Domestic legal framework for investment protection and dispute settlement

2021 ◽  
Author(s):  
Keyword(s):  
Dispute Settlement ◽  
Legal Framework ◽  
Investment Protection

scholarly journals Zukunftsfähiger internationaler Rechtsrahmen für Investitionen in Afrika

2020 ◽  
Vol 23 (1) ◽  
pp. 3-40
Author(s):  
Ludwig Gramlich
Keyword(s):  
Dispute Settlement ◽  
Legal Framework ◽  
Investment Climate ◽  
Regional Organizations ◽  
New Developments ◽  
Investment Protection ◽  
National Courts ◽  
The One ◽  
Different Levels ◽  
Growing Population

The future of sustainable development in Africa and for its growing population will depend on investments which might come mostly from abroad attracted by a favourable investment climate (or ecosystem). It is rather doubtful that the actual („old“) international legal framework for investment-related and investment-specific measures which does hardly create an adequate balance between the interests of all important public as well as private stakeholders would meet the requirement of today and tomorrow. But any alterations or improvements must start from the present state of things. So, this study looks at the different levels and various instruments dealing with traditional standards of investment and investor protection, e.g. BITs und TIPs, and at the activities of global, regional and sub-regional organizations (in particular EU and OHADA). Moreover, new developments at global and regional levels are discussed including trends showing a somewhat specific African approach to investment issues (“Africanization”). Finally, a very important topic, i.e. the relation between investment protection and human rights (of investors and of other people negatively affected by relevant activities), is described and assessed in more detail. A second part of the analysis will turn to elaborating on dispute settlement and enforcement issues since till today, there seems to be a sharp distinction between Investor-State- Dispute Settlement (ISDS) by way of mediation, conciliation and arbitration on the one hand and judicial redress by national courts (of home, host or third States) on the other.

FDI and Dispute Settlement Arrangements in Bangladesh: Issues and Challenges

2021 ◽  
pp. 1-14
Author(s):  
Mohammad Belayet HOSSAIN ◽  
Asmah Laili Bt YEON ◽  
Ahmad Shamsul Bin Abd. AZIZ
Keyword(s):  
Economic Freedom ◽  
Dispute Settlement ◽  
Legal Framework ◽  
International Standards ◽  
Primary Concern ◽  
Host Countries ◽  
Foreign Investors ◽  
Significant Development ◽  
Investment Protection ◽  
Legal Security

Abstract For any foreign investor, protection of their investment is a primary concern in host states. National legislations and BITs usually provide legal security to them so that they can exercise their desired economic freedom in host countries. Without legal safeguards for their investments, they will not be motivated to invest their capital further. Like other host states, generally, the national laws and BITs of Bangladesh provide significant investment protection guarantees. This paper will discuss how far the protection through judicial or arbitral settlement is established in the legal framework and BITs of Bangladesh. Dispute settlement mechanisms in Bangladesh, various ICSID cases involving Bangladesh, and conflicts between Bangladesh and foreign investors are discussed. The paper also covers the issues and challenges of judicial arrangements in Bangladesh, and findings show that dispute settlement arrangements in Bangladesh are not up to international standards and require significant development. Last, recommendations are provided for consideration.

Three Salient Issues of the New Comprehensive Free Trade Agreements

2017 ◽  
Author(s):  
Stefan Griller
Keyword(s):  
Dispute Settlement ◽  
Free Trade Agreements ◽  
Trade Agreements ◽  
Settlement System ◽  
Investment Protection ◽  
National Courts ◽  
System P ◽  
Critical Account ◽  
Dispute Settlement System ◽  
The Relationship

The author argues that the mega-regionals are incorporating WTO standards on the removal of technical barriers to trade (TBT), but do not go much further. Consequently, domestic policies on consumer or environmental protection are inevitably affected. However, in this regard, the mega-regionals would not result in a substantive change. By contrast, the relationship between the removal of TBT and investment protection standards is qualified as poorly balanced, unclear, and creating fresh problems. This includes the possibility that damages might be awarded even in cases where the party to the agreement has correctly used its ‘right to regulate’. Moreover, a critical account of the investor-state dispute settlement system foreseen is offered. It is presented as unnecessarily complex, and creating unbalanced advantages for investors. The better alternative would be integrating national courts into the system.

