Justice and Authority in Investment Protection

2021 ◽  
Vol 0 (0) ◽  
Author(s):  
Oisin Suttle
Keyword(s):  
Distributive Justice ◽  
International Investment ◽  
International Consensus ◽  
International Investment Law ◽  
Investment Protection ◽  
Global Distributive Justice ◽  
Investment Law

Abstract What role should concerns about distributive justice play in international investment law? This paper argues that answers to fundamental and contestable questions of social and global distributive justice are a necessary, if implicit, premise of international investment law. In particular, they shape our views on the purpose of investment law, and in turn determine the scope of authority that investment law can claim, and that states should accord it. The implausibility of achieving international consensus on these questions constitutes a substantial objection to the harmonization of investment law or the consistent operation of a multilateral investment court.

Investment Contracts and International Law: Charting a Research Agenda

2020 ◽  
Vol 31 (1) ◽  
pp. 353-368
Author(s):  
Lorenzo Cotula
Keyword(s):  
International Law ◽  
Academic Writing ◽  
International Investment ◽  
Public Interests ◽  
Public International Law ◽  
International Investment Law ◽  
Investment Protection ◽  
Policy Debates ◽  
Investment Law ◽  
Regulatory Powers

Abstract Investment contracts are an important part of the web of legal relations that underpin investment processes. They raise complex doctrinal issues, including with regard to their interface with public international law. The two books under review are part of a new surge in academic writing about investment contracts, in a field that is currently dominated by concerns about investment treaties and treaty-based arbitration. In this review essay, I explore the intersections between investment contracts and international law, engaging with the arguments presented in the two books and developing reflections based on trends in the wider literature. After situating the contract in academic and policy debates about international investment law, I compare the different approaches the two books embody – in relation to their scope, focus and format as well as the ways in which they conceptualize and piece together the multiple commercial and public interests at stake in investment contracting. I then discuss one theme that features prominently in both books – namely, the legal contours of investment protection, particularly in connection with stabilization clauses – and I examine its articulation with public regulatory powers. I conclude by outlining areas that deserve further exploration in scholarly work on investment contracts and international law.

scholarly journals Fair and Equitable Treatment Between the International and National Rule of Law

2019 ◽  
Vol 20 (4) ◽  
pp. 513-552 ◽  
Author(s):  
Velimir Živković
Keyword(s):  
Decision Making ◽  
Rule Of Law ◽  
International Investment ◽  
The Rule Of Law ◽  
International Investment Law ◽  
Investment Protection ◽  
National Rule ◽  
Fair And Equitable Treatment ◽  
Investment Law ◽  
Equitable Treatment

Abstract Promoting the rule of law is a potentially strong legitimating narrative for international investment law. Illustrating the interlinkage, the ubiquitous ‘fair and equitable treatment’ (FET) standard embodies distinctly rule of law requirements. But these requirements remain open-textured and allow understanding their meaning in either more ‘international’ or ‘national’ way. An ‘international’ understanding – detached from the host State’s vision on how the rule of law should look like – should remain dominant. But I argue that decision-making under the FET standard should also involve a systematic engagement with how these requirements would be understood in the host State’s law and how they were complied with from that perspective. Whilst not determinative for establishing a breach, this assessment better respects the expectations of the parties, strengthens the persuasiveness of findings and helps enhance the national rule of law as a key contributor to the ultimate goal of investment protection – economic development.

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 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.

Das Menschenrecht auf Wasser im internationalen Investitionsrecht

2021 ◽  
Author(s):  
Lara Maria Panosch
Keyword(s):  
Human Rights ◽  
Corporate Social Responsibility ◽  
Building Blocks ◽  
International Investment ◽  
Human Right ◽  
International Investment Law ◽  
Investment Protection ◽  
Investment Arbitration ◽  
Investment Law ◽  
Corporate Social

International investment law and the law of human rights currently show an unresolved relationship in the practice of international arbitration. The extent to which a human right to water can be accommodated within the framework of investment protection law has been considered in detail in this thesis. The possible solutions identified in the course of this research offer the potential to adequately take into account a human right to water in investment arbitration, both through non-contractual integration by means of a systemic interpretation along the established guidelines and through the contractual inclusion of explicitly formulated building blocks on Corporate Social Responsibility.

