Regulatory autonomy and regulatory chill in Opinion 1/17

Public Interests ◽

European Court ◽

Negative Effect ◽

Investment Law ◽

Investment Agreements ◽

The Eu

This article analyses the aspect of the Court’s reasoning in Opinion 1/17 that focuses on the regulatory autonomy of the Parties to the Comprehensive Economic and Trade Agreement (CETA) to decide on levels of protection of public interests. The European Court of Justice’s (ECJ) introduction of regulatory autonomy under EU law coincides with the wider debate around ‘regulatory chill’ under international investment law. This article finds the ECJ’s concept of regulatory autonomy to be narrower than that of the regulatory chill hypothesis put forward by critics of investor-state dispute settlement (ISDS). It further analyses the ECJ’s reasoning that the CETA’s investment tribunals do not have jurisdiction to call into question the levels of protection sought by the EU. In so doing, it will critically evaluate the certainty of the ECJ’s promise that there will be no negative effect on public interest decision-making through CETA’s investment chapter. Finally, it will explore the legal consequences of Opinion 1/17 for future awards and investment agreements.

THE FOREIGN INVESTORS AND NATIONALITY CONCEPT UNDER INTERNATIONAL LAW

4th EMAN Conference Proceedings (part of EMAN conference collection) ◽

10.31410/eman.2020.193 ◽

2020 ◽

Author(s):

Gabriela Belova ◽

◽

Gergana Georgieva ◽

Anna Hristova ◽

◽

...

Keyword(s):

Dispute Settlement ◽

Trade Agreement ◽

Foreign Investors ◽

Investment Law ◽

Definition Of ◽

Investment Agreements ◽

Mixed Agreements ◽

The Eu

Although in the last years the international community has adopted a broad approach, the definition of foreign investors and foreign investments is still very important for the development of international investment law. The nationality of the foreign investor, whether a natural person or legal entity, sometimes is decisive, especially in front of the international jurisdictions. The paper tries to follow the examples from bilateral investment agreements as well as from multilateral instrument such as the International Centre for Settlement of Investment Disputes (ICSID) Convention. An important case concerning Bulgaria in past decades is also briefly discussed. The authors pay attention to some new moments re-developing the area of investment dispute settlement within the context of EU Mixed Agreements, especially after the EU-Canada Comprehensive Economic and Trade Agreement.

A Paradigm Change: The CETA Investment Chapter

Zeitschrift für europarechtliche Studien ◽

10.5771/1435-439x-2021-3-437 ◽

2021 ◽

Vol 24 (3) ◽

pp. 437-484

Author(s):

Marc Bungenberg ◽

August Reinisch

Keyword(s):

Dispute Settlement ◽

Trade Agreement ◽

Court System ◽

Investment Protection ◽

Investment Law ◽

Investment Agreements ◽

The Eu

The Investment Chapter of the Comprehensive Economic and Trade Agreement (CETA) can be seen as an unofficial blueprint of future EU Investment Agreements and Chapters. It was developed under immense public pressure and had to fulfil multiple conditions resulting from the EU constitutional framework. This contribution highlights the political and juridical background of EU investment policy, and then analyses the most significant new approaches in international investment law - both with regard to substantive standards and investor-State dispute settlement - as exemplified in the CETA. With regard to the substance, it can be witnessed that states are more proactive in defining investment protection standards, leaving less discretion for adjudicators. With regard to dispute settlement, the EU managed to introduce a completely new Investment Court System (ICS) with preselected adjudicators and an appellate mechanism. In light of all these developments, this article argues that we are currently facing a complete change of paradigms in EU investment law, heading towards the EU’s long-term goal of establishing a Multilateral Investment Court (MIC).

The Scope of Application of EU (Model) Investment Agreements

The Journal of World Investment & Trade ◽

10.1163/22119000-01504004 ◽

2014 ◽

Vol 15 (3-4) ◽

pp. 402-421 ◽

Cited By ~ 5

Author(s):

Marc Bungenberg

Keyword(s):

Dispute Settlement ◽

Trade Agreement ◽

Sovereign Wealth Funds ◽

Scope Of Application ◽

Investment Law ◽

Investment Agreements ◽

The Eu

The contribution examines the personal and material scope of application of future eu International Investment Agreements. Therefore the notions of 'investor' and 'investment' are discussed. The scope of application of iias is one of the most important issues in investment law, as it determines the application of material standards as well as the possibility of investor state dispute settlement. On a comparative basis, the chapter examines the eu approach to this issue. Also the coverage of State owned Enterprises as well as Sovereign Wealth Funds is paid specific attention to. Especially the draft investment chapter of the EU-Canada Comprehensive Economic and Trade Agreement (ceta) is taken as a first orientation for possible wording and structure as well as intention of the scope of application of future eu iias.

