Investment Protection of Commercial Activities in Space: Treaties, Contracts, Licenses, Insurance, Arbitration

2018 ◽  
Vol 19 (5-6) ◽  
pp. 951-1000
Author(s):  
Peter Malanczuk
Keyword(s):  
Foreign Investment ◽  
Outer Space ◽  
International Investment ◽  
International Investment Law ◽  
Host State ◽  
Investment Protection ◽  
Foreign Acquisitions ◽  
Commercial Activities ◽  
Investment Treaties ◽  
Legal Frameworks

Abstract The article focuses on the protection of foreign investment against political risk in the host state regarding commercial activities in outer space, an area not subject to national appropriation and sovereignty. The general space treaty and national legal frameworks for such activities fail to address the needs of private space enterprises. Under international investment law, commercial space activities generally meet common subject matter scope definitions of ‘investment’ and ‘investor’ in investment treaties. But foreign acquisitions in the space industry may affect national security interests of the host state and be limited as a sector for foreign investment. Moreover, as investment treaties generally cover an investment only if it is made in the territory of the host state, uncertainties may arise as to whether activities and assets of space enterprises in outer space are covered.

International Investment, Political Risk, and Dispute Resolution

2020 ◽  
Author(s):  
Rubins Noah ◽  
Nektarios Papanastasiou Thomas ◽  
Kinsella N Stephan
Keyword(s):  
Foreign Investment ◽  
Political Risk ◽  
Legal Framework ◽  
International Investment ◽  
International Investment Law ◽  
Investment Protection ◽  
Political Risks ◽  
Theoretical Approaches ◽  
Previous Edition ◽  
Risk Insurance

This second edition explores the multi-layered legal framework for the protection of foreign investment against political risk. The chapters analyze some of the key issues surrounding this subject, such as structuring transactions to minimize political risk, political risk insurance, State responsibility, treaties protecting foreign investmentand international arbitration between States and investors. Since the previous edition, far more attention has been paid to some of these issues, in particular investor–State arbitration.All chapters have been revised to take into account the number of new arbitration awards that have come to light and the massive volume of commentary on the subject of international investment arbitration since the first edition. The authors have carefully considered the latest theoretical approaches to foreign investment protection and the most intellectually challenging awards issued in the intervening decade, as well as the most recent practical guidance on the procedural recourse available to investors who face political risks. The book is written to appeal to lawyers and non-lawyers alike. It is suitable as a primer for non-specialist practitioners seeking to familiarize themselves with international law pertaining to political risk. It is also suitable for students who intend to specialize in international investment law.

5 The Microeconomics of Investment Treaties

2017 ◽  
Author(s):  
Bonnitcha Jonathan ◽  
Skovgaard Poulsen Lauge N ◽  
Waibel Michael
Keyword(s):  
Decision Making ◽  
Foreign Investment ◽  
Fiscal Illusion ◽  
Foreign Investors ◽  
Host State ◽  
Investment Protection ◽  
The Third ◽  
Investment Treaty ◽  
Investment Treaties ◽  
The Impact

This chapter surveys the impact of investment treaties on decision-making at the firm and government levels. The focus is on whether investment treaties’ influence on the decisions of firms and states leads to improvements in efficiency. The first section examines the ‘hold-up’ problem, which provides the most influential and coherent microeconomic justification for the inclusion of investment protection provisions in investment treaties. The second section explores the problem of ‘fiscal illusion’ in host state decision-making, which could result in ‘over-regulation’ of foreign investment in the absence of an investment treaty. The third section considers whether investment treaties solve problems of discrimination against foreign investors, as well as the possibility that investment treaties lead to discrimination in favour of foreign investors.

scholarly journals Investment Protection in Offshore Energy Production: Bright Sides of Regime Interaction

2018 ◽  
Vol 19 (5-6) ◽  
pp. 789-827
Author(s):  
Seline Trevisanut ◽  
Nikolaos Giannopoulos
Keyword(s):  
Environmental Law ◽  
International Investment ◽  
International Investment Law ◽  
Investment Protection ◽  
Positive Effects ◽  
International Economic Law ◽  
Energy Projects ◽  
Global Regime ◽  
Legal Frameworks ◽  
Energy Law

Abstract At the international law level, the regulation of offshore energy projects does not fall neatly into one global regime. On the contrary, it is subject to a plethora of overlapping legal regimes, including the law of the sea, international environmental law, international economic law, and international energy law. The present article addresses the question how regime interaction affects investment protection in the offshore energy sector. Specifically, it investigates whether cross-fertilization between regimes also has ‘positive’ effects on the protection of investments in offshore energy or whether fragmentation consists of both a perceived and actual challenge. We submit that, even though regime interaction poses challenges to investment protection, the influence of the overlapping legal frameworks is not necessarily a ‘threat’ to investment protection. To the contrary, regime interaction can contribute to widen the objectives of international investment law.

