scholarly journals BALANCING INVESTOR PROTECTION WITH A STATE’S REGULATORY AUTONOMY IN THE AMENDED SADC FIP

Obiter ◽  
2021 ◽  
Vol 42 (3) ◽  
Author(s):  
Mmiselo Freedom Qumba
Keyword(s):  
Dispute Settlement ◽  
Investor Protection ◽  
International Investment ◽  
Policy Space ◽  
Member States ◽  
Investment Protection ◽  
International Investment Agreements ◽  
Fair And Equitable Treatment ◽  
Equitable Treatment ◽  
Investment Agreements

This article focuses on the 2016 Amended Annex 1 to the Southern African Development Community (SADC) Finance and Investment Protocol (FIP) (the Amended Annex), which entered into force on 22 August 2017. It aims at a comprehensive assessment of the adequacy of the Amended Annex in balancing investor protection with SADC member states’ quest for domestic policy space in the content of the treaty provisions. Prior to the amendment, the 2006 SADC FIP contained clauses that were considered challenging in the old international investment agreements (IIAs) – such as broad definitions of “investor” and “investment”, provision for international arbitration as a recourse, and according foreign investors fair and equitable treatment (FET) and most favoured nation (MFN) treatment. The challenges associated with bilateral investment treaties (BITs) (especially investor-state dispute settlement (ISDS) mechanisms, restrictions on sovereign policy space and regulatory autonomy) necessitated a review by the SADC member states of the 2006 SADC FIP. The purpose of this article is to reflect on the implications of the 2016 Amended Annex 1 to the SADC FIP with a view to finding a balance between protection enjoyed by investors and the host states’ right to regulate. The article adopts a comparative international law approach, which is useful in order better to understand a SADC member country’s approach to foreign investment protection.

The Evolving Nature of the Fair and Equitable Treatment (FET) Standard: Challenging Its Increasing Pervasiveness in Light of Developing Countries’ Concerns - The Case for Regulatory Rebalancing

2013 ◽  
pp. 114-146 ◽  
Author(s):  
Jason Haynes
Keyword(s):  
Developing Countries ◽  
International Investment ◽  
Investment Protection ◽  
International Investment Agreements ◽  
Fair And Equitable Treatment ◽  
Equitable Treatment ◽  
Investment Agreements

The fair and equitable treatment (FET) standard is undoubtedly a key feature of most International Investment Agreements concluded by developing countries today. In practice however, the standard raises a number of potent concerns which have not gone unnoticed. This article accordingly attempts to critically analyze the increasing intrusiveness of the FET standard in light of growing concerns expressed by developing countries following a number of large arbitral awards which have been handed down against them. In this regard, the article not only challenges the conceptual underpinnings of the standard but also the substantive elements which have become synonymous with it. It concludes by providing an approach to regulatory balancing which would reposition the FET standard in the context of other investment protection standards as well as the standing of developing countries.

Fair and Equitable Treatment in International Investment Agreements

2017 ◽  
Author(s):  
Roland Kläger
Keyword(s):  
International Law ◽  
Due Process ◽  
International Investment ◽  
General Character ◽  
Minimum Standard ◽  
Customary International Law ◽  
International Investment Agreements ◽  
Fair And Equitable Treatment ◽  
Equitable Treatment ◽  
Investment Agreements

