scholarly journals Analyzing the Social License to Operate in International Investment Law

2020 ◽  
Vol 9 (2) ◽  
pp. 1-17
Author(s):  
Rudresh Mandal
Keyword(s):  
Local Population ◽  
International Investment ◽  
International Investment Law ◽  
Applicable Law ◽  
Investment Treaty ◽  
Social License To Operate ◽  
Social License ◽  
The Social ◽  
Investment Law ◽  
Bear Creek

A small segment of Investor-State Arbitration flows from the consequences of resistance by the local population (particularly, indigenous people) against the particular investment, and the concerned State cancelling permits granted earlier, precluding all future activities of the investor. This paper seeks to argue that when faced with an investment treaty dispute of this nature, arbitrators should (and indeed may be required to) reflect on the Social License to Operate (SLO) as a part of the applicable law. It aims at creating a framework within which the Social License to Operate should be conceptualized by investment tribunals in the future. The article first examines the nature of the social license to operate and then goes on to highlight its existence in relevant bodies of international law. Thereafter, the article seeks to analyze its use in past investment tribunals, such as the award laid down in Bear Creek Mining v. Peru, and uses this analysis as a springboard to construct a way forward for future applications of the concept.

The Judicialisation of the Social License to Operate: Criteria for International Investment Law

2021 ◽  
Vol 22 (1) ◽  
pp. 92-128
Author(s):  
Raúl F. Zúñiga Peralta
Keyword(s):  
Public Interest ◽  
International Investment ◽  
International Investment Law ◽  
Social License To Operate ◽  
Legal Term ◽  
Social License ◽  
The Social ◽  
Investment Law ◽  
Bear Creek ◽  
The Relationship

Abstract The Social License to Operate (SLO) is a non-legal term which has been widely conceptualised as meaning a particular set of interactions between investors and affected communities. Within the international investment law field, even though tribunals previously analysed situations of social conflict, the wording SLO had never been considered by an investment tribunal until Bear Creek Mining Corporation v Republic of Peru. This article argues that if the SLO of the investment is involved in a dispute, tribunals should thoroughly analyse the relationship between the investor and the affected community and establish (judicialise) a standard of review for the investor’s conduct which should only include those aspects of the relationship that might be considered as affecting or forming part of the national public interest. In addition, this article puts forth the criteria for the judicialisation of the SLO in investment disputes, drawing upon the Bear Creek scenario as relevant background.

Micula v Romania between International Investment Law and European Law – The UK Supreme Court Judgement – the Final or the NEXT PIece of the Puzzle?

De Jure ◽  
2021 ◽  
Vol 12 (1) ◽  
Author(s):  
Steliyana Zlateva ◽  
◽  
◽  
Keyword(s):  
Supreme Court ◽  
International Investment ◽  
European Law ◽  
Eu Law ◽  
International Investment Law ◽  
Investment Treaty ◽  
Investment Law ◽  
Uk Supreme Court ◽  
The Uk ◽  
The Eu

The Judgement of the United Kingdom’s Supreme Court in the long Micula v. Romania investment treaty dispute confirmed that the arbitral awards of the International Centre for Settlement of Investment Disputes (ICSID), rendered by tribunals established under intra-EU BITs, could be enforced in the UK. The Micula case concerns the interplay between the obligations under the ICSID Convention and EU law. In particular, it addresses the question of whether the award obtained by the Micula brothers against Romania constitutes state aid prohibited by EU law, as well as the enforcement obligations under the ICSID Convention in view of the EU duty of sincere cooperation.

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.

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.

THE “UNEXPECTED” DEVELOPMENT-FRIENDLY DEFINITION OF INVESTMENT IN THE 2013 RESOLUTION OF THE INSTITUT DE DROIT INTERNATIONAL

2014 ◽  
Vol 23 (1) ◽  
pp. 69-90
Author(s):  
Pia Acconci
Keyword(s):  
Sustainable Development ◽  
International Investment ◽  
Public Interests ◽  
International Investment Law ◽  
Investment Treaty ◽  
Private And Public ◽  
Investment Law ◽  
Droit International ◽  
Definition Of

The importance of the widespread reliance upon direct arbitration, particularly arbitration under the International Centre for Settlement of Investment Disputes (ICSID), and of the practice of “arbitration without privity” is at the root of the search for a definition of investment, as underlined by the 2013 Resolution of the Institut de droit international (IDI). The Resolution refers to a development-friendly definition of investment. This article aims to explain to what extent a definition based upon references to sustainable development would constitute an acceptable specification, albeit a partial one, of the term “development” used in the IDI Resolution, in light of the need of a reconciliation between private and public interests within current international investment law. The article also deals with the issue of whether the ICSID Convention provides for an autonomous definition of investment that cannot be overridden by the terms of a given international investment treaty, and if so, which criteria should be taken into consideration for the purposes of determining whether an investment exists within the meaning of Article 25(1) of the ICSID Convention.