Oceans and Space: Some New Frontiers for International Investment Law

2018 ◽  
Vol 19 (5-6) ◽  
pp. 775-788
Author(s):  
Sir Christopher Greenwood
Keyword(s):  
Outer Space ◽  
International Investment ◽  
Law Of The Sea ◽  
International Investment Law ◽  
Investment Protection ◽  
Investment Law ◽  
The Law ◽  
The Relationship

Abstract This article poses a number of questions about the various ways in which the law of investment protection and the system of investor-State arbitration may interact with the law of the sea and the law concerning outer space. It asks whether the relationship between the different bodies of law will be one characterized by co-operative interaction or fragmentation and looks at the spatial application of the relevant laws, as well as touching upon the issue of regulation in an area of law where national authorities may be implementing regulations decided upon by international bodies.

scholarly journals Oceans and Space: New Frontiers in Investment Protection?

2018 ◽  
Vol 19 (5-6) ◽  
pp. 765-774
Author(s):  
Stephan W. Schill ◽  
Christian J. Tams ◽  
Rainer Hofmann
Keyword(s):  
Outer Space ◽  
International Investment ◽  
Special Issue ◽  
Foreign Investments ◽  
International Investment Law ◽  
Investment Protection ◽  
Time Investment ◽  
Territorial Jurisdiction ◽  
Technological Advances ◽  
Investment Law

Abstract This article provides background and introduces into the overarching themes of the contributions to the Special Issue dealing with investment protection in areas beyond territorial jurisdiction at sea and in outer space. It explains that fast-paced commercialization, evolving technological advances, and the inevitable need for regulatory intervention make the oceans and space into an increasingly important topic in international investment law. At the same time, investment lawyers, as well as experts in the law of the sea and space law, have largely ignored the legal issues foreign investments raise in these spaces. The article sketches out a framework for addressing the underlying issues from an investment law perspective, pointing out both familiar conceptual approaches and novel challenges.

The Protection of the Environment in International Investment Agreements – Recent Developments and Prospects for Reform

2020 ◽  
Vol 5 (1) ◽  
pp. 355-391
Author(s):  
Laura Rees-Evans
Keyword(s):  
Environmental Protection ◽  
Foreign Investment ◽  
International Investment ◽  
International Investment Law ◽  
Investment Protection ◽  
Environmental Objectives ◽  
International Investment Agreements ◽  
Recent Developments ◽  
Sustainable Investment ◽  
Investment Agreements

Foreign investors benefit from rights to the protection of their foreign investments under a web of thousands of international investment agreements (IIA S). Those IIA s traditionally, however, contain no corresponding duties. The presence of rights without corresponding obligations in the global system of investment protection has attracted significant criticism. This is particularly true in the field of environmental protection (including the fight against climate change), where the concern is that the promotion and protection of investment may unduly restrict a State’s ability to take measures that promote environmental objectives. This article analyses what IIA S do or could do to contribute to the goal of environmental protection, in three parts: first, it identifies provisions of “old generation” IIA S (i.e., those concluded prior to 2010) that provide scope for environmental considerations to be taken into account; second, it analyses the trend in recent IIA S and model bilateral investment treaties (BIT S) to incorporate mechanisms aimed at promoting environmental protection in relation to the regulation of foreign investment; and third, it analyses various possibilities for reform of international investment law to further promote the protection of the environment in the field of foreign investment. It concludes that while the texts of the vast majority of IIA S currently in force appear to do little directly to promote environmental objectives, some contain certain mechanisms that are capable of allowing tribunals to give environmental concerns the weight they deserve. In relation to new and renegotiated IIA S, there are a wide variety of mechanisms that can be used to enhance the contribution they make to promoting sustainable investment and investment in green industries.

