Mitigating the Risks Entailed in Shareholders’ Claims for Reflective Loss: Suggestions for Investment Treaty Reform

Public International Law ◽

Intrinsic Nature ◽

Actual Nature ◽

Corn Products ◽

The Status ◽

Investment Law ◽

Investment Treaties

Given the current state of development of international investment law, it is surprising that, to date, neither the actual nature of the investor’s rights resulting from investment treaties, nor the possible consequences which arise for the investor, the states and international law, have been sufficiently defined. This is all the more astounding as the intrinsic nature and the possible limits of the investor’s rights are not only of theoretical interest, they are also decisive for the resolution of many substantial practical problems as well as for the positioning of international investment law within public international law. Furthermore, recent arbitration rulings concerning the fundamental question of whether the investor’s rights are of a direct, a derivative or a contingent nature, Archer Daniels (2007), Corn Products (2008) and Cargill (2009), demonstrate diametrically differing approaches. In this article, the author shows that neither the procedural nor material rights of the investor are simply derived from the home state but are – in clear contrast to the model of diplomatic protection – in fact to be understood as individual direct rights. The investor is elevated to the status of a (partial) subject in international law. Of course, the states are, and remain, the ‘masters of the treaties’ and can correct or even revoke them at any time with prospective effect. However, as long as investment treaties confer distinct rights on the investor, arbitral tribunals and states have to recognize these direct rights and the states must also accept that they can also be applied against them. The direct rights paradigm has varied and remarkable consequences for the investor, the states and modern public international law.

Bilateral Investment Treaties and Sovereignty: An Analysis with Respect to International Investment Law

Christ University Law Journal ◽

10.12728/culj.9.1 ◽

2016 ◽

Vol 5 (2) ◽

pp. 1-8

Author(s):

Joseph Thaliath

Keyword(s):

International Law ◽

Present Situation ◽

Economic Globalization ◽

International Level ◽

Bilateral Investment Treaties ◽

Investment Law ◽

Investment Treaties ◽

Market Relations

International law as a governing institution, has gained prominence, with the advent of globalization. This is of specific relevance for the governance of state-market relations. Nowhere has this been as pronounced as in the international investment regime. Bilateral Investment Treaties (BITs) have today become some of the most potent legal tools underwriting economic globalization. These are established through pacts, which have to be adhered to, through all stages of performance of the treaty. This paper argues against the shift of bilateral investment treaties (BIT) from a pro-sovereign, to a pro-investor approach. It does so by explaining the present situation of bilateral investment treaties while pointing out their disadvantages. The basic idea of a BIT is questioned in order to understand its purpose and examines its failure in achieving the same. The partial approach towards the investors by the tribunals, is frowned upon and the lack of justifications and defenses on the part of the state is reviewed. Modest suggestions on improving this situation are provided by using cases decided by tribunals at an international level, taking up the example of Argentina.

MFN Standard as Substantive Treatment

10.5771/9783845299020 ◽

2019 ◽

Author(s):

Mira Suleimenova

Keyword(s):

International Law ◽

Third Party ◽

International Investment Agreements ◽

History Of ◽

Investment Law ◽

Investment Treaties ◽

Investment Agreements ◽

Comprehensive Study

‘Most favoured nation’ (MFN) treatment is an integral part of virtually all modern investment regimes. MFN clauses in international investment agreements signal to investors that a given state protects them from discrimination; however, in practice, enforcing such guarantees may be challenging. This book represents a comprehensive study on how ‘most favoured nation’ treatment operates as a substantive standard of international investment law. Starting with a history of the development of the concept in international law, the author provides an overview of existing state practices in negotiating MFN clauses in bilateral and international investment treaties. Finally, the work analyses the ability of MFN treatment clauses to prevent de facto discrimination and allow for the ‘import’ of third-party substantive protections in international investor state arbitration. Dr Mira Suleimenova, LL.M. is an international investment lawyer based in Vienna, Austria.

