International Investment Arbitration and Corruption Claims: An Analysis of World Duty Free v. Kenya

2011 ◽  
Vol 4 (3) ◽  
Author(s):  
Ibironke T. Odumosu
Keyword(s):  
Foreign Investment ◽  
International Investment ◽  
Political Climate ◽  
Public Officials ◽  
Foreign Investors ◽  
Host State ◽  
Investment Arbitration ◽  
Public Nature ◽  
The World ◽  
The Republic

In some recent investment arbitration cases, tribunals have been presented with facts that suggest that foreign investors and public officials in the host state have engaged in corrupt practices. In its analysis of the extension of the anti-corruption campaign to investment arbitration, this article examines the legal measures adopted to combat corruption before investor-state arbitral tribunals in light of a study of World Duty Free Co. Ltd. v. The Republic of Kenya. An examination of the background to the World Duty Free v. Kenya dispute, the broader circumstances that surrounded the dispute, and Kenya’s political climate that was not within the tribunal’s purview, demonstrate that investment arbitration tribunals are not sufficiently equipped to exhaustively tackle corruption. Given the intricate political and public nature of corruption, responses to foreign investment-related corruption also have to be multi-faceted.

International Investment Arbitration in Thailand: Limiting Contract-Based Claims While Maintaining Treaty-Based ISDS

2017 ◽  
Vol 18 (5-6) ◽  
pp. 793-835
Author(s):  
Luke Nottage ◽  
Sakda Thanitcul
Keyword(s):  
Foreign Direct Investment ◽  
Bounded Rationality ◽  
Direct Investment ◽  
Dispute Settlement ◽  
Ad Hoc ◽  
International Investment ◽  
Bilateral Investment Treaties ◽  
Foreign Investors ◽  
Host State ◽  
Investment Arbitration

Abstract Thailand was initially cautious with its bilateral investment treaties (BITs), consistently eschewing investor-state dispute settlement (ISDS). From 1989 it began agreeing to ISDS, but only if both states were party to the Convention on the Settlement of Investment Disputes Between States and Nationals of Other States, which Thailand signed in 1965 but never ratified. From 1993, BITs increasingly provided for ad hoc arbitration. Major disputes emerged from the 1990s instead under contracts with foreign investors containing arbitration clauses. From 2004 concession contracts required Cabinet pre-approval. This limitation was extended to all public contracts from 2009, after the first treaty-based ISDS award against Thailand, although two further claims have been filed recently. A 2002 Model bit was revised in 2013 to incorporate more pro-host-state provisions, but Thailand had net foreign direct investment (FDI) outflows in 2011 and still concludes treaties with ISDS. These patterns suggest ‘more than bounded’ rationality.

scholarly journals Foreign Investment and Export Management and Analysis - Kosovo Case

2020 ◽  
Vol 9 (1) ◽  
pp. 11-21
Author(s):  
Halil Bajrami ◽  
Bashkim Bellaqa
Keyword(s):  
Economic Development ◽  
Foreign Investment ◽  
Direct Investment ◽  
Review Of The Literature ◽  
Investment Environment ◽  
Foreign Investors ◽  
Country Level ◽  
Management Capacity ◽  
The Republic ◽  
Made In

Foreign Direct Investment (FDI) has a special and specific importance for the Republic of Kosovo taking into account the conditions and economic development, which in turn impact the economic development and social improvement of the country. For the state to have a greater absorption of FDI, significant improvement should be made in improving the management capacity in order to create a motivating environment for foreign investment, which is related to the improvement of macro-factors and microfactors at the country level in order to make the environment as attractive as possible for FDI. The purpose of this paper is to present the trend of FDI, the trend of export with a keen eye on Kosovo and to present the correlation of FDI with export. Firstly, at the beginning of this paper, a theoretical review of the literature on definitions of FDI in economic terms and definitions of export is presented. Secondly, the trend and comparison of FDI and exports over the years is presented. Thirdly, FDI trends in Kosovo were analyzed by the country of origin of these investments, etc. Fourthly, in the context of this paper, an analysis in terms of investment management at the country level in order to create an attractive investment environment was made. Fifthly, as part of this paper, empirical analyzes showing the correlations between FDI and Export in the Kosovo case have been made. FDI trends in Kosovo have been decreasing over the years, which must be improved by creating a motivating environment for both domestic and foreign investors. 

scholarly journals FEATURES OF GLOBAL INVESTMENT POLICY: MODERN TRENDS AND PROSPECTS

