Investment Protection Treaties

2013 ◽  
Author(s):  
Silvina Gonzalez Napolitano
Keyword(s):  
Foreign Investment ◽  
Original Intent ◽  
Investment Protection ◽  
Multilateral Agreement ◽  
Investment Treaty ◽  
Treaty Negotiations ◽  
Draft Model ◽  
Being There ◽  
Definition Of ◽  
Settlement Of Disputes

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.

8 Investment Promotion, Facilitation, Admission, and Establishment

2021 ◽  
Author(s):  
Salacuse Jeswald W
Keyword(s):  
Foreign Investment ◽  
First Century ◽  
Entry And Exit ◽  
Foreign Nationals ◽  
Investment Promotion ◽  
Investment Treaty ◽  
Treaty Negotiations ◽  
The Right ◽  
Internal Barriers ◽  
Investment Facilitation

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.

5 The Microeconomics of Investment Treaties

2017 ◽  
Author(s):  
Bonnitcha Jonathan ◽  
Skovgaard Poulsen Lauge N ◽  
Waibel Michael
Keyword(s):  
Decision Making ◽  
Foreign Investment ◽  
Fiscal Illusion ◽  
Foreign Investors ◽  
Host State ◽  
Investment Protection ◽  
The Third ◽  
Investment Treaty ◽  
Investment Treaties ◽  
The Impact

This chapter surveys the impact of investment treaties on decision-making at the firm and government levels. The focus is on whether investment treaties’ influence on the decisions of firms and states leads to improvements in efficiency. The first section examines the ‘hold-up’ problem, which provides the most influential and coherent microeconomic justification for the inclusion of investment protection provisions in investment treaties. The second section explores the problem of ‘fiscal illusion’ in host state decision-making, which could result in ‘over-regulation’ of foreign investment in the absence of an investment treaty. The third section considers whether investment treaties solve problems of discrimination against foreign investors, as well as the possibility that investment treaties lead to discrimination in favour of foreign investors.

Conclusion

2019 ◽  
pp. 351-362
Author(s):  
Prabhash Ranjan
Keyword(s):  
Foreign Investment ◽  
Investment Policy ◽  
Free Markets ◽  
Sovereign State ◽  
Foreign Investors ◽  
Investment Protection ◽  
Investment Treaty ◽  
Embedded Liberalism ◽  
Host Nation ◽  
International Rule

The concluding chapter shows that India’s approach towards BITs post 2010 has become protectionist. This protectionist approach towards BITs is divergent from India’s liberal foreign investment policy. India’s BIT practice needs to evolve in a manner that balances investment protection with the host state’s right to regulate. This is important as it would help India safeguard its regulatory power as a host nation and also to protect Indian investment abroad. India needs to evolve its investment treaty practice by developing BITs as tools that advance international rule of law and are modelled using the normativity of embedded liberalism. Embedded liberalism will represent a compromise between free markets and regulation, thus increasing the acceptability of BITs for all stakeholders such as foreign investors, the civil society and the sovereign state.

India’s BITs

2019 ◽  
pp. 142-171
Author(s):  
Prabhash Ranjan
Keyword(s):  
International Law ◽  
Foreign Investment ◽  
Investment Protection ◽  
Fair And Equitable Treatment ◽  
Definition Of ◽  
Equitable Treatment ◽  
Full Protection

This chapter studies in detail the international law on foreign investment that India has accepted to be bound in the embracement phase. In this regard, the chapter studies the following provisions contained in India’s BITs and FTA investment chapters: definition of investment, which is an important jurisdictional provision; fair and equitable treatment; most favoured nation treatment; and full protection and security. The aforesaid provisions are common to all Indian BITs and FTA investment chapters. The chapter shows that many of the treaty provisions are broadly worded. In order to better understand the import of the language of these provisions, they will be situated within the broader jurisprudence of the ISDS. Depending on arbitral discretion, these broad and vaguely worded provisions are capable of interpretation that gives precedence to investment protection over the host state’s sovereign regulatory power, instead of striking a balance between the two.

