SOI - Save Our Investments! International Investment Law and International Humanitarian Law

2013 ◽  
pp. 578-594 ◽  
Author(s):  
Heather L. Bray
Keyword(s):  
Armed Conflict ◽  
International Investment ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
Foreign Investors ◽  
International Investment Law ◽  
Clear Point ◽  
Security Standard ◽  
Investment Law ◽  
Point Of Intersection

This article reviews the interaction between international humanitarian law (IHL) and international investment law (IIL). Specifically, this article analyses the point of intersection between IHL and IIL through the application of the full protection and security standard in times of armed conflict. From this comparative exercise, the author concludes that while IHL and IIL share important similarities, the clear absence of an individual complaints procedure for victims of IHL provides a clear point of departure. Unlike IHL, IIL provides foreign investors with the ability to submit a claim directly to an international forum for harm suffered during an armed conflict. This difference has enabled the international community to respond to the unique distress signal of one particular group of victims in times of armed conflict – foreign investors.

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

2020 ◽  
Vol 28 (4) ◽  
pp. 596-611
Author(s):  
Nitish Monebhurrun
Keyword(s):  
International Law ◽  
International Investment ◽  
Due Diligence ◽  
Foreign Investors ◽  
International Investment Law ◽  
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.

INCOHERENT AND INEFFECTIVE: THE CONCEPT OF PERSISTENT OBJECTOR REVISITED

2010 ◽  
Vol 59 (3) ◽  
pp. 779-802 ◽  
Author(s):  
Patrick Dumberry
Keyword(s):  
Human Rights ◽  
International Law ◽  
Early Stage ◽  
International Investment ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
Human Rights Law ◽  
Customary International Law ◽  
International Investment Law ◽  
Investment Law

A rule of customary international law is binding upon all States. One controversial question is whether a State should be permitted not to be bound by such a rule in the event that it objected to it in the early stage of its formation and did so constantly thereafter. This is the theory of the ‘persistent objector’. Articles recently published about the theory focus on its specific application in different areas of international law, including international investment law,1 international humanitarian law2 and human rights law.3 The present article intends to examine the concept of persistent objector in general international law.4

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

2018 ◽  
pp. 1-24
Author(s):  
Edward Guntrip
Keyword(s):  
Water Supply ◽  
International Law ◽  
International Investment ◽  
Human Right ◽  
Public And Private ◽  
Foreign Investors ◽  
International Investment Law ◽  
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.

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

2019 ◽  
Vol 19 (1) ◽  
pp. 91-108
Author(s):  
Alberto Alvarez-Jimenez
Keyword(s):  
Risk Sharing ◽  
Case Law ◽  
International Investment ◽  
Economic Research ◽  
Economic Crises ◽  
Foreign Investors ◽  
International Investment Law ◽  
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.

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