No Green without More Green: The Importance of Protecting FDI through International Investment Law to Meet the Climate Change Challenge

2020 ◽  
Vol 5 (1) ◽  
pp. 1-39
Author(s):  
Sarah Z. Vasani ◽  
Nathalie Allen
Keyword(s):  
Climate Change ◽  
Foreign Direct Investment ◽  
Direct Investment ◽  
Legal Framework ◽  
International Investment ◽  
The European Union ◽  
International Investment Law ◽  
Investment Treaty ◽  
Private Investors ◽  
Investment Treaty Arbitration

The growing climate change crisis requires significant development in and implementation of sustainable and renewable energies. To bring about that development, greater foreign direct investment is needed. Investment treaty arbitration contributes to encouraging greater levels of foreign direct investment, including in the context of investment in climate-friendly energies, by giving foreign private investors that knowledge that they can have recourse to a neutral dispute forum, which can, in turn, help shape regulatory frameworks, resulting in attractive investment conditions for foreign private investors. In this article, the authors argue that the European Union’s forward thinking regulatory approach has been pivotal to the progression of a legal framework encouraging cleaner energy and more environmentally-friendly technology. Whilst enormous benefits have been derived from this approach, the authors argue that the European Union is at risk of overstepping the mark and of deterring, as opposed to encouraging, the necessary foreign direct investment, through, in part, its much publicised aversion to investment treaty arbitration.

International Investment Law and Practice in the Kingdom of Cambodia: An Evolving ‘Rule Taker’?

2017 ◽  
Vol 18 (5-6) ◽  
pp. 942-973
Author(s):  
Romesh Weeramantry
Keyword(s):  
Foreign Direct Investment ◽  
Direct Investment ◽  
Free Trade Agreements ◽  
International Investment ◽  
Court System ◽  
International Investment Law ◽  
Investment Treaty ◽  
Investment Arbitration ◽  
Investment Law ◽  
Investment Agreements

Abstract Cambodia has undertaken several initiatives to attract foreign direct investment (FDI), which has been growing rapidly in recent years, particularly through participating in Association of South East Asian Nations (ASEAN) investment agreements and free trade agreements (FTAs). This article first outlines Cambodia’s arbitration law and practice, its Law on Investment, the court system, problems relating to corruption, and foreign direct investment (FDI) patterns. It then surveys trends in Cambodia’s comparatively belated signing of investment treaties, and their main contents (including recent treaties with India and Hungary, adopting very different models). The article then discusses the only investment arbitration instituted against Cambodia, which was successfully defended, followed by a comment on the future prospects for Cambodia’s investment treaty program.

The Legal Framework for the Protection of Foreign Direct Investment in Ethiopia

2019 ◽  
pp. 741-762
Author(s):  
Won L. Kidane
Keyword(s):  
Foreign Direct Investment ◽  
Direct Investment ◽  
The United States ◽  
Legal Framework ◽  
International Investment ◽  
International Investment Law ◽  
Domestic Legislation ◽  
Investment Law ◽  
Enforcement Mechanisms ◽  
Legal Frameworks

Historically, Ethiopia’s near-perpetual independent existence has uniquely permitted latitude to shape policy and legal frameworks for the admission, protection, and management of foreign direct investment (FDI). The contemporary legal framework is a product of many external influences. International investment law principles have been part of Ethiopia’s investment law since 1903, when Ethiopia signed the Treaty of Amity and Commerce with the United States. This treaty contained some modern notions of international. Following military rule (1974–91), during which all domestic and international principles of fairness and equity were abrogated, Ethiopia attempted to build a new legal framework for the ordering of FDI. The existing framework is composed of evolving domestic legislation and an increasing number of international bilateral and regional investment treaties. This corpus of law is also equipped with institutional enforcement mechanisms. This chapter provides an overview and critique of existing rules and institutions.

