The Scope of Application of EU (Model) Investment Agreements

2014 ◽  
Vol 15 (3-4) ◽  
pp. 402-421 ◽  
Author(s):  
Marc Bungenberg
Keyword(s):  
Dispute Settlement ◽  
Trade Agreement ◽  
International Investment ◽  
Sovereign Wealth Funds ◽  
International Investment Agreements ◽  
Scope Of Application ◽  
Investment Law ◽  
Investment Agreements ◽  
The Eu

The contribution examines the personal and material scope of application of future eu International Investment Agreements. Therefore the notions of 'investor' and 'investment' are discussed. The scope of application of iias is one of the most important issues in investment law, as it determines the application of material standards as well as the possibility of investor state dispute settlement. On a comparative basis, the chapter examines the eu approach to this issue. Also the coverage of State owned Enterprises as well as Sovereign Wealth Funds is paid specific attention to. Especially the draft investment chapter of the EU-Canada Comprehensive Economic and Trade Agreement (ceta) is taken as a first orientation for possible wording and structure as well as intention of the scope of application of future eu iias.

scholarly journals Regulatory autonomy and regulatory chill in Opinion 1/17

2020 ◽  
Author(s):  
Laurens Ankersmit
Keyword(s):  
Dispute Settlement ◽  
Trade Agreement ◽  
International Investment ◽  
Public Interests ◽  
International Investment Law ◽  
European Court ◽  
Negative Effect ◽  
Investment Law ◽  
Investment Agreements ◽  
The Eu

This article analyses the aspect of the Court’s reasoning in Opinion 1/17 that focuses on the regulatory autonomy of the Parties to the Comprehensive Economic and Trade Agreement (CETA) to decide on levels of protection of public interests. The European Court of Justice’s (ECJ) introduction of regulatory autonomy under EU law coincides with the wider debate around ‘regulatory chill’ under international investment law. This article finds the ECJ’s concept of regulatory autonomy to be narrower than that of the regulatory chill hypothesis put forward by critics of investor-state dispute settlement (ISDS). It further analyses the ECJ’s reasoning that the CETA’s investment tribunals do not have jurisdiction to call into question the levels of protection sought by the EU. In so doing, it will critically evaluate the certainty of the ECJ’s promise that there will be no negative effect on public interest decision-making through CETA’s investment chapter. Finally, it will explore the legal consequences of Opinion 1/17 for future awards and investment agreements.

scholarly journals THE FOREIGN INVESTORS AND NATIONALITY CONCEPT UNDER INTERNATIONAL LAW

2020 ◽  
Author(s):  
Gabriela Belova ◽  
◽  
Gergana Georgieva ◽  
Anna Hristova ◽  
◽  
...  
Keyword(s):  
Dispute Settlement ◽  
Trade Agreement ◽  
International Investment ◽  
Foreign Investors ◽  
International Investment Law ◽  
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.

A Paradigm Change: The CETA Investment Chapter

2021 ◽  
Vol 24 (3) ◽  
pp. 437-484
Author(s):  
Marc Bungenberg ◽  
August Reinisch
Keyword(s):  
Dispute Settlement ◽  
Trade Agreement ◽  
International Investment ◽  
Court System ◽  
International Investment Law ◽  
Investment Protection ◽  
Investment Law ◽  
Investment Agreements ◽  
The Eu

The Investment Chapter of the Comprehensive Economic and Trade Agreement (CETA) can be seen as an unofficial blueprint of future EU Investment Agreements and Chapters. It was developed under immense public pressure and had to fulfil multiple conditions resulting from the EU constitutional framework. This contribution highlights the political and juridical background of EU investment policy, and then analyses the most significant new approaches in international investment law - both with regard to substantive standards and investor-State dispute settlement - as exemplified in the CETA. With regard to the substance, it can be witnessed that states are more proactive in defining investment protection standards, leaving less discretion for adjudicators. With regard to dispute settlement, the EU managed to introduce a completely new Investment Court System (ICS) with preselected adjudicators and an appellate mechanism. In light of all these developments, this article argues that we are currently facing a complete change of paradigms in EU investment law, heading towards the EU’s long-term goal of establishing a Multilateral Investment Court (MIC).

