scholarly journals The ISDS Mechanism and Standards of Protection in the Investment Treaty

Lentera Hukum ◽  
2020 ◽  
Vol 7 (2) ◽  
pp. 137
Author(s):  
Pandu Rizky Putra Pratama ◽  
Prita Amalia
Keyword(s):  
Host Country ◽  
Legal Protection ◽  
International Investment ◽  
Legal Certainty ◽  
Bilateral Investment Treaty ◽  
International Investment Law ◽  
Investment Treaty ◽  
Investment Agreement ◽  
The Impact ◽  
Investment Agreements

International investment activities require legal certainty for investors. While the host country also needs legal certainty related to state sovereignty, legal protection is needed for investors and the host country to realize legal certainty in investment activities. Countries in the world entered into investment agreements to provide legal protection for investment activities. In investment agreements, generally, there are requirements to comply with the national law of the host country to get protection from investment agreements. This study aims to review the implications of not fulfilling the obligations in the investment agreement to apply the benefits contained therein, specifically regarding ISDS mechanism and protection standards. This study finds that the impact of the non-fulfillment of these obligations on the ISDS mechanism depends on the admission clause specified in the Bilateral Investment Treaty (BIT). On standards of protection, it refers to general principles of international law and arbitration decisions, investments that violate these obligations do not receive international legal protection. This research suggests the Indonesian Government tighten the admission clause in the BIT to prevent investors from using the ISDS mechanism in the BIT and to specify the impact of violating obligations to comply with the national laws of the host country. KEYWORDS: International Investment Law, Standards of Protection, Bilateral Investment Treaty

HUMAN RIGHTS IN INTERNATIONAL INVESTMENT LAW: THE 2016 MOROCCO–NIGERIA BILATERAL INVESTMENT TREATY

2019 ◽  
Vol 68 (3) ◽  
pp. 761-770 ◽  
Author(s):  
Niccolò Zugliani
Keyword(s):  
Human Rights ◽  
International Investment ◽  
African Countries ◽  
Socially Responsible ◽  
Bilateral Investment Treaty ◽  
International Investment Law ◽  
Investment Treaty ◽  
International Investment Agreements ◽  
Fertile Ground ◽  
Investment Agreements

AbstractThe 2016 Morocco–Nigeria bilateral investment treaty (BIT) stands out from other such treaties because of its innovative human rights approach to the protection and promotion of foreign direct investment. Human rights permeate its approach to the regulation of investment in a manner which is most unusual in international investment agreements (IIAs). As a result, this is the most socially-responsible BIT currently concluded. Although it remains exceptional within the investment-treaty framework, the treaty reflects African initiatives to ensure that the next generation of BITs encourages more responsible investments. As such, it shows that human rights-compliant investment treaties can find fertile ground in developing African countries and it sets an example for current and future negotiations aimed at fostering respect for human rights in investment activities.

scholarly journals LEGAL PROTECTION AGAINST THE FAILURE TO COMPENSATE ON INTERNATIONAL INVESTMENT DISPUTE

2019 ◽  
Vol 8 (2) ◽  
pp. 205
Author(s):  
Vunieta . ◽  
Walida Ahsana Haque
Keyword(s):  
Foreign Investment ◽  
Dispute Settlement ◽  
Legal Protection ◽  
International Investment ◽  
Bilateral Investment Treaty ◽  
Arbitral Award ◽  
Investment Treaty ◽  
Arbitration Proceeding ◽  
Investment Agreement ◽  
Arbitration Award

A dispute between two or more countries involved in a foreign investment may arises<br />from investment agreement agreed upon by the parties. If one of the parties breaches<br />the agreement, the parties will automatically agree to resolve the dispute to the agreed<br />arbitration forum based on the dispute settlement clause on the agreement, those<br />forum such as the ICSID arbitration. Therefore, the existence of dispute settlement<br />clause on an investment agreement (Bilateral Investment Treaty) is very necessary.<br />The result of the above-mentioned arbitration proceeding is a binding and final<br />decision for the parties. An arbitral award, should contain relief or compensation<br />set by the arbitrator as the result of the proceeding. The reliefs are given as orders to<br />indemnify the damages obtained by Claimant. Issues arises when Respondent has been<br />proven to have done detrimental damage to the Claimant yet Respondent deliberately<br />neglected his/her obligation to compensate Claimant accordingly based on the relief/<br />compensation specified in the award. The non-compliance of the Respondent to<br />fulfill the compensation obligation is due to the fact that the party habitually assume<br />that the arbitration award does not have the legal force equivalent to the decision<br />of general court, even though the nature of the award is final and binding. Thus the<br />interests and rights of the Applicant who has been declared entitled to compensation<br />based on the arbitration award must be protected so that their rights can be fulfilled<br />according to the law.

scholarly journals Sustainability Impact Assessments as Inputs and as Interpretative Aids in International Investment Law