Malaysia and Investor-State Dispute Settlement: Learning From Experience

2017 ◽  
Vol 18 (5-6) ◽  
pp. 890-917 ◽  
Author(s):  
Sufian Jusoh ◽  
Muhammad Faliq Abd Razak ◽  
Mohamad Azim Mazlan
Keyword(s):  
Foreign Direct Investment ◽  
Direct Investment ◽  
Dispute Settlement ◽  
International Investment ◽  
Learning From Experience ◽  
International Investment Law ◽  
Investment Law ◽  
Investment Treaties

Abstract Malaysia is an important destination for foreign direct investment and has signed more than 70 investment guarantee agreements. Most allow investor-state dispute settlement (ISDS) and Malaysia has been subject to three claims, including two fully argued cases: Philippe Gruslin and Malaysian Historical Salvor. Yet Malaysian companies have also utilised ISDS provisions: in MTD Equity Bhd v Chile, Telekom Malaysia v Ghana, and Ekran Berhad v China (the first-ever ISDS claim against China). These cases provide lessons for Malaysia in becoming better prepared to negotiate newer generations of investment treaties, and to defend further potential cases. Malaysia has not reacted negatively to investment treaties despite the cases filed against the country. In fact, in light of its evolving interests Malaysia has become more of a rule-maker in international investment law rather than a rule-taker. Malaysia thereby continues to liberalise its investment regime and provide better transparency – the best defence against claims.

scholarly journals Control, Capacity, and Legitimacy in Investment Treaty Arbitration

AJIL Unbound ◽  
2018 ◽  
Vol 112 ◽  
pp. 261-265
Author(s):  
Jeremy K. Sharpe
Keyword(s):  
International Investment ◽  
Law Reform ◽  
Institutional Choice ◽  
International Investment Law ◽  
Investment Protection ◽  
Investment Treaty ◽  
Trade Offs ◽  
Investment Law ◽  
States Experience ◽  
Investment Treaty Arbitration

Arbitration has long been the default mechanism for resolving international investment disputes. The traditional consensus favoring arbitration, however, has now given way, and reform proposals abound. The articles by Sergio Puig and Gregory Shaffer, on institutional choice and investment law reform, and by Anthea Roberts, on incremental, systemic, and paradigmatic reform of investor-state arbitration, helpfully situate the current controversies, debates, and reform options for states. Both articles reveal just how far and fast the debate has shifted in recent years. They also confirm states’ desire to exercise greater control over the regime for resolving international investment disputes. Many states continue to struggle to fully comply with their investment treaty obligations, to efficiently defend against investor claims, and to properly keep abreast of and shape developments in international investment law. Puig and Shaffer provide a useful framework for comparatively assessing possible institutional alternatives in light of their relative trade-offs. But any reform recommendations should draw lessons from states’ experience with the existing regime, including states’ significant problems of capacity. The merits of any reform proposals, therefore, should be measured in part by their ability to improve states’ capacity to cope with the existing investment protection regime and rapidly changing developments.

scholarly journals SELF-DETERMINATION AND FOREIGN DIRECT INVESTMENT: REIMAGINING SOVEREIGNTY IN INTERNATIONAL INVESTMENT LAW

2016 ◽  
Vol 65 (4) ◽  
pp. 829-857 ◽  
Author(s):  
Edward Guntrip
Keyword(s):  
Foreign Direct Investment ◽  
Direct Investment ◽  
International Investment ◽  
Self Determination ◽  
International Investment Law ◽  
Host State ◽  
Continuous Evolution ◽  
State Population ◽  
Investment Law ◽  
Alternative Understanding

AbstractInternational investment law can be criticized for its understanding of sovereignty. Informed by the works of Koskenniemi, this article reimagines ‘sovereignty’ based on a host State population exercising its right to economic self-determination. Recent transparency initiatives in international investment law support this conceptualization of sovereignty. Further, the stance taken aligns with the continuous evolution of the international investment law regime. The establishment of a different perspective on sovereignty in international investment law highlights the need for an alternative understanding of this term if international investment law is to achieve widespread approval.

Part II Substantive Aspects, Ch.21 Cultural Heritage in International Investment Law

2020 ◽  
Author(s):  
Vadi Valentina
Keyword(s):  
Cultural Heritage ◽  
Direct Investment ◽  
Legal Framework ◽  
International Investment ◽  
Economic Interests ◽  
Public And Private ◽  
International Investment Law ◽  
The Public ◽  
Private Interests ◽  
Investment Law

This chapter evaluates whether the existing legal framework adequately protect cultural heritage vis-à-vis the economic interests of foreign investors. It aims to address this question by examining recent arbitrations and proposing three principal legal tools to foster a better balance between economic and cultural interests in international investment law and arbitration. This recent jurisprudence highlights that arbitral tribunals are increasingly providing consideration to cultural concerns. Yet, the interplay between the protection of cultural heritage and the promotion of foreign direct investment in international investment law and arbitration continues to pose two main problems: one ontological, concerning the essence of international investment law and international law more generally; and one epistemological, concerning the mandate of arbitral tribunals. The chapter then considers three principal avenues that can facilitate a better balance between the public and private interests in international investment law: a ‘treaty-driven approach’; a ‘judicially driven approach’; and counterclaims.

