International Investment Arbitration in Thailand: Limiting Contract-Based Claims While Maintaining Treaty-Based ISDS

2017 ◽  
Vol 18 (5-6) ◽  
pp. 793-835
Author(s):  
Luke Nottage ◽  
Sakda Thanitcul
Keyword(s):  
Foreign Direct Investment ◽  
Bounded Rationality ◽  
Direct Investment ◽  
Dispute Settlement ◽  
Ad Hoc ◽  
International Investment ◽  
Bilateral Investment Treaties ◽  
Foreign Investors ◽  
Host State ◽  
Investment Arbitration

Abstract Thailand was initially cautious with its bilateral investment treaties (BITs), consistently eschewing investor-state dispute settlement (ISDS). From 1989 it began agreeing to ISDS, but only if both states were party to the Convention on the Settlement of Investment Disputes Between States and Nationals of Other States, which Thailand signed in 1965 but never ratified. From 1993, BITs increasingly provided for ad hoc arbitration. Major disputes emerged from the 1990s instead under contracts with foreign investors containing arbitration clauses. From 2004 concession contracts required Cabinet pre-approval. This limitation was extended to all public contracts from 2009, after the first treaty-based ISDS award against Thailand, although two further claims have been filed recently. A 2002 Model bit was revised in 2013 to incorporate more pro-host-state provisions, but Thailand had net foreign direct investment (FDI) outflows in 2011 and still concludes treaties with ISDS. These patterns suggest ‘more than bounded’ rationality.

scholarly journals Chinese Foreign Direct Investment and Human Rights in Kenya: A Mutually-Affirming Relationship?

2021 ◽  
Vol 2 (1) ◽  
pp. 133-154
Author(s):  
Rosemary Mwanza
Keyword(s):  
Human Rights ◽  
Foreign Direct Investment ◽  
Direct Investment ◽  
International Investment ◽  
Reciprocal Relationship ◽  
Human Rights Protection ◽  
Rights Protection ◽  
Investment Arbitration ◽  
Human Rights Norms ◽  
Chinese Foreign Direct Investment

Does the increase in Chinese foreign direct investment (FDI) inflows into Kenya portend doom for human rights in the country? The prominent narrative has been that FDI undermines human rights in host states, especially those in the developing world. This narrative is countered by claims that there exists a mutually affirming relationship between FDI and human rights. Proponents of this view posit that FDI facilitates the diffusion of human rights norms and correlates with the improved rule of law in host states. They also point to emerging human rights jurisprudence in international investment arbitration as evidence of a reciprocal relationship between FDI and human rights. In light of these arguments, this paper analyses the extent to which such a reciprocal relationship bears out between Chinese FDI and human rights in Kenya. It will be demonstrated that given the lack of a framework for human rights accountability for corporations at the international level, the restrictive treatment of human rights in international investment arbitration tribunals and weak institutional capacity in host states, a positive overlap between FDI and human rights is hardly a panacea for human rights protection in Kenya. Therefore, a synergy of legal measures and non-legal measures provide a pragmatic approach to insulate human rights from violations that may be associated with Chinese FDIs.

Malaysia and Investor-State Dispute Settlement: Learning From Experience

2017 ◽  
Vol 18 (5-6) ◽  
pp. 890-917 ◽  
Author(s):  
Sufian Jusoh ◽  
Muhammad Faliq Abd Razak ◽  
Mohamad Azim Mazlan
Keyword(s):  
Foreign Direct Investment ◽  
Direct Investment ◽  
Dispute Settlement ◽  
International Investment ◽  
Learning From Experience ◽  
International Investment Law ◽  
Investment Law ◽  
Investment Treaties

Abstract Malaysia is an important destination for foreign direct investment and has signed more than 70 investment guarantee agreements. Most allow investor-state dispute settlement (ISDS) and Malaysia has been subject to three claims, including two fully argued cases: Philippe Gruslin and Malaysian Historical Salvor. Yet Malaysian companies have also utilised ISDS provisions: in MTD Equity Bhd v Chile, Telekom Malaysia v Ghana, and Ekran Berhad v China (the first-ever ISDS claim against China). These cases provide lessons for Malaysia in becoming better prepared to negotiate newer generations of investment treaties, and to defend further potential cases. Malaysia has not reacted negatively to investment treaties despite the cases filed against the country. In fact, in light of its evolving interests Malaysia has become more of a rule-maker in international investment law rather than a rule-taker. Malaysia thereby continues to liberalise its investment regime and provide better transparency – the best defence against claims.