EVOLUTION OF THE LEGAL CONCEPT OF "FOREIGN INVESTMENT" IN A NETWORK SOCIETY

Lex Russica ◽  
2019 ◽  
pp. 88-95
Author(s):  
N. N. Viktorova
Keyword(s):  
South African ◽  
Foreign Investment ◽  
International Investment ◽  
African Development ◽  
Bilateral Investment Treaty ◽  
Investment Treaty ◽  
International Investment Agreements ◽  
Definition Of ◽  
Investment Agreements ◽  
Portfolio Investments

The paper deals with the problems of definition of the concept "investment" in multilateral and bilateral investment treaties. The author shows how the approach to the definition of "investment" in international investment agreements has changed over time, how this concept differs in modern agreements from those enshrined in agreements concluded more than ten years ago. It is noted that today we can talk about the trend of a broad definition of the concept of investment in international treaties, that is, investments are understood as any kind of property values; further the author specifies what applies to them.International treaties on the protection and promotion of investment also include the right to engage in business activities. It turns out that investment disputes can arise from ordinary commercial activities, for example from a contract of sale. However, there are documents that do not include monetary claims arising from commercial contracts, such as the 2012 model bilateral investment Treaty of the South African development Community.Generally, investment protection agreements do not distinguish between direct and portfolio investments. Therefore, portfolio investments also enjoy the protection of these investment treaties. However, some of the international investment agreements that are currently being concluded specify that portfolio investments are excluded from their scope, such as the Model bilateral investment Treaty of the South African Development Community.In the literature there are three approaches to the qualification of foreign arbitral awards as a foreign investment. According to one of them, the award is an investment, because it is part of the entire activity of the investor. Some modern international investment agreements contain provisions according to which arbitration, judicial decisions are not investments.

India and Bilateral Investment Treaties

2019 ◽  
Author(s):  
Prabhash Ranjan
Keyword(s):  
Foreign Investment ◽  
Dispute Settlement ◽  
International Investment ◽  
Investment Protection ◽  
Economic Liberalism ◽  
Investment Treaty ◽  
Current State ◽  
Investment Treaties ◽  
Foreign Corporations ◽  
International Rule

Many countries have started contesting international investment treaties that allow foreign corporations to sue sovereign states for alleged treaty breaches at international arbitration forums. This contestation has taken the form of either countries terminating their investment treaties or walking out of the investor–state dispute settlement (ISDS) system. India has also jumped on the contestation bandwagon. As a consequence of being sued by more than 20 foreign investors, India terminated close to 60 investment treaties and adopted a new Model bilateral investment treaty (BIT) purportedly to balance investment protection with the host state’s right to regulate. This book critically studies India’s approach towards BITs by tracing the origin, evolution, and the current state of play. The book does so by locating it in India’s economic policy in general and policy towards foreign investment in particular. India’s approach towards BITs and India’s policy towards foreign investment were consistent with each other in the periods of economic nationalism (1947 to 1990) and economic liberalism (1991 to 2010). However, post 2010; India’s approach to BITs has become protectionist while India’s foreign investment policy continues to be liberal. In order to balance investment protection with the state’s right to regulate, India needs to evolve its BIT practice based on the twin framework of international rule of law and embedded liberalism.

Comparing Investment Provisions in India’s FTAs with India’s Stand-Alone BITs

2015 ◽  
Vol 16 (5-6) ◽  
pp. 899-930 ◽  
Author(s):  
Prabhash Ranjan
Keyword(s):  
Free Trade ◽  
Free Trade Agreements ◽  
Trade Agreements ◽  
Bilateral Investment Treaties ◽  
Investment Protection ◽  
Investment Treaty ◽  
Draft Model ◽  
Textual Basis ◽  
Investment Treaties ◽  
Investment Treaty Arbitration

Rising investment treaty arbitration claims against India have resulted in India taking first steps towards a new investment treaty practice. This article argues that this practice should aim at reconciling investment protection with investment regulation. By comparing the formulation of key jurisdictional and substantive provisions in India’s stand-alone bilateral investment treaties (BITs) with those in investment chapters in India’s free trade agreements (FTAs), this article shows that formulations in FTAs investment chapters often present a better textual basis to reconcile investment protection with investment regulation. This could be made part of India’s new investment treaty practice. The article also assesses the provisions in the 2015 draft Model Indian BIT and concludes that the draft tilts the balance too much in favour of the host State’s regulatory power.

The Investment Treaty Regime and Development Policy Space in Ghana

2016 ◽  
Author(s):  
Dagbanja Dominic N
Keyword(s):  
International Law ◽  
Foreign Investment ◽  
Development Policy ◽  
The State ◽  
Investment Protection ◽  
Investment Treaty ◽  
Right To Development ◽  
Development Policies ◽  
The Republic ◽  
The Relationship

This chapter explores the relationship between Ghana's standards of investment protection by treaty and its development policy-making and implementation obligations under the constitution of the Republic of Ghana 1992 and general international law. It advances four theses. First, the state has the constitutional and general international law duty to make and implement development policies for the realization of the legal right to development in Ghana. Second, the power to make treaties, which derives from the constitution and general international law, requires the conclusion of treaties that promote development. Third, existing standards of investment protection by treaty are incompatible with the constitutional and general international law duty to make and implement development policies to the extent that they impose damages on the state for doing that which is required by the constitution and general international law. The fourth thesis is that Ghana's investment treaties were aimed at establishing standards of investment protection to attract foreign investment for development and not merely to protect foreign investment as an end.

