Investors, States, and Arbitrators in the Crosshairs of International Investment Law and Environmental Protection

2020 ◽  
Vol 3 (1) ◽  
pp. 1-77
Author(s):  
Crina Baltag ◽  
Ylli Dautaj
Keyword(s):  
Rule Of Law ◽  
Dispute Settlement ◽  
Environmental Law ◽  
International Investment ◽  
International Investment Law ◽  
Global Environmental ◽  
International Investment Agreements ◽  
Environmental Component ◽  
Investment Law ◽  
Regulatory Powers

Abstract The global environmental disruption caused by human activity is firmly entrenched as a scientific fact. The present paper looks at the Investor-State Dispute Settlement (ISDS) system and inquires whether this is the most suitable transnational venue for resolving investment disputes that have an environmental component. This culminates essentially in whether arbitration is a legitimate forum and whether privately appointed arbitrators appropriately can resolve environmental-related disputes. These disputes are bound to increase in frequency because host-States are also partaking in global efforts to respond to environmental challenges. This paper makes several points. First, ISDS is the best equipped venue for addressing investment disputes that have an environmental or natural resources component. Second, the “regulatory chill” and the alleged “investor bias” arguments are unsubstantiated whereas, a balance must be struck between backlash, legitimacy, and workability. Third, ISDS will eventually and inevitably facilitate green-investors, while holding States accountable for green-undertakings, and therefore continue to effectively enforce the rule of law globally. Fourth, arbitrators must adapt to their role of handling disputes at the intersection of international investment law and environmental law; this means that a thorough thick rule of law must effectively be implemented. Fifth, International Investment Agreements (IIA s) should be reconsidered or interpreted in order to accommodate for investors’ obligations, as well as widening the scope of States’ regulatory powers. Finally, ISDS will only remain the best alternative if it sticks to its fundamental elements, in particular by utilizing the regime’s flexibility to allow counterclaims from host States. Only such reform-proposals that preserve and enhance the fundamental elements of international arbitration should be seriously considered.

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.

scholarly journals International Investment Law and Community Interests

2018 ◽  
Author(s):  
Stephan W. Schill ◽  
Vladislav Djanic
Keyword(s):  
Economic Growth ◽  
Rule Of Law ◽  
Global Economy ◽  
Dispute Settlement ◽  
Local Population ◽  
International Investment ◽  
Foreign Investors ◽  
International Investment Law ◽  
Investment Law ◽  
Legal Infrastructure

In contemporary discourse, international investment law and investor-state dispute settlement (ISDS) are often perceived as threats to community interests in one-sidedly protecting foreign investors and undermining public policies that are to the benefit of the local population and the international community. The chapter promotes a different perspective. First, it argues that international investment law properly construed can be conceptualized as protecting community interests, because it is part of the legal infrastructure necessary for the functioning of the global economy under a rule of law framework. Aimed at supporting economic growth, this helps further economic and noneconomic community interests, including sustainable development. Second, the chapter argues that international investment law and ISDS do not turn a blind eye to the conflicts that can arise between economic and noneconomic community interests, such as environmental protection or human rights. Instead, international investment law and ISDS have numerous mechanisms at their disposal for alleviating tensions with noneconomic community interests.

Effecting Consistency in Investor-State Dispute Settlement Through the Introduction of Precedent in a Multilateral Investment Court

2021 ◽  
Vol 24 (4) ◽  
pp. 663-682
Author(s):  
Afolabi Adekemi
Keyword(s):  
Rule Of Law ◽  
Turning Point ◽  
Dispute Settlement ◽  
Current System ◽  
International Investment ◽  
Legal Standards ◽  
International Investment Agreements ◽  
Investment Law ◽  
Investment Treaties ◽  
Investment Agreements

In recent years, the current Investor-State Dispute Settlement (ISDS) system has been a subject of reform discussions triggered by several factors, amongst which includes the lack of consistency in ISDS decisions commonly rendered by arbitration tribunals. This undesirable fact places the current ISDS system in conflict with essential rule of law values such as stability, reliability, predictability, and equality - which inevitably diminish the legitimacy of the current system. Undeniably, the un-uniform investment treaties underlying ISDS decisions is a valid justification for divergent outcomes, however, the recognition that a majority of investment treaties share similar if not identical legal standards also makes the argument for consistent ISDS decisions legitimate and in fact necessary to foster the harmonious development of investment law across the network of identical treaty standards. To this end, the use of “precedent” is critical in achieving the aforesaid goal. Notably, albeit informally, the use of precedent is already a recognised practice in ISDS, yet inconsistent decisions persist. As a turning point, this article advocates that consistency in ISDS decisions can be best achieved through the “formal introduction of a system of precedent”, in “a Multilateral Investment Court (MIC)”, which is possible without jeopardizing the inherent differences contained in International Investment Agreements (IIA).

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.

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.

Part VII Inter-linkages with Other Regimes, Ch.44 Investment

2021 ◽  
Author(s):  
Miles Kate
Keyword(s):  
Environmental Law ◽  
International Investment ◽  
Public Welfare ◽  
International Environmental Law ◽  
Multilateral Environmental Agreements ◽  
International Investment Law ◽  
Investment Law ◽  
Environmental Protection Policies ◽  
New Generation ◽  
The Relationship

This chapter discusses the relationship between international investment law and international environmental law. The contestation between the fields that emerged in the context of investor-state arbitration was blunt and initially resulted in the rules of international investment law being prioritized over the obligations of states under multilateral environmental agreements (MEAs), domestic environmental protection policies and decision-making, and the host state's public welfare regulatory space. Responding to that contest, the new generation bilateral investment treaties (BITs) and free trade agreements (FTAs) reflect the desire of states to work within a more balanced version of the environment/investment nexus. It is not yet, however, at a point where it can be said to be equally balanced in the engagement of international environmental law and international investment law, and there is evidently still room for significant improvements in the way in which environmental issues are understood and interpreted by arbitrators in investor-state disputes. But the culture and context in which the environment and investment are meeting is most definitely shifting and it is hoped that the trajectory continues still further in that direction.

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.

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