1 A Global Regime for Investment

International Regime ◽

Global Regime ◽

Investment Treaties ◽

This chapter provides an overview of investment treaties. Investment treaties, often referred to as ‘international investment agreements’ (IIAs), are essentially instruments of international law by which states (1) make commitments to other states with respect to the treatment they will accord to investors and investments from those other states, and (2) agree to some mechanism for enforcement of those commitments. A fundamental purpose of investment treaties, as indicated by their titles, is to protect and promote investment. International investment treaties consist principally of three types: (1) bilateral investment treaties, commonly known as ‘BITs’; (2) bilateral economic agreements with investment provisions; and (3) other investment-related agreements involving more than two states. The chapter then considers the significance of investment treaties and argues that together they constitute an international regime for foreign investment.

MFN Standard as Substantive Treatment

10.5771/9783845299020 ◽

2019 ◽

Author(s):

Mira Suleimenova

Keyword(s):

International Law ◽

Third Party ◽

International Investment Law ◽

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.

The Republic of Ghana and Bilateral Investment Treaties: A Burgeoning Expert?

ICSID Review - Foreign Investment Law Journal ◽

10.1093/icsidreview/siaa008 ◽

2020 ◽

Author(s):

Gracious Avayiwoe

Keyword(s):

Current Status ◽

Investment Treaty ◽

Pan African ◽

Investment Treaties ◽

The Republic ◽

Abstract In this note, I categorize and review the bilateral investment treaties (BITs) concluded by the Republic of Ghana. I identify the current status of Ghana in the BIT sphere as being that of neither a novice nor a fully-fledged expert. The country is, nevertheless, progressively exhibiting some level of innovation and negotiation influence. Notwithstanding, all generations of its BITs remain very broad in scope, and, also, share laconic and vaguely-worded provisions. Furthermore, contemporary models of international investment agreements (IIAs) as contained in Ghana’s latest BIT—the earlier generations having lacked such innovations—is not as robust as those in emerging IIAs of Africa. Towards sustainability and systemic coherence of the BITs and the new African IIA paradigm, Ghana, certainly, needs to reform its existing BITs and reorient its future investment treaty practice. In the interim, I propose the Pan-African Investment Code (PAIC) as the benchmark.

1 A Global Regime for Investment

10.1093/law/9780198703976.003.0001 ◽

2015 ◽

Author(s):

Salacuse Jeswald W

Keyword(s):

World War Ii ◽

Regime Theory ◽

World War ◽

Global Regime ◽

Investment Treaties ◽

The Stability ◽

This chapter begins with an introduction to investment treaties, often referred to as international investment agreements (IIAs), and the building of a global regime for investment since the end of World War II through the negotiation of such treaties. It sets out the definition and types of IIAs. It then discusses the significance of investment treaties; the application of regime theory to investment treaties; regime challenges and prospects; and factors that will foster the stability and continued growth of the investment regime. The chapter also describes the aim and scope of the book and gives a brief summary of the contents of following chapters.

China's International Investment Strategy

10.1093/oso/9780198827450.001.0001 ◽

2019 ◽

Cited By ~ 2

Keyword(s):

Development Strategy ◽

Foreign Investment ◽

Developed Countries ◽

Investment Strategy ◽

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.

Part II Guide to Key Preliminary and Procedural Issues, 6 Aspects of Procedure for Institution of Proceedings and Establishment of Tribunals in Investment Treaty Arbitration

10.1093/law/9780198758082.003.0006 ◽

2018 ◽

Author(s):

Kostadinova Milanka

Keyword(s):

Chamber Of Commerce ◽

Trade Law ◽

International Trade Law ◽

Investment Treaty ◽

Investment Treaties ◽

International Chamber Of Commerce ◽

Investment Agreements ◽

Investment Treaty Arbitration

The institution of treaty-based proceedings in a particular forum or under particular set of arbitration rules depends on the consent provisions of the underlying investment treaty. Some 767 arbitration cases have been initiated so far under the total of 3,324 bilateral investment treaties and other international investment agreements signed to date. This chapter provides an overview of the technical and fairly complex procedures for initiating proceedings and constituting tribunals in investment treaty arbitration. It examines the prevalent practices from the perspective of the International Centre for Settlement of Investment Dispute (ICSID) Convention and Rules, and other leading sets of international arbitration rules such as the United Nations Commission on International Trade Law Arbitration Rules, the Rules of Arbitration of the International Chamber of Commerce, and the Arbitration Rules of the Arbitration Institute of the Stockholm Chamber of Commerce, which are among the non-ICSID Rules more commonly referenced in investment treaties.

Fair and Equitable Treatment in International Investment Agreements

International Law ◽

10.1093/obo/9780199796953-0158 ◽

2017 ◽

Author(s):

Roland Kläger

Keyword(s):

