scholarly journals Must We Protect Foreign Investors?

2018 ◽  
Vol 5 (2) ◽  
pp. 205-225 ◽  
Author(s):  
Johannes Kniess
Keyword(s):  
Public Interest ◽  
Dispute Settlement ◽  
General Rule ◽  
Prima Facie ◽  
Moral Rights ◽  
Foreign Investors ◽  
The Public ◽  
Investment Protection ◽  
Socially Disadvantaged ◽  
Trade And Investment

Abstract Investment protection clauses, and the investor-state dispute settlement (ISDS) mechanisms they enable, have become a common feature of international agreements on trade and investment. Intended to promote foreign investment, these protections may also discourage governments from regulating in the public interest. This raises challenging normative questions about the rights of investors and distributive justice. In this paper, I argue that a global investment regime that disadvantages developing countries and socially disadvantaged groups is prima facie unfair. This conclusion must be defended against the claim that investors have certain independent moral rights to have their property protected, regardless of the distributive consequences. Granting the premise that such investor rights exist, I argue that these cannot plausibly ground a general rule against public interest regulation that undermines the value of property. I conclude that even if foreign investors have rights that must be safeguarded, the current investment regime must be reformed.

Investor-State dispute settlement (ISDS) cases and India: affronting regulatory autonomy or indicting capricious state behaviour?

2021 ◽  
Vol ahead-of-print (ahead-of-print) ◽  
Author(s):  
Prabhash Ranjan
Keyword(s):  
Public Interest ◽  
Dispute Settlement ◽  
Due Process ◽  
International Investment ◽  
Public Power ◽  
Foreign Investors ◽  
Content Type ◽  
International Investment Law ◽  
Global Context ◽  
State Behaviour

Purpose The dominant narrative in the investor-State dispute settlement (ISDS) system is that it enables powerful corporations to encroach upon the regulatory power of developing countries aimed at pursuing compelling public interest objectives. The example of Phillip Morris, the tobacco giant, suing Uruguay’s public health measures is cited as the most significant example to prove this thesis. The other side of the story that States abuse their public power to undermine the protected rights of foreign investors does not get much attention. Design/methodology/approach This paper reviews all the ISDS cases that India has lost to ascertain the reason why these claims were brought against India in the first place. The approach of the paper is to study these ISDS cases to find out whether these cases arose due to abuse of the State’s public power or affronted India’s regulatory autonomy. Findings Against this global context, this paper studies the ISDS claims brought against India, one of the highest respondent-State in ISDS, to show that they arose due to India’s capricious behaviour. Analysis of these cases reveals that India acted in bad faith and abused its public power by either amending laws retroactively or by scrapping licences without following due process or going back on specific and written assurances that induced investors to invest. In none of these cases, the foreign investors challenged India’s regulatory measures aimed at advancing the genuine public interest. The absence of a “Phillip Morris moment” in India’s ISDS story is a stark reminder that one should give due weight to the equally compelling narrative that ISDS claims are also a result of abuse of public power by States. Originality/value The originality value of this paper arises from the fact that this is the first comprehensive study of ISDS cases brought against India and provides full documentation within the larger global context of rising ISDS cases. The paper contributes to the debate on international investment law by showing that in the case of India most of the ISDS cases brought were due to India abusing its public power and was not an affront on India’s regulatory autonomy.

Female Genital Cosmetic Surgery: Legitimate Refinement or Illegal Mutilation?

2021 ◽  
pp. 1-19
Author(s):  
Ruth Gaffney-Rhys
Keyword(s):  
Public Interest ◽  
Cosmetic Surgery ◽  
Female Genital Mutilation ◽  
Prima Facie ◽  
Criminal Prosecution ◽  
Genital Mutilation ◽  
The Public ◽  
Healthy Female ◽  
Female Genital Cosmetic Surgery ◽  
Female Genital

Abstract The aim of this article is to assess whether Female Genital Cosmetic Surgery (FGCS), which refers to procedures which change the structure and appearance of healthy female genitalia for non-medical reasons, violates the Female Genital Mutilation Act 2003, in the light of CPS guidance issued in 2019 and literature regarding the motivations of women seeking FGCS and its effectiveness. The paper concludes that FGCS does, prima facie, constitute FGM and argues that the medical exception contained in the legislation should seldom be available – but based on CPS guidance, a criminal prosecution will rarely be in the public interest. The article ends by asserting that the distinction drawn in practice (if not in law) between the treatment of western and non-western women is problematic, not only because it is discriminatory, but because tolerating FGCS may serve to legitimise FGM and result in the circumvention of the FGM Act 2003.

RIGHT OF ACTION TO CHALLENGE TRANSACTIONS THAT RESULT IN FOREIGN INVESTORS GAINING CONTROL OVER BUSINESS ENTITIES OF STRATEGIC IMPORTANCE

2021 ◽  
Vol 11 (4) ◽  
pp. 112-138
Author(s):  
D.A. FEDYAEV
Keyword(s):  
Public Interest ◽  
Developed Countries ◽  
Foreign Investor ◽  
Foreign Investors ◽  
The Public ◽  
Right Of Action ◽  
Judicial Proceedings ◽  
The Law ◽  
Business Entities ◽  
The Right

In the Russian Federation, as in a number of other economically developed countries, there are legal restrictions on the admission of foreign investors to participate in commercial corporate organizations of strategic importance for national defence and state security. Failure by foreign investors to comply with this mechanism leads to the nullity of transactions and, as a consequence, to legal disputes, the subject of which are mainly restitution claims. There have been numerous problems and academic debates in recent court practice regarding the reasons and the possibility of satisfying such claims. In particular, in view of the changed circumstances after the conclusion of the contested transaction, the real public interest is not always visible pursued by the claim for application of consequences of its invalidity. The author proposes that in the course of judicial proceedings in such cases, when the defendant raises the relevant reasoned objections, not only to state the fact of violation of the law by a foreign investor, but also to reveal the public interest defended by the foreign investor. The author proposes that, in such cases, the defendant’s arguments should not be limited to stating that the foreign investor has breached the law. If one is not established, a claim may be dismissed under certain conditions, taking into account established doctrinal approaches to the understanding of the right of action.