An Overview of Sri Lanka’s Bilateral Investment Treaties: Status Quo and Some Insights into Future Modifications

2016 ◽  
Vol 7 (2) ◽  
pp. 287-318
Author(s):  
Dilini PATHIRANA
Keyword(s):  
Sri Lanka ◽  
Dispute Settlement ◽  
International Investment ◽  
Status Quo ◽  
International Investment Law ◽  
Global Context ◽  
Investment Treaty ◽  
International Investment Agreements ◽  
Investment Law ◽  
Investment Agreements

AbstractSri Lanka is the first country against which a foreign investor has had recourse to international arbitration based on the dispute settlement clause in a bilateral investment treaty (BIT). This was the case of AAPL v. Sri Lanka. Since then, the country has been challenged twice before the International Centre for Settlement of Investment Disputes (ICSID), while its latest encounter was in the case of Deutsche Bank AG v. Sri Lanka. In the intervening years between these two cases, Sri Lanka maintained silence and failed to alter its BITs in a global context where the conventional attitude on international investment agreements (IIAs) is being increasingly reconsidered. This paper provides an overview of Sri Lanka’s BITs, which highlights the urgency of reconsidering the country’s investment treaty-making practice. It suggests some modifications to align the country’s investment treaty-making practice with international investment law (IIL) developments.

Africa and the Rethinking of International Investment Law

2018 ◽  
Author(s):  
Makane Moïse Mbengue ◽  
Stefanie Schacherer
Keyword(s):  
Sustainable Development ◽  
International Law ◽  
Dispute Settlement ◽  
International Investment ◽  
Reform Process ◽  
International Investment Law ◽  
Pan African ◽  
International Investment Agreements ◽  
Investment Law ◽  
Investment Agreements

This chapter seeks to present and to contextualize the Pan-African Investment Code (PAIC) by taking a comparative international law approach. Such approach allows us to assess whether the PAIC is an Africa-specific instrument and whether it is unique today in how it incorporates sustainable development concerns. This is particularly interesting for the ongoing global reform process of international investment law. The chapter is divided into five main sections. Section II provides an overview of international investment agreements concluded by African States. Section III presents the origins of the PAIC. Section IV addresses the important question as to what extent the PAIC incorporates traditional investment standards or breaks with them. Section V explores the most innovative aspects of the PAIC. Section VI examines the PAIC and dispute settlement.

Korea’s Experience with International Investment Agreements and Investor-State Dispute Settlement

2015 ◽  
Vol 16 (5-6) ◽  
pp. 952-980 ◽  
Author(s):  
Hi-Taek Shin ◽  
Liz (Kyo-Hwa) Chung
Keyword(s):  
Dispute Settlement ◽  
Developing Economies ◽  
International Investment ◽  
International Investment Law ◽  
International Investment Agreements ◽  
The Face ◽  
Public Scrutiny ◽  
Investment Law ◽  
Investment Agreements ◽  
Korus Fta

Korea’s network of international investment agreements (IIAs), comprising 94 BITs and nine FTAs with investment chapters, demonstrates that attracting foreign investment to Korea and protecting Korean investors overseas has been an important policy aspect. However, little attention was paid to these agreements until 2006 when negotiations for the Korea-United States (KORUS) FTA began. These negotiations sparked public criticism and heated debates of investor-State dispute settlement. Whereas Korea had routinely accepted the IIA provisions presented by developed counter-parties and used them as a template when negotiating with developing economies in the past, Korean IIA practice changed substantially following the KORUS FTA. In the face of heightened public scrutiny, Korea began to critically review key features of its IIAs and developed its own position on some important issues. This article examines these developments, considering that Korea will play a key role in shaping international investment law in the future, particularly in Asia.

International Investment Agreements, 2015–2016

2017 ◽  
Author(s):  
Coleman Jesse ◽  
Johnson Lise ◽  
Sachs Lisa ◽  
Gupta Kanika
Keyword(s):  
Dispute Settlement ◽  
Codes Of Conduct ◽  
International Investment ◽  
Decision Makers ◽  
Investment Treaty ◽  
International Investment Agreements ◽  
The Right ◽  
Investment Agreements ◽  
The Eu

This chapter considers developments in 2015 and 2016 that illustrate trends and features in recent treaty drafting. It first discusses the expanded awareness of, and interest in, the investment regime that has emerged in recent years, followed by the role of ratification in the context of investment treaty drafting and policy. It then discusses four drafting trends: (1) constraining investor access to dispute settlement and limiting arbitral discretion; (2) better protecting the right to regulate; (3) establishing investor obligations; and (4) introducing codes of conduct for decision makers in investment disputes. Finally, the chapter provides a brief overview of new provisions regarding the conduct and qualifications of arbitrators, including a glimpse at the EU proposal for a multilateral court.

