International Investment Law and Community Interests

Foreign Investors ◽

Investment Law ◽

Legal Infrastructure

In contemporary discourse, international investment law and investor-state dispute settlement (ISDS) are often perceived as threats to community interests in one-sidedly protecting foreign investors and undermining public policies that are to the benefit of the local population and the international community. The chapter promotes a different perspective. First, it argues that international investment law properly construed can be conceptualized as protecting community interests, because it is part of the legal infrastructure necessary for the functioning of the global economy under a rule of law framework. Aimed at supporting economic growth, this helps further economic and noneconomic community interests, including sustainable development. Second, the chapter argues that international investment law and ISDS do not turn a blind eye to the conflicts that can arise between economic and noneconomic community interests, such as environmental protection or human rights. Instead, international investment law and ISDS have numerous mechanisms at their disposal for alleviating tensions with noneconomic community interests.

THE FOREIGN INVESTORS AND NATIONALITY CONCEPT UNDER INTERNATIONAL LAW

4th EMAN Conference Proceedings (part of EMAN conference collection) ◽

10.31410/eman.2020.193 ◽

2020 ◽

Author(s):

Gabriela Belova ◽

◽

Gergana Georgieva ◽

Anna Hristova ◽

◽

...

Keyword(s):

Dispute Settlement ◽

Trade Agreement ◽

Foreign Investors ◽

Investment Law ◽

Definition Of ◽

Investment Agreements ◽

Mixed Agreements ◽

The Eu

Although in the last years the international community has adopted a broad approach, the definition of foreign investors and foreign investments is still very important for the development of international investment law. The nationality of the foreign investor, whether a natural person or legal entity, sometimes is decisive, especially in front of the international jurisdictions. The paper tries to follow the examples from bilateral investment agreements as well as from multilateral instrument such as the International Centre for Settlement of Investment Disputes (ICSID) Convention. An important case concerning Bulgaria in past decades is also briefly discussed. The authors pay attention to some new moments re-developing the area of investment dispute settlement within the context of EU Mixed Agreements, especially after the EU-Canada Comprehensive Economic and Trade Agreement.

Investors, States, and Arbitrators in the Crosshairs of International Investment Law and Environmental Protection

Brill Research Perspectives in International Investment Law and Arbitration ◽

10.1163/24055778-12340008 ◽

2020 ◽

Vol 3 (1) ◽

pp. 1-77

Author(s):

Crina Baltag ◽

Ylli Dautaj

Keyword(s):

Rule Of Law ◽

Dispute Settlement ◽

Environmental Law ◽

Global Environmental ◽

International Investment Agreements ◽

Environmental Component ◽

Investment Law ◽

Regulatory Powers

Abstract The global environmental disruption caused by human activity is firmly entrenched as a scientific fact. The present paper looks at the Investor-State Dispute Settlement (ISDS) system and inquires whether this is the most suitable transnational venue for resolving investment disputes that have an environmental component. This culminates essentially in whether arbitration is a legitimate forum and whether privately appointed arbitrators appropriately can resolve environmental-related disputes. These disputes are bound to increase in frequency because host-States are also partaking in global efforts to respond to environmental challenges. This paper makes several points. First, ISDS is the best equipped venue for addressing investment disputes that have an environmental or natural resources component. Second, the “regulatory chill” and the alleged “investor bias” arguments are unsubstantiated whereas, a balance must be struck between backlash, legitimacy, and workability. Third, ISDS will eventually and inevitably facilitate green-investors, while holding States accountable for green-undertakings, and therefore continue to effectively enforce the rule of law globally. Fourth, arbitrators must adapt to their role of handling disputes at the intersection of international investment law and environmental law; this means that a thorough thick rule of law must effectively be implemented. Fifth, International Investment Agreements (IIA s) should be reconsidered or interpreted in order to accommodate for investors’ obligations, as well as widening the scope of States’ regulatory powers. Finally, ISDS will only remain the best alternative if it sticks to its fundamental elements, in particular by utilizing the regime’s flexibility to allow counterclaims from host States. Only such reform-proposals that preserve and enhance the fundamental elements of international arbitration should be seriously considered.

Conclusion

Investment Treaties and the Legal Imagination ◽

10.1093/oso/9780198862147.003.0009 ◽

2021 ◽

pp. 199-206

Author(s):

Nicolás M. Perrone

Keyword(s):

Foreign Investment ◽

Global Economy ◽

Local Communities ◽

Foreign Investors ◽

Investment Law ◽

Investment Treaties ◽

The 1950S

The final chapter summarizes how investment treaties and ISDS increase the calculability of foreign investors to the detriment of states and local communities, shaping foreign investment relations more generally. This outcome is the result of the standards included in investment treaties, as interpreted by ISDS tribunals, as much as the silencing of specific issues and actors in these arbitrations. For the legal imagination that dominates international investment law, the chapter shows, what is excluded is as important as what is protected. The book concludes by highlighting how current discussions about reforming investment treaties and ISDS are also embedded in this dominant imaginary. The lesson to be learned from the norm entrepreneurs of the 1950s and 1960s is that ideas alone are not enough to transform the rules governing the global economy.

