11 Treatment of State Obligations (the ‘Umbrella Clause’)

2021 ◽  
Author(s):  
Salacuse Jeswald W
Keyword(s):  
International Law ◽  
The Other ◽  
Host Countries ◽  
Foreign Investors ◽  
International Treaty ◽  
Host State ◽  
Treaty Obligation ◽  
State Obligations ◽  
Investment Treaties ◽  
Domestic Law

This chapter explores umbrella clauses. In order to protect investor–state commitments and obligations from obsolescence, many investment treaties contain a clause defining the treatment that the host state will give to obligations it has made to investors or investments covered by the treaty. Known commonly as ‘umbrella clauses’, such provisions generally stipulate that ‘each Contracting Party shall observe any obligation it may have entered into with regard to the investments of investors of the other Contracting Party’. The umbrella clause creates an exception to a well-established principle of international law concerning state contracts with, and obligations to, foreign investors. Its intent is to impose an international treaty obligation on host countries that requires them to respect obligations they have entered into with respect to investments protected by the treaty. This places such obligations under the protective umbrella of international law, not just the domestic law that would otherwise normally apply exclusively. The chapter then looks at the formulations and application of the umbrella clause.

14 Treaty Entry into Force, Exceptions, Modifications, and Terminations

2021 ◽  
Author(s):  
Salacuse Jeswald W
Keyword(s):  
Internal Pressure ◽  
International Law ◽  
The Other ◽  
Foreign Investors ◽  
Labour Unions ◽  
Pressure Groups ◽  
Civic Organizations ◽  
Other Hand ◽  
Investment Treaties

This chapter discusses the entry into force, exceptions, modifications, and terminations of investment treaties. While enunciating rules of international law governing foreign investors and investments, investment treaties at the same time incorporate various devices to regulate and limit the applicability of those rules and thereby allow contracting states to mediate tensions between demands of treaty partners and of internal pressure groups, such as labour unions, local manufacturers and merchants, and civic organizations. Such devices include treaty provisions on four matters: the entry into force of the treaty; treaty exceptions; treaty modifications; and treaty terminations. States employ the first two as part of the treaty negotiating process. On the other hand, states usually employ the latter two devices as a result of their unsatisfactory experience with a treaty that has entered into force.

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.

“You Cannot Lose What You Never Had”: The Law Applicable to Property Determinations in ICSID Arbitration

2018 ◽  
Vol 17 (1) ◽  
pp. 271-285 ◽  
Author(s):  
Laura Yvonne Zielinski
Keyword(s):  
International Law ◽  
Case Law ◽  
Bilateral Investment Treaties ◽  
Applicable Law ◽  
Host State ◽  
The Law ◽  
Investment Treaties ◽  
Domestic Law ◽  
Discretionary Powers

Abstract ICSID arbitration is witnessing a debate over the competing spheres of application between host State and international law: Under the second sentence of Article 42(1) of the ICSID Convention (and under similarly worded applicable law provisions contained in investment contracts or bilateral investment treaties), arbitral tribunals possess large discretionary powers over the decision of which law to apply to which aspect of a dispute. However, the recent partial annulment of the Mobil v. Venezuela award, on the basis of the original tribunal’s manifest failure to apply domestic law to certain aspects of the case, redefines the contours of this discretion by requiring the application of domestic law to proprietary determinations of investments. This article reviews the different approaches to the dichotomy between domestic and international law and the tribunals’ discretionary powers in this respect, and analyzes the limits imposed in the field of property determinations by the case law.

scholarly journals Dispute Settlement in Investment-Related Matters: South Africa and the BRICS

AJIL Unbound ◽  
2018 ◽  
Vol 112 ◽  
pp. 212-216
Author(s):  
Engela C. Schlemmer
Keyword(s):  
South Africa ◽  
International Law ◽  
South African ◽  
Dispute Settlement ◽  
Foreign Investors ◽  
Domestic Legislation ◽  
Domestic Courts ◽  
Investment Treaties ◽  
South African Constitution ◽  
Domestic Law