International Law ◽

Due Process ◽

General Character ◽

Minimum Standard ◽

Customary International Law ◽

Fair And Equitable Treatment ◽

Equitable Treatment ◽

Fair and equitable treatment is a central norm in international investment law. This norm is contained in the vast majority of international investment agreements as one of the main standards for the protection of foreign investors. Historically, international investment agreements contained short and general clauses of fair and equitable treatment, which were formulated either as free-standing provisions with a reference to general international law, or to the international minimum standard of customary international law. Especially since the first decade of the 21st century, drafting approaches to fair and equitable treatment became increasingly diverse and generated complex and elaborate clauses seeking to address the different elements of the norm that have developed over time. The drafting approaches reflect the long-standing controversies with regard to fair and equitable treatment and the question of whether this concept is to be constructed in accordance with the international minimum standard or as an independent and self-contained standard possibly exceeding customary international law. Both concepts have remained vague and have created difficulties in the interpretation of fair and equitable treatment, which due to its general character became a prominent cause of action in investor-state arbitration proceedings. The evolution of arbitral jurisprudence stimulated the emergence of different elements of fair and equitable treatment, including the protection of the investor’s legitimate expectations, the protection against discrimination and arbitrary treatments, and the principles of due process, denial of justice, and transparency. The increasing number of cases on the basis of fair and equitable treatment also led to concerns and criticism that a far-reaching concept of the norm would threaten the host states’ sovereignty and their right to regulate, as well as the principle of sustainable development. These concerns and the fact that a growing number of investment disputes were brought against developed countries motivated first the North American Free Trade Agreement member states and subsequently other states and the European Union to adapt their international investment agreements in order to try to concretize the concept of fair and equitable treatment and to limit the discretion of arbitrators. The concept of fair and equitable treatment has also received considerable attention by scholars who propose a variety of different approaches to the interpretation of the norm and the balancing of the conflicting private and public interests at stake.

The Role of International Human Rights Law in Re-Shaping Investor-State Arbitration

International Journal of Legal Information ◽

10.1017/jli.2017.6 ◽

2017 ◽

Vol 45 (1) ◽

pp. 34-41

Author(s):

Susan L. Karamanian

Keyword(s):

Foreign Investment ◽

International Standards ◽

International Human Rights Law ◽

Human Rights Law ◽

New Process ◽

State Consent ◽

Over the past few decades, a new process has dominated how States treat foreign investment and the consequences to States for breaching international standards. The system's key feature, the means for settling a foreign investor's dispute with a State that hosts the investment, lacks traditional elements of State judicial systems. Instead, it is a creature of State consent as reflected in international investment agreements (IIAs). In IIAs, States promise to treat foreign investment and the investors in a certain, fundamentally fair, way. Many IIAs authorize foreign investors and States to select private arbitrators to resolve claims that host States breached their promises under the IIA. The arbitrators, in turn, are empowered to issue arbitral awards.

Bilateral Investment Treaties and Sovereignty: An Analysis with Respect to International Investment Law

Christ University Law Journal ◽

10.12728/culj.9.1 ◽

2016 ◽

Vol 5 (2) ◽

pp. 1-8

Author(s):

Joseph Thaliath

Keyword(s):

International Law ◽

Present Situation ◽

Economic Globalization ◽

International Level ◽

International Investment Law ◽

Investment Law ◽

Investment Treaties ◽

Market Relations

International law as a governing institution, has gained prominence, with the advent of globalization. This is of specific relevance for the governance of state-market relations. Nowhere has this been as pronounced as in the international investment regime. Bilateral Investment Treaties (BITs) have today become some of the most potent legal tools underwriting economic globalization. These are established through pacts, which have to be adhered to, through all stages of performance of the treaty. This paper argues against the shift of bilateral investment treaties (BIT) from a pro-sovereign, to a pro-investor approach. It does so by explaining the present situation of bilateral investment treaties while pointing out their disadvantages. The basic idea of a BIT is questioned in order to understand its purpose and examines its failure in achieving the same. The partial approach towards the investors by the tribunals, is frowned upon and the lack of justifications and defenses on the part of the state is reviewed. Modest suggestions on improving this situation are provided by using cases decided by tribunals at an international level, taking up the example of Argentina.

The Impact of Bilateral Investment Treaties on FDI Inflows Into India: Some Empirical Results

Foreign Trade Review ◽

10.1177/00157325211027374 ◽

2021 ◽

pp. 001573252110273

Author(s):

Jaivir Singh ◽

Vatsala Shreeti ◽

Parnil Urdhwareshe

Keyword(s):

Fdi Inflows ◽

Investment Treaties ◽

Dispute Settlements ◽

Generalised Method Of Moments ◽

The Individual ◽

State Rights ◽

The Impact

After a run of adverse investor-state dispute settlements, India has recently denounced all its erstwhile investment treaties. New investment treaties need to be negotiated on the basis of a new Model Treaty that privilege state rights over investor rights. We study the impact of bilateral investment treaties on foreign direct investment (FDI) inflows into India before the denunciation with the intent of inferring the consequences of changing the system. Our work captures the effects of international investment agreements on FDI inflows specifically into India. We construct an empirical model drawing on the Gravity Model, and estimate parameters using generalised method of moments. The results show that while the individual signing of bilateral investment treaties does not influence the inflow of FDI, the effect of the cumulative bilateral investment treaties signed is statistically very significant—suggesting that the spill over effect of signing a series of bilateral investment treaties are important, signalling a regime of overall protection to investors. The importance of institutional variables in influencing FDI tells us that overall participation in a system governed by international investor agreements influenced the inflow of FDI positively and therefore recent policy changes should be viewed with caution. JEL Codes: F21, F23, F550, F63, K33, O19, C22, C29

Africa and the Rethinking of International Investment Law

10.1093/oso/9780190697570.003.0025 ◽

2018 ◽

Author(s):

Makane Moïse Mbengue ◽

Stefanie Schacherer

Keyword(s):

Sustainable Development ◽

International Law ◽

Dispute Settlement ◽

Reform Process ◽

International Investment Law ◽

Pan African ◽

Investment Law ◽

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.