Investment Treaties and the Legal Imagination

10.1093/oso/9780198862147.001.0001 ◽

2021 ◽

Author(s):

Nicolás M. Perrone

Keyword(s):

World War Ii ◽

Dispute Settlement ◽

Dispute Settlement Mechanism ◽

Foreign Investors ◽

Origin And Evolution ◽

Investment Law ◽

Investment Treaties ◽

The 1950S

Foreign investors have a privileged position under investment treaties. They enjoy strong rights, have no obligations, and can rely on a highly efficient enforcement mechanism: investor–state dispute settlement (ISDS). This extraordinary status has made international investment law one of the most controversial areas of the global economic order. Unsurprisingly, its origin and evolution have been the subject of a long debate. This book adds to the discussion by showing that foreign investor rights are not the result of unpredicted arbitral interpretations, but rather the likely outcome of a world-making project realized by a coalition of business leaders, bankers, and their lawyers in the 1950s and 1960s. Some initiatives that these norm entrepreneurs planned for did not concretize, such as a multilateral investment convention, but they were successful in developing a legal imagination that gradually occupied the space of international investment law. They sought not only to set up a dispute settlement mechanism but also to create a platform to ground their vision of foreign investment relations. Tracing their normative project from the post-World War II period, this book shows that the legal imagination of the norm entrepreneurs is remarkably similar to present ISDS practice. Common to both is what they protect—such as foreign investors’ legitimate expectations—as well as what they silence or make invisible. Our canon of imagination, of adjustment and potential reform, remains closely associated with the world-making project of the norm entrepreneurs of the 1950s and 1960s.

The Defence of Necessity in International Law and Investor Versus State Dispute Settlement

Journal of Legal Studies ◽

10.2478/jles-2019-0005 ◽

2019 ◽

Vol 23 (37) ◽

pp. 67-82

Author(s):

Bader Bakhit M AlModarra

Keyword(s):

World War Ii ◽

International Law ◽

Dispute Settlement ◽

Prima Facie ◽

Public Utility ◽

World War ◽

Foreign Investors ◽

Investment Law

Abstract The ability of foreign investors to sue host states without reliance on diplomatic protection is one of the most important developments in international investment law in the post-World War II era. The rise of investor-state dispute settlement under international regimes like the Convention Establishing the International Centre for the Settlement of Investment Disputes (ICSID Convention) raises some concerns from states regarding loss of sovereignty. However, there are defences available to states when they intervene in their economies for purposes like public utility or the need to safeguard an essential interest. Thus in spite of treaty commitments that bind states to protect the investments of foreign investors within their domains, there are available defences for their intervention in their economies even if such interventions become inimical to the interests of foreign investors and could, prima facie, raise the possibility of infringements of the rights of foreign investors. One of such defences available to states is the principle of necessity. This article explores the principle of necessity in international law and how it operates as a defence for states in investor-state dispute settlement. It also conducts analysis of the Annulment Decision in the CMS v Argentina case to shed light on the principle of necessity.

Diligentia quam in suis as a Technique for a Contextual Application of the Full Protection and Security Standard: Considering the Level of Development of Host States in International Investment Law

African Journal of International and Comparative Law ◽

10.3366/ajicl.2020.0341 ◽

2020 ◽

Vol 28 (4) ◽

pp. 596-611

Author(s):

Nitish Monebhurrun

Keyword(s):

International Law ◽

Due Diligence ◽

Foreign Investors ◽

Local Means ◽

Security Standard ◽

Maximum Protection ◽

Investment Law ◽

Full Protection

With international investment law as the background to this study, the present article examines how the full protection and security standard can be construed from the perspective of developing states hosting foreign investments. The research delves into classical public international law to argue that the diligentia quam in suis rule can be used as a means of interpretation to strike a balance between foreign investors’ and developing states’ interests when construing the full protection and security standard. The rule provides that any expected due diligence from the state party is necessarily of a subjective nature. This means that developing host states must deploy their best efforts to offer maximum protection to foreign investors not on an in abstracto basis but as per their local means and capacity. Accordingly, the standard is presented as an adaptable and flexible one which moulds its contours as per the level of development of the host state. Such flexibility does not imply condoning states’ abuse and negligence. The article explains how the diligentia quam in suis rule enables a conciliation between the full protection and security standard and the host state's level of development while rationalising the standard's application to developing nations.