Fair and equitable treatment is a central norm in international investment law. This norm is contained in the vast majority of international investment agreements as one of the main standards for the protection of foreign investors. Historically, international investment agreements contained short and general clauses of fair and equitable treatment, which were formulated either as free-standing provisions with a reference to general international law, or to the international minimum standard of customary international law. Especially since the first decade of the 21st century, drafting approaches to fair and equitable treatment became increasingly diverse and generated complex and elaborate clauses seeking to address the different elements of the norm that have developed over time. The drafting approaches reflect the long-standing controversies with regard to fair and equitable treatment and the question of whether this concept is to be constructed in accordance with the international minimum standard or as an independent and self-contained standard possibly exceeding customary international law. Both concepts have remained vague and have created difficulties in the interpretation of fair and equitable treatment, which due to its general character became a prominent cause of action in investor-state arbitration proceedings. The evolution of arbitral jurisprudence stimulated the emergence of different elements of fair and equitable treatment, including the protection of the investor’s legitimate expectations, the protection against discrimination and arbitrary treatments, and the principles of due process, denial of justice, and transparency. The increasing number of cases on the basis of fair and equitable treatment also led to concerns and criticism that a far-reaching concept of the norm would threaten the host states’ sovereignty and their right to regulate, as well as the principle of sustainable development. These concerns and the fact that a growing number of investment disputes were brought against developed countries motivated first the North American Free Trade Agreement member states and subsequently other states and the European Union to adapt their international investment agreements in order to try to concretize the concept of fair and equitable treatment and to limit the discretion of arbitrators. The concept of fair and equitable treatment has also received considerable attention by scholars who propose a variety of different approaches to the interpretation of the norm and the balancing of the conflicting private and public interests at stake.

Investment Protection in Disputed Maritime Areas

2018 ◽  
Vol 19 (5-6) ◽  
pp. 828-859
Author(s):  
Peter Tzeng
Keyword(s):  
Dispute Settlement ◽  
Political Risk ◽  
International Investment ◽  
Joint Development ◽  
Investment Protection ◽  
International Investment Agreements ◽  
Protection Mechanisms ◽  
United Nations Convention ◽  
Risk Insurance ◽  
Investment Agreements

Abstract Disputed maritime areas are often sources of valuable natural resources, but they are also often sources of conflict. It is thus important for investors investing in such areas to know the array of investment protection mechanisms available to them. This article examines four such mechanisms (dispute settlement under international investment agreements (IIAs), dispute settlement under the United Nations Convention on the Law of the Sea (UNCLOS), dispute settlement under contracts, and political risk insurance) in the context of three scenarios of disputed maritime areas (unregulated areas, joint development areas, and provisionally delimited areas). It concludes that dispute settlement under IIAs and UNCLOS face significant obstacles not only on jurisdiction and admissibility, but also on the merits. As a result, the most practical solution for investors is to rely on dispute settlement under contracts or political risk insurance to protect their investments.

Equity-Based Decision-Making and the Fair and Equitable Treatment Standard: Lessons From the Argentine Investment Disputes – Part I

2012 ◽  
pp. 210-255
Author(s):  
Srilal M. Perera
Keyword(s):  
Decision Making ◽  
International Law ◽  
International Investment ◽  
International Investment Law ◽  
Treatment Standard ◽  
International Investment Agreements ◽  
Fair And Equitable Treatment ◽  
Investment Law ◽  
Equitable Treatment ◽  
Investment Agreements

In Part I of this two-part article the author examines the foundations for equity-based decision-making under international law and their relevance to resolving contemporary investment disputes based on the Fair and Equitable Treatment standard (FET standard). He contends that equity-based decision-making in the past has been rare, and in such instances adjudicators have been extremely restrained because of the propensity for subjective judgments. However, in the modern day application of equitable considerations in a large number of investments disputes before the International Centre for Settlement of Investment Disputes (ICSID) seeking relief based on the FET standard, the decisions have mostly been inconsistent and conflicting, leading often to inexplicable and excessive remedies. In no other line of cases has this trend been more demonstrated than in the investment disputes following the Argentine economic crisis. They point more to the serious anomalies and omissions and interpretive issues in International Investment Agreements (mostly BITs) which require remedial measures if international investment law itself is to advance.

scholarly journals Multilateral Framework of Investment Facilitation at the WTO: Initiatives and Perspectives from the Global South

2021 ◽  
Vol 43 (2) ◽  
pp. 305-329
Author(s):  
Rafael Ramos Codeço ◽  
Ana Rachel Freitas
Keyword(s):  
Global South ◽  
International Investment ◽  
Negotiation Process ◽  
Policy Space ◽  
Investment Environment ◽  
Investment Protection ◽  
International Investment Agreements ◽  
Investment Facilitation ◽  
National Economies ◽  
Investment Agreements