Interpretation in Good Faith and Its Relevance in International Investment Law

2021 ◽  
Vol 23 (1) ◽  
pp. 57-78
Author(s):  
Emily Sipiorski
Keyword(s):  
International Law ◽  
International Investment ◽  
Good Faith ◽  
Customary International Law ◽  
International Investment Law ◽  
Investment Protection ◽  
Future Value ◽  
Investment Law ◽  
Contractual Obligations ◽  
Behavioural Aspects

Abstract The principle of good faith drives forward the interpretation of provisions of international investment treaties. While the tribunal must interpret the treaty in good faith, the parties – as well as the tribunal – are also obliged to fulfil their treaty and contractual obligations in good faith. This creates a complex interplay of interpreting customary international law in the form of behavioural obligations. During this period of reconsideration of the system, these interpretative and behavioural aspects of the principle of good faith may provide an opening to a more cohesive system of investment protection. The following contribution approaches the tribunals’ power to interpret the good faith behavioural obligations of parties and considers its future value.

Evolution, Evaluation and Future Developments in International Investment Law

2021 ◽  
Keyword(s):  
International Law ◽  
Dispute Settlement ◽  
Practical Importance ◽  
International Investment ◽  
Political Issues ◽  
International Investment Law ◽  
Investment Protection ◽  
Future Developments ◽  
Current Reform ◽  
Investment Law

The law on the protection of foreign investments is situated at the crossroads of international law and diplomacy in the context of a globalized economy. It is therefore not surprising that investment law has undergone fundamental changes in the last decade. The exponential growth of arbitration cases has illustrated a number of complex legal and political issues that have called into question the efficiency and legitimacy of investor State dispute settlement (ISDS). Thus, even for experts in the field it is challenging to keep track with the rapid and fundamental changes of what is often described as one of the most dynamic fields of international law. Against this background, the present volume provides an ‘Evolution, Evaluation, and Future Developments in International Investment Law’. World leading academics and practitioners shed light on the most important developments such as the evolution of investment law and its relationship to general international law, the practical importance of State contracts, the role of investment protection in the age of climate change, and current reform projects under the auspices of ICSID and UNCITRAL. The volume is based on six keynote speeches held at the 10 Year Anniversary Conference of the International Investment Law Centre Cologne.

Towards an Agreement on Investment in Mercosur: Conflict and Complementarity of International Investment Law and International Trade-in-Services Law

2012 ◽  
pp. 556-596 ◽  
Author(s):  
James D. Fry ◽  
Juan Ignacio Stampalija
Keyword(s):  
Working Group ◽  
International System ◽  
International Investment ◽  
Common Market ◽  
Trade In Services ◽  
International Investment Law ◽  
Investment Protection ◽  
Investment Agreement ◽  
Investment Law ◽  
First Time

This article is the first to analyze the 2010 guidelines established by Mercosur’s Common Market Council for drafting an Agreement on Investment for Mercosur, which up until now has lacked any regulations for the promotion and protection of investment. This agreement is important not only because it potentially would fill a large gap in Mercosur law and strengthen Mercosur’s emergent common market, but also because it ostensibly represents the first time that Brazil has shown a real willingness to create an international system for investment protection, which represents a monumental breakthrough for Brazil. However, the guidelines (provided at the end of this article in an appendix) appear to have been created using the Protocol of Montevideo on Trade in Services as the model, as opposed to the more directly relevant norms from the realm of international investment law. This article explores whether this approach will lead to an international investment agreement that adequately promotes and protects investment in Mercosur. This article asserts that a better approach would be to use models from the realm of international investment law because these types of protections are needed in order to reassure investors. The sub-working group charged with drafting this agreement still is working on the draft agreement. Therefore, this article aims to influence that drafting process and subsequent debates over this draft agreement prior to its conclusion.

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