scholarly journals ‘The Making of an Investment’ in the Context of the Temporal Scope of Investment Treaty Protection. Does the Indian Metals & Ferro Alloys Ltd v. Republic of Indonesia Award of 29 March 2019 Constitute a Breakthrough?

2021 ◽  
Vol 10 (1) ◽  
pp. 9-42
Author(s):  
Michał Pyka
Keyword(s):  
Legal Framework ◽  
International Investment ◽  
Arbitral Tribunal ◽  
Host State ◽  
Investment Treaty ◽  
Investment Arbitration ◽  
The Future ◽  
Legitimate Expectations ◽  
Investment Treaties ◽  
Legal Character

This contribution deals with the question of the legal character of investment treaty claims, brought to international investment arbitration, when alleged breaches of investment treaty obligations towards an investor occurred after the entry into force of an investment treaty but before the making of an investment by an investor. The analysis of the existing legal framework allows for the conclusion that the said acts of a host state are generally excluded from the scope of investment treaty protection. An arbitral tribunal neither has jurisdiction over these acts nor is it allowed to apply substantive treaty provisions thereto. This conclusion stems from the principle of intertemporal law and numerous provisions of investment treaties constituting the implementation or modification of this principle. Nevertheless, an arbitral tribunal is not fully deprived of the possibility of considering the acts of a host state preceding the making of an investmentand undertaken before any activity of the future investor took place. It can consider them as evidence of the intent of a host state, acts creating legitimate expectations of an investor or acts constituting elements of what is termed a continuing act.

15 Investment Treaty Dispute Settlement

2021 ◽  
Author(s):  
Salacuse Jeswald W
Keyword(s):  
Dispute Settlement ◽  
International Investment ◽  
State Governments ◽  
Rule Based ◽  
Host State ◽  
Rule Based System ◽  
Investment Treaty ◽  
Diplomatic Protection ◽  
Domestic Courts ◽  
Investment Treaties

This chapter focuses on investment treaty dispute settlement, examining the nature of conflicts between investors and states and the various means provided by treaties to resolve them. In general, investor–state disputes governed by treaties occur because a host state has taken a ‘measure’ that allegedly violates that state's treaty commitments on the treatment it has promised to accord to investments protected by that treaty. Before the advent of investment treaties, investors basically had three methods to seek resolution of their disputes with host states: (a) direct negotiation with host state governments; (b) domestic courts in the host country; and (c) diplomatic protection by their home states. In order to establish a stable, rule-based system for international investment, treaties provide means to resolve disputes about the interpretation and application of treaty provisions. Most investment treaties provide four separate dispute settlement methods: (1) consultations and negotiations between contracting states; (2) arbitration between contracting states; (3) consultations and negotiations between covered investors and host governments; and (4) investor–state arbitration.

14 Investment Treaty Exceptions, Modifications, and Terminations

2015 ◽  
Author(s):  
Salacuse Jeswald W
Keyword(s):  
International Investment ◽  
The Other ◽  
National Interests ◽  
Host State ◽  
Investment Treaty ◽  
The Future

This chapter considers the investment treaty devices of exceptions, modifications, and terminations. A state can encounter tensions between its perceived national interests and its requested or ratified treaty obligations in the negotiation and implementation of treaties. It has three basic devices to mediate these tensions. The first, which is employed as part of the negotiating process, is to create specific exceptions in the treaty to assure a host state sufficient latitude of action for the future. The other two, which are invoked after the investment treaty enters into effect, are for a state to modify the treaty provisions by agreement with other contracting parties or to terminate participation in the treaty and thus end its international investment obligations.

scholarly journals The Security of International Investments: a Synthesis of Impacts on Public Policies and Domestic Law of Host States

2021 ◽  
Author(s):  
◽  
Livia Costanza
Keyword(s):  
Public Policies ◽  
Legal Framework ◽  
International Investment ◽  
Public And Private ◽  
Foreign Investors ◽  
International Investment Law ◽  
Investment Treaty ◽  
Investment Law ◽  
Investment Treaties ◽  
Domestic Law

<p>The subject of this dissertation is the relationship between the protection of foreign investors' investments under international investment law and the domestic law of host states. Two questions arise in this connection. First, is the promotion and protection of investments comprised in investment agreements compatible with states' domestic law? Second, public policies of host states may appear to be in contradiction with an increased international security of investments. When such a conflict is challenged by foreign investors, what are the consequences for both parties? In general, investments are transactions that are private in nature, whose aim is to generate a positive rate of return. Investments can have pervasive consequences on countries' welfare, including, for example, the consequences on sustainable development; the use and protection of natural resources; and employment, to name a few. It is the role of the governments to balance these sometimes conflicting public and private interests. As of today, it seems that the regime established according to investment treaties does not strike an appropriate balance between the various interests concerned. After a brief look at the legal framework protecting foreign investments, the conflict areas between investment treaty provisions and domestic public policies of host states are explored through an empirical analysis of some case studies and recent arbitrations. Finally, this dissertation holds that, at a substantive level, investment law is a part of international law. Thus it must be consistent with its norms and it has to be interpreted in accordance with customary rules of treaty interpretation. The dissertation concludes by suggesting the creation of a state-investor relationship and advocates, in part, the establishment of development objectives in investment treaties as well as the inclusion of rights and obligations for all parties involved.</p>