Investor-State dispute settlement (ISDS) cases and India: affronting regulatory autonomy or indicting capricious state behaviour?

Journal of International Trade Law and Policy ◽

10.1108/jitlp-10-2021-0053 ◽

2021 ◽

Vol ahead-of-print (ahead-of-print) ◽

Author(s):

Prabhash Ranjan

Keyword(s):

Public Interest ◽

Dispute Settlement ◽

Due Process ◽

Public Power ◽

Foreign Investors ◽

Content Type ◽

Global Context ◽

State Behaviour

Purpose The dominant narrative in the investor-State dispute settlement (ISDS) system is that it enables powerful corporations to encroach upon the regulatory power of developing countries aimed at pursuing compelling public interest objectives. The example of Phillip Morris, the tobacco giant, suing Uruguay’s public health measures is cited as the most significant example to prove this thesis. The other side of the story that States abuse their public power to undermine the protected rights of foreign investors does not get much attention. Design/methodology/approach This paper reviews all the ISDS cases that India has lost to ascertain the reason why these claims were brought against India in the first place. The approach of the paper is to study these ISDS cases to find out whether these cases arose due to abuse of the State’s public power or affronted India’s regulatory autonomy. Findings Against this global context, this paper studies the ISDS claims brought against India, one of the highest respondent-State in ISDS, to show that they arose due to India’s capricious behaviour. Analysis of these cases reveals that India acted in bad faith and abused its public power by either amending laws retroactively or by scrapping licences without following due process or going back on specific and written assurances that induced investors to invest. In none of these cases, the foreign investors challenged India’s regulatory measures aimed at advancing the genuine public interest. The absence of a “Phillip Morris moment” in India’s ISDS story is a stark reminder that one should give due weight to the equally compelling narrative that ISDS claims are also a result of abuse of public power by States. Originality/value The originality value of this paper arises from the fact that this is the first comprehensive study of ISDS cases brought against India and provides full documentation within the larger global context of rising ISDS cases. The paper contributes to the debate on international investment law by showing that in the case of India most of the ISDS cases brought were due to India abusing its public power and was not an affront on India’s regulatory autonomy.

Private Actors, Public Goods and Responsibility for the Right to Water in International Investment Law: An Analysis of Urbaser v. Argentina

Brill Open Law ◽

10.1163/23527072-00101004 ◽

2018 ◽

pp. 1-24

Author(s):

Edward Guntrip

Keyword(s):

Water Supply ◽

International Law ◽

Human Right ◽

Public And Private ◽

Foreign Investors ◽

Investment Law ◽

The Right ◽

Water Supply Services

International investment law balances public and private interests within the broader framework of international law. Consequently, when water supply services, which constitute a public good, are privatized and operated by foreign investors, questions arise regarding whether foreign investors could be held responsible for the right to water under international law. This article considers how the tribunal in Urbaser v. Argentina allocated responsibility for compliance with the right to water between the host State and the foreign investor when resolving a dispute over privatized water services. It highlights how the tribunal in Urbaser v. Argentina supports different understandings of public and private based on whether the human rights obligation is framed in terms of the duty to respect or protect. The article argues that the tribunal’s rationale overcomplicates the process of allocating responsibility for violations of the human right to water when water supply services have been privatized.

Pursuing and Reimagining the International Rule of Law Through International Investment Law

Hague Journal on the Rule of Law ◽

10.1007/s40803-018-00084-w ◽

2019 ◽

Vol 12 (1) ◽

pp. 1-27

Author(s):

Velimir Živković

Keyword(s):

Rule Of Law ◽

Investment Law ◽

International Rule

International Investment Law, Time, and Economics: Fixing the Length of Economic Crises as a Costs-Allocation Tool between Host States and Foreign Investors

World Trade Review ◽

10.1017/s1474745618000381 ◽

2019 ◽

Vol 19 (1) ◽

pp. 91-108

Author(s):

Alberto Alvarez-Jimenez

Keyword(s):

Risk Sharing ◽

Case Law ◽

Economic Research ◽

Economic Crises ◽

Foreign Investors ◽

Normative Basis ◽

Investment Law

AbstractThe case law on non-precluded measures clauses, when they are successful, and the customary rule of necessity, when it fails, transfers significant risks to foreign investors and host States, respectively, during severe economic crises. Some risk-sharing mechanisms should be explored to achieve a more balanced result. This article presents the policy reasons in support of this approach and its normative basis: the principle of acceptable compensation, and illustrates that one way to introduce such mechanisms is through the determination by investor/State tribunals of the length of the breakdown, which is marked by the dates for its beginning and end. The article discusses economic research on when crises conclude, which could be useful to tribunals, and explores the determination on the beginning of economic collapses as a risk-sharing tool and shows how decisions of the Argentinean saga have achieved this result.