2019 ◽  
pp. 142-148
Author(s):  
Larisa Germanovna Chuvakhina
Keyword(s):  
Foreign Direct Investment ◽  
Foreign Investment ◽  
Direct Investment ◽  
World Economy ◽  
International Investment ◽  
Investment Policy ◽  
Investment Promotion ◽  
The Us ◽  
The World

The article highlights the current problems of investments in the development of the world economy, when international investment needs are significantly high. The priority is given to the issues of investment resources for achieving the goals of sustainable development of the world economy. It has been stated that for creating the effective economic policy, the countries need to attract foreign investment. The current trends in the development of global market for foreign direct investment flows are examined. The flows of global foreign direct investment in 2017-2018 are analyzed. Special attention is given to the study of the US investment policy. The reduction in US investments into the Russian economy in terms of the sanctions policy against Russia is marked. The changes in the investment policy of the administration of D. Trump in terms of strengthening American protectionism are underlined. The issues of US-EU investment cooperation are considered. The role of the US Federal Reserve in regulating the activities of foreign companies in the US market is defined. The main decisions taken at the X World Investment Forum of the United Nations Conference on Trade and Development in October, 2018 are considered. The role of investment promotion agencies is defined as one of the tools to attract foreign investments into the country's economy. The decrease in the level of international investment and increased competition between countries for attracting foreign investment is stated. The study confirms that the investment attractiveness of the country, stability of the national financial system, and legal security of business play a decisive role in attracting foreign direct investment.

scholarly journals Investor Responsibility as Familiar Frontier

AJIL Unbound ◽  
2019 ◽  
Vol 113 ◽  
pp. 28-32
Author(s):  
Jackson Shaw Kern
Keyword(s):  
International Investment ◽  
Foreign Investors ◽  
Investment Arbitration ◽  
New Frontier ◽  
Modern Era

This essay suggests that amidst the various criticisms of investor-state arbitration, the most potent is the present inadequacy of this mechanism to establish a reciprocal responsibility of foreign investors. The founders of the modern era of international investment arbitration never intended to build a one-way street. In this sense, to seek a regime of investor responsibility may not be to reach toward a new frontier so much as to return to one that is familiar, though underexplored.

Transnational Public Policy as a Vehicle to Impose Human Rights Obligations in International Investment Arbitration

2020 ◽  
Vol 21 (6) ◽  
pp. 809-846
Author(s):  
Jean-Michel Marcoux
Keyword(s):  
Public Policy ◽  
Human Rights ◽  
International Investment ◽  
International Consensus ◽  
Foreign Investors ◽  
Material Sources ◽  
Investment Arbitration ◽  
Human Rights Norms ◽  
The Right

Abstract International investment arbitration has been criticized for its general reluctance to consider human rights concerns related to foreign investors’ activities. By contrast, arbitration tribunals have relied on transnational public policy to prevent a claimant whose investment is tainted with illegality from obtaining redress. This article explores how human rights norms could be conceptualized as part of transnational public policy to impose obligations on foreign investors. It proceeds in three steps. First, it addresses the role of transnational public policy in investment arbitration. Second, the article identifies the material sources considered by tribunals to delimit the content of the doctrine. Third, it focuses on three norms – the protection of fundamental human rights, a corporate responsibility to respect human rights and the right of Indigenous Peoples to be consulted – for which tribunals have found an international consensus and that could be conceptualized as norms of transnational public policy.

scholarly journals Using Arbitration for Resolving Foreign Investment Disputes: A Comparative Study of Laws on Arbitration in Ghana and China

2016 ◽  
Vol 9 (7) ◽  
pp. 1 ◽  
Author(s):  
Shirley Ayangbah
Keyword(s):  
International Law ◽  
Foreign Investment ◽  
International Investment ◽  
Customary International Law ◽  
Republic Of China ◽  
The Past ◽  
The Republic ◽  
The Right ◽  
Procedural Rights ◽  
Comparative Manner

<p>International Investment in recent times is seen as one of the fastest-developing areas of international law. In the past decades, there has been a dramatic increase in the number of bilateral investment treaties and other agreements with investment related provisions that grant foreign investors important substantive and procedural rights, including, most importantly, the right to sue individuals, organizations and even the state hosting their investment for violations of customary international law and treaty obligations. Dispute becomes an inevitable phenomenon as individuals, organizations and countries continue to engage in foreign investment and as such there is the need for dispute solving mechanism to resolve such disputes as and when they arises. Even though there are several dispute solving mechanisms, arbitration seems to be a well-established and widely used mechanism to end dispute probably due to the efficiency and flexibility nature of it. The laws governing arbitration differ from one country to the other and it is for this reason that investors need to be abreast with the different arbitration laws  so as to enable them make inform decisions as to whether to resort to arbitration  or not. This paper analyses the arbitration laws of The Republic of Ghana and Peoples Republic of China in a comparative manner by drawing on the similarities and difference with respect to arbitration laws and procedure in these two countries. The paper is divided into three parts. The first part of this paper gives a brief background as well as the characteristics of the concept of arbitration. The second part looks as the similarities and difference of arbitration between the selected countries, and the final part looks at the arbitration phase and post arbitration phase of the two countries.</p>