The Security of International Investments: a Synthesis of Impacts on Public Policies and Domestic Law of Host States

10.26686/wgtn.16968328 ◽

2021 ◽

Author(s):

◽

Livia Costanza

Keyword(s):

Public Policies ◽

Legal Framework ◽

Public And Private ◽

Foreign Investors ◽

Investment Treaty ◽

Investment Law ◽

Investment Treaties ◽

Domestic Law

<p>The subject of this dissertation is the relationship between the protection of foreign investors' investments under international investment law and the domestic law of host states. Two questions arise in this connection. First, is the promotion and protection of investments comprised in investment agreements compatible with states' domestic law? Second, public policies of host states may appear to be in contradiction with an increased international security of investments. When such a conflict is challenged by foreign investors, what are the consequences for both parties? In general, investments are transactions that are private in nature, whose aim is to generate a positive rate of return. Investments can have pervasive consequences on countries' welfare, including, for example, the consequences on sustainable development; the use and protection of natural resources; and employment, to name a few. It is the role of the governments to balance these sometimes conflicting public and private interests. As of today, it seems that the regime established according to investment treaties does not strike an appropriate balance between the various interests concerned. After a brief look at the legal framework protecting foreign investments, the conflict areas between investment treaty provisions and domestic public policies of host states are explored through an empirical analysis of some case studies and recent arbitrations. Finally, this dissertation holds that, at a substantive level, investment law is a part of international law. Thus it must be consistent with its norms and it has to be interpreted in accordance with customary rules of treaty interpretation. The dissertation concludes by suggesting the creation of a state-investor relationship and advocates, in part, the establishment of development objectives in investment treaties as well as the inclusion of rights and obligations for all parties involved.</p>

The New Italian Model Bit Between Current and Future Trends

The Italian Review of International and Comparative Law ◽

10.1163/27725650-01010006 ◽

2021 ◽

Vol 1 (1) ◽

pp. 113-131

Author(s):

Maria Chiara Malaguti

Keyword(s):

Future Trends ◽

Investment Policies ◽

The Public ◽

Investment Treaty ◽

Investment Law ◽

Italian Model ◽

Corporate Social ◽

New Generation

Abstract In 2021, the new Italian Model Bilateral Investment Treaty has been published. It replaced the 2003 Model bit and can be considered as a significant example of the “new generation of bit s”, which try to better balance investor rights with the public prerogatives of States. The Model Treaty also introduces significant innovations as to the conduct of arbitrators and the corporate social responsibility of investors and is also aimed at coordinating Italian and European foreign investment policies. This article offers a view of this new Model bit and tries to insert it in the broader context of the proposed reforms regarding international investment law and arbitration.

The Security of International Investments: a Synthesis of Impacts on Public Policies and Domestic Law of Host States

10.26686/wgtn.16968328.v1 ◽

2021 ◽

Author(s):

◽

Livia Costanza

Keyword(s):

Public Policies ◽

Legal Framework ◽

Public And Private ◽

Foreign Investors ◽

Investment Treaty ◽

Investment Law ◽

Investment Treaties ◽

Domestic Law

<p>The subject of this dissertation is the relationship between the protection of foreign investors' investments under international investment law and the domestic law of host states. Two questions arise in this connection. First, is the promotion and protection of investments comprised in investment agreements compatible with states' domestic law? Second, public policies of host states may appear to be in contradiction with an increased international security of investments. When such a conflict is challenged by foreign investors, what are the consequences for both parties? In general, investments are transactions that are private in nature, whose aim is to generate a positive rate of return. Investments can have pervasive consequences on countries' welfare, including, for example, the consequences on sustainable development; the use and protection of natural resources; and employment, to name a few. It is the role of the governments to balance these sometimes conflicting public and private interests. As of today, it seems that the regime established according to investment treaties does not strike an appropriate balance between the various interests concerned. After a brief look at the legal framework protecting foreign investments, the conflict areas between investment treaty provisions and domestic public policies of host states are explored through an empirical analysis of some case studies and recent arbitrations. Finally, this dissertation holds that, at a substantive level, investment law is a part of international law. Thus it must be consistent with its norms and it has to be interpreted in accordance with customary rules of treaty interpretation. The dissertation concludes by suggesting the creation of a state-investor relationship and advocates, in part, the establishment of development objectives in investment treaties as well as the inclusion of rights and obligations for all parties involved.</p>

Article 31(3)(c) of the Vienna Convention on the Law of Treaties and the Principle of Systemic Integration in International Investment Law and Arbitration ◽

Chapter 7: The Interpretation of Investment Treaties and Extraneous Rules of International Law not of the Same Subject-Matter – Article 31(3)(C) VCLT and the ‘Principle of Systemic Integration’ – A Means to Reconcile Apparent Norm Conflicts in International Investment Law?

