scholarly journals Screening of Foreign Investments and the Bilateral Investment Treaties of Bangladesh

2021 ◽  
Vol 3 (2) ◽  
pp. 37-53
Author(s):  
Mohammad Belayet Hossain ◽  
Asmah Laili Bt Yeon ◽  
Ahmad Shamsul Bin Abdul Aziz
Keyword(s):  
Significant Role ◽  
Foreign Investment ◽  
Research Method ◽  
Bilateral Investment Treaties ◽  
Host Countries ◽  
Foreign Investments ◽  
Foreign Investors ◽  
Host State ◽  
Investment Treaties ◽  
The Government

Since 1960, about 2852 bilateral investment treaties (BITs) have been signed. Of them, 2298 BITs are in force at present. In the last 61 years, the WTO members failed to conclude a global treaty to regulate FDI in host countries, consequently, the BITs have played a significant role to regulate FDI. As a member of the WTO, Bangladesh has signed 31 BITs so far with various states to allow and increase the inflow of FDI into the country. Bangladeshi foreign investment laws and BITs mainly protect foreign investors. However, neither of them has any specific provision regarding the screening of foreign investments in Bangladesh. Two questions have been addressed in this paper: (a) Do the BITs of Bangladesh allow the host state for screening of foreign investments at the entry stage? (b) Should the screening of FDI be required during the pre-entry stage in Bangladesh? In this paper, a doctrinal research method has been used to critically analyze 15 BITs to explore whether there is any reference for screening of foreign investments in Bangladesh. We find that the existing Bangladesh BITs have provisions to promote and protect foreign investments but have no reference in relation to the screening of foreign investments. Therefore, the author has recommended that the Government of Bangladesh can consider specific provisions for screening of FDI in future BITs.

scholarly journals SOVEREIGNTY, NATIONAL INTEREST AND SECURITY IN BILATERAL INVESTMENT TREATIES OF MALAYSIA

2020 ◽  
Vol 16 ◽  
pp. 39-58
Author(s):  
Mohammad Belayet Hossain ◽  
Asmah Laili Yeon ◽  
Ahmad Shamsul Abdul Aziz
Keyword(s):  
World Trade ◽  
Research Method ◽  
National Interest ◽  
World Trade Organisation ◽  
Legal Research ◽  
Host Countries ◽  
Foreign Investments ◽  
Foreign Investors ◽  
The World ◽  
The Government

At present, the BITs are playing a significant part in regulating foreign direct investment (FDI) in the host countries and like other members of the World Trade Organisation (WTO) Malaysia have also signed BITs to facilitate trade. Malaysia’s FDI laws and BITs mainly protect foreign investors, however, neither of them has any specific provision on the protection of sovereignty, national interest and security. This paper addresses the question, to what extent are sovereignty, national interest and security protected through BITs during entry of FDI into Malaysia? Using non-doctrinal socio-legal research method, the authors critically analyzed 15 BITs to explore whether they protect the sovereignty, national interest and security of Malaysia. The findings show that the existing Malaysian BITs contain provisions to promote and protect foreign investments but lack specific references to protect sovereignty, national interest and security, therefore, the government should consider these important factors when signing future BITs.

Sovereignty, National Interest & Security and the Bilateral Investment Treaties of Bangladesh and the Netherlands: a Comparison

2019 ◽  
Vol 12 (2) ◽  
pp. 183-214
Author(s):  
Mohammad Belayet Hossain ◽  
Asmah Laili Bt Yeon ◽  
Ahmad Shamsul Bin Abd. Aziz
Keyword(s):  
The Netherlands ◽  
Foreign Investment ◽  
National Interest ◽  
Developed Countries ◽  
Bilateral Investment Treaties ◽  
Least Developed Countries ◽  
Host Countries ◽  
Investment Policies ◽  
Investment Treaties ◽  
The Government

Abstract In absence of any global treaty, the bilateral investment treaties are playing the important role of regulating foreign investments in the host countries. The primary purpose of economic globalization is the economic development of the developing and least-developed countries as well as to facilitate benefits of the home states. Bangladesh and the Netherlands also signed bilateral investment treaties to facilitate trade. Bangladesh foreign investment laws and bilateral investment treaties mainly protect foreign investors; however, neither include any specific provisions of protecting sovereignty, national interest, and security. The Netherlands generally follows EU foreign investment policies. This paper addresses two questions: (a) do the bilateral investment treaties of Bangladesh and the Netherlands include any specific provisions to protect the sovereignty, national interest, and security, and (b) should the sovereignty, national interest, and security be considered during the entry of foreign direct investment in Bangladesh and the Netherlands? Using doctrinal research method, a total of 25 bilateral investment treaties have been analysed in order to explore whether they protect the sovereignty, national interest, and security of Bangladesh and the Netherlands. Based on the findings, this study will recommend that the government of Bangladesh should consider this important factor as an entry condition, either through amending the existing laws or through the bilateral investment treaties.