Abstract The focus of International Investment policymaking in the global South has been shifting from investment protection to investment facilitation (IF). This movement marks an attempt to improve the attractiveness of national economies for foreign direct investment (FDI) and to recover the policy space previously curbed by traditional investment protection clauses. The popularity of investment facilitation led to the beginning of a negotiation process at the World Trade Organization (WTO) to formulate a multilateral agreement in this area. However, the differing negotiation practices related to IF could provoke schisms between the WTO members engaging in this discussion. The latest international investment agreements (IIAs) featuring IF provisions, signed by countries in the global South, indicate that during multilateral negotiations, these countries will focus on improving transparency, predictability and simplicity of the investment environment, as well as preserving their ability to develop public policies that are in line with their development strategies. However, some of the provisions that bring such preferences to fruition would challenge these countries’ bureaucratic and financial capacity. As discussions evolve at the WTO, countries in the global South will need to clarify their positions and co-ordinate their efforts in order to shape an alternative framework that fits their interests.

scholarly journals Reinterpreting the Fair and Equitable Treatment Provision in International Investment Agreements as a New and More Legitimate Way to Manage Risks

2016 ◽  
Vol 7 (2) ◽  
pp. 439-443
Author(s):  
Azernoosh Bazrafkan ◽  
Alexia Herwig
Keyword(s):  
Political Risk ◽  
International Investment ◽  
Legal Provisions ◽  
International Investment Agreements ◽  
Treatment Provision ◽  
Fair And Equitable Treatment ◽  
Equitable Treatment ◽  
Risk Insurance ◽  
Investment Agreements ◽  
Full Protection

International investment agreements (IIAs) emerged in the 1960's as an instrument to lower political risk for foreign investors and to facilitate political risk insurance when investing in developing countries with weak governance structures. Political risk is constituted by interferences to the investment by host states once the investor has entered the market and which would render the execution of the investment unduly burdensome, deprive the investor of the control or enjoyment of the investment or discriminate or treat the foreign investor arbitrarily. The legal provisions in IIAs include non–discrimination provisions, fair and equitable treatment, full protection and security, rights to compensation in case of expropriations, including indirect regulatory ones with the effect of depriving the investor of the control and benefits of the investment, provisions on free transfer of capital and, occasionally, non–precluded measures clauses as well as stabilization clauses in which the host state promises not to change the regulatory environment affecting the investment.

scholarly journals Eksistensi Pemberantasan Korupsi dalam Perjanjian investasi Internasional di Indonesia

INTEGRITAS ◽  
2018 ◽  
Vol 4 (2) ◽  
pp. 19
Author(s):  
Hesti Widyaningrum
Keyword(s):  
Law Enforcement ◽  
Criminal Law ◽  
Dispute Settlement ◽  
International Investment ◽  
The State ◽  
International Arbitration ◽  
International Investment Agreements ◽  
Equitable Treatment ◽  
The Cost ◽  
Investment Agreements

The International Investment Agreements can actually weaken the existence of law enforcement in Indonesia over the eradication of corruption. Surely, an International Investment Agreementa in Indonesia should include a prohibition of corruption in pre, post and International Investment Agreements as India did in their model Bilateral Investment Treaties (BIT). In addition, Investors can sue the State for corruption law enforcement against him, through legal gap in fair n Equitable Treatment (FET) content on the grounds of "denial of justice." Futhermore, Investor-State Dispute Settlement (ISDS) mechanism content further strengthens Investor positions in International Arbitration, because only Investors can sue countries with compensation of up to billions of dollars. As a result, the State losses become 2 (two) times, the losses incurred by the act of corruption committed by the defendant and the cost of the case in International Arbitration. Similarly, Indonesia should also immediately adopt the FET concept in the Indonesia-New Model BIT where this content limits Investors to sue the State even in criminal law enforcement.

scholarly journals FAIR AND EQUITABLE TREATMENT STANDARD IN NTERNATIONAL INVESTMENT AGREEMENTS