Dispute resolution in the Islamic banking industry of Tanzania: learning from other jurisdictions

2016 ◽  
Vol 9 (1) ◽  
pp. 125-142 ◽  
Author(s):  
Abdul-Nasser H.R. Hikmany ◽  
Umar A. Oseni
Keyword(s):  
Dispute Resolution ◽  
Dispute Settlement ◽  
Banking Industry ◽  
Banking System ◽  
Legal Framework ◽  
Policy Framework ◽  
Islamic Banking ◽  
Court System ◽  
Content Type ◽  
Good Policy

Purpose This paper aims to examine the prospects of a dispute resolution framework for the Islamic banking industry in Tanzania under the existing legal framework. Design/methodology/approach This paper is based on comparative study by drawing significant lessons from other jurisdictions, and argues that to avoid some of the initial drawbacks in the dispute resolution framework for Islamic banking transactions in more advanced jurisdictions like Malaysia and United Kingdom, it is important for Tanzania to get it right from the onset to effectively manage Islamic banking disputes. Findings The study finds that apart from the court system which provides the main avenue for Islamic finance litigation, other processes such as arbitration and mediation which are deemed to be more sustainable could also be developed for effective dispute management. Research limitations/implications The study focuses on Tanzania banking system with comparison to other jurisdictions. Practical implications An increase of Sharī’ah-compliant products in Tanzania has led to the establishment of a number of Islamic banks. This study demonstrates the need for Tanzania to make use and/or make adjustment of its laws for effective dispute settlement of banking-related disputes. Originality/value This study appears to be the first paper to draw significant experiences from other jurisdictions to resolve Islamic banking disputes in Tanzania. It is expected to provide a good policy framework for the stakeholders in the Islamic banking industry in Tanzania.

scholarly journals The UNCLOS Dispute Settlement System: What Role Can It Play in Resolving Maritime Disputes in Asia?

2017 ◽  
Vol 8 (1) ◽  
pp. 91-115 ◽  
Author(s):  
Lan Ngoc NGUYEN
Keyword(s):  
Dispute Settlement ◽  
Legal Framework ◽  
Law Of The Sea ◽  
Settlement System ◽  
High Profile ◽  
The World ◽  
Maritime Disputes ◽  
United Nations Convention ◽  
Dispute Settlement System ◽  
The Unclos

AbstractAsia is currently the scene of some of the most high-profile maritime disputes in the world. Even though the majority of states in Asia are parties to the United Nations Convention on the Law of the Sea [UNCLOS], its dispute settlement system has only been utilized in a handful of cases. Given that negotiations have brought about limited results in easing many of the tensions, it is worth asking whether the UNCLOS dispute settlement system can play a role in the resolution of maritime disputes in Asia. This paper, based on a review of the disputes before UNCLOS Tribunals, as well the advantages and limitations of the system, argues that the UNCLOS dispute settlement system can make meaningful contributions to resolving thorny disputes between Asian states. It does so by providing a solution to the disputes brought before them, clarifying the legal framework for the conduct of the parties and facilitating co-operation amongst countries in the region.

13. International Economic Law

2016 ◽  
Author(s):  
Martin Dixon ◽  
Robert McCorquodale ◽  
Sarah Williams
Keyword(s):  
International Economic ◽  
Dispute Settlement ◽  
International Investment ◽  
International Investment Law ◽  
Investment Protection ◽  
Economic Law ◽  
Trade Law ◽  
International Trade Law ◽  
International Economic Law ◽  
The World

This chapter begins by defining international economic law. It then discusses the main international economic institutions: the World Trade Organization, the International Monetary Fund and the World Bank. It goes on to elaborate on the key principles of international trade law: tariffication, binding tariffs, most favoured nation treatment and the national treatment obligation and discusses exceptions to these principles, anti-dumping and subsidies, regional trade arrangements, and developing States and dispute settlement within the WTO. The chapter also discusses the key principles of international investment law (including foreign direct investment, protection standards, expropriation and dispute settlement); the international financial architecture; and international economic law and State sovereignty.

