Striking a Balance between the Protection of Foreign Investment and the Safeguard of Cultural Heritage in International Investment Agreements: Can General Exceptions Make a Difference?

2019 ◽  
pp. 192-207
Keyword(s):  
Cultural Heritage ◽  
Foreign Investment ◽  
International Investment ◽  
International Investment Agreements ◽  
General Exceptions ◽  
Investment Agreements

The Role of International Human Rights Law in Re-Shaping Investor-State Arbitration

2017 ◽  
Vol 45 (1) ◽  
pp. 34-41
Author(s):  
Susan L. Karamanian
Keyword(s):  
Foreign Investment ◽  
International Investment ◽  
International Standards ◽  
International Human Rights Law ◽  
Human Rights Law ◽  
International Investment Agreements ◽  
New Process ◽  
State Consent ◽  
Investment Agreements

Over the past few decades, a new process has dominated how States treat foreign investment and the consequences to States for breaching international standards. The system's key feature, the means for settling a foreign investor's dispute with a State that hosts the investment, lacks traditional elements of State judicial systems. Instead, it is a creature of State consent as reflected in international investment agreements (IIAs). In IIAs, States promise to treat foreign investment and the investors in a certain, fundamentally fair, way. Many IIAs authorize foreign investors and States to select private arbitrators to resolve claims that host States breached their promises under the IIA. The arbitrators, in turn, are empowered to issue arbitral awards.

Proportionality and Human Rights Protection in International Investment Arbitration: What’s Left Hanging in the Balance?

2020 ◽  
Vol 89 (3-4) ◽  
pp. 343-363
Author(s):  
Daria Davitti
Keyword(s):  
Human Rights ◽  
Foreign Investment ◽  
International Investment ◽  
Human Rights Protection ◽  
Rights Protection ◽  
Competing Interests ◽  
Investment Arbitration ◽  
International Investment Agreements ◽  
Protection Of Human Rights ◽  
Investment Agreements

Abstract This article focuses on the proportionality analysis carried out by international investment tribunals when the protection of foreign investment adversely impacts the protection of human rights. International investment arbitrators are increasingly called to adjudicate awards which require a ‘balancing’ between the so-called rights of investors, protected as they are by relevant international investment agreements (iia), and the rights of third parties affected by foreign investment. Such balancing often entails, at its core, a controversial juxtaposition between investment protections and human rights protections. In this article, I argue that a balancing between investors’ rights and human rights is neither possible nor desirable. This argument is crucial to demystify existing assumptions surrounding the use of balancing and proportionality in international investment arbitration as a way of successfully reconciling competing interests as well as conflicting protection obligations vested upon a host State.

Investment Arbitration in East Asia and the Pacific

2015 ◽  
Vol 16 (5-6) ◽  
pp. 800-842 ◽  
Author(s):  
Claudia T. Salomon ◽  
Sandra Friedrich
Keyword(s):  
Foreign Investment ◽  
International Investment ◽  
Investment Protection ◽  
The Past ◽  
Investment Arbitration ◽  
International Investment Agreements ◽  
The Pacific ◽  
Investment Patterns ◽  
Investment Agreements ◽  
Trade And Investment

Many countries in the East Asian and Pacific (EAP) region have strengthened their networks of bilateral investment treaties (BITs) and other international investment agreements (IIAs). This growth in investment protection instruments not only illustrates the region’s continued attractiveness to foreign investors, but also reflects a shift of several developing EAP countries from having been predominantly recipients of foreign investment in the past, toward becoming important sources of foreign investment abroad. Reflecting trade and investment patterns, as of December 2014, EAP countries concluded a total of at least 712 BITs and 69 other IIAs. On the heels of this development, the region has seen a rising number of investment arbitrations. As of December 2014, at least 49 investment arbitrations have been brought against EAP countries and/or by EAP investors. Most recently, the number of new cases has picked up pace significantly, making the region a veritable ‘hot bed’ of investment arbitration.