International Investment Arbitration in Myanmar: Bounded Rationality, But Not as We Know It

2017 ◽  
Vol 18 (5-6) ◽  
pp. 974-1000
Author(s):  
Jonathan Bonnitcha
Keyword(s):  
Developing Countries ◽  
Foreign Investment ◽  
International Investment ◽  
Current Approach ◽  
Legal Environment ◽  
Military Rule ◽  
Investment Treaty ◽  
Investment Arbitration ◽  
Investment Treaties ◽  
The Government

Abstract In 2011, following almost fifty years of one-party military rule, Myanmar began a process of transition toward democracy. Alongside this process, the Government of Myanmar is pursuing a variety of reforms in the hope of attracting new foreign investment. This article examines elements of the national and international legal environment governing foreign investment in Myanmar. The focus is on Myanmar’s current approach to investment treaties and Myanmar’s experience of investor-state arbitration under such treaties to date, although the article also reviews Myanmar’s national laws that are relevant to international investment arbitration, notably its laws on foreign investment and on arbitration. The article highlights Myanmar’s position to date as a ‘rule-taker’ in the investment treaty regime. It draws attention to important differences between Myanmar’s experience with investment treaties and the experiences of other developing countries, as well as possible points of similarity.

scholarly journals The Security of International Investments: a Synthesis of Impacts on Public Policies and Domestic Law of Host States

2021 ◽  
Author(s):  
◽  
Livia Costanza
Keyword(s):  
Public Policies ◽  
Legal Framework ◽  
International Investment ◽  
Public And Private ◽  
Foreign Investors ◽  
International Investment Law ◽  
Investment Treaty ◽  
Investment Law ◽  
Investment Treaties ◽  
Domestic Law

<p>The subject of this dissertation is the relationship between the protection of foreign investors' investments under international investment law and the domestic law of host states. Two questions arise in this connection. First, is the promotion and protection of investments comprised in investment agreements compatible with states' domestic law? Second, public policies of host states may appear to be in contradiction with an increased international security of investments. When such a conflict is challenged by foreign investors, what are the consequences for both parties? In general, investments are transactions that are private in nature, whose aim is to generate a positive rate of return. Investments can have pervasive consequences on countries' welfare, including, for example, the consequences on sustainable development; the use and protection of natural resources; and employment, to name a few. It is the role of the governments to balance these sometimes conflicting public and private interests. As of today, it seems that the regime established according to investment treaties does not strike an appropriate balance between the various interests concerned. After a brief look at the legal framework protecting foreign investments, the conflict areas between investment treaty provisions and domestic public policies of host states are explored through an empirical analysis of some case studies and recent arbitrations. Finally, this dissertation holds that, at a substantive level, investment law is a part of international law. Thus it must be consistent with its norms and it has to be interpreted in accordance with customary rules of treaty interpretation. The dissertation concludes by suggesting the creation of a state-investor relationship and advocates, in part, the establishment of development objectives in investment treaties as well as the inclusion of rights and obligations for all parties involved.</p>

Hesitant Embrace: China’s Recent Approach to International Investment Rule-Making

2015 ◽  
Vol 16 (5-6) ◽  
pp. 843-868 ◽  
Author(s):  
Axel Berger
Keyword(s):  
Policy Making ◽  
Significant Contribution ◽  
International Investment ◽  
Investment Policy ◽  
Recent Period ◽  
Investment Treaty ◽  
Key Stakeholders ◽  
Recent Approach ◽  
Investment Treaties ◽  
Rule Making

China is becoming one of the key stakeholders in the international investment regime. It is, however, still unclear what role China can play in the ongoing reform of the international investment regime. Starting from this overall focus, this article analyses the most recent period of China’s international investment policy-making. Mapping the contents of investment treaties signed since 2008 it argues that China undertook a partial ‘NAFTA-ization’. Whilst China has adopted a number of clauses invented by the NAFTA countries, it introduced these clauses in an incoherent fashion. Looking at the drivers of this peculiar policy, this article argues that China’s investment treaty-making practice is largely inspired by its partner countries. As a result of this particular negotiation policy, Beijing’s approach to international investment rule-making is inconsistent. This belies the argument that China can make a significant contribution to reforming the international investment regime.

scholarly journals RECALIBRATING THE INTERNATIONAL INVESTMENT REGIME THROUGH NARROWED JURISDICTION

2020 ◽  
Vol 69 (2) ◽  
pp. 301-334
Author(s):  
Javier García Olmedo
Keyword(s):  
International Investment ◽  
The Novel ◽  
Investment Treaty ◽  
Planning Approach ◽  
Investment Treaties ◽  
Investor Protections ◽  
Legitimacy Crisis ◽  
Personal Jurisdiction ◽  
Dutch Model

