Export Credit Agencies, International Investment Law and the Spectre of Unsustainable Developing Countries' Debts

2021 ◽  
Vol 29 (4) ◽  
pp. 612-643
Author(s):  
Jonathan Heard ◽  
Emmanuel T. Laryea
Keyword(s):  
Developing Countries ◽  
Dispute Settlement ◽  
International Investment ◽  
Sustainable Growth ◽  
Export Credit ◽  
Foreign Direct Investments ◽  
International Investment Law ◽  
Host State ◽  
International Economic Law ◽  
Export Credit Agencies

This article argues that the activities of Export Credit Agencies (ECAs), which provide political risk insurance to cover exports and foreign direct investments (FDIs), may be undermining the goals of Investor-State Dispute Settlement (ISDS). ISDS is supposed to limit investment disputes so that they are between the investor and host-state of the investment (investor-state disputes). However, since ECAs are quasi-governmental organisations that support FDIs, they can effectively elevate such investment disputes so that they are between the host-state and home-state of the investor (state-to-state disputes). This has implications for the necessity defence in international investment disputes, which is likely to feature in cases triggered by governmental measures taken in response to the COVID-19 pandemic. Further, the article argues that the activities of ECAs often precipitate unsustainable debt accumulation in developing countries. And these situations are becoming increasingly combustible because ECAs have escalated their activities to season investment programmes with foreign and geopolitical influence. This may worsen in the aftermath of the COVID-19 pandemic. The article concludes that increased transparency and a sustainability element in the activities of ECAs are essential to both expose these risks more broadly and to create a space under the canopy of international economic law for more sustainable growth from the understory of developing nations.

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.

International Investment Law and Foreign Direct Reinvestment

2019 ◽  
Vol 73 (4) ◽  
pp. 839-858 ◽  
Author(s):  
Rachel L. Wellhausen
Keyword(s):  
Dispute Settlement ◽  
Institutional Design ◽  
International Investment ◽  
Time Inconsistency ◽  
Foreign Investor ◽  
Firm Level ◽  
International Investment Law ◽  
Host State ◽  
Investment Law ◽  
Open Question

AbstractOne goal of the law is to provide a means to return disputing parties to cooperation. The prevailing expectation is that international investment law largely does not do this; rather, an aggrieved foreign investor sues the host state as a last resort and divests. I use a new database of Investor-State Dispute Settlement (ISDS) arbitrations and firm-level bilateral investment to show that, in fact, claimant investors reinvest in the host state at least 31 percent of the time (between 1990 and 2015). Among investors who file for arbitration, and controlling for sector, important correlates of reinvestment include the claimant's legal strategy; the extent of the claimant's grievance and success; and the incidence of post-arbitration litigation. Despite unique aspects of its institutional design, the de facto international investment regime can help solve host state time-inconsistency problems consistent with standard expectations of law. Whether the probability of reinvestment is high enough to reinforce host state commitments to this controversial regime is an open question.

scholarly journals Sustainable Healthy Food Choices: Dietary Guidelines and International Economic Law

2018 ◽  
Vol 18 (1) ◽  
pp. 45
Author(s):  
Tania Voon ◽  
Hope Nadine Johnson
Keyword(s):  
International Economic ◽  
Dispute Settlement ◽  
International Investment ◽  
Dietary Guidelines ◽  
World Health ◽  
International Investment Law ◽  
Economic Law ◽  
International Economic Law ◽  
The World ◽  
International Instruments

Building on the companion piece by Christine Parker and Hope Johnson on international instruments supporting holistic dietary guidelines, this article examines potential concerns raised by such guidelines under international trade law and international investment law. Drawing lessons from the World Health Organization Framework Convention on Tobacco Control (‘WHO FCTC’) and its relevance to recent disputes in international economic law, this article examines the role of international instruments in supporting domestic dietary guidelines that could be challenged in the dispute settlement system of the World Trade Organization (‘WTO’) or under investor-state dispute settlement. The article includes an assessment of the potential impact of international economic laws on holistic dietary guidelines and related regulatory interventions, as well as a discussion of how a WHO treaty on healthy and sustainable diets could influence the interpretation and application of key trade and investment provisions. The article concludes that holistic dietary guidelines can be implemented in a manner consistent with international economic law, at least if local products are not prioritised.

DENIAL OF JUSTICE DISGUISED? INVESTMENT ARBITRATION AND THE PROTECTION OF FOREIGN INVESTORS FROM JUDICIAL MISCONDUCT

2012 ◽  
Vol 61 (1) ◽  
pp. 223-246 ◽  
Author(s):  
Mavluda Sattorova
Keyword(s):  
Dispute Settlement ◽  
Effective Means ◽  
International Investment ◽  
State Courts ◽  
Foreign Investors ◽  
International Investment Law ◽  
Host State ◽  
Legal Standards ◽  
National Courts ◽  
Investment Treaty

Prior to the rise of international investment treaties and institutionalization of investor–state arbitration, the protection of foreign investors from mistreatment in the host state courts was the preserve of customary international law, which prohibited a denial of justice and provided for diplomatic protection as a principal means of dispute settlement. In contrast, contemporary international investment law offers a whole array of legal standards that can be invoked in seeking redress for the acts of national courts before international arbitral tribunals. In addition to relying on the customary prohibition of denial of justice, investors can challenge judicial conduct under the treaty standards on expropriation, fair and equitable treatment and, in some cases, the obligation to ensure effective means of asserting claims. Although the multiplicity of standards available to aggrieved investors can be regarded as an inalienable part of an effective regime for the protection of foreign investment, it also gives rise to a number of fundamental problems relating to the application of procedural mechanisms designed to control the review of the conduct of national judiciary by international courts and tribunals. Focusing on arbitral cases in which claims of a denial of justice were brought under the rubric of ‘a judicial expropriation’ and ‘a failure to provide effective means of asserting claims’, this article seeks to ascertain when investor claims relating to the administration of justice in the host state courts become amenable to arbitral scrutiny. It argues that, by providing a variety of standards under which the acts of judiciary can be challenged, investment treaty law allows investors to circumvent procedural barriers and thus muddles the boundaries demarcating the scope of international review of national judicial conduct.