Many states use investment treaties to spur economic development by granting legal protections to foreign investors and providing for direct enforcement before international arbitral tribunals. Yet South Africa has taken a different course. As explained below, South Africa originally signed onto a number of investment treaties despite barely considering how the resulting obligations would affect its constitutional commitments and the authority of its domestic courts. After the shock of losing its first two treaty-based investment disputes, the country shifted from avidly entering into bilateral investment treaties (BITs) to opposing BITs absent compelling economic and political reasons to conclude them. Today South Africa seeks to replace investment treaties and investor-state arbitration with protections under domestic legislation, along with mediation and dispute resolution before domestic courts. In this essay, I describe this shift and explore three difficult and yet-to-be-resolved questions that it presents: (1) Will foreign investors still be able to rely on protections under international law when bringing domestic cases? (2) If so, will the South African Constitution, as a matter of domestic law, displace any relevant commitments under international law? And (3) is the new South African approach consistent with international law?

scholarly journals Screening of Foreign Investments and the Bilateral Investment Treaties of Bangladesh

2021 ◽  
Vol 3 (2) ◽  
pp. 37-53
Author(s):  
Mohammad Belayet Hossain ◽  
Asmah Laili Bt Yeon ◽  
Ahmad Shamsul Bin Abdul Aziz
Keyword(s):  
Significant Role ◽  
Foreign Investment ◽  
Research Method ◽  
Bilateral Investment Treaties ◽  
Host Countries ◽  
Foreign Investments ◽  
Foreign Investors ◽  
Host State ◽  
Investment Treaties ◽  
The Government

Since 1960, about 2852 bilateral investment treaties (BITs) have been signed. Of them, 2298 BITs are in force at present. In the last 61 years, the WTO members failed to conclude a global treaty to regulate FDI in host countries, consequently, the BITs have played a significant role to regulate FDI. As a member of the WTO, Bangladesh has signed 31 BITs so far with various states to allow and increase the inflow of FDI into the country. Bangladeshi foreign investment laws and BITs mainly protect foreign investors. However, neither of them has any specific provision regarding the screening of foreign investments in Bangladesh. Two questions have been addressed in this paper: (a) Do the BITs of Bangladesh allow the host state for screening of foreign investments at the entry stage? (b) Should the screening of FDI be required during the pre-entry stage in Bangladesh? In this paper, a doctrinal research method has been used to critically analyze 15 BITs to explore whether there is any reference for screening of foreign investments in Bangladesh. We find that the existing Bangladesh BITs have provisions to promote and protect foreign investments but have no reference in relation to the screening of foreign investments. Therefore, the author has recommended that the Government of Bangladesh can consider specific provisions for screening of FDI in future BITs.

Part II The International Law Framework of Investment Protection and Political Risk, 6 The Substantive Law of Contemporary International Investment Protection

2020 ◽  
Author(s):  
Rubins Noah ◽  
Papanastasiou Thomas-Nektarios ◽  
Kinsella N Stephan
Keyword(s):  
International Law ◽  
Transition Economy ◽  
International Investment ◽  
Investment Protection ◽  
Fair And Equitable Treatment ◽  
Investment Treaties ◽  
Substantive Law ◽  
Equitable Treatment ◽  
National Investment ◽  
Domestic Law

Investors increasingly rely on the substantive protections provided in a growing number of investment treaties. This chapter covers the modern international law of investment protection as embodied in multilateral and bilateral investment treaties, including principles such as fair and equitable treatment, and full protection and security. The substantive protections investment treaties described in this chapter are often echoed in the national investment laws of developing and transition-economy countries. In particular, many recent national investment codes place limitations on the State’s authority to expropriate foreign assets, sometimes granting rights superior to those provided at customary international law. International investment treaties also guarantee proper application of domestic law by government authorities, national treatment, repatriation of profits, compensation for breach and other standards of treatment.

