International Investment Law and Domestic Investment Rules: Tracing the Upstream and Downstream Flows

2020 ◽  
Vol 21 (1) ◽  
pp. 7-33
Author(s):  
Steven R Ratner
Keyword(s):  
International Law ◽  
Legal Theory ◽  
International Investment ◽  
Domestic Investment ◽  
International Investment Law ◽  
Investment Law ◽  
Relationship Of ◽  
Domestic Law ◽  
Two Bodies ◽  
Shed Light

Abstract International investment law and domestic law governing foreign investment strongly influence one another and indeed operate in a relationship of co-dependency or interoperability. Yet the flows between the two bodies of law, and their respective modalities of influence, remain generally unexplored in international legal theory. To shed light on this important phenomenon, this article traces the ways in which international investment law can affect the content of domestic investment law, using theories of international law compliance as a lens for such an understanding. It then proposes a set of pathways by which domestic law can influence the content of international investment rules. International law thus depends upon national law not only for its implementation but for its very content. Indeed, the regime of investment law will not tolerate significant discrepancies between the two. An appreciation of this dynamic is critical to evaluating the prospects of improvements to international investment law and can inform the ongoing discussions among stakeholders to this end.

International Law and Foreign Investment in Hydroelectric Industry: A Multidimensional Analysis

2016 ◽  
Vol 18 (3-4) ◽  
pp. 183-222
Author(s):  
Attila Tanzi
Keyword(s):  
International Law ◽  
Foreign Investment ◽  
Dispute Settlement ◽  
International Investment ◽  
Multidimensional Analysis ◽  
Private International Law ◽  
International Investment Law ◽  
Investment Law ◽  
Domestic Law

The main focus of the present article is on the entanglement between four bodies of international law sensitive to foreign investment in the creation and/or operation hydroelectric industry: i.e. international investment law, human rights law, international water law and private international law to the extent that public international law rules on conflict of laws on civil liability for transboundary damage are concerned. This horizontal approach to the analysis is supplemented by a vertical one looking at the interactions between international and domestic law. Consideration of the different bodies of international law in question is associated to that of the adjudicative, and non-adjudicative, means of dispute settlement available under each such bodies of law. On that score, the role of the foreign investor in a litigation scenery will be considered, primarily as claimant, but also, prospectively, in relation to the situation in the State hosting the investment is, or may become, respondent in inter-State litigation.

Submarine Cables and Pipelines: The Protection of Investors Under International Law

2018 ◽  
Vol 19 (5-6) ◽  
pp. 860-889
Author(s):  
Markos Karavias
Keyword(s):  
International Law ◽  
Global Economy ◽  
International Investment ◽  
International Investment Law ◽  
Contractual Arrangements ◽  
National Jurisdiction ◽  
Potential Applicability ◽  
Investment Law ◽  
Submarine Cables ◽  
Shed Light

Abstract Submarine cables and pipelines hold great significance for the global economy, as they constitute key features in energy transit and transmission of telecommunications data. Whereas the two have traditionally been treated by scholars through the lens of the international law of the sea, far less attention has been paid to the potential applicability of international investment law in this field. The present article seeks to shed light on this latter question. First, it reviews the most common treaty and contractual arrangements in place vis-à-vis submarine cables and pipelines. It then turns to international investment law with a view to examining whether investment treaties have a say on the protection of investors in the laying of submarine cables and the construction and operation of submarine pipelines. One of the more vexed questions in this respect is the territorial scope of investment law, in particular as regards the seabed beyond national jurisdiction.

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.

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.

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