scholarly journals The Governance of Foreign Investment at a Crossroad: Is an Overlapping Consensus the Way Forward?

Global Jurist ◽  
2015 ◽  
Vol 15 (1) ◽  
pp. 1-28 ◽  
Author(s):  
Nicolás M. Perrone
Keyword(s):  
Foreign Investment ◽  
Developed Countries ◽  
International Investment ◽  
Overlapping Consensus ◽  
Customary International Law ◽  
Multilateral Cooperation ◽  
Rights Protection ◽  
Investment Arbitration ◽  
Property Rights Protection ◽  
Bilateral Treaties

AbstractThis article makes the claim that the present efforts to reform the international investment regime (IIR) will not save this field from the existing criticisms. Given the plural values at issue, it is unlikely that states – let alone local populations – will ever reach a consensus on the substantive questions surrounding foreign investment. Historically, the main characteristic of foreign investment governance has been the lack of multilateral consensus. This field remained dominated by diplomacy and customary international law until bilateral treaties and investment arbitration became the leading mechanism to resolve investment disputes in the 1990s. This highly legalized regime, however, has been subject to criticisms from developing and increasingly from developed countries. Most reform proposals fail to go beyond alternatives that have been unsuccessful in the past, such as a multilateral investment agreement (MIA) or state-to-state arbitration. This article takes a different approach to foreign investment governance, starting from its political economy. It claims that the IIR does not depoliticize foreign investment relations but rather promotes the politics of foreign investors’ property rights protection. Relying on property theory and pluralism as heuristic tools, this article analyses the resistance to investment arbitration, the obstacles to multilateral cooperation, and the possibility of an overlapping consensus on the institutions for foreign investment governance.

scholarly journals Protection of Intellectual Property Rights in Investor-State Arbitration: Underlying Challenges and Perspectives

2021 ◽  
pp. 77-94
Author(s):  
Kateryna Lazarchuk ◽  
Oksana Zadniprovska
Keyword(s):  
Intellectual Property ◽  
Property Rights ◽  
Intellectual Property Rights ◽  
International Investment ◽  
Rights Protection ◽  
Intellectual Property Rights Protection ◽  
Investment Arbitration ◽  
Property Rights Protection ◽  
Protecting Intellectual Property ◽  
Investment Agreements

This article provides an analysis of existing international mechanisms for protecting intellectual property rights and concludes whether investment arbitration can be an effective forum for resolving intellectual property disputes. It focuses on an examination of the scope of intellectual property rights protection by bilateral investment agreements, as well as the specifics of the investment dispute resolution procedure. In addition, the analysis includes an assessment of the territoriality principle of intellectual property rights and its application in Ukrainian law, as well as an examination of international investment treaties concluded with Ukraine to determine the scope of protection afforded to intellectual property.

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.

The Investment Arbitration between Italy and Cuba: The Application of Customary International Law under Scrutiny

2012 ◽  
Vol 11 (3) ◽  
pp. 499-524
Author(s):  
Enrico Milano
Keyword(s):  
International Law ◽  
Present Article ◽  
International Investment ◽  
The State ◽  
Customary International Law ◽  
Special Regard ◽  
Investment Arbitration ◽  
Diplomatic Protection ◽  
Arbitral Proceedings ◽  
Bilateral Treaties

Abstract The present article describes the arbitral proceedings in the investment dispute between Italy and Cuba, with special regard for the Final Award rendered in 2008. The arbitration has raised a number of interesting issues in the application of customary international law, including the admissibility of claims in diplomatic protection in investment disputes under a BIT, the application of the rule on the exhaustion of local remedies, the attribution of acts of State-owned enterprises to the State and the use of general international law as a means to interpret treaty provisions defining the scope of the BIT. Some of these aspects have proved particularly controversial, as shown by the thorough dissenting opinion attached by arbitrator Tanzi, and they are critically analysed. The arbitration confirms the profound interdependence of bilateral treaties and customary international law in international investment arbitration.

China's International Investment Strategy

2019 ◽  
Keyword(s):  
Development Strategy ◽  
Foreign Investment ◽  
Developed Countries ◽  
Investment Strategy ◽  
International Investment ◽  
Bilateral Investment Treaties ◽  
Open Door Policy ◽  
Outward Fdi ◽  
Investment Law ◽  
Investment Treaties

The phenomenal story of China’s ‘unprecedented disposition to engage the international legal order’ has been primarily told and examined by political scientists and economists. Since China adopted its ‘open door’ policy in 1978, which altered its development strategy from self-sufficiency to active participation in the world market and aimed at attracting foreign investment to fuel its economic development, the underlying policy for mobilizing inward foreign direct investment (IFDI) remains unchanged to date. With the 1997 launch of the ‘Going Global’ policy, an outward focus regarding foreign investment has been added, to circumvent trade barriers and improve the competitiveness of Chinese firms, typically its state-owned enterprises (SOEs). In order to accommodate inward and outward FDI, China’s participation in the international investment regime has underpinned its efforts to join multi-lateral investment-related legal instruments and conclude international investment agreements (IIAs). China began by selectively concluding bilateral investment treaties (BITs) with developed countries (major capital exporting states to China at that time), signing its first BIT with Sweden in 1982. Despite being a latecomer, over time China’s experience and practice with the international investment regime have allowed it to evolve towards liberalizing its IIAs regime and balancing the duties and benefits associated with IIAs. The book spans a broad spectrum of China’s contemporary international investment law and policy: domestic foreign investment law and reforms, tax policy, bilateral investment treaties, free trade agreements, G20 initiatives, the ‘One Belt One Road’ initiative, international dispute resolution, and inter-regime coordination.

scholarly journals Chinese Foreign Direct Investment and Human Rights in Kenya: A Mutually-Affirming Relationship?

