“Missing Links” in Investment Arbitration: Quantification of Damages to Foreign Shareholders

2013 ◽  
pp. 434-479
Author(s):  
Jimmy Skjold Hansen
Keyword(s):  
Law And Economics ◽  
International Investment ◽  
Foreign Investors ◽  
Legal Principles ◽  
Investment Arbitration ◽  
Corporate Entity ◽  
Share Value

This article focuses on the tensions between law and economics which inevitably occur in connection with the quantification of damages in international investment disputes between foreign shareholders (foreign investors) and host states. In this context, four contemporary approaches to quantification are addressed. These concern 1) full loss of the investment or invested amounts, 2) lost share value, 3) lost dividends, or 4) discretionary compensation. It is analyzed to what extent these approaches comply with the fundamental, legal principles which are in play in most investment disputes today, that is a) identification of the protected investment, b) recognition of the corporate entity, c) “full reparation” of injury, d) causation and certainty of losses, and e) avoidance of double recovery. It is demonstrated that each approach may pose challenges in respect of one or more of these legal principles.

scholarly journals Investor Responsibility as Familiar Frontier

AJIL Unbound ◽  
2019 ◽  
Vol 113 ◽  
pp. 28-32
Author(s):  
Jackson Shaw Kern
Keyword(s):  
International Investment ◽  
Foreign Investors ◽  
Investment Arbitration ◽  
New Frontier ◽  
Modern Era

This essay suggests that amidst the various criticisms of investor-state arbitration, the most potent is the present inadequacy of this mechanism to establish a reciprocal responsibility of foreign investors. The founders of the modern era of international investment arbitration never intended to build a one-way street. In this sense, to seek a regime of investor responsibility may not be to reach toward a new frontier so much as to return to one that is familiar, though underexplored.

Transnational Public Policy as a Vehicle to Impose Human Rights Obligations in International Investment Arbitration

2020 ◽  
Vol 21 (6) ◽  
pp. 809-846
Author(s):  
Jean-Michel Marcoux
Keyword(s):  
Public Policy ◽  
Human Rights ◽  
International Investment ◽  
International Consensus ◽  
Foreign Investors ◽  
Material Sources ◽  
Investment Arbitration ◽  
Human Rights Norms ◽  
The Right

Abstract International investment arbitration has been criticized for its general reluctance to consider human rights concerns related to foreign investors’ activities. By contrast, arbitration tribunals have relied on transnational public policy to prevent a claimant whose investment is tainted with illegality from obtaining redress. This article explores how human rights norms could be conceptualized as part of transnational public policy to impose obligations on foreign investors. It proceeds in three steps. First, it addresses the role of transnational public policy in investment arbitration. Second, the article identifies the material sources considered by tribunals to delimit the content of the doctrine. Third, it focuses on three norms – the protection of fundamental human rights, a corporate responsibility to respect human rights and the right of Indigenous Peoples to be consulted – for which tribunals have found an international consensus and that could be conceptualized as norms of transnational public policy.

scholarly journals Counterclaims and the Rule of Law in Investment Arbitration

AJIL Unbound ◽  
2019 ◽  
Vol 113 ◽  
pp. 33-37 ◽  
Author(s):  
Tomoko Ishikawa
Keyword(s):  
Rule Of Law ◽  
International Investment ◽  
Access To Justice ◽  
Foreign Investors ◽  
The Rule Of Law ◽  
International Investment Law ◽  
Rule By Law ◽  
Investment Arbitration ◽  
The Law ◽  
Broad Interpretation

While the rule of law was originally developed with reference to domestic constitutional orders, it is also widely embraced by international lawyers. This essay argues that the admission of counterclaims in certain circumstances helps investment arbitration advance the rule of law on several counts. The rule of law is defined here to include not only formal elements such as rule-by-law and formal legality, but also “thicker” elements attached to certain substantive values, including fundamental human rights. The UN's work on the rule of law clearly adopts a broad interpretation of this concept. This essay examines the potential for counterclaims to bridge the gap between the lack of effective mechanisms to hold foreign investors accountable for their conduct and the extensive protection of foreign investors in international investment law. By doing so, counterclaims in investment arbitration may promote the thicker elements of the rule of law such as accountability to the law, access to justice, and fairness in the application of the law.