International Investment Law and Practice in the Kingdom of Cambodia: An Evolving ‘Rule Taker’?

2017 ◽  
Vol 18 (5-6) ◽  
pp. 942-973
Author(s):  
Romesh Weeramantry
Keyword(s):  
Foreign Direct Investment ◽  
Direct Investment ◽  
Free Trade Agreements ◽  
International Investment ◽  
Court System ◽  
International Investment Law ◽  
Investment Treaty ◽  
Investment Arbitration ◽  
Investment Law ◽  
Investment Agreements

Abstract Cambodia has undertaken several initiatives to attract foreign direct investment (FDI), which has been growing rapidly in recent years, particularly through participating in Association of South East Asian Nations (ASEAN) investment agreements and free trade agreements (FTAs). This article first outlines Cambodia’s arbitration law and practice, its Law on Investment, the court system, problems relating to corruption, and foreign direct investment (FDI) patterns. It then surveys trends in Cambodia’s comparatively belated signing of investment treaties, and their main contents (including recent treaties with India and Hungary, adopting very different models). The article then discusses the only investment arbitration instituted against Cambodia, which was successfully defended, followed by a comment on the future prospects for Cambodia’s investment treaty program.

Where the Shadow Falls: Corruption in International Investment Arbitration

2016 ◽  
pp. 489-501
Author(s):  
Cameron A. Miles
Keyword(s):  
Foreign Direct Investment ◽  
Review Essay ◽  
Direct Investment ◽  
International Investment ◽  
International Community ◽  
Investment Arbitration ◽  
Company Limited

The international community has long been aware of the intersection between domestic corruption and foreign direct investment. As such, corruption is not infrequently (but at the same time, not frequently) a presence in international investment arbitration. Save in rare circumstances (see e.g. World Duty Free Company Limited v Republic of Kenya and Metal-Tech Ltd v Uzbekistan) it is not raised overtly – but instead exercises a tenebrous influence on proceedings that is difficult to quantify precisely. This article is a review essay of the first systematic attempt to chart this influence across every investment arbitration case in which corruption issues have been relevant, Aloysius P. Llamzon’s Corruption in International Investment Arbitration.

scholarly journals Protection of Foreign Investment in Central Asia

2019 ◽  
Vol 7 (4) ◽  
pp. 125-150
Author(s):  
Farruhbek Muminov
Keyword(s):  
Foreign Direct Investment ◽  
Central Asia ◽  
International Organizations ◽  
Foreign Investment ◽  
Direct Investment ◽  
International Investment ◽  
Labor Costs ◽  
Foreign Investors ◽  
Investment Policies ◽  
National Economies

Central Asia, with its abundance of natural resources and low labor costs, is often seen as an attractive destination for foreign investment. The inflow of foreign investment into Central Asia has significantly increased in recent decades, and this phenomenon supports the improvement of both national economies and the welfare of the region. Still, Central Asia is not classified as a low-risk destination for foreign investment because of inadequate protection of foreign investment – particularly a lack of transparency and predictability in Central Asia states’ FDI (Foreign Direct Investment) regimes. Furthermore, international organizations (such as the OECD) indicate that some countries in Central Asia do not have clear investment policies. These points pose problems for foreign investors who desire to invest in the region. From this perspective, this article analyzes the consistency of the general principles of foreign investment in Central Asia with international investment standards.

11 “The Premier International Investment Arbitration Facility in the World”

2017 ◽  
Author(s):  
Parra Antonio R
Keyword(s):  
Dispute Resolution ◽  
Dispute Settlement ◽  
International Investment ◽  
Bilateral Investment Treaties ◽  
Investment Arbitration ◽  
The World ◽  
Energy Charter Treaty ◽  
Investment Law ◽  
New Challenges ◽  
Investment Treaties

This chapter examines activities of the Centre from the start of 2011 to the end of June 2015. Almost 50 percent more cases were registered at ICSID in that period compared to the previous five years. The chapter provides some statistics on the cases of this period. As in the decade before, it shows, most the cases were brought to ICSID on the basis of the dispute settlement provisions of investment treaties, mostly bilateral investment treaties (BITs) (in over 60 percent of the cases). A large proportion of the cases (more than ten percent) came to ICSID under the Energy Charter Treaty (ECT). Cases submitted to the Centre pursuant to the dispute resolution clauses of investment contracts made up for a smaller share of the total. A handful (5 percent) of the cases were initiated under dispute settlement provisions of an investment law of the host State. The chapter then looks at institutional developments of ICSID during the period and considers new challenges that ICSID might meet in the future.

