Vol 5 (1) ◽

pp. 355-391

Author(s):

Laura Rees-Evans

Keyword(s):

Environmental Protection ◽

Foreign Investment ◽

Investment Protection ◽

Environmental Objectives ◽

International Investment Agreements ◽

Recent Developments ◽

Sustainable Investment ◽

Investment Agreements

Foreign investors benefit from rights to the protection of their foreign investments under a web of thousands of international investment agreements (IIA S). Those IIA s traditionally, however, contain no corresponding duties. The presence of rights without corresponding obligations in the global system of investment protection has attracted significant criticism. This is particularly true in the field of environmental protection (including the fight against climate change), where the concern is that the promotion and protection of investment may unduly restrict a State’s ability to take measures that promote environmental objectives. This article analyses what IIA S do or could do to contribute to the goal of environmental protection, in three parts: first, it identifies provisions of “old generation” IIA S (i.e., those concluded prior to 2010) that provide scope for environmental considerations to be taken into account; second, it analyses the trend in recent IIA S and model bilateral investment treaties (BIT S) to incorporate mechanisms aimed at promoting environmental protection in relation to the regulation of foreign investment; and third, it analyses various possibilities for reform of international investment law to further promote the protection of the environment in the field of foreign investment. It concludes that while the texts of the vast majority of IIA S currently in force appear to do little directly to promote environmental objectives, some contain certain mechanisms that are capable of allowing tribunals to give environmental concerns the weight they deserve. In relation to new and renegotiated IIA S, there are a wide variety of mechanisms that can be used to enhance the contribution they make to promoting sustainable investment and investment in green industries.

Political Risk Insurance and Bilateral Investment Treaties: Making the Connection

The Journal of World Investment & Trade ◽

10.1163/22129000-01406002 ◽

2013 ◽

pp. 943-977 ◽

Cited By ~ 3

Author(s):

Robert Ginsburg

Keyword(s):

Political Risk ◽

Investment Decisions ◽

Risk Tolerance ◽

Bilateral Investment Treaties ◽

Tolerance Level ◽

Cross Border ◽

Political Risks ◽

Investment Treaties ◽

Risk Insurance

Although political risk insurance polices and bilateral investment treaties are two of the most effective ways to manage political risks, most professionals in the international investment community do not incorporate either into their risk-reward analysis of cross border projects in emerging markets. Moreover, those investors and their advisers who do consider protections in one risk management do not explore protections provided in the other. The failure to contemplate how either or a combination of both tools can mitigate exposures to political perils often forces companies to make investment decisions based on incomplete information. By considering the different ways in which these tools respond to different loss scenarios, foreign investors and their advisers can establish a clear risk tolerance level and maximize their opportunities for growth in developing countries.

Investment Protection of Commercial Activities in Space: Treaties, Contracts, Licenses, Insurance, Arbitration

The Journal of World Investment & Trade ◽

10.1163/22119000-12340116 ◽

2018 ◽

Vol 19 (5-6) ◽

pp. 951-1000

Author(s):

Peter Malanczuk

Keyword(s):

Foreign Investment ◽

Outer Space ◽

Host State ◽

Investment Protection ◽

Foreign Acquisitions ◽

Commercial Activities ◽

Investment Treaties ◽

Legal Frameworks

Abstract The article focuses on the protection of foreign investment against political risk in the host state regarding commercial activities in outer space, an area not subject to national appropriation and sovereignty. The general space treaty and national legal frameworks for such activities fail to address the needs of private space enterprises. Under international investment law, commercial space activities generally meet common subject matter scope definitions of ‘investment’ and ‘investor’ in investment treaties. But foreign acquisitions in the space industry may affect national security interests of the host state and be limited as a sector for foreign investment. Moreover, as investment treaties generally cover an investment only if it is made in the territory of the host state, uncertainties may arise as to whether activities and assets of space enterprises in outer space are covered.

Justice and Authority in Investment Protection

The Law and Development Review ◽

10.1515/ldr-2021-0097 ◽

2021 ◽

Vol 0 (0) ◽

Author(s):

Oisin Suttle

Keyword(s):

Distributive Justice ◽

International Consensus ◽

Investment Protection ◽

Global Distributive Justice ◽

Investment Law

Abstract What role should concerns about distributive justice play in international investment law? This paper argues that answers to fundamental and contestable questions of social and global distributive justice are a necessary, if implicit, premise of international investment law. In particular, they shape our views on the purpose of investment law, and in turn determine the scope of authority that investment law can claim, and that states should accord it. The implausibility of achieving international consensus on these questions constitutes a substantial objection to the harmonization of investment law or the consistent operation of a multilateral investment court.