International Investment Law in Central Asia

2015 ◽  
Vol 16 (5-6) ◽  
pp. 1089-1124 ◽  
Author(s):  
Mavluda Sattorova
Keyword(s):  
International Investment ◽  
International Investment Law ◽  
Investment Protection ◽  
Investment Treaty ◽  
Regional Investment ◽  
Central Asian ◽  
History Of ◽  
Investment Law ◽  
Law Making

Despite the fact that Central Asian states have not been involved in regional investment treaty-making on a scale and thrust similar to that of ASEAN and NAFTA, their evolving approaches to international investment law merit attention, not least because of the unique geopolitical characteristics of the region. The aim of this article is to fill the gap in the existing scholarship by exploring regional characteristics of Central Asian participation in international investment law-making. It will critically evaluate the history of numerous regionalisation efforts and, through a case study of two Central Asian states, Kazakhstan and Uzbekistan, examine the shared patterns in the evolution of national approaches to investment protection rules. In particular, the identity of Central Asian states as rule-takers and the factors underlying the emergence of distinctive national stances on the scope and objective of investment rules will be analysed.

scholarly journals The definition of investment and the ICSID convention: matters arising under the Nigerian investment promotion act and international investment law

1970 ◽  
Vol 8 (2) ◽  
pp. 133-154
Author(s):  
Felix O. Okpe
Keyword(s):  
Economic Development ◽  
Potential Problem ◽  
International Investment ◽  
Core Element ◽  
Law And Development ◽  
International Investment Law ◽  
Investment Promotion ◽  
Investment Treaty ◽  
Investment Law ◽  
Definition Of

This article contends that the omission to define investment in the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (the ICSID Convention) has a trickledown effect on the Nigerian Investment Promotion Act (the NIPC Act), in the context of investment treaty law and arbitration. Its greatest impact is the relegation of the contribution to economic development element of the definition of “investment” to a backseat contrary to the purpose of the ICSID Convention. This article proposes a simple thesis: the omission to define investment in the ICSID Convention has fostered an amorphous definition of investment under the NIPC Act, thus creating uncertainty, irrelevance and ambiguity. The uncertainty is a potential problem in the conduct of foreign direct investment under the ICSID Convention. The article recommends a review of the definition of “investment” under the Act and the adoption of a definition that restricts foreign investment within the territory of Nigeria and makes acontribution to economic development its core element in line with the fundamental objective of the ICSID Convention.Keywords: Nigerian Investment Promotion Act, Law and Development, Investment Law and ICSID Arbitration

scholarly journals THE INTERNATIONAL INVESTMENT AGREEMENT NOWADAYS: FROM THE CONSENT TO ITS SOCIAL FUNCTION AS A GUARANTOR OF THE INTERESTS OF CITIZENS

2018 ◽  
Vol 5 (7-8) ◽  
pp. 91-112
Author(s):  
Renata Alvares Gaspar ◽  
Felipe Soares Vivas de Castro
Keyword(s):  
Foreign Investment ◽  
International Investment ◽  
Citizenship Rights ◽  
International Investment Law ◽  
The Social ◽  
Investment Agreement ◽  
Investment Law ◽  
Legal Security ◽  
Globalized World ◽  
Direct Reflection

At the center of a globalized world and under intense transnational financial circulation, there is the foreign investment. In this sense, investigating the realization of the social and economic functions of the Foreign Investment Agreement is an insurmountable necessity for understanding its effects on the citizenship rights. Therefore, it was discussed the rapid and multiple transformations that the International Investment Law has been supporting over time and the direct reflection on the formation of the Foreign Investment Contracts that, nowadays, require complex answers to the achievement of legal security.

scholarly journals International Investment Arbitration in Laos: Large Issues for a Small State

2017 ◽  
Vol 18 (5-6) ◽  
pp. 1001-1024
Author(s):  
Romesh Weeramantry ◽  
Mahdev Mohan
Keyword(s):  
East Asian ◽  
Developed Countries ◽  
International Investment ◽  
Least Developed Countries ◽  
Small State ◽  
International Investment Law ◽  
Investment Treaty ◽  
Investment Arbitration ◽  
Investment Law ◽  
Investment Agreements

Abstract Laos is no stranger to international investment arbitration. Despite its status as one of Southeast Asia’s least developed countries, it has had an Investment Law for more than two decades and is also a party to several bilateral and Association of South East Asian Nations (ASEAN)-related investment agreements. More recently, two investment treaty claims have been made against it, one of which has given rise to an award challenge that went all the way to Singapore’s highest court. This article will examine the history, evolution and current iteration of Laos’ relationship with international investment law and focus on the two investment treaty claims instituted against Laos. The article concludes with an appraisal of Laos’ need to maintain its investment treaty programme, despite the difficulties that may have arisen as a result of it being a respondent in investment treaty arbitrations.

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.

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