The Evolution of National Security at the Interface Between Domestic and International Investment Law and Policy: The Role of China

2020 ◽  
Vol 21 (1) ◽  
pp. 104-139
Author(s):  
Lizzie Knight ◽  
Tania Voon
Keyword(s):  
Global Economy ◽  
International Investment ◽  
International Investment Law ◽  
Law And Policy ◽  
Regulatory Frameworks ◽  
Investment Law ◽  
Investment Agreements ◽  
International Rule ◽  
China’S Economy

Abstract As China’s economy grows and the global economy increasingly digitalises, security takes on heightened significance. Security exceptions exist in numerous investment agreements and domestic regulatory frameworks for reviewing foreign investments. These reviews have shifted to focus on China, particularly for investments involving data. Continued expansion of security as a basis for rejecting investment applications threatens economic integration, while allowing international tribunals to review these decisions by ruling on this exception may be counterproductive. Alternatives exist at domestic and international levels. Domestically, a focus on evidence-based assessments and the imposition of conditions may mitigate security concerns. International guidelines and principles are already established to assist investors and investment agencies. Further international rule reform may allow agreed solutions to data concerns in place of security as a catch-all response to perceived threats of foreign investment.

The Treatment of Small and Medium-Sized Enterprises in International Investment Law

2017 ◽  
Author(s):  
Joachim Karl
Keyword(s):  
Great Majority ◽  
International Investment ◽  
Negative Effects ◽  
International Investment Law ◽  
International Investment Agreements ◽  
Internationalization Strategies ◽  
Investment Law ◽  
Almost All ◽  
Investment Agreements

Small and medium-sized enterprises (SMEs) are the backbone of almost all economies, employing the great majority of the workforce, and making the biggest contribution to GDP. To some extent, they are also active as outward foreign investors or are linked to inward foreign investment through supply chains. This chapter analyses the role of international investment law for the internationalization strategies of SMEs. It explores to what extent international investment agreements specifically promote, facilitate, and protect investments involving SMEs, referring to concrete treaty examples. It also examines the risk of potential negative effects of certain IIA provisions on domestic SMEs. On the basis of this analysis, the chapter makes a number of suggestions regarding how international investment law could further improve the situation of SMEs.

The Role of International Investment Law in the Business and Human Rights Legal Process

2019 ◽  
Vol 21 (1) ◽  
pp. 35-55
Author(s):  
Ludovica Chiussi
Keyword(s):  
Human Rights ◽  
International Investment ◽  
International Human Rights Law ◽  
Corporate Accountability ◽  
International Investment Law ◽  
Business And Human Rights ◽  
International Investment Agreements ◽  
Investment Law ◽  
Investment Agreements

Abstract This article examines the interplay between international investment law and international human rights law in order to assess whether the former can be used to foster corporate accountability for violations of human rights. The role of international investment agreements in ensuring corporate compliance with human rights will be addressed, together with the approach to human rights violations of corporations by international investment tribunals. Whilst acknowledging some inherent limits of IIL, the underling argument of the paper is that rebalancing rights and obligations of investors may give teeth to corporate human rights accountability, while also benefitting the legitimacy of IIL.

scholarly journals Investing in Development: The Role of Democracy and Accountability in International Investment Law

2009 ◽  
Vol 46 (4) ◽  
pp. 1009 ◽  
Author(s):  
Graham Mayeda
Keyword(s):  
Sustainable Development ◽  
Developing Countries ◽  
International Investment ◽  
Socially Responsible ◽  
International Investment Law ◽  
International Investment Agreements ◽  
Investment Law ◽  
Definition Of ◽  
Investment Agreements

This article explores whether international investment agreements (IIAs) have the potential to impede democratic expression and, as a result, hinder sustainable development. The author first demonstrates that democracy plays an essential role in the promotion of sustainable development and provides a normative (rather than procedural) definition of democracy. The three ways in which IIAs can limit democracy are then addressed. First, they can limit the policy space of developing countries. This is demonstrated through an analysis of how types of provisions commonly found in IIAs can negatively affect policy flexibility. Second, democracy can be indirectly limited through the decisions of international investment tribunals which give little deference to the decisions of domestic democratic forums. Third, democracy can be undermined if foreign investors are not accountable to any democratic government. In this regard, it is necessary for IIAs to impose obligations on home states and investors to ensure that investors behave in socially responsible ways. The article concludes with suggestions for ways in which developing countries can structure IIAs to support democracy rather than detract from it.

