20 Introduction of an Appellate Review Mechanism for International Investment Disputes: Expected Benefits and Remaining Tasks

Author(s):  
Manjiao Chi ◽  
Zongyao Li

Abstract Despite the popularization of investor-state arbitration (ISA), administrative review remains a helpful local remedy for investment-state dispute settlement (ISDS) in some states. China has a complicated and comprehensive legal system of administrative review. It has concluded a large number of international investment agreements (IIAs), and nearly half of them contain an administrative review provision. These provisions could be considered as an expropriation review mechanism, a standalone ISDS option, an ISA supporting measure or a pre-ISA requirement. Given that administrative review has legal and practical limits, and that China’s national law on dispute settlement and foreign investment governance keeps changing, the attractiveness and significance of administrative review for ISDS are diminishing. In China’s recent IIA-making, there appears an emerging trend of abandoning administrative review. In the long run, it remains to be seen how China will balance local remedies and ISA in IIA-making and foreign investment governance in the future.


2020 ◽  
Vol 28 (4) ◽  
pp. 596-611
Author(s):  
Nitish Monebhurrun

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.


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