Introduction

2021 ◽  
pp. 1-16
Author(s):  
Nicolás M. Perrone
Keyword(s):  
World War Ii ◽  
Foreign Investment ◽  
Professional Associations ◽  
International Investment ◽  
Business Leaders ◽  
International Investment Law ◽  
Progressive Development ◽  
Investment Law

The role of the business leaders, bankers, and lawyers who promoted investment treaties and ISDS in the post-World War II period remains controversial. The introductory chapter argues that these norm entrepreneurs and their professional associations created a legal imagination about foreign investment relations which remains alive and well in both international investment law and ISDS awards. Their contribution to the progressive development of the law consisted of ideas as much as practice, particularly the way in which they collated their ideas into a vision of foreign investment relations. The chapter introduces the main features of this legal imagination, including the relevance of certain interpretations of property and contracts. It claims that grasping this imagination calls for a transnational law method, and concludes with an overview of the book.

International Law and Foreign Investment in Hydroelectric Industry: A Multidimensional Analysis

2016 ◽  
Vol 18 (3-4) ◽  
pp. 183-222
Author(s):  
Attila Tanzi
Keyword(s):  
International Law ◽  
Foreign Investment ◽  
Dispute Settlement ◽  
International Investment ◽  
Multidimensional Analysis ◽  
Private International Law ◽  
International Investment Law ◽  
Investment Law ◽  
Domestic Law

The main focus of the present article is on the entanglement between four bodies of international law sensitive to foreign investment in the creation and/or operation hydroelectric industry: i.e. international investment law, human rights law, international water law and private international law to the extent that public international law rules on conflict of laws on civil liability for transboundary damage are concerned. This horizontal approach to the analysis is supplemented by a vertical one looking at the interactions between international and domestic law. Consideration of the different bodies of international law in question is associated to that of the adjudicative, and non-adjudicative, means of dispute settlement available under each such bodies of law. On that score, the role of the foreign investor in a litigation scenery will be considered, primarily as claimant, but also, prospectively, in relation to the situation in the State hosting the investment is, or may become, respondent in inter-State litigation.

scholarly journals Interpretation of International Law by National Judges: Opportunities and Challenges. The Case of International Investment Law in Latin America

2018 ◽  
Vol 6 (1) ◽  
pp. 128
Author(s):  
Marcelo Lozada Gómez ◽  
Paola Acosta Alvarado
Keyword(s):  
Latin America ◽  
International Law ◽  
Foreign Investment ◽  
Subject Matter ◽  
International Investment ◽  
International Investment Law ◽  
Domestic Courts ◽  
Investment Law ◽  
Fragmentation Of International Law

The role of national judges in international law is still an undecided subject matter. Most scholars consider the decisions from national judges merely as acts of States, denying the possibility that those judgments constitute an autonomous source of international law. This position is grounded in the idea that national judges do not regularly employ sources of international law, and therefore, their opinion about them is not quite important. Nevertheless, recent phenomena have highlighted and triggered the intervention of national judges regarding the interpretation and enforcement of international law. The growing scope of international rules, which now regulate intra-states issues, as well as the fragmentation of international law, and the internationalisation of national orders, inter alia, have demanded domestic courts’ intervention in order to face these changes and avoid undesirable consequences. In this context, this article aims to: 1. bring an outlook on the evolution of the role assigned to national judges; 2. explore the phenomena that triggered their intervention; 3. analyse the outcomes of this increasing participation, namely how national judges change the usual dynamics of interpretation and evolution of international law; 4. apply these ideas to explain the intervention of national judges in Latin America regarding the enforcement of foreign investment law; and 5. conclude with some remarks about the future of this relationship between national and international law as well as the importance of a better understanding of the role of national judges.

Social movements, reframing investment relations, and enhancing the application of human rights norms in international investment law

2020 ◽  
pp. 1-28
Author(s):  
Moshe Hirsch
Keyword(s):  
Human Rights ◽  
Social Movements ◽  
International Investment ◽  
Human Rights Law ◽  
International Investment Law ◽  
Investment Arbitration ◽  
Public Pressure ◽  
Local Actors ◽  
Investment Law