Slaughterhouse-Six: Updating the Law of War

2004 ◽  
Vol 5 (5) ◽  
pp. 525-544 ◽  
Author(s):  
Ed Morgan
Keyword(s):  
Human Rights ◽  
International Law ◽  
The Other ◽  
European Court ◽  
House Of Lords ◽  
Self Interest ◽  
Time Zones ◽  
National Jurisdiction ◽  
State Obligations ◽  
The Impact

International law has come unstuck in time. It has gone to sleep stressing a normative future based on state “obligations owed towards all the other members of the international community,” and has awakened in a bygone world in which the state is “susceptible of no limitation not imposed by itself.” The opposing time zones seem now to exist in unison. Thus, for example, the European Court of Human Rights, in examining the impact of the Torture Convention, can split 9:8 on whether national self-interest trumps universal rules of cooperation, or the other way around. Likewise, England's House of Lords can opine in thePinochetcase that, as between a reinvigorated national jurisdiction and the developing concept of universal one, “international law is on the move.”

3 Fair And Equitable Treatment

2009 ◽  
Author(s):  
Gallagher Norah ◽  
Shan Wenhua
Keyword(s):  
Bilateral Investment Treaties ◽  
National Treatment ◽  
Standard Format ◽  
Foreign Investors ◽  
Host State ◽  
Fair And Equitable Treatment ◽  
Investment Treaties ◽  
Equitable Treatment ◽  
Full Protection

Like other bilateral investment treaties (BITs), Chinese BITs establish a set of general standards of treatment accorded to foreign investors by the host state. The most commonly found general standards of treatment include fair and equitable treatment (FET), (full) protection and security (PNS), most favoured nation treatment (MFN), and national treatment (NT). The first two belong to the group of non-contingent standards (or so-called “absolute standard of treatment”), whilst the latter two are forms of contingent standards (or “relative standards of treatment”). Absolute standards do not depend on treatment granted to other investors. In contrast, the relative standards are contingent on treatment given to other categories of investors, nationals of the host state in the case of NT and investors from third states for the MFN. This chapter begins with an examination of the FET standard, focusing on the different approaches of interpretations that have been developed in theory and in arbitration practice. It then analyzes the standard under Chinese BITs and assesses the implications of its standard format and any variations.

The Legal Basis for Bilateral and Multilateral Police Deployments

2011 ◽  
Vol 15 (1-2) ◽  
pp. 7-38 ◽  
Author(s):  
James Watson ◽  
Mark Fitzpatrick ◽  
James Ellis
Keyword(s):  
International Law ◽  
Rule Of Law ◽  
Legal Framework ◽  
State Law ◽  
Legal Basis ◽  
The Rule Of Law ◽  
Host State ◽  
Legal Regimes ◽  
Domestic Law

This paper recognises the complexity of the legal framework in which international police deployments take place. The personnel, and often the mission itself, are subject to a number of different legal regimes: international law, host State law and sending State law. After briefly discussing the nature and purpose of overseas police deployments, the paper identifies the legal regimes applicable to such deployments and discusses the significance of international and domestic law to police deployments. Ultimately, this paper argues that compliance with all applicable legal regimes is essential to ensure the rule of law on overseas police deployments.

scholarly journals Responsibility of a Host State in Transnational Investment Disputes

2018 ◽  
Vol 9 (1) ◽  
pp. 139
Author(s):  
Valeriy Nikolayevich LISITSA
Keyword(s):  
International Law ◽  
Public Law ◽  
Legal Rights ◽  
Soft Law ◽  
Commercial Arbitration ◽  
Foreign Investors ◽  
Host State ◽  
Legal Relationship ◽  
Legal Nature ◽  
Investment Law

The article seeks to define the legal nature of the responsibility of a host state in transnational investment disputes. It considers numerous rules (treaties, national law, customs, soft law, etc.) and their application within a domestic legal system to ensure the proper implementation of civil and other legal rights and obligations of host states and foreign investors. It is argued that the involvement of foreign investors and host states in international commercial arbitration, including the ICSID, and the application of international law (along with national law) as a legal ground for the payment of compensation, do not change the nature of the existing legal relationship between the parties of the investment dispute. The responsibility of the host state to the foreign investor expressed in the state’s obligation to pay damages (compensation) remains in the private, rather than international public law sphere. In conditions of lack of proper rules of investment law states should not stand aside from the present process of making such rules by non-state actors. This situation detracts from the treaty as a major source of international law, sometimes does not correspond to the interests of host states and moreover may threaten their sovereignty.

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