FOREIGN INVESTMENTS, SOVEREIGNTY AND THE PUBLIC GOOD

2014 ◽  
Vol 23 (1) ◽  
pp. 1-22
Author(s):  
Francesco Francioni
Keyword(s):  
Public Good ◽  
Public Interest ◽  
International Community ◽  
General Interest ◽  
Host Countries ◽  
Investment Policies ◽  
The Public ◽  
Host State ◽  
Investment Protection ◽  
Global Institutions

In spite of occasional references to the “public interest” or the “public good” in legal instruments on foreign investment and in arbitral practice, effective implementation of the concept remains elusive. This is the case first of all due to the fact that arbitrators are faced with the difficulties inherent in performing the delicate function of a quasi “judicial review” of contested host State’s measures. The second factor relates to the fact that the notion of “public good” that emerges from contemporary arbitral practice is confined to the national public interest of the host State and does not include the general interest of the international community as a whole. This article argues that, given the present state of the international economy, the regime of investment protection has to be reconciled not only with the public interest of the host State but also with the emerging concepts of international common goods, which include the global environment, human rights and the cultural heritage of humanity. Given the lack of global institutions responsible for the management of such common goods, this article advocates a functional approach to the exercise of sovereignty that transcends the traditional principles of territoriality and nationality and entails the obligation of both home and host countries to take into account the effects of their investment policies on the general interest of the international community.

Parody and Moral Rights

2019 ◽  
pp. 167-195 ◽  
Author(s):  
Sabine Jacques
Keyword(s):  
Public Interest ◽  
Copyright Law ◽  
Moral Rights ◽  
Economic Rights ◽  
The Public ◽  
The Relationship ◽  
Personal Interests ◽  
Scope Of Protection

This chapter examines the relationship between parody and an author’s moral rights. It first traces the evolution of the concept of moral rights as a means of providing protection not only of the authors’ personal interests but also the public interest before discussing the reasons why moral rights might conflict with parodies. It considers two competing theories underlying the protection of authorial interests—the ‘monist’ theory and the ‘dualist’ theory—and their implications for the parody exception. It also explains how jurisdictions differ in the nature and scope of protection afforded to moral rights, noting that the parody exception in ‘copyright’ law does not extend to moral rights. The chapter goes on to explore the author’s paternity and integrity rights as well as their right against false attribution. It shows that, in the case of parodies, an overlap exists between the regimes applied to moral and economic rights.

Crafting the International Economic Order: The Public Function of Investment Treaty Arbitration and Its Significance for the Role of the Arbitrator

2010 ◽  
Vol 23 (2) ◽  
pp. 401-430 ◽  
Author(s):  
STEPHAN W. SCHILL
Keyword(s):  
Dispute Settlement ◽  
International Economic Order ◽  
International Standards ◽  
Dispute Settlement Mechanism ◽  
Commercial Arbitration ◽  
Party Autonomy ◽  
The Public ◽  
Investment Protection ◽  
Investment Treaty ◽  
Investment Treaty Arbitration

AbstractInvestment treaty arbitration, unlike commercial arbitration, is not a purely private dispute settlement mechanism that is entirely subject to party autonomy and limited in its effects to the parties to the proceedings. Rather, it fulfils a public function in influencing the behaviour of foreign investors, states, and civil society more generally by crafting and concretizing international standards of investment protection. Investment treaty arbitration thus implements and operates as part of a public system of investment protection. Arbitrators, as a result, incur obligations not only towards the parties to the proceedings, but vis-à-vis the whole system of investment protection. These obligations can be conceptualized as part of the public law implications of investment treaty arbitration and affect, inter alia, the role and status of arbitrators in investment treaty disputes, the procedural maxims that such arbitrations should follow, and the way arbitral awards should be crafted.

A First Glimpse of Light on the Emerging Invisible EU Model BIT

2014 ◽  
Vol 15 (3-4) ◽  
pp. 379-401 ◽  
Author(s):  
Frank Hoffmeister ◽  
Gabriela Alexandru
Keyword(s):  
European Union ◽  
Investment Policy ◽  
Public Consultation ◽  
The European Union ◽  
The Public ◽  
Investment Protection ◽  
Political Orientations ◽  
Partnership Agreement ◽  
The Right ◽  
Trade And Investment

The article recalls the general political orientations of the investment policy of the European Union (eu) as outlined by the three major institutions (Commission, Council, and Parliament) shortly after Lisbon. It then turns with some detail to the substantive standards and the enforcement chapter. The authors present a number of changes that the eu is pushing in its negotiations with Canada and Singapore and which are also outlined in the public consultation with respect to the eu-us Trade and Investment Partnership Agreement (ttip). They come to the conclusion that all these elements present “[a] new start for investment and investment protection,” marked by the need for “a better balance between the right of states to regulate and the need to protect investors,” as well as for an improved arbitration system in the emerging eu practice in its negotiations with third states.

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