2 The Energy Charter Treaty: An Overview

2020 ◽  
Author(s):  
Hobér Kaj
Keyword(s):  
Energy Efficiency ◽  
Environmental Protection ◽  
Dispute Settlement ◽  
Energy Sector ◽  
National Treatment ◽  
Governmental Organization ◽  
Investment Protection ◽  
Energy Charter Treaty ◽  
Settlement Of Disputes ◽  
Multilateral Treaty

This chapter provides an overview of the Energy Charter Treaty. Developed on the basis of the European Energy Charter of 1991, the Energy Charter Treaty is a multilateral treaty dealing with inter-governmental co-operation in the energy sector. It covers five broad areas in the energy sector: trade; investment protection; transit; environmental protection and energy efficiency; and settlement of disputes. The trade provisions of the Treaty were designed to import fundamental GATT principles, such as non-discrimination, national treatment, most-favoured-nation treatment, and transparency. The provisions on investment protection are found in Part III of the Treaty. In particular, Article 13 in Part III deals with expropriation, while Article 10 deals with various standards of treatment of foreign investments. The rules for facilitating transit of energy through the participating States are laid down in Article 7. The transit regime is based on freedom of transit and the principle of non-discrimination. Meanwhile, Article 19 of the ECT sets forth a number of ‘best efforts’ obligations of the Contracting Parties with respect to environmental protection and energy efficiency. Lastly, the ECT includes two binding dispute settlement mechanisms: investor-State arbitration for investment disputes (Article 26) and state-to-state arbitration for basically all disputes that may arise under the ECT (Article 27), with the exception for disputes concerning competition (Article 6(7)) and environment (Article 27(2)). The chapter then looks at the Energy Charter Conference, an inter-governmental organization established by the ECT and the governing and decision-making body for the Energy Charter Process.

The CETA Opinion of the European Court of Justice and its Implications—Not that Selfish After All

2019 ◽  
Vol 22 (3) ◽  
pp. 503-521 ◽  
Author(s):  
Christian Riffel
Keyword(s):  
Dispute Settlement ◽  
Trade Agreement ◽  
European Court Of Justice ◽  
Court System ◽  
Eu Law ◽  
Investment Protection ◽  
Constitutional Principle ◽  
Court Of Justice ◽  
European Court ◽  
The Eu

Abstract In Opinion 1/17, the European Court of Justice (ECJ) found the investment court system compatible with European Union (EU) law. The ruling concerned the mechanism in the Comprehensive Economic and Trade Agreement (CETA) but the Court’s reasoning is equally applicable to other investment courts as established, for example, in the EU’s investment protection agreements with Singapore and Vietnam. This outcome was far from clear, given that in the past the accession to international dispute settlement bodies regularly foundered on the autonomy of the EU legal order. The present article parses the CETA Opinion and explores its implications. It particularly focuses on autonomy as a constitutional principle and its advancement in Opinion 1/17. Importantly, the ECJ accepted the superiority of a court created by international agreement in relation to the said agreement. Furthermore, it clarified that it is not prerequisite for the Court to rule first on the meaning to be given to an act of EU law before that act can be the subject matter of an investment dispute. Finally, the pdrerogative of the EU to autonomously set the level of protection of a public welfare goal must be secured in a treaty for the EU to join it.

The Snow Crab Dispute on the Continental Shelf of Svalbard: A Case-Study on Options for the Settlement of International Fisheries Access Disputes

2020 ◽  
Vol 22 (3-4) ◽  
pp. 455-470
Author(s):  
Valentin J. Schatz
Keyword(s):  
Dispute Settlement ◽  
Legal Framework ◽  
Snow Crab ◽  
The European Union ◽  
Dispute Settlement Mechanism ◽  
International Court Of Justice ◽  
International Court ◽  
International Dispute ◽  
National Jurisdiction

Abstract Disputes concerning access to fisheries within national jurisdiction can be drivers of illegal, unreported, and unregulated (IUU) fishing. International courts and tribunals may play an important role in settling certain categories of fisheries access disputes and in clarifying the applicable legal framework. This article explores international dispute settlement options for the dispute between the European Union (EU) and Norway over access to the snow crab fishery in Svalbard’s waters as an example of a complex fisheries access dispute. In doing so, it considers the potential and limits of: 1) the compulsory dispute settlement mechanism under Section 2 of Part XV of the 1982 United Nations Convention on the Law of the Sea (UNCLOS) and 2) litigation before the International Court of Justice (ICJ).

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