Illegal Investments in Investment Treaty Arbitration

2012 ◽  
Vol 11 (2) ◽  
pp. 281-323 ◽  
Author(s):  
Stephan W. Schill
Keyword(s):  
International Investment ◽  
Foreign Investor ◽  
Considerable Potential ◽  
International Investment Law ◽  
Investment Treaty ◽  
Investment Law ◽  
The Impact ◽  
The Relationship ◽  
Domestic Law ◽  
Investment Treaty Arbitration

Abstract Investment treaty tribunals on numerous occasions have had to deal with the impact of breaches of domestic law by a foreign investor on the investment’s protection under an international investment treaty. In this context, tribunals had to interpret different “in accordance with host State law”-clauses contained in investment treaties, but also dealt with the effect of illegality in the absence of such clauses. The present article traces this increasingly complex jurisprudence and frames it as an issue of the relationship between domestic law and international investment law. Although different approaches exist, most importantly as to the effect of domestic illegality on the jurisdiction of investment treaty tribunals, the article suggests that there is considerable potential for convergence in arbitral jurisprudence, thus unveiling the contours of a doctrinal structure for dealing with illegal investments in international investment law and arbitration.

scholarly journals International investment law in support of the right to development?

2020 ◽  
pp. 1-21
Author(s):  
Ole Kristian Fauchald
Keyword(s):  
Foreign Direct Investment ◽  
Low Income ◽  
Direct Investment ◽  
International Investment ◽  
Policy Space ◽  
International Investment Law ◽  
Right To Development ◽  
Investment Law ◽  
The Right ◽  
National Investment

Abstract There is a long-standing claim and ambition in international investment law that treaties and customary law contribute to economic development in countries hosting investment. However, this claim remains controversial and has been hotly debated among academics. The article explores how international investment law, understood as international investment agreements (IIAs) and their associated dispute settlement mechanisms, can support the right to development. It does so by analysing how rules regarding protection and flow of foreign direct investment have and can contribute to realizing the right to development and help achieve sustainable development goals. It finds that IIAs have had limited effects for promotion of investment into or restricting the policy space for least developed and low-income countries. It argues that potential effects of IIAs cannot be properly understood without taking into account other means of protecting and promoting foreign direct investment, i.e., national investment legislation and contracts. So far, national investment legislation is likely to have had more significant impact on flows of foreign direct investment and policy space of host countries than IIAs. Reforms of IIAs to increase synergies with the right to development will, therefore, have to be based on knowledge about and assessments of the dynamics between IIAs, domestic investment legislation, and investment contracts.

scholarly journals International Investment and Firm Performance: Empirical Evidence from Small Open Economies

2014 ◽  
Vol 234 (6) ◽  
Author(s):  
Iulia Siedschlag ◽  
Ville Kaitila ◽  
John McQuinn ◽  
Xiaoheng Zhang
Keyword(s):  
Foreign Direct Investment ◽  
Firm Performance ◽  
Mergers And Acquisitions ◽  
Direct Investment ◽  
Labour Productivity ◽  
Open Economies ◽  
International Investment ◽  
Small Open Economies ◽  
The European Union ◽  
Advanced Economies

SummaryThe global financial and economic crisis has severely affected foreign direct investment, particularly the cross-border mergers and acquisitions in advanced economies. This paper examines the effects of foreign mergers and acquisitions on labour productivity and employment growth over the period 2001-2009 in six small open economies in the European Union: Austria, Belgium, Denmark, Finland, the Netherlands and Sweden. We show that the severity of the crisis has been uneven across these six economies. Taken together, our estimates suggest that foreign direct investment had stronger effects on firm performance in services than in manufacturing.

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