8 Investment Promotion, Facilitation, Admission, and Establishment

Author(s):  
Salacuse Jeswald W

This chapter assesses investment promotion, facilitation, admission, and establishment. International law recognizes that by virtue of its sovereignty a state has the right to control the entry and exit of persons and things into and from its territory and also to regulate the activities of nationals or foreign persons and companies within that territory. A corollary of that principle is that a state is not required to allow foreign nationals or companies to establish or acquire an enterprise or investment within its territory. With respect to foreign investment, states have complete legislative jurisdiction to determine to what extent foreign nationals and companies may undertake investments, which sectors and industries they may or may not enter, and whether or not they must fulfil additional conditions in order to undertake and operate an investment within state territory. Numerous factors have shaped individual countries' attitudes towards foreign investment and investment treaty negotiations. One of the traditional aims of the investment treaty movement has been to reduce these internal barriers to foreign investment, particularly through treaty provisions on investment promotion, admission, and establishment. The second decade of the twenty-first century witnessed a growing emphasis in both international discussions and a few treaties on a new concept: foreign investment facilitation.

Author(s):  
Salacuse Jeswald W

This chapter begins with a brief discussion of how states exercise their sovereign authority to develop policies and laws that govern the admission and operation of foreign investment. States have complete legislative jurisdiction to determine to what extent foreign nationals and companies may undertake investments, which sectors and industries they may or may not enter, and whether or not they must fulfil additional conditions in order to undertake and operate an investment within state territory. The chapter then explains treaty provisions on investment promotion, admission, and establishment, by which the treaty movement has sought to achieve one of its aims, ie reducing internal barriers to foreign investment.


Author(s):  
Justin Carter

SummaryIn 1994, Canada and China began negotiating a bilateral foreign investment promotion and protection agreement (FIPA). After sixteen years and multiple rounds of negotiations, the two states have not been able to solidify a workable treaty. By examining each country’s substantive and procedural preferences in their respective bilateral investment treaty models and in past treaties, this article outlines some of the likely “on-the-table” obstacles in the negotiating process. The analysis indicates that there are areas of considerable convergence between each country’s preferences, although significant areas of divergence exist on some key issues. Further confounding the disagreement that exists between the two countries are “off-the-table” factors such as general bilateral relations. One further aspect that is considered is the idea of coordinating compliance between international trade and human rights norms in the context of the Canada–China FIPA. While bilateral investment treaties are economic agreements, pronounced non-economic elements shape the practical and legal effect that these treaties have on various affected actors. Despite the important implications the Canada–China FIPA has for human rights and environmental policy concerns, it can be inferred that these factors will have little bearing on the actual negotiated outcome of the agreement.


2014 ◽  
Vol 7 (2) ◽  
pp. 253-292
Author(s):  
Dominic Npoanlari Dagbanja

This article assesses the implications of investment promotion and protection agreements (ippas) for domestic investment law and policymaking in Ghana. It reviews the terms of domestic investment legislation prior to and after Ghana entered into ippas to ascertain the differences in the content of domestic laws and the role of the ippas in the changing pattern of foreign investment law and policy in Ghana. The review shows fundamental differences. Whereas, for example, under the pre-investment treaty domestic investment laws, a proposed investment could be admitted only if it would contribute to the national economy, the post-investment treaty domestic investment law requires only minimum capital for admission. What explains the fundamental change in the content of the post-investment treaty domestic law? The literature reveals that the change in government policy from a regulatory to a more investment promotion-oriented policy explains the shift in the content in investment law in Ghana. The post-investment treaty domestic law was enacted against the backdrop of structural adjustment policies that emphasised liberalization. The article argues complementarily that the coming into force of the ippas of Ghana also explains the changing pattern in the content of domestic investment law. Given the definitions of investment and the substantive obligations under the ippas, Ghana could not, even without independent policy change, retain the content of domestic investment law as was the case when she was not party to any ippas. The thesis is that ippas have the effect of limiting regulatory autonomy and will limit future legislative powers of the State in defining the content of domestic investment law and policy. This will ultimately determine the pattern and trend of domestic investment law and policy in Ghana. The article proposes that the ippas should be renegotiated to take into account the constitutional responsibility of the Government to protect the welfare of the people of Ghana.


