Round-Tripping in International Investment Law: A Teleological Assessment

2021 ◽  
Vol 22 (3) ◽  
pp. 459-501
Author(s):  
Marc-Antoine Couet
Keyword(s):  
Dispute Settlement ◽  
Case Law ◽  
International Investment ◽  
International Investment Law ◽  
Domestic Capital ◽  
International Investment Agreements ◽  
Investment Law ◽  
Definition Of ◽  
Comprehensive Framework ◽  
Investment Agreements

Abstract This article addresses the issue of round-tripping investment in international investment law (IIL), which is domestic capital fleeing the home country and then flowing back in the form of foreign direct investment (FDI). It provides a functional definition of this concept and identifies why it may be considered a peculiar type of FDI. It also sets out a comprehensive framework for the treatment of round-tripping investment in IIL by analyzing whether international investment agreements do protect round-tripping investors and their investments and by reviewing how investor-State dispute settlement case-law has dealt with objections put forward by respondent States to round-tripping investors bringing their investment claims to international arbitration. Lastly, this article attempts to answer the question ‘should round-tripping investment be protected under IIL?’ by verifying whether the economic and legal reasons that justify according a differentiated treatment to foreign investors also apply in the case of round-tripping investors.

An Overview of Sri Lanka’s Bilateral Investment Treaties: Status Quo and Some Insights into Future Modifications

2016 ◽  
Vol 7 (2) ◽  
pp. 287-318
Author(s):  
Dilini PATHIRANA
Keyword(s):  
Sri Lanka ◽  
Dispute Settlement ◽  
International Investment ◽  
Status Quo ◽  
International Investment Law ◽  
Global Context ◽  
Investment Treaty ◽  
International Investment Agreements ◽  
Investment Law ◽  
Investment Agreements

AbstractSri Lanka is the first country against which a foreign investor has had recourse to international arbitration based on the dispute settlement clause in a bilateral investment treaty (BIT). This was the case of AAPL v. Sri Lanka. Since then, the country has been challenged twice before the International Centre for Settlement of Investment Disputes (ICSID), while its latest encounter was in the case of Deutsche Bank AG v. Sri Lanka. In the intervening years between these two cases, Sri Lanka maintained silence and failed to alter its BITs in a global context where the conventional attitude on international investment agreements (IIAs) is being increasingly reconsidered. This paper provides an overview of Sri Lanka’s BITs, which highlights the urgency of reconsidering the country’s investment treaty-making practice. It suggests some modifications to align the country’s investment treaty-making practice with international investment law (IIL) developments.

Africa and the Rethinking of International Investment Law

2018 ◽  
Author(s):  
Makane Moïse Mbengue ◽  
Stefanie Schacherer
Keyword(s):  
Sustainable Development ◽  
International Law ◽  
Dispute Settlement ◽  
International Investment ◽  
Reform Process ◽  
International Investment Law ◽  
Pan African ◽  
International Investment Agreements ◽  
Investment Law ◽  
Investment Agreements

This chapter seeks to present and to contextualize the Pan-African Investment Code (PAIC) by taking a comparative international law approach. Such approach allows us to assess whether the PAIC is an Africa-specific instrument and whether it is unique today in how it incorporates sustainable development concerns. This is particularly interesting for the ongoing global reform process of international investment law. The chapter is divided into five main sections. Section II provides an overview of international investment agreements concluded by African States. Section III presents the origins of the PAIC. Section IV addresses the important question as to what extent the PAIC incorporates traditional investment standards or breaks with them. Section V explores the most innovative aspects of the PAIC. Section VI examines the PAIC and dispute settlement.

Korea’s Experience with International Investment Agreements and Investor-State Dispute Settlement

2015 ◽  
Vol 16 (5-6) ◽  
pp. 952-980 ◽  
Author(s):  
Hi-Taek Shin ◽  
Liz (Kyo-Hwa) Chung
Keyword(s):  
Dispute Settlement ◽  
Developing Economies ◽  
International Investment ◽  
International Investment Law ◽  
International Investment Agreements ◽  
The Face ◽  
Public Scrutiny ◽  
Investment Law ◽  
Investment Agreements ◽  
Korus Fta

Korea’s network of international investment agreements (IIAs), comprising 94 BITs and nine FTAs with investment chapters, demonstrates that attracting foreign investment to Korea and protecting Korean investors overseas has been an important policy aspect. However, little attention was paid to these agreements until 2006 when negotiations for the Korea-United States (KORUS) FTA began. These negotiations sparked public criticism and heated debates of investor-State dispute settlement. Whereas Korea had routinely accepted the IIA provisions presented by developed counter-parties and used them as a template when negotiating with developing economies in the past, Korean IIA practice changed substantially following the KORUS FTA. In the face of heightened public scrutiny, Korea began to critically review key features of its IIAs and developed its own position on some important issues. This article examines these developments, considering that Korea will play a key role in shaping international investment law in the future, particularly in Asia.