scholarly journals The Role of Proportionality in International Investment Law and Arbitration: A System-Specific Perspective

2020 ◽  
Vol 89 (3-4) ◽  
pp. 471-491
Author(s):  
Eric De Brabandere ◽  
Paula Baldini Miranda da Cruz
Keyword(s):  
Dispute Settlement ◽  
Ad Hoc ◽  
International Investment ◽  
International Investment Law ◽  
Uniform Approach ◽  
Investment Arbitration ◽  
International Investment Agreements ◽  
Investment Law ◽  
Investment Agreements

Abstract In this article, we examine the place of proportionality and related tests in international investment law and arbitration by looking specifically at the challenges faced by this field on applying proportionality coherently and consistently. We also assess where proportionality has been used in international investment law and arbitration. We argue that a sound appreciation of proportionality in international investment law requires taking into account the inherently imbalanced conception of international investment agreements, the incoherence of the international investment law regime, and the ad hoc dispute settlement method tasked with applying and interpreting a variety of imprecise and diverging norms. Therefore, international investment law and arbitration have not developed an institutionalised approach towards proportionality. Since investment agreements and international investment arbitration form a rather incoherent collective of cases and, as a result, have not developed a single or uniform approach towards proportionality, there is a tendency to individually approach cases.

On Inter-Disciplinary and Inter-Systemic Approaches to International Investment Law

2015 ◽  
pp. 557-572 ◽  
Author(s):  
Jürgen Kurtz
Keyword(s):  
International Investment ◽  
State Regulation ◽  
Expiry Date ◽  
International Investment Law ◽  
Secondary Literature ◽  
Trade Law ◽  
International Trade Law ◽  
Law And Policy ◽  
State Practice ◽  
Investment Law

This review essay identifies two fundamental flaws in much of the secondary literature examining international investment law. The first is a clear attention to disciplines other than law in identifying and understanding the justifications for constraints on state regulation vis-à-vis foreign investment. Secondly, there are stubborn vestiges of self-containment among a sizeable set of legal commentators in this field. This typically reaches its apotheosis in instinctive and hostile opposition to usage of lessons and techniques employed in international trade law. Measured against the direction and nature of contemporary state practice, this type of older commentary is rapidly approaching an overdue expiry date. Prospects in International Investment Law and Policy marks a welcome and significant break from these flawed pathologies. Many of the contributions will shape the contours of innovative and important scholarship in this field. It is a collection that merits careful and repeated consideration.

Social movements, reframing investment relations, and enhancing the application of human rights norms in international investment law

2020 ◽  
pp. 1-28
Author(s):  
Moshe Hirsch
Keyword(s):  
Human Rights ◽  
Social Movements ◽  
International Investment ◽  
Human Rights Law ◽  
International Investment Law ◽  
Investment Arbitration ◽  
Public Pressure ◽  
Local Actors ◽  
Investment Law

Abstract The recent moderate trend to increasingly apply human rights law in investment awards is accompanied by certain new investment treaties which include expressed human rights provisions. An analysis of recent investment awards indicates that though there are some ‘winds of change’ in this field, it is equally noticeable that human rights law is far from being mainstreamed in international investment law. Investment arbitration procedural law is also undergoing a process of change, and the new procedural rules tend to enhance public elements in the investment arbitral system. This study is aimed at explaining these recent legal changes, highlighting the role of social movements in reframing investment relations as well as increasing public pressure to apply human rights law. These framing changes concern broadening the frame of investment arbitration (beyond the foreign investor–host state dyad), reversing the perceived balance of power between investors and host states, and zooming-in on local individuals and communities residing in host states. The discussion on factors impeding legal change in this field emphasizes the role of the private legal culture prevalent in the investment arbitration system, which is reflected and reinforced by certain resilient socio-legal frames. Informed by this analysis, the study suggests some legal mechanisms which can mitigate the inter-partes frame, and increase the application of human rights law in investment arbitration; inter alia, rigorous transparency rules that are likely to facilitate increased public pressure on tribunals and increase the participation of social movements representing local actors in arbitral processes.

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