Jurisdiction and Admissibility in International Investment Law

2017 ◽  
Vol 16 (1) ◽  
pp. 21-43 ◽  
Author(s):  
August Reinisch
Keyword(s):  
Dispute Settlement ◽  
International Investment ◽  
State Law ◽  
International Investment Law ◽  
Host State ◽  
National Courts ◽  
Investment Arbitration ◽  
Investment Law ◽  
Waiting Periods

The distinction between jurisdictional and admissibility issues in investment arbitration is becoming more and more relevant. This results from an emerging jurisprudence emphasizing that a tribunal that lacks jurisdiction will have to dismiss a case brought before it, while it has discretion whether to dismiss a claim for reasons of inadmissibility, in particular, because the latter defects may be curable. Conceptually this difference is rooted in the idea that “jurisdiction is an attribute of a tribunal and not of a claim, whereas admissibility is an attribute of a claim but not of a tribunal”,1 with the consequence that “[t]he concept of ‘admissibility’ refers to the varied reasons that a tribunal, although it has jurisdiction, may decline to hear a case or a claim.”2 This overview article will briefly outline a number of issues in regard to which investment tribunals have disagreed whether to qualify them as jurisdictional or admissibility-related. These range from so-called waiting periods, requiring investors to first seek amicable dispute settlement or to litigate before national courts, to express or implied “in accordance with host state law”-clauses. This article argues that the outcomes of many of these cases, which often appear to be inconsistent, may be explained on the basis of different conceptual qualifications as jurisdictional or admissibility-related issues.

Investor-State dispute settlement (ISDS) cases and India: affronting regulatory autonomy or indicting capricious state behaviour?

2021 ◽  
Vol ahead-of-print (ahead-of-print) ◽  
Author(s):  
Prabhash Ranjan
Keyword(s):  
Public Interest ◽  
Dispute Settlement ◽  
Due Process ◽  
International Investment ◽  
Public Power ◽  
Foreign Investors ◽  
Content Type ◽  
International Investment Law ◽  
Global Context ◽  
State Behaviour

Purpose The dominant narrative in the investor-State dispute settlement (ISDS) system is that it enables powerful corporations to encroach upon the regulatory power of developing countries aimed at pursuing compelling public interest objectives. The example of Phillip Morris, the tobacco giant, suing Uruguay’s public health measures is cited as the most significant example to prove this thesis. The other side of the story that States abuse their public power to undermine the protected rights of foreign investors does not get much attention. Design/methodology/approach This paper reviews all the ISDS cases that India has lost to ascertain the reason why these claims were brought against India in the first place. The approach of the paper is to study these ISDS cases to find out whether these cases arose due to abuse of the State’s public power or affronted India’s regulatory autonomy. Findings Against this global context, this paper studies the ISDS claims brought against India, one of the highest respondent-State in ISDS, to show that they arose due to India’s capricious behaviour. Analysis of these cases reveals that India acted in bad faith and abused its public power by either amending laws retroactively or by scrapping licences without following due process or going back on specific and written assurances that induced investors to invest. In none of these cases, the foreign investors challenged India’s regulatory measures aimed at advancing the genuine public interest. The absence of a “Phillip Morris moment” in India’s ISDS story is a stark reminder that one should give due weight to the equally compelling narrative that ISDS claims are also a result of abuse of public power by States. Originality/value The originality value of this paper arises from the fact that this is the first comprehensive study of ISDS cases brought against India and provides full documentation within the larger global context of rising ISDS cases. The paper contributes to the debate on international investment law by showing that in the case of India most of the ISDS cases brought were due to India abusing its public power and was not an affront on India’s regulatory autonomy.

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.

He Who Makes the Rules Owns the Gold

2019 ◽  
pp. 412-429
Author(s):  
Joel Slawotsky
Keyword(s):  
International Economic ◽  
International Law ◽  
Critical Mass ◽  
Code Of Conduct ◽  
International Investment ◽  
Leadership Role ◽  
Military Conflict ◽  
International Investment Law ◽  
International Economic Law ◽  
New Institutions

This chapter analyses the ever-increasing importance of Chinese influence on international investment law, which is a key branch of international economic law. By using the mechanics of the current architecture to assume a leadership role, China will likely become the new architect of the legal and financial orders. New infrastructure and development banks, a growing usage of the yuan and other incipient transformations, herald an upcoming era of new international law architects. While new institutions may initially work in conjunction within the existing framework, it is probable that the new architects’ alternatives will reach a critical mass and achieve an independent role in the international economic and legal orders. This transformation will likely lead to rewriting the rules and will serve to devalue the institutions which have enforced the global governance architecture over the previous seventy years. At a minimum, the replacement of the present architects will present a definitional, let alone enforcement problem with respect to international law. A different code of conduct may conflict with current norms and international law will need to focus on this potential dichotomy between former and new standards and customs. The failure to address this impending clash of customs may lead to a fracture of global cooperation and enforcement of international law, reduced prosperity, and heightened economic and military conflict.

Sign in / Sign up

Export Citation Format

Share Document