A Global Public Good? An Empirical Perspective on International Investment Law and Arbitration

2021 ◽  
pp. 91-118
Author(s):  
Daniel Behn ◽  
Ole Kristian Fauchald ◽  
Malcolm Langford
Keyword(s):  
Public Goods ◽  
Public Good ◽  
International Investment ◽  
Global Public Good ◽  
Global Public Goods ◽  
International Investment Law ◽  
Perspective Drawing ◽  
Empirical Perspective ◽  
Investment Law ◽  
The Relationship

The relationship between the concepts of international investment law and global public goods poses two essential challenges. The first is whether the international investment regime by design is a global public good. The second is whether the regime delivers benefits that are public and global in nature. This chapter addresses these two challenges through a largely empirical perspective. Drawing on three datasets, the authors seek to move beyond the current theorizing in the literature on this theme and base their findings on a comprehensive de jure and de facto analysis. After having discussed the idea of global public goods, they find that the regime high levels of de facto exclusion and in places rivalry, together with an uneven distribution of benefits, such that the international investment regime only partly fits the requirements for a global public good.

scholarly journals Resolving the Question of Inter-Scalar Legitimacy into Law? A Hard Look at Proportionality Balancing in Global Governance

2018 ◽  
Vol 31 (4) ◽  
pp. 793-815
Author(s):  
MING-SUNG KUO
Keyword(s):  
Global Governance ◽  
International Investment ◽  
International Investment Law ◽  
State Immunity ◽  
Human Rights Advocacy ◽  
Investment Law ◽  
Legal Administration ◽  
Narrative Framework ◽  
The Relationship ◽  
Fundamental Values

AbstractIn this article, I examine the attempt to apply proportionality balancing (PB) to the co-ordination of the relations between governance regimes, which I call ‘inter-scalar PB’, from the perspective of competing institutional arrangements of global governance. Observing inter-scalar PB becoming a legal technique of management, I argue that it be reconceived as a narrative framework within which the fundamental values and principles of individual governance regimes can be politically contested without antagonism. I first discuss the role PB has played in the interaction between the law of state immunity and international investment law and then take a closer look at the features of inter-scalar PB as intimated in those instances: simplism, normativism, institutionalism and legalism. I suggest that the complex fundamental issues concerning the relationship between governance regimes are left out in the proportionality analysis-mediated resolution of regime-induced conflicts, disclosing the depoliticization tendency in inter-scalar PB. Juxtaposing it with the indicator project in international human rights advocacy, I conclude that both are jurispathic and reflect the rationalist propensity in the legal administration of global governance. PB, reconceived as a language in which values, conflicts, and interests of each governance regime can be argued and narrated as part of the politics of reconstructing global governance, will help to recast global governance in more jurisgenerative terms.

Part VII Inter-linkages with Other Regimes, Ch.44 Investment

2021 ◽  
Author(s):  
Miles Kate
Keyword(s):  
Environmental Law ◽  
International Investment ◽  
Public Welfare ◽  
International Environmental Law ◽  
Multilateral Environmental Agreements ◽  
International Investment Law ◽  
Investment Law ◽  
Environmental Protection Policies ◽  
New Generation ◽  
The Relationship

This chapter discusses the relationship between international investment law and international environmental law. The contestation between the fields that emerged in the context of investor-state arbitration was blunt and initially resulted in the rules of international investment law being prioritized over the obligations of states under multilateral environmental agreements (MEAs), domestic environmental protection policies and decision-making, and the host state's public welfare regulatory space. Responding to that contest, the new generation bilateral investment treaties (BITs) and free trade agreements (FTAs) reflect the desire of states to work within a more balanced version of the environment/investment nexus. It is not yet, however, at a point where it can be said to be equally balanced in the engagement of international environmental law and international investment law, and there is evidently still room for significant improvements in the way in which environmental issues are understood and interpreted by arbitrators in investor-state disputes. But the culture and context in which the environment and investment are meeting is most definitely shifting and it is hoped that the trajectory continues still further in that direction.

Illegal Investments in Investment Treaty Arbitration

2012 ◽  
Vol 11 (2) ◽  
pp. 281-323 ◽  
Author(s):  
Stephan W. Schill
Keyword(s):  
International Investment ◽  
Foreign Investor ◽  
Considerable Potential ◽  
International Investment Law ◽  
Investment Treaty ◽  
Investment Law ◽  
The Impact ◽  
The Relationship ◽  
Domestic Law ◽  
Investment Treaty Arbitration

Abstract Investment treaty tribunals on numerous occasions have had to deal with the impact of breaches of domestic law by a foreign investor on the investment’s protection under an international investment treaty. In this context, tribunals had to interpret different “in accordance with host State law”-clauses contained in investment treaties, but also dealt with the effect of illegality in the absence of such clauses. The present article traces this increasingly complex jurisprudence and frames it as an issue of the relationship between domestic law and international investment law. Although different approaches exist, most importantly as to the effect of domestic illegality on the jurisdiction of investment treaty tribunals, the article suggests that there is considerable potential for convergence in arbitral jurisprudence, thus unveiling the contours of a doctrinal structure for dealing with illegal investments in international investment law and arbitration.