Abstract The recent moderate trend to increasingly apply human rights law in investment awards is accompanied by certain new investment treaties which include expressed human rights provisions. An analysis of recent investment awards indicates that though there are some ‘winds of change’ in this field, it is equally noticeable that human rights law is far from being mainstreamed in international investment law. Investment arbitration procedural law is also undergoing a process of change, and the new procedural rules tend to enhance public elements in the investment arbitral system. This study is aimed at explaining these recent legal changes, highlighting the role of social movements in reframing investment relations as well as increasing public pressure to apply human rights law. These framing changes concern broadening the frame of investment arbitration (beyond the foreign investor–host state dyad), reversing the perceived balance of power between investors and host states, and zooming-in on local individuals and communities residing in host states. The discussion on factors impeding legal change in this field emphasizes the role of the private legal culture prevalent in the investment arbitration system, which is reflected and reinforced by certain resilient socio-legal frames. Informed by this analysis, the study suggests some legal mechanisms which can mitigate the inter-partes frame, and increase the application of human rights law in investment arbitration; inter alia, rigorous transparency rules that are likely to facilitate increased public pressure on tribunals and increase the participation of social movements representing local actors in arbitral processes.

scholarly journals The Role of Sub-Regional Systems in Shaping International Investment Law-Making: The Case of the Visegrád Group

2021 ◽  
pp. 135-153
Author(s):  
Federica Cristani
Keyword(s):  
Soft Power ◽  
International Investment ◽  
Main Question ◽  
International Investment Law ◽  
Regional System ◽  
Investment Law ◽  
Advocacy Role ◽  
Visegrad Group ◽  
Law Making

AbstractThe present chapter focuses on the role of the Visegrád group (or V4, comprising Slovakia, Hungary, Poland and the Czech Republic) in international investment law-making. The chapter starts with a brief overview of the V4 group as a sub-regional system in Europe, including its modus operandi and main achievements in the field of economic cooperation. Subsequently, it turns to the regulation of foreign direct investment (FDI), both at the level of each V4 state and at EU level—with particular regard to the implication of the EU’s exclusive competence on FDI. Special attention is paid to the approach of the V4 countries towards the question of termination of intra-EU bilateral investment treaties (BITs)—including an overview of the related objections to jurisdiction that the four countries have raised over the years in investor-state arbitrations based on intra-EU BITs—and to the relationship of the V4 group with non-EU countries—especially with (selected) East Asian countries. The main question is whether—and to what extent—the V4 group as a sub-regional system has a role to play in international investment law-making. The chapter highlights the proactive and advocacy role that the V4 group has traditionally played in manifold subject-matters, including the promotion and protection of FDI, and supports the positive “soft power” the V4 may exercise in this respect.

3 The Foundations of International Investment Law

2015 ◽  
Author(s):  
Salacuse Jeswald W
Keyword(s):  
World War Ii ◽  
International Law ◽  
International Investment ◽  
World War ◽  
International Investments ◽  
Customary International Law ◽  
Enforcement Mechanism ◽  
International Investment Law ◽  
General Principles Of Law ◽  
Investment Law

This chapter examines the state of customary international law governing international investments, that is, the law that exists in the absence of an applicable treaty. Following World War II, such law for most investors was incomplete, vague, contested, and without an effective enforcement mechanism, meaning that investors and their home governments needed to find another way to protect investments of their nationals. This would lie in negotiating investment treaties. Topics covered include state and investor interests shaping international investment law; the sources of international law; customary international law and general principles of law governing international investment; customary international law on expropriation and breach of state contracts; challenges to Western views on international investment law; and deficiencies of customary international law on investment.

Sources of International Investment Law

2018 ◽  
Author(s):  
Jorge E. Viñuales
Keyword(s):  
International Law ◽  
Foreign Investment ◽  
International Investment ◽  
The State ◽  
Conventional Theory ◽  
International Investment Law ◽  
Basic Understanding ◽  
Investment Law ◽  
Practical Implications

This chapter addresses the challenges posed by the practice of international investment law to the conventional theory of the sources of international law. After a brief overview of the main ‘sources’ of ‘international investment law’, the chapter examines three challenges to this basic understanding, which arise from the need to account for the domestic laws governing different aspects of foreign investment transactions, the detailed jurisprudential norms generated by investment tribunals to specify broadly formulated norms, and the norms of general international law expressing the sovereignty of the State. For each category of norms, the chapter selects several problems that put the most widely accepted understanding of the sources of international law to test. It then explains why the problems examined have potentially important practical implications. The chapter concludes with some observations on the interactions between practice and the theory of the sources of international law.

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