INCONSISTENCIES IN ICSID AWARDS ON DISPUTES RELATED TO MFN AND UMBRELLA CLAUSE

2021 ◽  
Vol 6 (2) ◽  
pp. 247-264
Author(s):  
Herliana Herliana
Keyword(s):  
Developing Countries ◽  
Foreign Direct Investment ◽  
Direct Investment ◽  
Case Study Method ◽  
Host Countries ◽  
Foreign Investors ◽  
Investment Arbitration

Investment arbitration has been acclaimed as an important part of Foreign Direct Investment (FDI) movement around the globe because it provides a neutral and trustable forum for settling investment dispute. However, many argue that investment arbitration often becomes advocates of foreign investors and neglect the developing country’s interests as the host of investment. This paper aims at studying the investment arbitration awards rendered by International Center for Settlement of Investment Dispute (ICSID) tribunals launched against developing countries. The question is whether and to what extent those awards have equally observed the interests of foreign investors and host states of investments. To answer the questions, this paper employs case study method and use publicly available ICSID cases. This research shows that some ICSID tribunals have inconsistent reasoning which led to contradictory decisions. Apparently, as some cases indicate ICSID tribunals gave more weight to the need to protect foreign investors rather than host countries’ development interests. As a consequence, inconsistency and ambiguity have led to uncertainty and unpredictability of the forum. This is not only disadvantaged the parties due to inability to foresee the likely outcome of the disputes but also endanger the ICSID tribunals’ credibility as neutral and reliable forum.

scholarly journals SELF-DETERMINATION AND FOREIGN DIRECT INVESTMENT: REIMAGINING SOVEREIGNTY IN INTERNATIONAL INVESTMENT LAW

2016 ◽  
Vol 65 (4) ◽  
pp. 829-857 ◽  
Author(s):  
Edward Guntrip
Keyword(s):  
Foreign Direct Investment ◽  
Direct Investment ◽  
International Investment ◽  
Self Determination ◽  
International Investment Law ◽  
Host State ◽  
Continuous Evolution ◽  
State Population ◽  
Investment Law ◽  
Alternative Understanding

AbstractInternational investment law can be criticized for its understanding of sovereignty. Informed by the works of Koskenniemi, this article reimagines ‘sovereignty’ based on a host State population exercising its right to economic self-determination. Recent transparency initiatives in international investment law support this conceptualization of sovereignty. Further, the stance taken aligns with the continuous evolution of the international investment law regime. The establishment of a different perspective on sovereignty in international investment law highlights the need for an alternative understanding of this term if international investment law is to achieve widespread approval.

DENIAL OF JUSTICE DISGUISED? INVESTMENT ARBITRATION AND THE PROTECTION OF FOREIGN INVESTORS FROM JUDICIAL MISCONDUCT

2012 ◽  
Vol 61 (1) ◽  
pp. 223-246 ◽  
Author(s):  
Mavluda Sattorova
Keyword(s):  
Dispute Settlement ◽  
Effective Means ◽  
International Investment ◽  
State Courts ◽  
Foreign Investors ◽  
International Investment Law ◽  
Host State ◽  
Legal Standards ◽  
National Courts ◽  
Investment Treaty

Prior to the rise of international investment treaties and institutionalization of investor–state arbitration, the protection of foreign investors from mistreatment in the host state courts was the preserve of customary international law, which prohibited a denial of justice and provided for diplomatic protection as a principal means of dispute settlement. In contrast, contemporary international investment law offers a whole array of legal standards that can be invoked in seeking redress for the acts of national courts before international arbitral tribunals. In addition to relying on the customary prohibition of denial of justice, investors can challenge judicial conduct under the treaty standards on expropriation, fair and equitable treatment and, in some cases, the obligation to ensure effective means of asserting claims. Although the multiplicity of standards available to aggrieved investors can be regarded as an inalienable part of an effective regime for the protection of foreign investment, it also gives rise to a number of fundamental problems relating to the application of procedural mechanisms designed to control the review of the conduct of national judiciary by international courts and tribunals. Focusing on arbitral cases in which claims of a denial of justice were brought under the rubric of ‘a judicial expropriation’ and ‘a failure to provide effective means of asserting claims’, this article seeks to ascertain when investor claims relating to the administration of justice in the host state courts become amenable to arbitral scrutiny. It argues that, by providing a variety of standards under which the acts of judiciary can be challenged, investment treaty law allows investors to circumvent procedural barriers and thus muddles the boundaries demarcating the scope of international review of national judicial conduct.

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