An Overview of Sri Lanka’s Bilateral Investment Treaties: Status Quo and Some Insights into Future Modifications

Asian Journal of International Law ◽

10.1017/s2044251316000187 ◽

2016 ◽

Vol 7 (2) ◽

pp. 287-318

Author(s):

Dilini PATHIRANA

Keyword(s):

Sri Lanka ◽

Dispute Settlement ◽

Status Quo ◽

Global Context ◽

Investment Treaty ◽

Investment Law ◽

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 Role of Regional Courts in the Development of International Investment Law: The Case of NAFTA Chapter 11 Dispute Settlement Framework and ECtHR

The Law and Development Review ◽

10.1515/ldr-2017-0035 ◽

2018 ◽

Vol 11 (1) ◽

pp. 77-95

Author(s):

Collins C. Ajibo

Keyword(s):

Human Rights ◽

Dispute Settlement ◽

European Court ◽

Margin Of Appreciation ◽

Investment Law ◽

Nafta Chapter 11

AbstractRegional courts have synthesized, articulated, and elucidated certain principles of law that influence the development of international investment law. The contributions of NAFTA Chapter 11 dispute settlement framework and European Court of Human Rights (ECtHR), in particular, have been outstanding. For instance, NAFTA jurisprudence has guided investor-state dispute settlement (ISDS) tribunals through influential precedents. Similarly, the doctrine of proportionality and the margin of appreciation doctrine which emerged from the ECtHR jurisprudence have become embedded in international investment law. Indeed, given the unique contributions of regional courts and their rapid proliferation, it can be predicted that they will play even more significant roles in the future development of principles of international investment law. Arguably, such emergent principles should be subjected to a prior scrutiny and filtering by ISDS institutions as a precondition to full incorporation into international investment law to foster their legitimacy and credibility.

Africa and the Rethinking of International Investment Law

10.1093/oso/9780190697570.003.0025 ◽

2018 ◽

Author(s):

Makane Moïse Mbengue ◽

Stefanie Schacherer

Keyword(s):

Sustainable Development ◽

International Law ◽

Dispute Settlement ◽

Reform Process ◽

Pan African ◽

Investment Law ◽

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

The Journal of World Investment & Trade ◽

10.1163/22119000-01606007 ◽

2015 ◽

Vol 16 (5-6) ◽

pp. 952-980 ◽

Cited By ~ 2

Author(s):

Hi-Taek Shin ◽

Liz (Kyo-Hwa) Chung

Keyword(s):

Dispute Settlement ◽

Developing Economies ◽

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.

CJEU Opinion 1/17: Keeping International Investment Law and EU Law Strictly Apart

European Investment Law and Arbitration Review ◽

10.1163/24689017_00401011 ◽

2019 ◽

Vol 4 (1) ◽

pp. 240-259

Author(s):

Nikos Lavranos

Keyword(s):

Financial Burden ◽

Trade Agreement ◽

Court System ◽

Eu Law ◽

The European Union ◽

Investment Protection ◽

Investment Law ◽

The Eu

With Opinion 1/17, the Court of Justice of the European Union (CJEU) approved the Investment Court System (ICS) contained in the Comprehensive Economic Trade Agreement (CETA) between the EU and Canada. This means that the EU can proceed with the ratification process of the investment protection part of CETA and the other free trade agreements it has concluded, and which contain a similar ICS. However, as the author illustrates, the approval of the ICS is conditioned by a complete isolation of EU law from international investment law. More specifically, the CJEU made clear that the ceta tribunals operate outside the EU legal order and have no power to interpret or apply EU law. At the same time, the CJEU highlighted the importance that the ceta Parties adopt supplemental rules for reducing the financial burden for access to the ICS for small and medium-sized enterprises (SMES). Additionally, the CJEU rejected the currently existing possibility that binding joint interpretations of the ceta Parties could have retroactive effect. In sum, the approval of the ICS by the CJEU enables the European Commission to continue to develop the multilateral investment court (MIC) within the uncitral Working Group iii as long as it follows the blueprint of the CETA ICS.

Round-Tripping in International Investment Law: A Teleological Assessment

The Journal of World Investment & Trade ◽

10.1163/22119000-12340215 ◽

2021 ◽

Vol 22 (3) ◽

pp. 459-501

Author(s):

Marc-Antoine Couet

Keyword(s):

Dispute Settlement ◽

Case Law ◽

Domestic Capital ◽

Investment Law ◽

Definition Of ◽

Comprehensive Framework ◽

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

10.1093/oso/9780199663392.003.0007 ◽

2017 ◽

Author(s):

Henning Grosse Ruse-Khan

Keyword(s):

Intellectual Property ◽

Dispute Settlement ◽

Foreign Investor ◽

National Treatment ◽

Ip Protection ◽

Investment Law ◽

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).