India and Bilateral Investment Treaties

2019 ◽  
Author(s):  
Prabhash Ranjan
Keyword(s):  
Foreign Investment ◽  
Dispute Settlement ◽  
International Investment ◽  
Investment Protection ◽  
Economic Liberalism ◽  
Investment Treaty ◽  
Current State ◽  
Investment Treaties ◽  
Foreign Corporations ◽  
International Rule

Many countries have started contesting international investment treaties that allow foreign corporations to sue sovereign states for alleged treaty breaches at international arbitration forums. This contestation has taken the form of either countries terminating their investment treaties or walking out of the investor–state dispute settlement (ISDS) system. India has also jumped on the contestation bandwagon. As a consequence of being sued by more than 20 foreign investors, India terminated close to 60 investment treaties and adopted a new Model bilateral investment treaty (BIT) purportedly to balance investment protection with the host state’s right to regulate. This book critically studies India’s approach towards BITs by tracing the origin, evolution, and the current state of play. The book does so by locating it in India’s economic policy in general and policy towards foreign investment in particular. India’s approach towards BITs and India’s policy towards foreign investment were consistent with each other in the periods of economic nationalism (1947 to 1990) and economic liberalism (1991 to 2010). However, post 2010; India’s approach to BITs has become protectionist while India’s foreign investment policy continues to be liberal. In order to balance investment protection with the state’s right to regulate, India needs to evolve its BIT practice based on the twin framework of international rule of law and embedded liberalism.

Part IV The Impact of International Investment Law, 16 The Control of Investment Risks through International Investment Agreements

2021 ◽  
Author(s):  
Muchlinski Peter T
Keyword(s):  
International Investment ◽  
International Standards ◽  
Foreign Investors ◽  
International Investment Law ◽  
Host State ◽  
Investment Protection ◽  
International Investment Agreements ◽  
Legal Constraints ◽  
New Generation ◽  
Investment Agreements

This chapter explores the control of host state investment risks through investor/investment protection standards under International Investment Agreements (IIAs). The United Nations Conference on Trade and Development (UNCTAD) divides IIAs into two types: bilateral investment treaties (BITs) and treaties with investment provisions (TIPs). Investor/investment protection standards in IIAs create issues of ‘regulatory space’, which, in international economic law, describes the regulatory freedom that states possess in the absence of international legal constraints. IIA protection standards affect the host state’s ‘right to regulate’ by placing certain legally binding requirements on domestic regulation so as to reduce investment risks arising from the potential disadvantages faced by foreign investors in the host state. The chapter then traces the development of international standards for the protection of foreign investors/investments and the development of ‘first-generation’ IIAs. It also describes the main instances of expansive arbitral interpretation that have led to recent calls for the reform of IIAs towards ‘new-generation’ agreements.

Conclusion

2021 ◽  
pp. 199-206
Author(s):  
Nicolás M. Perrone
Keyword(s):  
Foreign Investment ◽  
Global Economy ◽  
International Investment ◽  
Local Communities ◽  
Foreign Investors ◽  
International Investment Law ◽  
Investment Law ◽  
Investment Treaties ◽  
The 1950S

The final chapter summarizes how investment treaties and ISDS increase the calculability of foreign investors to the detriment of states and local communities, shaping foreign investment relations more generally. This outcome is the result of the standards included in investment treaties, as interpreted by ISDS tribunals, as much as the silencing of specific issues and actors in these arbitrations. For the legal imagination that dominates international investment law, the chapter shows, what is excluded is as important as what is protected. The book concludes by highlighting how current discussions about reforming investment treaties and ISDS are also embedded in this dominant imaginary. The lesson to be learned from the norm entrepreneurs of the 1950s and 1960s is that ideas alone are not enough to transform the rules governing the global economy.

The ASEAN Comprehensive Investment Agreement: Realizing a Regional Community

2011 ◽  
Vol 6 ◽  
pp. 1-39 ◽  
Author(s):  
Zewei Zhong
Keyword(s):  
International Investment ◽  
International Investment Law ◽  
Investment Protection ◽  
Asean Member ◽  
Investment Treaty ◽  
Regional Investment ◽  
Investment Agreement ◽  
Investment Treaties ◽  
The One ◽  
Regional Projects

AbstractIn recent decades, States have concluded numerous regional investment treaties, even as the feverish growth in bilateral investment treaties worldwide continues apace. This increasing regionalism within international investment law is a double-edged phenomenon. On the one hand, the risks of fragmentation and incoherence increase exponentially as a regional layer is added to the already-messy “spaghetti bowl” of investment treaties. The noble dream of a uniform, multilateralized set of investment-protection standards thus looks ever more unattainable. On the other hand, a regional investment treaty affords an opportunity for a group of States to balance, in a particularistic manner, between investment-related obligations and other non-investment priorities. This essay focuses on the ASEAN Comprehensive Investment Agreement signed in 2009, arguing that it is a region-specific bargain embedded within ASEAN's wider normative and institutional framework. The potential conflicts between ASEAN Member States' investment-related obligations and their commitments under two other regional projects are explored, and recommendations are made as to how arbitral tribunals can manage such conflicts.

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