2017 ◽  
Vol 18 (1) ◽  
pp. 163-199 ◽  
Author(s):  
Markus Gehring ◽  
Sean Stephenson ◽  
Marie-Claire Cordonier Segger
Keyword(s):  
International Investment ◽  
Negotiation Process ◽  
International Investment Law ◽  
Investment Treaty ◽  
Directorate General ◽  
Treaty Interpretation ◽  
Social Environmental ◽  
The Impact ◽  
Investment Agreements ◽  
Trade And Investment

Sustainability impact assessments (SIAs) act as bridges between trade and investment agreements and social, environmental and human considerations. They are relevant as inputs into the treaty negotiation process and as interpretive aids in investment treaty arbitration. As inputs, SIAs attempt to measure the impact of environmental, social, economic and human rights aspects of trade and investment agreements prior to and during a treaty’s negotiation. SIAs have been performed on all major negotiations in the EU since 1999, and will continue to be performed under its investment competence. Case studies in this article demonstrate how SIAs may include climate change. Additionally, legal recommendations are offered which, if adopted by the Directorate General for Trade, should increase the effectiveness of SIAs. As interpretive aids, SIAs may be key references in treaty interpretation arguments in light of increased environment and development related investment disputes and focus on sustainable development policy space.

International Investment Law and Practice in the Kingdom of Cambodia: An Evolving ‘Rule Taker’?

2017 ◽  
Vol 18 (5-6) ◽  
pp. 942-973
Author(s):  
Romesh Weeramantry
Keyword(s):  
Foreign Direct Investment ◽  
Direct Investment ◽  
Free Trade Agreements ◽  
International Investment ◽  
Court System ◽  
International Investment Law ◽  
Investment Treaty ◽  
Investment Arbitration ◽  
Investment Law ◽  
Investment Agreements

Abstract Cambodia has undertaken several initiatives to attract foreign direct investment (FDI), which has been growing rapidly in recent years, particularly through participating in Association of South East Asian Nations (ASEAN) investment agreements and free trade agreements (FTAs). This article first outlines Cambodia’s arbitration law and practice, its Law on Investment, the court system, problems relating to corruption, and foreign direct investment (FDI) patterns. It then surveys trends in Cambodia’s comparatively belated signing of investment treaties, and their main contents (including recent treaties with India and Hungary, adopting very different models). The article then discusses the only investment arbitration instituted against Cambodia, which was successfully defended, followed by a comment on the future prospects for Cambodia’s investment treaty program.

Part II Guide to Key Preliminary and Procedural Issues, 7 The Fate of Frivolous and Unmeritorious Claims

2018 ◽  
Author(s):  
Yannaca-Small Katia ◽  
Earnest David
Keyword(s):  
Current Trend ◽  
International Investment ◽  
International Arbitration ◽  
Commercial Arbitration ◽  
Bilateral Investment Treaty ◽  
Investment Treaty ◽  
International Investment Agreements ◽  
Investment Agreements

The term ‘frivolous’ is sometimes used to describe a claim which is filed with knowledge that it has little or no chance of succeeding. This chapter examines the procedures available under international investment agreements and international arbitration rules to address on a preliminary and expedited basis claims that are frivolous in the sense of being baseless and unmeritorious, regardless of claimant’s motives. The current trend towards preliminary and expedited consideration of a request that an application in investor-state arbitration be dismissed as frivolous is rooted in the 2004 US Model Bilateral Investment Treaty and the 2006 amendment to the International Centre for Settlement of Investment Dispute (ICSID) Rule 41(5). There is also an emerging focus on the summary disposition of such frivolous claims in international arbitration rules traditionally concerned with commercial arbitration.

An Overview of Sri Lanka’s Bilateral Investment Treaties: Status Quo and Some Insights into Future Modifications

2016 ◽  
Vol 7 (2) ◽  
pp. 287-318
Author(s):  
Dilini PATHIRANA
Keyword(s):  
Sri Lanka ◽  
Dispute Settlement ◽  
International Investment ◽  
Status Quo ◽  
International Investment Law ◽  
Global Context ◽  
Investment Treaty ◽  
International Investment Agreements ◽  
Investment Law ◽  
Investment Agreements

AbstractSri Lanka is the first country against which a foreign investor has had recourse to international arbitration based on the dispute settlement clause in a bilateral investment treaty (BIT). This was the case of AAPL v. Sri Lanka. Since then, the country has been challenged twice before the International Centre for Settlement of Investment Disputes (ICSID), while its latest encounter was in the case of Deutsche Bank AG v. Sri Lanka. In the intervening years between these two cases, Sri Lanka maintained silence and failed to alter its BITs in a global context where the conventional attitude on international investment agreements (IIAs) is being increasingly reconsidered. This paper provides an overview of Sri Lanka’s BITs, which highlights the urgency of reconsidering the country’s investment treaty-making practice. It suggests some modifications to align the country’s investment treaty-making practice with international investment law (IIL) developments.

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.

