International Investment Law and Arbitration: History, Modern Practice, and Future Prospects

2018 ◽  
Vol 1 (1) ◽  
pp. 1-64
Author(s):  
Borzu Sabahi ◽  
Ian A. Laird ◽  
Giovanna E. Gismondi
Keyword(s):  
International Law ◽  
Trade Agreements ◽  
International Investment ◽  
Legal Issues ◽  
Court System ◽  
The European Union ◽  
Foreign Investments ◽  
International Investment Law ◽  
Investment Law ◽  
The Impact

AbstractInternational Investment Law is one of the most dynamically growing fields of International Law as shown by the volume of Bilateral Investment Treaties (bits), and investment chapters in a growing numbers of regional and mega-regional trade agreements. This paper explores the origin, evolution and operation of International Investment Law. It discusses the main actors, the protections afforded to foreign investments and investors, and the content of modernbits. The legal issues and challenges International Investment Law faces today are brought into perspective. Particularly, this paper provides an assessment of the measures put forth by the European Union aimed at transforming the traditional investor-State arbitration system to an Investment Court System. An examination of thenaftare-negotiations is also presented, including the impact thatceta, a trade deal between theeuand Canada could have in the outcome of the current re-negotiations.

CJEU Opinion 1/17: Keeping International Investment Law and EU Law Strictly Apart

2019 ◽  
Vol 4 (1) ◽  
pp. 240-259
Author(s):  
Nikos Lavranos
Keyword(s):  
Financial Burden ◽  
Trade Agreement ◽  
International Investment ◽  
Court System ◽  
Eu Law ◽  
The European Union ◽  
International Investment Law ◽  
Investment Protection ◽  
Investment Law ◽  
The Eu

With Opinion 1/17, the Court of Justice of the European Union (CJEU) approved the Investment Court System (ICS) contained in the Comprehensive Economic Trade Agreement (CETA) between the EU and Canada. This means that the EU can proceed with the ratification process of the investment protection part of CETA and the other free trade agreements it has concluded, and which contain a similar ICS. However, as the author illustrates, the approval of the ICS is conditioned by a complete isolation of EU law from international investment law. More specifically, the CJEU made clear that the ceta tribunals operate outside the EU legal order and have no power to interpret or apply EU law. At the same time, the CJEU highlighted the importance that the ceta Parties adopt supplemental rules for reducing the financial burden for access to the ICS for small and medium-sized enterprises (SMES). Additionally, the CJEU rejected the currently existing possibility that binding joint interpretations of the ceta Parties could have retroactive effect. In sum, the approval of the ICS by the CJEU enables the European Commission to continue to develop the multilateral investment court (MIC) within the uncitral Working Group iii as long as it follows the blueprint of the CETA ICS.

scholarly journals The Autonomy of eu Law and International Investment Arbitration

2019 ◽  
Vol 88 (1) ◽  
pp. 41-64
Author(s):  
Panos Koutrakos
Keyword(s):  
International Law ◽  
Trade Agreements ◽  
International Investment ◽  
Open Approach ◽  
Eu Law ◽  
International Investment Law ◽  
Policy Context ◽  
Investment Arbitration ◽  
Investment Law ◽  
Investment Agreements

This article argues that, in the context of international investment law, the principle of autonomy need not be construed as broadly as the recent judgment in Achmea suggested. The Court’s approach in this case is formalist, inward looking and hostile to the harmonious co-existence between eu and international law. The article argues, however, that this conception of autonomy should be confined to the specific legal and policy context of investment agreements between Member States of the Union. A careful reading of Achmea supports this view. There are also sound conceptual, legal, and policy reasons that militate for a more open approach to autonomy when it comes to the Union’s trade agreements with third countries.

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.

What Should We Know About the Origins of International Investment Law?

2020 ◽  
Vol 48 (3) ◽  
pp. 122-131
Author(s):  
Sarah M. Alshahrani
Keyword(s):  
Ottoman Empire ◽  
Historical Context ◽  
Developed Countries ◽  
International Investment ◽  
Arab Countries ◽  
International Investment Law ◽  
The Usa ◽  
Investment Law ◽  
Investment Treaties ◽  
The Impact

AbstractInternational investment law, particularly the global backlash against investment treaties, has evolved recently. This article aims to clarify how international investment law evolved over history, from the early Arab traders in the 7th century to the Ottoman Empire, to understand its hidden aims. It investigates the practice of signing investment treaties, which appear first during the Fatimid Caliphate2 and Mamluk Sultanate3 periods. It then explains when control over foreign investment started to diminish during the Ottoman Empire period.4 Further, it explains the links between the USA Friendship, Commerce and Navigation treaties (FCNs), and current investment treaties, explaining the impact of colonization and imperialism on drafting treaty provisions. Within this historical context, this article illustrates the need to understand the roots of international investment law in order to urge Arab countries to terminate or renegotiate current bilateral investment treaties (BITs) as a number of developing and developed countries have done.

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.

23. International Investment Law

2018 ◽  
Author(s):  
Surya P Subedi
Keyword(s):  
International Trade ◽  
International Law ◽  
International Investment ◽  
International Regulation ◽  
International Investment Law ◽  
Trade Law ◽  
International Trade Law ◽  
Finance Law ◽  
Recent Trends ◽  
Investment Law

This chapter discusses the development and current state of international investment law, which encompasses international finance law, international trade law, international investment law, and regional economic trade agreements. Recent progressions in the area of international financial law, international trade law, and investment law demonstrate that other areas of international regulation have a decisive influence on international investment law. Moreover, international investment law is more increasingly focused on development concerns. International investment law is currently going through an exciting phase in its development. It has now become one of the fastest changing areas of international law with exciting and far-reaching implications for both investment-receiving and investment-exporting countries, thanks to enterprising claimants and innovative interpretations and expansive approaches adopted by international investment tribunals. This chapter seeks to capture the law and the recent trends in both State practice and jurisprudence in this area of international law.

Investment Contracts and International Law: Charting a Research Agenda

2020 ◽  
Vol 31 (1) ◽  
pp. 353-368
Author(s):  
Lorenzo Cotula
Keyword(s):  
International Law ◽  
Academic Writing ◽  
International Investment ◽  
Public Interests ◽  
Public International Law ◽  
International Investment Law ◽  
Investment Protection ◽  
Policy Debates ◽  
Investment Law ◽  
Regulatory Powers

Abstract Investment contracts are an important part of the web of legal relations that underpin investment processes. They raise complex doctrinal issues, including with regard to their interface with public international law. The two books under review are part of a new surge in academic writing about investment contracts, in a field that is currently dominated by concerns about investment treaties and treaty-based arbitration. In this review essay, I explore the intersections between investment contracts and international law, engaging with the arguments presented in the two books and developing reflections based on trends in the wider literature. After situating the contract in academic and policy debates about international investment law, I compare the different approaches the two books embody – in relation to their scope, focus and format as well as the ways in which they conceptualize and piece together the multiple commercial and public interests at stake in investment contracting. I then discuss one theme that features prominently in both books – namely, the legal contours of investment protection, particularly in connection with stabilization clauses – and I examine its articulation with public regulatory powers. I conclude by outlining areas that deserve further exploration in scholarly work on investment contracts and international law.

Sign in / Sign up

Export Citation Format

Share Document