scholarly journals Counterclaims and the Rule of Law in Investment Arbitration

AJIL Unbound ◽  
2019 ◽  
Vol 113 ◽  
pp. 33-37 ◽  
Author(s):  
Tomoko Ishikawa
Keyword(s):  
Rule Of Law ◽  
International Investment ◽  
Access To Justice ◽  
Foreign Investors ◽  
The Rule Of Law ◽  
International Investment Law ◽  
Rule By Law ◽  
Investment Arbitration ◽  
The Law ◽  
Broad Interpretation

While the rule of law was originally developed with reference to domestic constitutional orders, it is also widely embraced by international lawyers. This essay argues that the admission of counterclaims in certain circumstances helps investment arbitration advance the rule of law on several counts. The rule of law is defined here to include not only formal elements such as rule-by-law and formal legality, but also “thicker” elements attached to certain substantive values, including fundamental human rights. The UN's work on the rule of law clearly adopts a broad interpretation of this concept. This essay examines the potential for counterclaims to bridge the gap between the lack of effective mechanisms to hold foreign investors accountable for their conduct and the extensive protection of foreign investors in international investment law. By doing so, counterclaims in investment arbitration may promote the thicker elements of the rule of law such as accountability to the law, access to justice, and fairness in the application of the law.

“Missing Links” in Investment Arbitration: Quantification of Damages to Foreign Shareholders

2013 ◽  
pp. 434-479
Author(s):  
Jimmy Skjold Hansen
Keyword(s):  
Law And Economics ◽  
International Investment ◽  
Foreign Investors ◽  
Legal Principles ◽  
Investment Arbitration ◽  
Corporate Entity ◽  
Share Value

This article focuses on the tensions between law and economics which inevitably occur in connection with the quantification of damages in international investment disputes between foreign shareholders (foreign investors) and host states. In this context, four contemporary approaches to quantification are addressed. These concern 1) full loss of the investment or invested amounts, 2) lost share value, 3) lost dividends, or 4) discretionary compensation. It is analyzed to what extent these approaches comply with the fundamental, legal principles which are in play in most investment disputes today, that is a) identification of the protected investment, b) recognition of the corporate entity, c) “full reparation” of injury, d) causation and certainty of losses, and e) avoidance of double recovery. It is demonstrated that each approach may pose challenges in respect of one or more of these legal principles.

scholarly journals The Governance of Foreign Investment at a Crossroad: Is an Overlapping Consensus the Way Forward?

Global Jurist ◽  
2015 ◽  
Vol 15 (1) ◽  
pp. 1-28 ◽  
Author(s):  
Nicolás M. Perrone
Keyword(s):  
Foreign Investment ◽  
Developed Countries ◽  
International Investment ◽  
Overlapping Consensus ◽  
Customary International Law ◽  
Multilateral Cooperation ◽  
Rights Protection ◽  
Investment Arbitration ◽  
Property Rights Protection ◽  
Bilateral Treaties

AbstractThis article makes the claim that the present efforts to reform the international investment regime (IIR) will not save this field from the existing criticisms. Given the plural values at issue, it is unlikely that states – let alone local populations – will ever reach a consensus on the substantive questions surrounding foreign investment. Historically, the main characteristic of foreign investment governance has been the lack of multilateral consensus. This field remained dominated by diplomacy and customary international law until bilateral treaties and investment arbitration became the leading mechanism to resolve investment disputes in the 1990s. This highly legalized regime, however, has been subject to criticisms from developing and increasingly from developed countries. Most reform proposals fail to go beyond alternatives that have been unsuccessful in the past, such as a multilateral investment agreement (MIA) or state-to-state arbitration. This article takes a different approach to foreign investment governance, starting from its political economy. It claims that the IIR does not depoliticize foreign investment relations but rather promotes the politics of foreign investors’ property rights protection. Relying on property theory and pluralism as heuristic tools, this article analyses the resistance to investment arbitration, the obstacles to multilateral cooperation, and the possibility of an overlapping consensus on the institutions for foreign investment governance.

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