Author(s):  
Silvina Gonzalez Napolitano

States have the practice of protecting foreign investments through investment treaties, designated variously as bilateral investment treaty (BIT); foreign investment protection and promotion agreement; multilateral agreement of investment (MAI), in English; Traité bilatéral d’investissement, in French; and Tratado Bilateral de Inversión, Acuerdo para Promoción y Protección Recíproca de Inversiones, in Spanish. Currently, BITs are an important source of investment protection. A BIT is an agreement executed between two states whose purpose is to promote and protect investments in the territory of one contracting state (the “host state”) made by investors from the other contracting state while furthering the development of both states. Although not all BITs have the same content, most of them contain—inter alia—provisions concerning the definition of investments and investors under the protection of the treaty and the standards of treatment and mechanisms for the settlement of disputes between states or between foreign investors and states. The first BIT was signed between Germany and Pakistan in 1959. At present, there are more than 2,700 BITs in force, concluded not only between developed and developing states, as was their original intent, but also between developing states or between developed states. Some states have a Model BIT, which is used as a basis in investment treaty negotiations. For example, in the last decade the following examples can be mentioned: India 2003 Model BIT, Canada 2004 Model BIT, France 2006 Model BIT, Colombia 2007 Model BIT, Norway 2007 Draft Model BIT, Germany 2008 Model BIT, and United States 2012 Model BIT. Apart from BITs, there are some regional treaties, treaties of commerce, or free trade agreements, that contain a chapter referred to as the protection of foreign investment. For the time being, there is no general multilateral agreement for the protection (and promotion) of foreign investment, despite the attempts to adopt a MAI within the Organisation for Economic Co-operation and Development.


2019 ◽  
Vol 3 (2) ◽  
pp. 235-254
Author(s):  
Resha Roshana Putri

AbstractIn the past few years, there has been a surge in lawsuits against the mechanism for resolving international investment disputes through the Investors State Dispute Settlement (ISDS) forum proposed by foreign investors who are host states, including Indonesia. Most of the claims are caused by the policies of the host country which are intended to protect the basic rights of the people such as the right to health, the right to a healthy environment, taxes, as well as the minimum standard of wages for workers. This policy provides a loss for foreign investors and is considered a violation of the Bilateral Investment Treaty (BIT). BIT is often recognized to be detrimental to Indonesia, because it can disrupt the sovereignty of the country, especially when dealing with international disputes with foreign investors. This study uses a comparative juridical approach, comparing the BIT model in Indonesia with Brazil, namely Cooperation and Investment Facilitation Agreement (CIFA). Brazil was chosen because it succeeds to reform its investment regime, specifically on its BITs. The results obtained were that Indonesia had to change several provisions in its BITs, which has been regulated CIFA provisions in Brazil, which is not member of the ICSID Convention.Keywords: BIT, CIFA, Investor State Dispute Settlement. AbstrakBeberapa tahun terakhir, ada lonjakan tuntutan hukum terhadap mekanisme penyelesaian sengketa investasi internasional melalui Investor State Dispute Settlement (ISDS) forum yang diusulkan oleh investor asing yang menjadi host states, termasuk Indonesia. Sebagian besar klaim disebabkan oleh kebijakan negara tuan rumah yang dimaksudkan untuk melindungi hak-hak dasar masyarakatnya seperti hak atas kesehatan, hak atas lingkungan yang sehat, pajak, juga standar minimum upah pekerja. Kebijakan ini memberikan kerugian bagi investor asing dan dianggap sebagai pelanggaran Bilateral Investment Treaty (BIT). BIT seringkali dianggap merugikan bagi Indonesia, karena dapat mengganggu kedaulatan negara, khususnya ketika berhadapan dengan sengketa internasional dengan investor asing. Penelitian ini menggunakan pendekatan yuridis normatif dengan metode perbandingan, yaitu dengan membandingkan model BIT di Indonesia dengan Brazilia, yaitu Cooperation and Investment Facilitation Agreement (CIFA). Brazil dipilih karena merupakan negara yang berhasil melakukan reformasi terhadap rezim investasinya, khususnya pada BIT. Hasil yang diperoleh adalah bahwa Indonesia harus merubah beberapa ketentuan dalam BITs nya, seperti yang terkadung dalam CIFA di Brazil, yang bukan merupakan negara anggota dari Konvensi ICSID. Kata Kunci: BIT, CIFA, Penyelesaian Sengketa Investor-Negara


1996 ◽  
Vol 40 (1) ◽  
pp. 119-120

In a bid to attract foreign investment, the Ghana Investment Promotion Centre Act, 1994, provided for the establishment of the Investment Promotion Centre to be responsible for the administration of investment activities in Ghana. This has been followed by the Free Zone Act, 1995. This establishes a Free Trade Board consisting ofthe Minister for Trade and Industry (as the chairperson) and eight other persons, four of whom must come from the private sector and two of whom must be women. The function of the Board is to oversee the establishment and operation of free zones. The Act provides for the establishment and development of free zones and free ports and the establishment of enterprises therein by corporations registered under the Companies Act, 1963, or a partnership registered under the Private Partnership Act, 1962. A free zone enterprise has the right to produce any type of goods and services for export except those that are environmentally hazardous.