AbstractThe legitimacy crisis confronting the international investment regime has called for reforms to eliminate the asymmetric and troubled nature of investment treaties. These instruments grant extensive investor protections without offering reciprocal safeguards for host States wishing to preserve regulatory space. This article argues that any reform designed to redress imbalances in the existing regime should first aim at narrowing the personal jurisdiction of investment tribunals. Problematically, access to most investment treaties depends on broad nationality requirements, which have enabled investors to use corporations or passports of convenience to obtain treaty protection. This practice exacerbates the unbalanced relationship between host States and investors. It increases host States’ exposure to investment treaty claims and allows investors to circumvent newer, more State-oriented investment treaties. Using as an example the novel anti-nationality planning approach embraced in the 2019 Dutch Model BIT, this article suggests effective treaty mechanisms that States can adopt to restrict the range of investors that are entitled to claim.

Requirements for Amicus Curiae Participation in International Investment ArbitrationA Deconstruction of the Procedural Wall Erected in Joint ICSID Cases ARB/10/25 and ARB/10/15

2013 ◽  
Vol 12 (3) ◽  
pp. 365-390 ◽  
Author(s):  
Christian Schliemann
Keyword(s):  
International Law ◽  
International Investment ◽  
Recent Attempt ◽  
Arbitral Tribunal ◽  
Amicus Curiae ◽  
Legal Rules ◽  
Investment Arbitration ◽  
Legal Standard ◽  
Investment Law

Abstract The legal standard on amicus curiae participation in international investment arbitration has been forged by the judicial development of legal rules and, in parallel, the modification of normative sources, such as the ICSID Arbitration Rules. Current and future decisions by arbitral tribunals on the participation of amicus curiae in a given dispute must abide by this consolidated standard. In June 2012, the arbitral tribunal in Joint ICSID Cases No. ARB/10/15 and No. ARB/10/25 released a procedural order, rejecting an amicus petition. This Order contains various deviations from the applicable legal standard and severely restricts the options for amicus participation. The recent attempt to strengthen the legitimacy of international investment arbitration by allowing for greater amicus participation and the acknowledgement of the interdependence of investment law and other areas of international law is thereby put in peril.

Emergency Arbitration: Mere Innovation or Vast Improvement

2019 ◽  
Vol 35 (4) ◽  
pp. 441-472
Author(s):  
Rania Alnaber
Keyword(s):  
New York ◽  
Arbitral Tribunal ◽  
Commercial Arbitration ◽  
National Courts ◽  
Investment Arbitration ◽  
The Future ◽  
New York Convention ◽  
Interim Measures ◽  
Specific Concern

Abstract Effectiveness of emergency arbitration is a disputable question, which was touched by several commentators since it was first introduced in 2006. Concerns have been raised in relation to the enforceability of emergency reliefs under the New York Convention and the risk of concurrent jurisdiction between emergency arbitrators and national courts in granting interim measures prior to the constitution of the arbitral tribunal. A more specific concern is related to the suitability of introducing this mechanism, to investment arbitration. This article argues that adopting an international instrument for enforcing emergency reliefs will be the best solution. As for investment arbitration, emergency arbitrators are no less important in this type of arbitration than in commercial arbitration. However, certain features of emergency arbitration shall be tailored to meet the distinct nature of investment cases. Although certain amendments are needed to enhance the effectiveness of this relatively new mechanism, the future of emergency arbitrator is still optimistic. Therefore, to avoid any duplication of fora, courts are expected to respect emergency arbitrator's jurisdiction and only intervene when the latter is not capable of granting a relief.

Emergency Arbitrator Procedure in Investment Treaty Disputes: To Be or Not To Be

2019 ◽  
Vol 20 (1) ◽  
pp. 98-145
Author(s):  
Kyongwha Chung
Keyword(s):  
Dispute Resolution ◽  
Arbitral Tribunal ◽  
Emergency Relief ◽  
Chamber Of Commerce ◽  
Investment Treaty ◽  
Effective System ◽  
Investment Treaties

Abstract The emergency arbitrator is a person appointed to grant emergency relief pending the constitution of an arbitral tribunal. Numerous arbitral institutions started to introduce the emergency arbitrator procedure in order to provide a more effective system for the protection and preservation of parties’ rights. However, the ICSID Convention and the UNCITRAL Arbitration Rules, which are the most common dispute resolution rules used in investment treaties, do not recognize the emergency arbitrator procedure. By contrast, the Stockholm Chamber of Commerce (SCC) allows the application of its emergency arbitrator rules in investment treaty disputes. In fact, there have been seven recent cases in which investors used the SCC Rules to seek emergency relief. This article evaluates introducing the emergency arbitrator procedure in investment treaty disputes. It discusses possible objections by States and concludes that the procedure is not inconsistent with the features of investment treaty disputes.

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