The Origins of Investment Protection and International Investment Law

International Investment Law and Arbitration ◽

10.1017/9781108913652.003 ◽

2021 ◽

pp. 1-36

Keyword(s):

Investment Protection ◽

Investment Law

Introduction

Investment Treaties and the Legal Imagination ◽

10.1093/oso/9780198862147.003.0001 ◽

2021 ◽

pp. 1-16

Author(s):

Nicolás M. Perrone

Keyword(s):

World War Ii ◽

Foreign Investment ◽

Professional Associations ◽

Business Leaders ◽

Progressive Development ◽

Investment Law

The role of the business leaders, bankers, and lawyers who promoted investment treaties and ISDS in the post-World War II period remains controversial. The introductory chapter argues that these norm entrepreneurs and their professional associations created a legal imagination about foreign investment relations which remains alive and well in both international investment law and ISDS awards. Their contribution to the progressive development of the law consisted of ideas as much as practice, particularly the way in which they collated their ideas into a vision of foreign investment relations. The chapter introduces the main features of this legal imagination, including the relevance of certain interpretations of property and contracts. It claims that grasping this imagination calls for a transnational law method, and concludes with an overview of the book.

13. International Economic Law

Cases & Materials on International Law ◽

10.1093/he/9780198727644.003.0013 ◽

2016 ◽

Author(s):

Martin Dixon ◽

Robert McCorquodale ◽

Sarah Williams

Keyword(s):

International Economic ◽

Dispute Settlement ◽

Investment Protection ◽

Economic Law ◽

Trade Law ◽

International Trade Law ◽

International Economic Law ◽

The World

This chapter begins by defining international economic law. It then discusses the main international economic institutions: the World Trade Organization, the International Monetary Fund and the World Bank. It goes on to elaborate on the key principles of international trade law: tariffication, binding tariffs, most favoured nation treatment and the national treatment obligation and discusses exceptions to these principles, anti-dumping and subsidies, regional trade arrangements, and developing States and dispute settlement within the WTO. The chapter also discusses the key principles of international investment law (including foreign direct investment, protection standards, expropriation and dispute settlement); the international financial architecture; and international economic law and State sovereignty.

Investment Contracts and International Law: Charting a Research Agenda

European Journal of International Law ◽

10.1093/ejil/chaa021 ◽

2020 ◽

Vol 31 (1) ◽

pp. 353-368

Author(s):

Lorenzo Cotula

Keyword(s):

International Law ◽

Academic Writing ◽

Public Interests ◽

Public International Law ◽

Investment Protection ◽

Policy Debates ◽

Investment Law ◽

Regulatory Powers

Abstract Investment contracts are an important part of the web of legal relations that underpin investment processes. They raise complex doctrinal issues, including with regard to their interface with public international law. The two books under review are part of a new surge in academic writing about investment contracts, in a field that is currently dominated by concerns about investment treaties and treaty-based arbitration. In this review essay, I explore the intersections between investment contracts and international law, engaging with the arguments presented in the two books and developing reflections based on trends in the wider literature. After situating the contract in academic and policy debates about international investment law, I compare the different approaches the two books embody – in relation to their scope, focus and format as well as the ways in which they conceptualize and piece together the multiple commercial and public interests at stake in investment contracting. I then discuss one theme that features prominently in both books – namely, the legal contours of investment protection, particularly in connection with stabilization clauses – and I examine its articulation with public regulatory powers. I conclude by outlining areas that deserve further exploration in scholarly work on investment contracts and international law.

Sources of International Investment Law

10.1093/law/9780198745365.003.0050 ◽

2018 ◽

Author(s):

Jorge E. Viñuales

Keyword(s):

International Law ◽

Foreign Investment ◽

The State ◽

Conventional Theory ◽

Basic Understanding ◽

Investment Law ◽

Practical Implications

This chapter addresses the challenges posed by the practice of international investment law to the conventional theory of the sources of international law. After a brief overview of the main ‘sources’ of ‘international investment law’, the chapter examines three challenges to this basic understanding, which arise from the need to account for the domestic laws governing different aspects of foreign investment transactions, the detailed jurisprudential norms generated by investment tribunals to specify broadly formulated norms, and the norms of general international law expressing the sovereignty of the State. For each category of norms, the chapter selects several problems that put the most widely accepted understanding of the sources of international law to test. It then explains why the problems examined have potentially important practical implications. The chapter concludes with some observations on the interactions between practice and the theory of the sources of international law.