10.5771/9783845262383-363 ◽

2015 ◽

pp. 363-456

Author(s):

Daniel Rosentreter

Keyword(s):

International Law ◽

Subject Matter ◽

Investment Law ◽

Investment Treaties

Rebalancing Investment Treaties and Investor-State Arbitration: Two Approaches

The Journal of World Investment & Trade ◽

10.1163/22119000-12340026 ◽

2016 ◽

Vol 17 (6) ◽

pp. 1015-1040 ◽

Cited By ~ 1

Author(s):

Luke Nottage

Keyword(s):

Decision Making ◽

Foreign Investors ◽

Regulatory Decision ◽

Investment Treaty ◽

Investment Law ◽

Investment Treaties ◽

Investor Protections ◽

Consistent Application

This essay reviews two books suggesting how international investment law may be recalibrated to balance the interests of foreign investors and host states. Poulsen’s book draws mainly on empirical research to argue that developing states displayed ‘bounded rationality’ when rushing to sign up to investment treaties incorporating pro-investor protections, such investor-state arbitration. Although mainly descriptive, it sketches potential reforms of the investment treaty system to achieve a more rational balance in favour of host states. By contrast, drawing on doctrinal analysis but with a keen awareness of the institutional underpinnings of international investment law and arguably analogous fields, the book by Henckels focuses on what arbitrators and commentators can do to extend a tendency to interpret substantive protections even within existing investment treaties in a more balanced way. She urges more consistent application of multi-layered ‘proportionality’ analysis, combined with principled ‘deference’ to regulatory decision-making by host states.

Sources of International Investment Law

10.1093/law/9780198745365.003.0051 ◽

2018 ◽

Author(s):

Stephan W. Schill

Keyword(s):

International Law ◽

Dispute Settlement ◽

Free Trade Agreements ◽

Investment Treaty ◽

Investment Law ◽

Settlement Of Disputes ◽

Bilateral Treaties ◽

Investment Treaty Arbitration

This chapter discusses the use of sources of international law in the settlement of disputes arising under bilateral, regional, multilateral investment treaties and investment chapters in free trade agreements, focusing specifically on particularities this field of international law displays in comparison to general international law. It first addresses the importance of bilateral treaties in international investment law and shows that their bilateral form is not opposed to the emergence of a genuinely multilateral regime that behaves as if it was based on multilateral sources. The chapter then considers the pre-eminent importance arbitral decisions assume in determining and developing the content of rights and obligations in the field. Next, the chapter looks at the increasing influence of comparative law and the influence of soft law instruments. It argues that the specific sources mix in international investment law is chiefly connected to the existence of compulsory dispute settlement through investment treaty arbitration and the sociological composition of those active in the field.

Non-economic disciplines still take the back seat: The tale of conflict clauses in investment treaties

Leiden Journal of International Law ◽

10.1017/s0922156520000631 ◽

2020 ◽

pp. 1-26

Author(s):

Dafina Atanasova

Keyword(s):

International Economic ◽

International Law ◽

Limited Attention ◽

Priority Rules ◽

Systematic Account ◽

Investment Treaty ◽

Investment Treaties ◽

New Perspective

Abstract The article offers a new perspective on the interaction of international investment law with other fields of international law based on an empirical study of the use of conflict clauses in over 1,000 investment treaties, providing a first systematic account of this type of provision. The use and content of conflict clauses serve as an indicator of state priorities regarding the coordination of investment standards of protection with other disciplines in the international law matrix. Both numerically and from qualitative perspectives, the clauses’ survey reveals important asymmetries in the engagement on the part of investment treaty makers with international economic disciplines, as compared to non-economic disciplines and human rights more specifically. Indeed, conflict clauses on international economic law are much more common, more detailed and establish clearer priority rules than similar provisions on any other field of international law; and the disparity is only likely to deepen over time. This analysis suggests that negotiators already have the toolkit to create effective links between international norms and institutions, and it is only its use that is uneven. As a result, the article suggests a shift in policy perspective to reflect that reality. Such a shift seems all the more relevant considering the growing body of literature showing that investment arbitrators (and international adjudicators more generally) pay only limited attention to norms from fields beyond their own, thus casting doubt on their capacity to develop a principled approach on the issue without treaty guidance.