Defining a State-Owned Enterprise in International Investment Agreements

2019 ◽  
Vol 34 (3) ◽  
pp. 595-625
Author(s):  
Mark McLaughlin
Keyword(s):  
International Investment ◽  
Investment Activity ◽  
Legal Personality ◽  
International Investment Law ◽  
Policy Choices ◽  
Commercial Activities ◽  
International Investment Agreements ◽  
Investment Law ◽  
Definition Of ◽  
Investment Agreements

Abstract The objective of this article is to establish a unified conceptual framework for State-owned enterprises in international investment law. I hope to furnish drafters and negotiators with the tools to define such enterprises in accordance with their policy concerns. The central thesis is that five definitional criteria must be considered: (i) separate legal personality; (ii) extent and form of control; (iii) eligible governmental units; (iv) nature of activity; and (v) purpose of activity. While variations within each criterion can reflect the policy choices of contracting parties, failure to adequately delimit the boundaries of all five will confer discretion on arbitrators to do so. Application of this framework to existing international investment agreements reveals that many bilateral investment treaties are insufficiently precise as to the definition of State-owned enterprises. However, the Trans Pacific Partnership addresses all five criteria, and limits the scope of covered entities to those that are ‘principally engaged in commercial activities’ and have an ‘orientation towards profit making’. China’s strategic initiatives could necessitate a response that would further fragment the international investment regime. Furthermore, interpretive issues remain in relation to the scope of ‘effective influence’ and determining the purpose of investment activity.

scholarly journals THE FOREIGN INVESTORS AND NATIONALITY CONCEPT UNDER INTERNATIONAL LAW

2020 ◽  
Author(s):  
Gabriela Belova ◽  
◽  
Gergana Georgieva ◽  
Anna Hristova ◽  
◽  
...  
Keyword(s):  
Dispute Settlement ◽  
Trade Agreement ◽  
International Investment ◽  
Foreign Investors ◽  
International Investment Law ◽  
Investment Law ◽  
Definition Of ◽  
Investment Agreements ◽  
Mixed Agreements ◽  
The Eu

Although in the last years the international community has adopted a broad approach, the definition of foreign investors and foreign investments is still very important for the development of international investment law. The nationality of the foreign investor, whether a natural person or legal entity, sometimes is decisive, especially in front of the international jurisdictions. The paper tries to follow the examples from bilateral investment agreements as well as from multilateral instrument such as the International Centre for Settlement of Investment Disputes (ICSID) Convention. An important case concerning Bulgaria in past decades is also briefly discussed. The authors pay attention to some new moments re-developing the area of investment dispute settlement within the context of EU Mixed Agreements, especially after the EU-Canada Comprehensive Economic and Trade Agreement.

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.

Intellectual Property and International Investment Agreements

2017 ◽  
Author(s):  
Henning Grosse Ruse-Khan
Keyword(s):  
Intellectual Property ◽  
Dispute Settlement ◽  
International Investment ◽  
Foreign Investor ◽  
National Treatment ◽  
Ip Protection ◽  
International Investment Law ◽  
International Investment Agreements ◽  
Investment Law ◽  
Investment Agreements

This chapter examines selected issues on the scope of intellectual property (IP) protection under international investment law and contrasts this with the approach of the international IP system. It first reviews the extent to which IP amounts to a protected investment. The chapter then analyses the operation of national treatment and most favoured nation (MFN) in international investment agreements (IIAs) and international IP treaties. Some of the absolute standards of treatment owed by a host state to a foreign investor under most IIAs are examined in their application to IP rights. Finally, this chapter scrutinises the extent to which obligations from the international IP system can be subject to investor–state dispute settlement (ISDS).

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.

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.

scholarly journals Regulatory autonomy and regulatory chill in Opinion 1/17

2020 ◽  
Author(s):  
Laurens Ankersmit
Keyword(s):  
Dispute Settlement ◽  
Trade Agreement ◽  
International Investment ◽  
Public Interests ◽  
International Investment Law ◽  
European Court ◽  
Negative Effect ◽  
Investment Law ◽  
Investment Agreements ◽  
The Eu

This article analyses the aspect of the Court’s reasoning in Opinion 1/17 that focuses on the regulatory autonomy of the Parties to the Comprehensive Economic and Trade Agreement (CETA) to decide on levels of protection of public interests. The European Court of Justice’s (ECJ) introduction of regulatory autonomy under EU law coincides with the wider debate around ‘regulatory chill’ under international investment law. This article finds the ECJ’s concept of regulatory autonomy to be narrower than that of the regulatory chill hypothesis put forward by critics of investor-state dispute settlement (ISDS). It further analyses the ECJ’s reasoning that the CETA’s investment tribunals do not have jurisdiction to call into question the levels of protection sought by the EU. In so doing, it will critically evaluate the certainty of the ECJ’s promise that there will be no negative effect on public interest decision-making through CETA’s investment chapter. Finally, it will explore the legal consequences of Opinion 1/17 for future awards and investment agreements.

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