Economic Nationalism

Economic Approach ◽

Economic Nationalism ◽

The Public ◽

Economic Growth Model ◽

Investment Law ◽

Soviet Russia

This chapter looks at the evolution of India’s approach towards international investment law, against the backdrop of India’s overall and economic approach towards foreign investment. After independence, from the period of 1947–1965, India followed a relatively open and liberal foreign investment regime. Jawaharlal Nehru’s economic pragmatism ensured that India kept its doors open to foreign investment though the economic growth model was led by the public sector. India also consciously did not indulge in nationalization of foreign investment in total contradiction to what countries like Soviet Russia and China did. However, India turned towards the Left during Indira Gandhi’s times imposing restrictions on foreign investment. India’s approach towards international investment law, at least at the multilateral level, reflected the domestic approach towards foreign investment. At the bilateral level, India appeared more open to international law on protection of foreign investment although India did not sign a BIT during this phase.

Introduction

Investment Treaties and the Legal Imagination ◽

10.1093/oso/9780198862147.003.0001 ◽

2021 ◽

pp. 1-16

Author(s):

Nicolás M. Perrone

Keyword(s):

World War Ii ◽

Foreign Investment ◽

Professional Associations ◽

Business Leaders ◽

Progressive Development ◽

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.

Sources of International Investment Law

10.1093/law/9780198745365.003.0050 ◽

2018 ◽

Author(s):

Jorge E. Viñuales

Keyword(s):

International Law ◽

Foreign Investment ◽

The State ◽

Conventional Theory ◽

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.

International Investment Arbitration: Substantive Principles, Principles of International Investment Law and The Fair and Equitable Treatment Standard in International Foreign Investment Law

British Yearbook of International Law ◽

10.1093/bybil/79.1.378 ◽

2009 ◽

Vol 79 (1) ◽

pp. 378-388

Author(s):

C. Baltag

Keyword(s):

Foreign Investment ◽

Treatment Standard ◽

Investment Arbitration ◽

Fair And Equitable Treatment ◽

Investment Law ◽

Equitable Treatment

Staatliches Regulierungsinteresse im Investitionsschutzrecht

10.5771/9783748900788 ◽

2019 ◽

Author(s):

Alexandra Schuppli

Keyword(s):

A Priori ◽

The State ◽

State Sovereignty ◽

Development Trends ◽

Public Discussion ◽

The Public ◽

Margin Of Appreciation ◽

The public discussion on the legitimacy of international investment law requires a reevaluation of the concept of state sovereignty in international investment law. The monograph sets out different concepts of an a priori precedence of the interests of the state over the interests of the investor and vice versa. Furthermore, it describes different models of reconciling these interests by way of giving the state a margin of discretion. In particular, the transfer of the margin of appreciation doctrine to international investment law, as well as the concept of empiric and normative deference, are the focus of this monograph. Finally, the author explores how investor-state arbitration achieves a reconciliation of interests by way of interpreting and applying rules of international investment law without the need to apply concepts from other legal systems. Based on these findings, the author evaluates different development trends in the drafting of investment treaties.

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

International Community Law Review ◽

10.1163/18719732-12341335 ◽

2016 ◽

Vol 18 (3-4) ◽

pp. 183-222

Author(s):

Attila Tanzi

Keyword(s):

International Law ◽

Foreign Investment ◽

Dispute Settlement ◽

Multidimensional Analysis ◽

Private International 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.

THE INTERNATIONAL INVESTMENT AGREEMENT NOWADAYS: FROM THE CONSENT TO ITS SOCIAL FUNCTION AS A GUARANTOR OF THE INTERESTS OF CITIZENS

Panorama of Brazilian Law ◽

10.17768/pbl.y5.n7-8.p91-112 ◽

2018 ◽

Vol 5 (7-8) ◽

pp. 91-112

Author(s):

Renata Alvares Gaspar ◽

Felipe Soares Vivas de Castro

Keyword(s):

Foreign Investment ◽

Citizenship Rights ◽

The Social ◽

Investment Agreement ◽

Investment Law ◽

Legal Security ◽

Globalized World ◽

Direct Reflection

At the center of a globalized world and under intense transnational financial circulation, there is the foreign investment. In this sense, investigating the realization of the social and economic functions of the Foreign Investment Agreement is an insurmountable necessity for understanding its effects on the citizenship rights. Therefore, it was discussed the rapid and multiple transformations that the International Investment Law has been supporting over time and the direct reflection on the formation of the Foreign Investment Contracts that, nowadays, require complex answers to the achievement of legal security.