Transnational Public Policy as an International Practice in Investment Arbitration

2019 ◽  
Vol 10 (3) ◽  
pp. 496-515
Author(s):  
Jean-Michel Marcoux
Keyword(s):  
Public Policy ◽  
International Relations ◽  
International Relations Theory ◽  
International Investment ◽  
Legal Basis ◽  
Foreign Investors ◽  
International Investment Law ◽  
Investment Arbitration ◽  
Investment Law

Abstract International investment arbitration tribunals have used the doctrine of transnational public policy to prevent claimants whose investments are tainted with illegality from obtaining redress. Whereas tribunals generally have the authority to apply transnational public policy when deciding a claim, they have often assumed rather than demonstrated the obligation for foreign investors to comply with the doctrine. This article proposes an interdisciplinary account that draws upon ‘international practices’ in International Relations theory to understand the normative pull toward this obligation. It does so by shedding light on tribunals’ general lack of consideration for a proper legal basis to impose an obligation on foreign investors to comply with transnational public policy. It then suggests that the normativity of the doctrine primarily rests on a practice that is reproduced and reinforced by tribunals themselves. Understanding transnational public policy as an international practice ultimately illustrates the role of tribunals to reform international investment law.

The Doctrines of Public Policy and Competence in Investor–State Arbitration

2013 ◽  
Vol 27 (4) ◽  
pp. 297-341
Author(s):  
Mary B. Ayad
Keyword(s):  
Public Policy ◽  
North Africa ◽  
Islamic Law ◽  
International Investment ◽  
Commercial Arbitration ◽  
Conflict Of Laws ◽  
Legal Principles ◽  
Investment Arbitration ◽  
Practical Research ◽  
Form Part

Abstract International commercial arbitration (ICA) and international investment arbitration (IIA), as they are currently practiced in the Middle East and North Africa (MENA) inter alia, cannot be seen in isolation. Long-standing historical forces have brought about both the development of jurisprudence as well as its current problems. In arbitrations in which one party is a MENA State, from the early oil concessions throughout the present, ICA and IIA law and practise have demonstrated that the central problem therein has to do with a conflict of laws. What is proposed herein is that common legal principles found in civil, common and Islamic law, which form part or all of the legal systems in the MENA, can be distilled to create a new ICA law code for adoption in the MENA; a code which addresses many of the doctrinal issues that arise in ICA and IIA proceedings. To this end, this article presents the results of this highly practical research which represents a synthesis of theory and practise.

FOREIGN INVESTORS’ RESPONSIBILITIES AND CONTRIBUTORY FAULT IN INVESTMENT ARBITRATION

2020 ◽  
Vol 69 (4) ◽  
pp. 877-905
Author(s):  
Jean-Michel Marcoux ◽  
Andrea K. Bjorklund
Keyword(s):  
International Investment ◽  
Foreign Investors ◽  
Investment Arbitration

AbstractSome investment arbitration tribunals have relied upon the principle of contributory fault to conclude that claimants have contributed to their own loss and should accordingly receive less compensation. The principle has not, however, been coherently applied. After analysing the use of contributory fault by tribunals and identifying factors contributing to an incoherent approach, the authors conclude that carefully crafted treaty provisions can improve the consistency of international investment arbitration by fostering a more coherent approach to both contributory fault and foreign investors’ responsibilities.

International Investment Arbitration and Corruption Claims: An Analysis of World Duty Free v. Kenya

2011 ◽  
Vol 4 (3) ◽  
Author(s):  
Ibironke T. Odumosu
Keyword(s):  
Foreign Investment ◽  
International Investment ◽  
Political Climate ◽  
Public Officials ◽  
Foreign Investors ◽  
Host State ◽  
Investment Arbitration ◽  
Public Nature ◽  
The World ◽  
The Republic

In some recent investment arbitration cases, tribunals have been presented with facts that suggest that foreign investors and public officials in the host state have engaged in corrupt practices. In its analysis of the extension of the anti-corruption campaign to investment arbitration, this article examines the legal measures adopted to combat corruption before investor-state arbitral tribunals in light of a study of World Duty Free Co. Ltd. v. The Republic of Kenya. An examination of the background to the World Duty Free v. Kenya dispute, the broader circumstances that surrounded the dispute, and Kenya’s political climate that was not within the tribunal’s purview, demonstrate that investment arbitration tribunals are not sufficiently equipped to exhaustively tackle corruption. Given the intricate political and public nature of corruption, responses to foreign investment-related corruption also have to be multi-faceted.

International Investment Arbitration: Recent Developments as to the Applicable Law and Unilateral Recourse

2006 ◽  
Vol 5 (1) ◽  
pp. 29-39 ◽  
Author(s):  
Andrea Giardina
Keyword(s):  
International Law ◽  
International Investment ◽  
International Arbitration ◽  
Foreign Investors ◽  
New Developments ◽  
Applicable Law ◽  
Investment Arbitration ◽  
Recent Developments ◽  
New Form

AbstractInternational arbitration relating to investments is a field in which important and rapid developments have taken place. Such developments have produced a noteworthy reinforcement of the procedural and substantive rights and positions of foreign investors vis-á-vis host States. Among the various items characterizing these new developments, two have been selected to be examined in this Article: (I) The compliance with international law by arbitral awards and their rationale; (II) The new form of arbitration which is apparently developing, the unilateral arbitration or arbitration without privity.

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