Author(s):  
Salacuse Jeswald W

This chapter highlights other treatment standards. In addition to the usual treaty standards of treatment discussed in previous chapters, individual investment treaties, depending on the policies of the countries concerned and the negotiation dynamics between contracting states, may impose other obligations on host states with respect to their treatment of investments and investors. Such treatment provisions do not appear in all treaties and are subject to a variety of linguistic formulations. Moreover, although they were rarely the subject of arbitration or litigation in the early years of the bilateral investment treaty (BIT) movement, investors have increasingly alleged their violation in investor–state arbitral proceedings, beginning with the second decade of the twenty-first century. These treatment standards include treatment with respect to performance requirements; entry and residence of foreign nationals and managerial personnel; compensation for losses due to war, revolution, and civil disturbance; transparency and regulatory due process; and the subrogation obligation.


Mousaion ◽  
2019 ◽  
Vol 36 (3) ◽  
Author(s):  
Chimango Nyasulu ◽  
Winner Chawinga ◽  
George Chipeta

Governments the world over are increasingly challenging universities to produce human resources with the right skills sets and knowledge required to drive their economies in this twenty-first century. It therefore becomes important for universities to produce graduates that bring tangible and meaningful contributions to the economies. Graduate tracer studies are hailed to be one of the ways in which universities can respond and reposition themselves to the actual needs of the industry. It is against this background that this study was conducted to establish the relevance of the Department of Information and Communication Technology at Mzuzu University to the Malawian economy by systematically investigating occupations of its former students after graduating from the University. The study adopted a quantitative design by distributing an online-based questionnaire with predominantly closed-ended questions. The study focused on three key objectives: to identify key employing sectors of ICT graduates, to gauge the relevance of the ICT programme to its former students’ jobs and businesses, and to establish the level of satisfaction of the ICT curriculum from the perspectives of former ICT graduates. The key findings from the study are that the ICT programme is relevant to the industry. However, some respondents were of the view that the curriculum should be strengthened by revising it through an addition of courses such as Mobile Application Development, Machine Learning, Natural Language Processing, Data Mining, and LINUX Administration to keep abreast with the ever-changing ICT trends and job requirements. The study strongly recommends the need for regular reviews of the curriculum so that it is continually responding to and matches the needs of the industry.


Jurnal Hukum ◽  
2016 ◽  
Vol 31 (2) ◽  
pp. 1833
Author(s):  
Rihantoro Bayu Aji