The Strategic Use of International Investment Law in Colombia – Textiles: Navigating within the International Regime Complex for Development

2020 ◽  
Vol 13 (1) ◽  
pp. 31-58
Author(s):  
Rafael Tamayo-Álvarez
Keyword(s):  
Dispute Settlement ◽  
Legal Protection ◽  
World Trade Organisation ◽  
International Investment ◽  
Dispute Settlement Mechanism ◽  
International Investment Law ◽  
Investment Treaty ◽  
Wto Dispute Settlement ◽  
Investment Law ◽  
Settlement Mechanism

AbstractTrade-based money laundering (TBML) is a major concern in Colombia, where criminal organisations employ under-invoicing to conceal drug-trafficking proceeds. In response, Colombia imposed a compound tariff on certain Panamanian importations that were considered linked to this phenomenon. Alleging that the policy measure infringed Colombia’s tariff concessions, Panama activated the World Trade Organisation (WTO) dispute settlement mechanism. The dispute revolved around Article II:1 of the General Agreement on Tariff and Trade 1994. Colombia argued that this norm should be interpreted as to encompass licit trade only. Colombia looked for normative support in the investment treaty regime by establishing a parallel between undervalued imports and illegal investments. Therefore, just as investment treaty tribunals abstain from extending international legal protection to illegal investments, the WTO adjudicating bodies should not extend tariff concessions to importations linked to TBML activities. This article contends that by transplanting a more favourable doctrine of legality from the investment treaty regime to the multilateral trade regime, Colombia engaged in strategic regime shifting. Accordingly, drawing on regime complexes analysis, the article argues that by considering development a common issue-area, it is possible to articulate strategic connections between both regimes.

Illegal Investments in Investment Treaty Arbitration

2012 ◽  
Vol 11 (2) ◽  
pp. 281-323 ◽  
Author(s):  
Stephan W. Schill
Keyword(s):  
International Investment ◽  
Foreign Investor ◽  
Considerable Potential ◽  
International Investment Law ◽  
Investment Treaty ◽  
Investment Law ◽  
The Impact ◽  
The Relationship ◽  
Domestic Law ◽  
Investment Treaty Arbitration

Abstract Investment treaty tribunals on numerous occasions have had to deal with the impact of breaches of domestic law by a foreign investor on the investment’s protection under an international investment treaty. In this context, tribunals had to interpret different “in accordance with host State law”-clauses contained in investment treaties, but also dealt with the effect of illegality in the absence of such clauses. The present article traces this increasingly complex jurisprudence and frames it as an issue of the relationship between domestic law and international investment law. Although different approaches exist, most importantly as to the effect of domestic illegality on the jurisdiction of investment treaty tribunals, the article suggests that there is considerable potential for convergence in arbitral jurisprudence, thus unveiling the contours of a doctrinal structure for dealing with illegal investments in international investment law and arbitration.

The (mis)use of development in international investment law: understanding the jurist’s limits to work with development issues

2017 ◽  
Vol 10 (2) ◽  
Author(s):  
Nitish Monebhurrun
Keyword(s):  
Transnational Corporations ◽  
International Investment ◽  
Law And Development ◽  
International Investments ◽  
International Investment Law ◽  
Investment Protection ◽  
Global North ◽  
Investment Agreement ◽  
Investment Law ◽  
Investment Agreements

AbstractThe decolonization period was characterized by the adoption of investment protection agreements with the objective of serving the purposes of both transnational corporations and newly decolonized States. These agreements are primarily meant to protect private international investments and, incidentally, they have been presented as instruments of development: protecting international investments to foster development. Many newly decolonized States signed and ratified such treaties with the aim of attracting foreign investors – but also to maintain existing ones; what was expected in return was a contribution to their development. This article studies the legal relationship which consequently exists between international investment law and development, but at the same time, it highlights the flagrant misuse of the concept of development in practice. In this law field, both the Global North and the Global South tend to envision development in a way which is deprived of all technical and scientific grounds. The paper firstly explains how the objective of development, rooted in such investment agreements, acquired a legal function. Bilateral investment agreements were a means to forge newly decolonized States’ expectations and belief concerning the paramount necessity to protect foreign investments so as to benefit in terms of development. In the international investment legal practice, the contribution to the host State’s development by the foreign investor has been frequently used as a criterion to identify an investment: to be protected by an investment agreement any activity must necessarily be identified as an investment. As the latter knows no definition some tribunals have considered that one of the criteria to identify an investment is a contribution to the development of the host State by the potential investor. Theoretically, this seems to consider the interests of developing States in their relationship with transnational corporations. However, and this is the second point, development has itself never really been defined – and still is not in this law field. It is hence used and applied as an undefined concept. Development is in fact referred to as an image, as a symbol, but never in its technical aspects. Accordingly, such reference made to the concept of development in international investment law is far from convincing and forges skepticism on its intrinsic necessity and use. In this vein, it raises the thorny question of the jurist’s technical competence to assess what development is and how it can – technically – be used in law.

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