3 Fair And Equitable Treatment

2009 ◽  
Author(s):  
Gallagher Norah ◽  
Shan Wenhua
Keyword(s):  
Bilateral Investment Treaties ◽  
National Treatment ◽  
Standard Format ◽  
Foreign Investors ◽  
Host State ◽  
Fair And Equitable Treatment ◽  
Investment Treaties ◽  
Equitable Treatment ◽  
Full Protection

Like other bilateral investment treaties (BITs), Chinese BITs establish a set of general standards of treatment accorded to foreign investors by the host state. The most commonly found general standards of treatment include fair and equitable treatment (FET), (full) protection and security (PNS), most favoured nation treatment (MFN), and national treatment (NT). The first two belong to the group of non-contingent standards (or so-called “absolute standard of treatment”), whilst the latter two are forms of contingent standards (or “relative standards of treatment”). Absolute standards do not depend on treatment granted to other investors. In contrast, the relative standards are contingent on treatment given to other categories of investors, nationals of the host state in the case of NT and investors from third states for the MFN. This chapter begins with an examination of the FET standard, focusing on the different approaches of interpretations that have been developed in theory and in arbitration practice. It then analyzes the standard under Chinese BITs and assesses the implications of its standard format and any variations.

5 The Microeconomics of Investment Treaties

2017 ◽  
Author(s):  
Bonnitcha Jonathan ◽  
Skovgaard Poulsen Lauge N ◽  
Waibel Michael
Keyword(s):  
Decision Making ◽  
Foreign Investment ◽  
Fiscal Illusion ◽  
Foreign Investors ◽  
Host State ◽  
Investment Protection ◽  
The Third ◽  
Investment Treaty ◽  
Investment Treaties ◽  
The Impact

This chapter surveys the impact of investment treaties on decision-making at the firm and government levels. The focus is on whether investment treaties’ influence on the decisions of firms and states leads to improvements in efficiency. The first section examines the ‘hold-up’ problem, which provides the most influential and coherent microeconomic justification for the inclusion of investment protection provisions in investment treaties. The second section explores the problem of ‘fiscal illusion’ in host state decision-making, which could result in ‘over-regulation’ of foreign investment in the absence of an investment treaty. The third section considers whether investment treaties solve problems of discrimination against foreign investors, as well as the possibility that investment treaties lead to discrimination in favour of foreign investors.

Conclusion

2019 ◽  
pp. 175-176
Author(s):  
Federico Ortino
Keyword(s):  
Foreign Investment ◽  
Regulatory Change ◽  
Foreign Investments ◽  
Host State ◽  
Investment Treaty ◽  
Investment Treaties

This section highlights the present study’s key findings. First, from the very beginning, protections afforded to foreign investments by modern investment treaties have been exceptionally broad, including guarantees vis-à-vis the host State’s (a) breach of investment contracts and regulatory change; (b) substantial deprivation of the value of the foreign investment; and (c) unreasonable conduct. Second, while a growing number of investment tribunals as well as new investment treaties have started to rein in such broad protections, the evolution of key investment treaty provisions has been (and in many ways still is) marred by inconsistency and uncertainty. Lastly, while there appears to be a growing preference in arbitral practice (as well as treaty practice) for reasonableness-based guarantees, there is still no clarity with regard to the specific reasonableness test that should be employed in order to review the lawfulness of the host State conduct under an investment treaty.

A Critical Analysis of the Protection of Investment Act 22 Of 2015

2019 ◽  
Vol 34 (1) ◽  
Author(s):  
Lindelwa Beaulender Mhlongo
Keyword(s):  
South Africa ◽  
Foreign Investment ◽  
Critical Analysis ◽  
Legal Framework ◽  
Bilateral Investment Treaties ◽  
Current Form ◽  
Foreign Investors ◽  
Investment Protection ◽  
Investment Treaties

In 2010, South Africa reviewed its foreign investment legal framework and during this process, it terminated most of its bilateral investment treaties. For a period, there was no piece of legislation that dealt with the regulation of investment in South Africa and investors had to comply with commercial laws. To solve this problem, South Africa introduced the Investment Act in 2015 aimed at regulating both domestic and foreign investment within its territory. In light of the above, the questions central to the article are whether the Investment Act in its current form balances the rights and obligations of foreign investors and that of host states. If not, what can be added or deleted from the Investment Act in order to balance these two competing rights? The article first looks at why South Africa terminated the bilateral investment treaties. It then compares the Investment Act with the SADC FIP to ascertain if the Investment Act is aligned with the sub-regional standard of foreign investment protection. Finally, recommendations are made which include suggested amendments to improve the Investment Act.