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

Groningen Journal of International Law ◽

10.21827/5b51d54f19da9 ◽

2018 ◽

Vol 6 (1) ◽

pp. 128

Author(s):

Marcelo Lozada Gómez ◽

Paola Acosta Alvarado

Keyword(s):

Latin America ◽

International Law ◽

Foreign Investment ◽

Subject Matter ◽

Fragmentation Of International Law

Domestic Courts ◽

Investment 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.

Embedding the International Investment Regime

10.1093/law-iic/9780198809722.016.0007 ◽

2017 ◽

Author(s):

Marcoux Jean-Michel

Keyword(s):

Foreign Investment ◽

Dispute Settlement ◽

Social Protection ◽

Economic Liberalism ◽

Development Policies ◽

Double Movement ◽

Investment Law ◽

Potential Impact

Amidst numerous calls for reform of international investment law, the United Nations Conference on Trade and Development (UNCTAD) has become a multilateral forum deeply involved in seeking responses to address a growing unease regarding the governance of foreign investment. Further to a focus on sustainable development policies and paths for reform of investor–state dispute settlement, UNCTAD’s efforts have culminated in a roadmap for reform. This chapter aims to explore the potential impact of this reform on the international investment regime. It argues that the reform proposed by UNCTAD reflects an unambiguous need to embed international investment law in social concerns, in line with the second part of a double movement between economic liberalism and social protection. Such a countermovement nevertheless remains weak, as the proposed reform appears to generally constitute a norm-governed change that is unlikely to shake the fundamental principles and norms underlying the international investment regime.

Part II Substantive Aspects, Ch.21 Cultural Heritage in International Investment Law

The Oxford Handbook of International Cultural Heritage Law ◽

10.1093/law/9780198859871.003.0021 ◽

2020 ◽

Author(s):

Vadi Valentina

Keyword(s):

Cultural Heritage ◽

Direct Investment ◽

Legal Framework ◽

Economic Interests ◽

Public And Private ◽

The Public ◽

Private Interests ◽

This chapter evaluates whether the existing legal framework adequately protect cultural heritage vis-à-vis the economic interests of foreign investors. It aims to address this question by examining recent arbitrations and proposing three principal legal tools to foster a better balance between economic and cultural interests in international investment law and arbitration. This recent jurisprudence highlights that arbitral tribunals are increasingly providing consideration to cultural concerns. Yet, the interplay between the protection of cultural heritage and the promotion of foreign direct investment in international investment law and arbitration continues to pose two main problems: one ontological, concerning the essence of international investment law and international law more generally; and one epistemological, concerning the mandate of arbitral tribunals. The chapter then considers three principal avenues that can facilitate a better balance between the public and private interests in international investment law: a ‘treaty-driven approach’; a ‘judicially driven approach’; and counterclaims.

The “Invisible” Local Communities: Foreign Investor Obligations, Inclusiveness, and the International Investment Regime

AJIL Unbound ◽

10.1017/aju.2018.92 ◽

2019 ◽

Vol 113 ◽

pp. 16-21 ◽

Cited By ~ 2

Author(s):

Nicolás M. Perrone

Keyword(s):

Foreign Investment ◽

Dispute Settlement ◽

Blind Spot ◽

Local Communities ◽

State Regulation ◽

Regulatory Relationship ◽

Investment Projects ◽

International investment law is relational. It is about how we define and govern the relationship between the actors involved in and affected by foreign investment projects. Most international investment law literature confirms the relational nature of this field. The scholarship has analyzed the resolution of specific disputes and the regulatory relationship between foreign investors and host states. As could be expected, some of the key issues that have emerged include states’ right to regulate, the risk of regulatory chill, and how to review state regulation. There is, however, an important blind spot in this relational approach. A look at many foreign investment disputes, particularly in the natural resource extraction sector, shows that local communities are also central protagonists of foreign investment projects. These communities have a lot at stake but have remained almost invisible to the international investment regime. Apart from the ability to submit amicus curiae briefs, they have neither rights nor remedies in this regime. This essay discusses international investment law from an inclusive relational perspective, and shows how, contrary to this perspective, recent awards in investor-state dispute settlement continue to render invisible local communities and their rightful aspirations.