2018 ◽  
Vol 7 (1) ◽  
pp. 1
Author(s):  
Sefriani .
Keyword(s):  
Due Process ◽  
International Investment ◽  
International Investment Law ◽  
Host State ◽  
Legitimate Expectation ◽  
Treatment Standard ◽  
International Investment Agreements ◽  
Fair And Equitable Treatment ◽  
Equitable Treatment ◽  
Investment Agreements

<pre><span lang="EN-US">In the last five years, the number of investors who suit against host state in the international arbitration forum increased significantly. Almost all lawsuits used fair and equitable treatment (FET) standard which has been violated by the host state. Most of international investment agreements including those that were made by Indonesia contain FET standard clauses. However, there are no definitions related to this standard. This condition potentially raises a very wide interpretation of the standard. The problem formulations in this article are how the history of FET is, where its position in international investment law is and what elements of FET standard are. The results show that the FET standard has existed since Havana Charter followed by various FCN, BIT and other international investment agreements. FET standard can be categorized as customary international, legally binding on all countries regardless their national law. Although there is no universal approval regarding the scope of FET standard, the writings which have been published and the arbitral tribunal decision mentions that those elements are legitimate expectation; due process; denial of justice; rule of law; non-discrimination; transparency; consistency, good faith, and reasonableness.</span></pre><pre><span lang="EN-US"> </span></pre>

Risk, Responsibility, and Fairness in International Investment Law

2017 ◽  
Author(s):  
Azernoosh Bazrafkan ◽  
Alexia Herwig
Keyword(s):  
International Investment ◽  
International Investment Law ◽  
Political Risks ◽  
Systemic Risks ◽  
International Investment Agreements ◽  
Fair And Equitable Treatment ◽  
Ex Ante ◽  
Investment Law ◽  
Equitable Treatment ◽  
Investment Agreements

International investment agreements (IIAs) accommodate two framings of risk in need of mitigation: political risks and risks of physical externalities. The chapter discloses that there is no consistency in the finer-grained framing of these risks in arbitral awards, and analyses these framings from the perspective of the fair and equitable treatment (FET) standard. It is argued that the requirements of fairness and equity call for a just distribution of systemic risks, which IIAs create. It must be ensured that IIAs yield greater ex ante benefits than risks for each stakeholder. The implication is twofold: governmental regulation necessary to protect human rights can never give rise to a right to damages under FET for frustration of expectations and good faith imperfections in regulations by developing countries must be tolerable insofar as emerging development is the constitutive reason for why foreign investment is likely to yield higher ex ante benefits than risks to investors.

6 The Interpretation of Investment Treaties

2021 ◽  
Author(s):  
Salacuse Jeswald W
Keyword(s):  
International Investment ◽  
Vienna Convention ◽  
Investment Treaty ◽  
International Investment Agreements ◽  
Fair And Equitable Treatment ◽  
Two Factors ◽  
Treaty Interpretation ◽  
Investment Treaties ◽  
Equitable Treatment ◽  
Investment Agreements

This chapter discusses the interpretation of investment treaties. Treaty interpretation is never easy, but the task of interpreting investment treaties is rendered particularly difficult by two factors: first, the generality and vagueness of many of the terms used in their texts, such as ‘fair and equitable treatment’, ‘full protection and security’, and ‘expropriation and measures tantamount to expropriation’ which reasonable persons may interpret differently. Although investment treaties have not traditionally defined these terms, some of the more recent international investment agreements, perhaps influenced by disputed arbitral decisions, have sought to provide more or less detailed definitional provisions for the often-contested important terms they employ. The second interpretational difficulty arises from the factual and legal complexity of the investment transactions and relationships to which investment treaties are applied. As a result of these complexities, arbitral tribunals and lawyers must devote significant effort and time to give meaning to words that at first glance appear simple but usually are not. The chapter then provides guidance on treaty interpretation. The basic rules of investment treaty interpretation are found in Articles 31, 32, and 33 of the Vienna Convention on the Law of Treaties (VCLT).

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