 AbstractActually the existence of foreign investment in Indonesia is not new phenomenon, due to foreign investment exist since colonialism era.The existence of foreign investment is still continuing to Soeharto era until reformation era. Spirit of foreign investment in colonialism era, Soharto era, and reformation era are different. Foreign investment in colonialsm era just explore of nation asset and ignore of nation welfare, and this matter is different from the character of foreign investment in Soeharto era also reformation era. Eventhough the involvement of foreign investor have any benefits to the host country, but on the other hand foreign investment have business oriented only whether the investment is secure and may result of profit. Refer to The Law Number 25 Year of 2007 Concerning Investment (hereinafter called UUPM) can not be separated from various interest that become of politic background of the law, even the law tend to liberalism of investment. Liberalism in the investment sector particularly of foreign investment basically exist far from issuing of UUPM, and the spirit of liberalism also stipulate in several rules among others The Law Number 5 Year of 1999 Concerning Prohibitation of Anti Trust and Unfair Competition, The Law Number 22 Year of 2001 Concerning Oil and Gas, The Law Number 7 Year of 2004 Concerning Water Resource, and also The Law Number 30 Year of 2009 Concerning Electricity.   Many rules as mentioned above has liberalism character and also indicator opposite wit the right to manage of the state to nation asset that relate to public interest as stipulated in the Indonesia Constitution. Actually the issuing of UUPM in case of implementation of article 33 Indonesia Constitution (UUD NRI 1945). Due to opportunity by Government to foreign investment as stipulate by article 12 UUPM and also the existence of many rules as well as The Law Number 5 Year of 1999 Concerning Prohibitation of Anti Trust and Unfair Competition, The Law Number 22 Year of 2001 Concerning Oil and Gas, The Law Number 7 Year of 2004 Concerning Water Resource, and also The Law Number 30 Year of 2009 Concerning Electricity, so the foreign investment that relate to public service is more exist in Indonesia. The existence is reflected many foreign companies. Free of foreign investment relate to public service is opposite with spirit of article 33 Indonesia Constitution. Keywords: Foreign Investment, Right of  State, Article 33 Indonesia Consitution AbstrakEksistensi penanaman modal asing (investasi asing) di Indonesia sebenarnya bukan merupakan fenomena baru di Indonesia, mengingat modal asing telah hadir di Indonesia sejak zaman kolonial dahulu.   Eksistensi penanaman modal asing terus berlanjut pada era orde baru sampai dengan era reformasi. Tentunya semangat penanaman modal asing pada saat era kolonial, era orde baru, dan era reformasi adalah berbeda. Penanaman modal asing pada saat era kolonial memiliki karakter eksploitatif atas aset bangsa dan mengabaikan kesejahteraan rakyat, hal ini tentunya berbeda dengan karakter penanaman modal asing pada era orde baru, dan era reformasi. Sekalipun kehadiran investor membawa manfaat bagi negara penerima modal, di sisi lain investor yang hendak menanamkan modalnya juga tidak lepas dari orientasi bisnis (oriented business), apakah modal yang diinvestasikan aman dan bisa menghasilkan keuntungan. Melihat eksistensi Undang–Undang Nomor 25 Tahun 2007 tentang Penanaman Modal (UUPM) tidak dapat dilepaskan dari beragam kepentingan yang mendasari untuk diterbitkannya undang–undang tersebut, bahkan terdapat kecenderungan semangat dari UUPM lebih cenderung kepada liberalisasi investasi. Liberalisasi pada sektor investasi khususnya investasi asing pada dasarnya eksis jauh sebelum lahirnya UUPM ternyata juga tampak secara tersirat dalam beberapa peraturan perundang–undangan di Indonesia. Perundang–undangan tersebut antara lain Undang–Undang Nomor 5 Tahun 1999 tentang Larangan Praktek Monopoli dan Persaingan Usaha Tidak Sehat, Undang–Undang Nomor 22 Tahun 2001 tentang Minyak Dan Gas Bumi, Undang–Undang Nomor 7 Tahun 2004 tentang Sumber Daya Air, dan Undang–Undang Nomor 30 Tahun 2009 tentang Ketenagalistrikan.Banyaknya peraturan perundang–undangan yang berkarakter liberal sebagaimana diuraikan di atas mengindikasikan bahwa hak menguasai negara atas aset bangsa yang berkaitan dengan hajat hidup orang banyak sebagaimana diamahkan oleh Undang–Undang Dasar 1945 (Konstitusi) mulai “dikebiri” dengan adanya undang–undang yang tidak selaras semangatnya. Padahal, UUPM diterbitkan dalam kerangka mengimplementasikan amanat Pasal 33 Undang–Undang Dasar Negara Republik Indonesia Tahun 1945 (UUD NRI 1945). Dengan adanya peluang yang diberikan oleh pemerintah kepada investor asing sebagaimana yang diatur dalam Pasal 12 UUPM ditambah lagi dengan adanya Undang–Undang Nomor 5 Tahun 1999 tentang Larangan Praktek Monopoli dan Persaingan Usaha Tidak Sehat, Undang–Undang Nomor 22 Tahun 2001 tentang Minyak Dan Gas Bumi, Undang–Undang Nomor 7 Tahun 2004 tentang Sumber Daya Air, dan Undang–Undang Nomor 30 Tahun 2009 tentang Ketenagalistrikan, maka investasi asing yang berhubungan dengan cabang– cabang yang menguasai hajat hidup orang banyak semakin eksis di Indonesia. Terbukanya investasi asing atas cabang–cabang produksi yang menguasai hajat hidup orang banyak tentunya hal ini bertentangan dengan konsep hak menguasai negara sebagaimana diatur dalam Pasal 33 UUD NRI 1945. Kata Kunci: Investasi Asing, Hak Menguasai Negara, Pasal 33 UUD NRI Tahun          1945


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