Exploring the prospects of host-state counterclaims in corruption disputes

2020 ◽  
Vol 36 (4) ◽  
pp. 583-600
Author(s):  
Chitransh Vijayvergia ◽  
Pavan Belmannu
Keyword(s):  
Bilateral Investment Treaties ◽  
International Arbitration ◽  
Public Officials ◽  
Foreign Investors ◽  
The Public ◽  
Host State ◽  
Investment Treaty ◽  
Investment Treaties ◽  
Investment Treaty Arbitration

Abstract While the regime of investment treaty arbitration has evolved manifold over the decades, has the position of the host-states as a Respondent improved? The authors argue that it has not. Bilateral Investment Treaties (hereinafter BIT(s)) are still asymmetrical in nature where the states are obliged to protect the rights of the foreign investors but are not provided with any remedy against the corrupt activities of the investors. While tribunals have denied jurisdiction over the investors’ claims tainted with corruption, they have provided states with no consequent remedy against such investors. Consequently, the states have to first bear the loss of a failed investment in its territory and then pay for the exorbitant costs of international arbitration as well. Where scholars are arguing for attribution of liability of corrupt activities of the public officials to the states, the authors here raise an important question of what if the liability cannot be attributed to the states due to lack of apparent authority? Should the states be then allowed to move forward from the jurisdictional stage to raise counterclaims to seek damages for the loss caused by the investors? In this article, the authors explore these questions and present arguments in favour of the inclusion of corruption-based counterclaims.

11 Treatment of State Obligations (the ‘Umbrella Clause’)

2021 ◽  
Author(s):  
Salacuse Jeswald W
Keyword(s):  
International Law ◽  
The Other ◽  
Host Countries ◽  
Foreign Investors ◽  
International Treaty ◽  
Host State ◽  
Treaty Obligation ◽  
State Obligations ◽  
Investment Treaties ◽  
Domestic Law

This chapter explores umbrella clauses. In order to protect investor–state commitments and obligations from obsolescence, many investment treaties contain a clause defining the treatment that the host state will give to obligations it has made to investors or investments covered by the treaty. Known commonly as ‘umbrella clauses’, such provisions generally stipulate that ‘each Contracting Party shall observe any obligation it may have entered into with regard to the investments of investors of the other Contracting Party’. The umbrella clause creates an exception to a well-established principle of international law concerning state contracts with, and obligations to, foreign investors. Its intent is to impose an international treaty obligation on host countries that requires them to respect obligations they have entered into with respect to investments protected by the treaty. This places such obligations under the protective umbrella of international law, not just the domestic law that would otherwise normally apply exclusively. The chapter then looks at the formulations and application of the umbrella clause.

Part III Guide to Key Jurisdictional Issues, 16 The Umbrella Clause: Is the Umbrella Closing?

2018 ◽  
Author(s):  
Yannaca-Small Katia
Keyword(s):  
Controversial Issue ◽  
Bilateral Investment Treaties ◽  
Host Countries ◽  
Foreign Investors ◽  
Additional Protection ◽  
Investment Treaties ◽  
Investment Agreements

‘Umbrella clauses’ are inserted in treaties to provide additional protection to investors and are directed at covering investment agreements that host countries frequently conclude with foreign investors. Inclusion of umbrella clauses in investment treaties provides a mechanism to make host States’ promises ‘enforceable’ and comes as an additional protection of investor-state contracts, which raises the controversial issue of whether the umbrella clause seeks to elevate contractual breaches to treaty breaches. For a better understanding of the clause, this chapter (i) gives an overview of its history; (ii) briefly discusses the significance of the language included in a number of bilateral investment treaties; and (iii) looks at the effect, scope and conditions of application of the umbrella clause as interpreted by arbitral tribunals.

scholarly journals Environmental Protection and BITs of Bangladesh, Malaysia and USA: A Comparison

2020 ◽  
Vol 8 (3) ◽  
Author(s):  
Mohammad Belayet Hossain
Keyword(s):  
Environmental Protection ◽  
High Standard ◽  
Developed Countries ◽  
Specific Reference ◽  
Bilateral Investment Treaties ◽  
Least Developed Countries ◽  
Host Countries ◽  
Foreign Investments ◽  
Investment Treaties

In absence of any global treaty, the bilateral investment treaties (BITs) are playing an important role of regulating foreign investments in the host countries. According to the United Nations Conference on Trade and Development, there are 2361 BITs in force and like other members of the World Trade Organization, Bangladesh, Malaysia and USA also signed BITs to facilitate trade. The primary purpose of economic globalization is the economic development of the developing and least-developed countries as well as to facilitate benefits of the home states. Bangladesh and Malaysia foreign investment laws has no specific provision of protecting environment and fails to maintain high standard like USA environment laws. This paper addresses two questions: (a) do the bilateral investment treaties of Bangladesh, Malaysia and USA has any specific provision to protect the environment in the host country? (b) should the environmental protection be considered during the entry of foreign investments in Bangladesh, Malaysia and USA? Using doctrinal research method, we critically analyzed 40 BITs signed by Bangladesh, Malaysia and USA with different countries to explore whether there is any specific reference of protecting environment. We find that the existing BITs mainly have provisions to promote and protect foreign investments, and 7 out of 40 BITs have specific reference of protecting environment. Therefore, the governments should consider this important factor to insert while signing any future BITs.

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