Effecting Consistency in Investor-State Dispute Settlement Through the Introduction of Precedent in a Multilateral Investment Court

2021 ◽  
Vol 24 (4) ◽  
pp. 663-682
Author(s):  
Afolabi Adekemi
Keyword(s):  
Rule Of Law ◽  
Turning Point ◽  
Dispute Settlement ◽  
Current System ◽  
International Investment ◽  
Legal Standards ◽  
International Investment Agreements ◽  
Investment Law ◽  
Investment Treaties ◽  
Investment Agreements

In recent years, the current Investor-State Dispute Settlement (ISDS) system has been a subject of reform discussions triggered by several factors, amongst which includes the lack of consistency in ISDS decisions commonly rendered by arbitration tribunals. This undesirable fact places the current ISDS system in conflict with essential rule of law values such as stability, reliability, predictability, and equality - which inevitably diminish the legitimacy of the current system. Undeniably, the un-uniform investment treaties underlying ISDS decisions is a valid justification for divergent outcomes, however, the recognition that a majority of investment treaties share similar if not identical legal standards also makes the argument for consistent ISDS decisions legitimate and in fact necessary to foster the harmonious development of investment law across the network of identical treaty standards. To this end, the use of “precedent” is critical in achieving the aforesaid goal. Notably, albeit informally, the use of precedent is already a recognised practice in ISDS, yet inconsistent decisions persist. As a turning point, this article advocates that consistency in ISDS decisions can be best achieved through the “formal introduction of a system of precedent”, in “a Multilateral Investment Court (MIC)”, which is possible without jeopardizing the inherent differences contained in International Investment Agreements (IIA).

Round-Tripping in International Investment Law: A Teleological Assessment

2021 ◽  
Vol 22 (3) ◽  
pp. 459-501
Author(s):  
Marc-Antoine Couet
Keyword(s):  
Dispute Settlement ◽  
Case Law ◽  
International Investment ◽  
International Investment Law ◽  
Domestic Capital ◽  
International Investment Agreements ◽  
Investment Law ◽  
Definition Of ◽  
Comprehensive Framework ◽  
Investment Agreements

Abstract This article addresses the issue of round-tripping investment in international investment law (IIL), which is domestic capital fleeing the home country and then flowing back in the form of foreign direct investment (FDI). It provides a functional definition of this concept and identifies why it may be considered a peculiar type of FDI. It also sets out a comprehensive framework for the treatment of round-tripping investment in IIL by analyzing whether international investment agreements do protect round-tripping investors and their investments and by reviewing how investor-State dispute settlement case-law has dealt with objections put forward by respondent States to round-tripping investors bringing their investment claims to international arbitration. Lastly, this article attempts to answer the question ‘should round-tripping investment be protected under IIL?’ by verifying whether the economic and legal reasons that justify according a differentiated treatment to foreign investors also apply in the case of round-tripping investors.

Intellectual Property and International Investment Agreements

2017 ◽  
Author(s):  
Henning Grosse Ruse-Khan
Keyword(s):  
Intellectual Property ◽  
Dispute Settlement ◽  
International Investment ◽  
Foreign Investor ◽  
National Treatment ◽  
Ip Protection ◽  
International Investment Law ◽  
International Investment Agreements ◽  
Investment Law ◽  
Investment Agreements

This chapter examines selected issues on the scope of intellectual property (IP) protection under international investment law and contrasts this with the approach of the international IP system. It first reviews the extent to which IP amounts to a protected investment. The chapter then analyses the operation of national treatment and most favoured nation (MFN) in international investment agreements (IIAs) and international IP treaties. Some of the absolute standards of treatment owed by a host state to a foreign investor under most IIAs are examined in their application to IP rights. Finally, this chapter scrutinises the extent to which obligations from the international IP system can be subject to investor–state dispute settlement (ISDS).

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