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.

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

2021 ◽  
Author(s):  
◽  
Livia Costanza
Keyword(s):  
Public Policies ◽  
Legal Framework ◽  
International Investment ◽  
Public And Private ◽  
Foreign Investors ◽  
International Investment Law ◽  
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>

Investment law’s Roots in Customary International law

2017 ◽  
Author(s):  
XU Shu ◽  
WU Yingying ◽  
JIA Henry Hailong
Keyword(s):  
International Law ◽  
International Investment ◽  
Deep Roots ◽  
Customary International Law ◽  
International Investment Law ◽  
Investment Protection ◽  
Trade Law ◽  
Investment Law ◽  
The One ◽  
The Right

The existing regimes of international investment law and trade law both face a prominent issue, namely, the balance between investment protection/trade liberalization on the one hand and the right of host states/importing countries to regulate for non-economic purposes on the other hand. However, investment law has taken an approach that is different from that of trade law in dealing with the issue. In addressing the balancing issue, this chapter finds investment law has deep roots in customary international law and argues that the roots of investment law in customary international law can partially explain why investment law is kept apart from trade law in this context.

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

2021 ◽  
Author(s):  
◽  
Livia Costanza
Keyword(s):  
Public Policies ◽  
Legal Framework ◽  
International Investment ◽  
Public And Private ◽  
Foreign Investors ◽  
International Investment Law ◽  
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>

scholarly journals The Defence of Necessity in International Law and Investor Versus State Dispute Settlement

2019 ◽  
Vol 23 (37) ◽  
pp. 67-82
Author(s):  
Bader Bakhit M AlModarra
Keyword(s):  
World War Ii ◽  
International Law ◽  
Dispute Settlement ◽  
International Investment ◽  
Prima Facie ◽  
Public Utility ◽  
World War ◽  
Foreign Investors ◽  
International Investment Law ◽  
Investment Law

Abstract The ability of foreign investors to sue host states without reliance on diplomatic protection is one of the most important developments in international investment law in the post-World War II era. The rise of investor-state dispute settlement under international regimes like the Convention Establishing the International Centre for the Settlement of Investment Disputes (ICSID Convention) raises some concerns from states regarding loss of sovereignty. However, there are defences available to states when they intervene in their economies for purposes like public utility or the need to safeguard an essential interest. Thus in spite of treaty commitments that bind states to protect the investments of foreign investors within their domains, there are available defences for their intervention in their economies even if such interventions become inimical to the interests of foreign investors and could, prima facie, raise the possibility of infringements of the rights of foreign investors. One of such defences available to states is the principle of necessity. This article explores the principle of necessity in international law and how it operates as a defence for states in investor-state dispute settlement. It also conducts analysis of the Annulment Decision in the CMS v Argentina case to shed light on the principle of necessity.

scholarly journals VARYING APPLICATION OF MOST-FAVOURED-NATION PRINCIPLE IN INTERNATIONAL INVESTMENT TREATY

2018 ◽  
Vol 7 (2) ◽  
pp. 392
Author(s):  
Robertus Bima Wahyu Mahardika ◽  
Emmy Latifah
Keyword(s):  
International Law ◽  
Host Country ◽  
International Investment ◽  
Philosophical Foundation ◽  
Equal Opportunities ◽  
Most Favored Nation ◽  
Foreign Investors ◽  
International Investment Law ◽  
Investment Treaty ◽  
Investment Law

<p>The aim of this study is to provide an academic framing of the philosophical foundation of the Most-favored-nation principle (MFN) in international investment law. The MFN principle is one of the most important principles in international law. In international investment law, MFN principle serves as a mechanism to create conditions in which foreign investors from many countries have equal opportunities to compete fairly in host country.</p><p> </p>

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