The EU-Vietnam Investment Protection Agreement Investor-State Dispute Settlement Mechanism in Perspective

2019 ◽  
Vol 4 (1) ◽  
pp. 124-146
Author(s):  
Lorraine de Germiny ◽  
Nhu-Hoang Tran Thang ◽  
Duong Ba Trinh
Keyword(s):  
Dispute Settlement ◽  
International Investment ◽  
Dispute Settlement Mechanism ◽  
Investment Protection ◽  
Investment Treaty ◽  
Resolution System ◽  
Definition Of ◽  
Settlement Mechanism ◽  
Dispute Resolution System ◽  
The Eu

The EU-Vietnam Investment Protection Agreement (EVIPA) represented the culmination of three years of negotiations between the EU and Vietnam. Although it remainsto be ratified, it promises to have an impact on the international investment treaty landscape. The treaty contains innovations ranging from its definition of the substantive protections afforded to foreign investors to its definition of ‘investments’ and ‘investors’ that may qualify for those protections, as well as the procedural modalities for the treatment of possible disputes. Its most distinctive trait, however, is its establishment of a semi-permanent adjudicatory body akin to an investment court in replacement of the arbitration model envisaged by the vast majority of investment treaties over the past several decades. Rather than attempt to reform, the evipa drafters have done tabula rasa and opted for revolution instead. The EVIPA’S envisaged method to select, appoint, and remunerate the members of that body – both at the first instance level and at the appellate level – represents an abrupt and profound abandonment of the traditional arbitration model so frequently and presently used in international disputes around the world. The evipa may thus present an opportunity to test an alternative dispute resolution system and thus to aid in determining the most effective and appropriate method to resolve the international investor-State disputes of the future.

Dasein, personeidad, intersubjetividad y persona-núcleo. El sujeto relacional después de Heidegger, en Zubiri, Apel y Polo. Dasein, Personhood, Inter-subjectivity and Nucleus-Person. The Relational Subject after Heidegger, in Zubiri, Apel and Polo

2017 ◽  
Author(s):  
Carlos Ortiz de Landázuri
Keyword(s):  
Heuristic Strategies ◽  
Accurate Definition ◽  
Being There ◽  
Definition Of

Heidegger, Zubiri, Apel y Polo habrían propuesto una definición más correcta de las respectivas nociones de sujeto relacional humano, a saber: “Dasein” o “ser-ahí”; “personeidad” o “esencia abierta”; “intersubjetividad” o “la llamada por parte de los entes a diversos interlocutores”; y, finalmente, “persona-núcleo” o “agente mediador entre los entes y el ser”. Se pretendía así evitar una vuelta a las paradojas del “sujeto transcendental” en Kant, del “yo absoluto” en Hegel o del “sujeto fenomenológico” en Husserl. Sin embargo en cada caso se siguieron estrategias heurísticas específicamente distintas a la hora de conceptualizar dicho sujeto relacional: Heidegger propuso una superación de la noción de “sujeto fenomenológico” en Husserl; Zubiri, en cambio, defendería una recuperación de la noción de “sujeto fenomenológico” en Husserl; por su parte, Apel propondría una reformulación semióticamente transformada del “Dasein” heideggeriano; finalmente, Polo propondría una reformulación gnoseológica de la noción de “Dasein” heideggeriano.Heidegger, Zubiri, Apel, and Polo have proposed a more accurate definition of the respective notions of human relational subject: “Dasein” or “being-there”; “Personhood” or “open essence”; “inter-subjectivity” or “entities’ appeal to diverse interlocutors”; and, finally, “nucleus-person” or “mediator between entities and being”. The aim is to avoid a return to Kant’s transcendental subject paradoxes and Hegel’s “absolute I” or Husserl´s “fenomenological subject”. But in each case specifically different heuristic strategies were followed when conceptualizing said relational subject: Heidegger proposed overcoming the notion of “phenomenological subject” in Husserl; Zubiri, however, defend the recovery of the notion of “phenomenological subject” in Husserl; meanwhile, Apel propose a transformed semiotically reformulation of Heidegger’s “Dasein”; finally, Polo propose a reformulation of the epistemological notion of Heidegger’s “Dasein”.

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