scholarly journals Democracy and International Investment Law

2017 ◽  
Vol 30 (2) ◽  
pp. 351-382
Author(s):  
LORENZO COTULA
Keyword(s):  
Political Theory ◽  
Analytical Framework ◽  
International Investment ◽  
Democratic Governance ◽  
International Investment Law ◽  
Citizen Action ◽  
Investment Treaty ◽  
Common Thread ◽  
Investment Law ◽  
The Relationship

AbstractThe expanding reach of international investment law and the negotiation of major economic treaties between democratic polities have prompted new debates about the relationship between democracy and the international investment regime. This article develops an analytical framework for understanding that relationship. It first unpacks the concept of democracy, exploring the ‘rules-based’ and ‘action-based’ conceptions that emerge from political theory and their relevance to international investment law. It then examines three themes that frame the relationship between democracy and international investment law: the interface between the investment regime and national democratic space; the place of democratic processes in investment treaty making; and public participation in the settlement of investment disputes. The interplay between rules- and action-based dimensions provides a common thread across the three themes. The article concludes that there is a gap between formal rules and citizen action in promoting democratic oversight, and significant scope to develop more effective mechanisms to install democratic governance in the creation and implementation of international investment law.

scholarly journals Public Goods and International Investment Law: Does the New Generation of IIAs Better Protect Human Rights?

2018 ◽  
pp. 1-11
Author(s):  
Pavel Šturma
Keyword(s):  
Human Rights ◽  
Public Goods ◽  
International Investment ◽  
International Investment Law ◽  
Investment Arbitration ◽  
Investment Law ◽  
New Generation

The implicit inclusion of human rights and other public goods in international investment law by way of interpretation is always contingent on various factual and legal elements. Consequently, it cannot ensure that all investment arbitration tribunals will arrive to the same or at least similar conclusions when it comes to the inclusion of human rights. That is why the trend to include explicit provisions or references into the newly negotiated IIAs seems to be advisable. The article aims at presenting some new trends in both treaties (BITs and other IIAs) and awards of investment tribunals.

scholarly journals SNA Under the framework of global public goods

2021 ◽  
Vol 3 (4) ◽  
pp. 377-397
Author(s):  
Dong Qiu ◽  
◽  
Dongju Li ◽  
Keyword(s):  
Public Goods ◽  
Public Good ◽  
Network Effect ◽  
Global Public Good ◽  
National Accounts ◽  
Global Public Goods ◽  
System Of National Accounts ◽  
Knowledge Based ◽  
New Perspective ◽  
The Cost

<abstract> <p>ISWGN (Inter-Secretariat Working Group on National Accounts) is revising 2008 SNA and is expected to publish the latest version of SNA in 2025. In this context, this paper observes SNA (System of National Accounts) from a new perspective of global public goods and further understands the public goods attributes of national accounts. The global public good is developed from the theory of public goods. According to its definition, classification, and supply rule, SNA is considered a global public good in essence. In terms of characteristics, SNA belongs to means-oriented and best shot supply-oriented global public goods. It has network effect and belongs to network global public goods. And it is also global institutional knowledge, belonging to knowledge-based global public goods. Although SNA serves as a global standard of national accounts, it is not mandatory for consumption. As a global public good, SNA can enhance a country's statistical ability, avoid and reduce the cost of developing the system of national accounts, and reduce transaction costs. At the same time, SNA has the problem of underprovision and underuse, which requires global cooperation in the revision process of SNA. The evolution of SNA demand determines the evolution of SNA supply. Therefore, even if SNA is a global public good, it does not mean that countries should copy SNA, but need to "localize" SNA and transform it from a global public good to a national or regional public good.</p> </abstract>

Interactions between International Investment Law and Constitutional Law: Promoting the Dialogue. A European Perspective on Judicial Cooperation and Deference

2018 ◽  
Vol 21 (1) ◽  
pp. 467-574
Author(s):  
Inga Witte
Keyword(s):  
Rule Of Law ◽  
Constitutional Law ◽  
International Investment ◽  
Judicial Cooperation ◽  
Potential Conflict ◽  
The Rule Of Law ◽  
International Investment Law ◽  
Two Systems ◽  
Investment Law ◽  
The Relationship

There are manifold constellations of potential conflict between international investment law and constitutional law. The ordering paradigm for that interaction is an unresolved and underexplored question, which is currently coming up in a number of proceedings. As prominently evidenced by the recent Achmea judgment, we seem to be steering towards supremacy claims of one system over the other with each adjudicative body claiming the final say in the matter. This approach is in line with the classic ordering paradigm of hierarchy. However, this contribution shall argue that hierarchy is ill-suited to properly conceptualize the relationship between the two systems. Instead, it proposes to embrace the heterarchical reality, along with its call for judicial dialogue, as a normatively desirable paradigm. The relationship between international investment law and constitutional law need not be and should not be perceived as inherently antagonistic because their mutual endeavour is to promote the rule of law. Precisely this realization should guide the relationship between the two systems.

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