The Protection of the Environment in International Investment Agreements – Recent Developments and Prospects for Reform

2020 ◽  
Vol 5 (1) ◽  
pp. 355-391
Author(s):  
Laura Rees-Evans
Keyword(s):  
Environmental Protection ◽  
Foreign Investment ◽  
International Investment ◽  
International Investment Law ◽  
Investment Protection ◽  
Environmental Objectives ◽  
International Investment Agreements ◽  
Recent Developments ◽  
Sustainable Investment ◽  
Investment Agreements

Foreign investors benefit from rights to the protection of their foreign investments under a web of thousands of international investment agreements (IIA S). Those IIA s traditionally, however, contain no corresponding duties. The presence of rights without corresponding obligations in the global system of investment protection has attracted significant criticism. This is particularly true in the field of environmental protection (including the fight against climate change), where the concern is that the promotion and protection of investment may unduly restrict a State’s ability to take measures that promote environmental objectives. This article analyses what IIA S do or could do to contribute to the goal of environmental protection, in three parts: first, it identifies provisions of “old generation” IIA S (i.e., those concluded prior to 2010) that provide scope for environmental considerations to be taken into account; second, it analyses the trend in recent IIA S and model bilateral investment treaties (BIT S) to incorporate mechanisms aimed at promoting environmental protection in relation to the regulation of foreign investment; and third, it analyses various possibilities for reform of international investment law to further promote the protection of the environment in the field of foreign investment. It concludes that while the texts of the vast majority of IIA S currently in force appear to do little directly to promote environmental objectives, some contain certain mechanisms that are capable of allowing tribunals to give environmental concerns the weight they deserve. In relation to new and renegotiated IIA S, there are a wide variety of mechanisms that can be used to enhance the contribution they make to promoting sustainable investment and investment in green industries.

1 A Global Regime for Investment

2021 ◽  
Author(s):  
Salacuse Jeswald W
Keyword(s):  
International Law ◽  
Foreign Investment ◽  
International Investment ◽  
Bilateral Investment Treaties ◽  
International Regime ◽  
International Investment Agreements ◽  
Global Regime ◽  
Investment Treaties ◽  
Investment Agreements

This chapter provides an overview of investment treaties. Investment treaties, often referred to as ‘international investment agreements’ (IIAs), are essentially instruments of international law by which states (1) make commitments to other states with respect to the treatment they will accord to investors and investments from those other states, and (2) agree to some mechanism for enforcement of those commitments. A fundamental purpose of investment treaties, as indicated by their titles, is to protect and promote investment. International investment treaties consist principally of three types: (1) bilateral investment treaties, commonly known as ‘BITs’; (2) bilateral economic agreements with investment provisions; and (3) other investment-related agreements involving more than two states. The chapter then considers the significance of investment treaties and argues that together they constitute an international regime for foreign investment.

EVOLUTION OF THE LEGAL CONCEPT OF "FOREIGN INVESTMENT" IN A NETWORK SOCIETY

Lex Russica ◽  
2019 ◽  
pp. 88-95
Author(s):  
N. N. Viktorova
Keyword(s):  
South African ◽  
Foreign Investment ◽  
International Investment ◽  
African Development ◽  
Bilateral Investment Treaty ◽  
Investment Treaty ◽  
International Investment Agreements ◽  
Definition Of ◽  
Investment Agreements ◽  
Portfolio Investments

The paper deals with the problems of definition of the concept "investment" in multilateral and bilateral investment treaties. The author shows how the approach to the definition of "investment" in international investment agreements has changed over time, how this concept differs in modern agreements from those enshrined in agreements concluded more than ten years ago. It is noted that today we can talk about the trend of a broad definition of the concept of investment in international treaties, that is, investments are understood as any kind of property values; further the author specifies what applies to them.International treaties on the protection and promotion of investment also include the right to engage in business activities. It turns out that investment disputes can arise from ordinary commercial activities, for example from a contract of sale. However, there are documents that do not include monetary claims arising from commercial contracts, such as the 2012 model bilateral investment Treaty of the South African development Community.Generally, investment protection agreements do not distinguish between direct and portfolio investments. Therefore, portfolio investments also enjoy the protection of these investment treaties. However, some of the international investment agreements that are currently being concluded specify that portfolio investments are excluded from their scope, such as the Model bilateral investment Treaty of the South African Development Community.In the literature there are three approaches to the qualification of foreign arbitral awards as a foreign investment. According to one of them, the award is an investment, because it is part of the entire activity of the investor. Some modern international investment agreements contain provisions according to which arbitration, judicial decisions are not investments.

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