2021 ◽  
Vol 2 (1) ◽  
pp. 133-154
Author(s):  
Rosemary Mwanza
Keyword(s):  
Human Rights ◽  
Foreign Direct Investment ◽  
Direct Investment ◽  
International Investment ◽  
Reciprocal Relationship ◽  
Human Rights Protection ◽  
Rights Protection ◽  
Investment Arbitration ◽  
Human Rights Norms ◽  
Chinese Foreign Direct Investment

Does the increase in Chinese foreign direct investment (FDI) inflows into Kenya portend doom for human rights in the country? The prominent narrative has been that FDI undermines human rights in host states, especially those in the developing world. This narrative is countered by claims that there exists a mutually affirming relationship between FDI and human rights. Proponents of this view posit that FDI facilitates the diffusion of human rights norms and correlates with the improved rule of law in host states. They also point to emerging human rights jurisprudence in international investment arbitration as evidence of a reciprocal relationship between FDI and human rights. In light of these arguments, this paper analyses the extent to which such a reciprocal relationship bears out between Chinese FDI and human rights in Kenya. It will be demonstrated that given the lack of a framework for human rights accountability for corporations at the international level, the restrictive treatment of human rights in international investment arbitration tribunals and weak institutional capacity in host states, a positive overlap between FDI and human rights is hardly a panacea for human rights protection in Kenya. Therefore, a synergy of legal measures and non-legal measures provide a pragmatic approach to insulate human rights from violations that may be associated with Chinese FDIs.

scholarly journals Using Arbitration for Resolving Foreign Investment Disputes: A Comparative Study of Laws on Arbitration in Ghana and China

2016 ◽  
Vol 9 (7) ◽  
pp. 1 ◽  
Author(s):  
Shirley Ayangbah
Keyword(s):  
International Law ◽  
Foreign Investment ◽  
International Investment ◽  
Customary International Law ◽  
Republic Of China ◽  
The Past ◽  
The Republic ◽  
The Right ◽  
Procedural Rights ◽  
Comparative Manner

<p>International Investment in recent times is seen as one of the fastest-developing areas of international law. In the past decades, there has been a dramatic increase in the number of bilateral investment treaties and other agreements with investment related provisions that grant foreign investors important substantive and procedural rights, including, most importantly, the right to sue individuals, organizations and even the state hosting their investment for violations of customary international law and treaty obligations. Dispute becomes an inevitable phenomenon as individuals, organizations and countries continue to engage in foreign investment and as such there is the need for dispute solving mechanism to resolve such disputes as and when they arises. Even though there are several dispute solving mechanisms, arbitration seems to be a well-established and widely used mechanism to end dispute probably due to the efficiency and flexibility nature of it. The laws governing arbitration differ from one country to the other and it is for this reason that investors need to be abreast with the different arbitration laws  so as to enable them make inform decisions as to whether to resort to arbitration  or not. This paper analyses the arbitration laws of The Republic of Ghana and Peoples Republic of China in a comparative manner by drawing on the similarities and difference with respect to arbitration laws and procedure in these two countries. The paper is divided into three parts. The first part of this paper gives a brief background as well as the characteristics of the concept of arbitration. The second part looks as the similarities and difference of arbitration between the selected countries, and the final part looks at the arbitration phase and post arbitration phase of the two countries.</p>

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 The appearance of bias in international investment arbitrators and analysis of potential impediments to bias in the European Union’s proposal for a multilateral investment court

2021 ◽  
Vol 13 (1) ◽  
Author(s):  
George Cadillac
Keyword(s):  
European Union ◽  
Developed Countries ◽  
International Investment ◽  
Positive Change ◽  
The European Union ◽  
The Public ◽  
Current Regime ◽  
Investment Arbitration ◽  
Grey Area ◽  
The Creation

ESAANZ ESSAY PRIZE WINNERInternational investment arbitration is in a controversial state. While the systems put into place by various treaties allow an investor to protect their investments directly by initiating proceedings against a government, claims of arbitrator bias are supported by the fact that arbitrators are appointed by the parties. There are transparency concerns which contribute to arbitrators being biased towards investors from developed countries. The regime of international investment arbitration is heading towards either abolition or reform. The European Union, being the partner to more investment treaties than any other country, proposes the creation of a multilateral investment court. As a structured arbitration court, there may be less bias than the current regime of investment arbitration as proceedings would be more transparent and open to the public, binding precedent would leave less grey area in decisions and add consistency to rulings, and judges no longer being appointed by the parties removes any incentive to rule in favour of their appointing party to secure future appointments. Together with an appeals system, this proposed structure purports to be a positive change in ISDS. However as the essay will show, this approach is not likely to be attractive to the majority of states who are interested in protecting their right to govern. These issues will need to be addressed if the investment court proposal is going to gain support.

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