scholarly journals La légalité de l’investissement devant l’arbitre international : à la recherche d’un point d’équilibre

2017 ◽  
Vol 14 (2) ◽  
Author(s):  
Hervé Ascensio
Keyword(s):  
International Law ◽  
Legal Basis ◽  
Foreign Investors ◽  
Balanced Approach ◽  
Investment Arbitration ◽  
The Moment ◽  
Over Time

The idea that the protection offered to foreign investors under international law is conditioned upon the respect of legality has emerged in the practice of investment arbitration, on the basis of some treaty provisions and on the basis of general principles of international law. The effect of such legality condition is however intricate, because an argument on illegality is raised sometimes as a jurisdictional objection, sometimes as an admissibility issue, and sometimes on the merits. This article argues that arbitral decisions have become more consistent over time, and that different legal characterizations are understandable, taking into account the different legal basis for a legality condition, the timing of proceedings, and the multifaceted aspects of legality. A balanced approach of the legality condition would be to ground it in international as well as national law, and to focus on the moment of the making of the investment; conversely, an expansive approach would create conceptual and practical difficulties.

scholarly journals La légalité de l’investissement devant l’arbitre international : à la recherche d’un point d’équilibre

2017 ◽  
Vol 14 (2) ◽  
Author(s):  
Hervé Ascensio
Keyword(s):  
International Law ◽  
Legal Basis ◽  
Foreign Investors ◽  
Balanced Approach ◽  
Investment Arbitration ◽  
The Moment ◽  
Over Time

The idea that the protection offered to foreign investors under international law is conditioned upon the respect of legality has emerged in the practice of investment arbitration, on the basis of some treaty provisions and on the basis of general principles of international law. The effect of such legality condition is however intricate, because an argument on illegality is raised sometimes as a jurisdictional objection, sometimes as an admissibility issue, and sometimes on the merits. This article argues that arbitral decisions have become more consistent over time, and that different legal characterizations are understandable, taking into account the different legal basis for a legality condition, the timing of proceedings, and the multifaceted aspects of legality. A balanced approach of the legality condition would be to ground it in international as well as national law, and to focus on the moment of the making of the investment; conversely, an expansive approach would create conceptual and practical difficulties.

Transnational Public Policy as an International Practice in Investment Arbitration

2019 ◽  
Vol 10 (3) ◽  
pp. 496-515
Author(s):  
Jean-Michel Marcoux
Keyword(s):  
Public Policy ◽  
International Relations ◽  
International Relations Theory ◽  
International Investment ◽  
Legal Basis ◽  
Foreign Investors ◽  
International Investment Law ◽  
Investment Arbitration ◽  
Investment Law

Abstract International investment arbitration tribunals have used the doctrine of transnational public policy to prevent claimants whose investments are tainted with illegality from obtaining redress. Whereas tribunals generally have the authority to apply transnational public policy when deciding a claim, they have often assumed rather than demonstrated the obligation for foreign investors to comply with the doctrine. This article proposes an interdisciplinary account that draws upon ‘international practices’ in International Relations theory to understand the normative pull toward this obligation. It does so by shedding light on tribunals’ general lack of consideration for a proper legal basis to impose an obligation on foreign investors to comply with transnational public policy. It then suggests that the normativity of the doctrine primarily rests on a practice that is reproduced and reinforced by tribunals themselves. Understanding transnational public policy as an international practice ultimately illustrates the role of tribunals to reform international investment law.

Moral Damages in International Investment Disputes – On the Search for a Legal Basis and Guiding Principles

2013 ◽  
pp. 1-43
Author(s):  
Lars Markert ◽  
Elisa Freiburg
Keyword(s):  
International Law ◽  
International Investment ◽  
Controversial Issues ◽  
Legal Basis ◽  
Public International Law ◽  
International Investment Law ◽  
Investment Arbitration ◽  
Legal Nature ◽  
Investment Law ◽  
Insight Into

This article sets out to examine the legal nature of and the requirements for granting moral damages in international (investment) law. In doing so, we will consider various general public international law and investment law cases. We will place a particular emphasis on the former, since they provide a valuable platform for the analysis of the origins of moral damages and an exploration of how international tribunals have dealt with moral damages under different circumstances. The more recent investment arbitration cases provide a useful insight into several controversial issues arising out of the arbitral tribunals’ holdings. We will develop a proposal as to how moral damages should be characterized doctrinally and show that nowadays moral damages claims are generally accepted in investment law, despite still existing uncertainties regarding their scope and application.

International Investment Arbitration: Recent Developments as to the Applicable Law and Unilateral Recourse

2006 ◽  
Vol 5 (1) ◽  
pp. 29-39 ◽  
Author(s):  
Andrea Giardina
Keyword(s):  
International Law ◽  
International Investment ◽  
International Arbitration ◽  
Foreign Investors ◽  
New Developments ◽  
Applicable Law ◽  
Investment Arbitration ◽  
Recent Developments ◽  
New Form

AbstractInternational arbitration relating to investments is a field in which important and rapid developments have taken place. Such developments have produced a noteworthy reinforcement of the procedural and substantive rights and positions of foreign investors vis-á-vis host States. Among the various items characterizing these new developments, two have been selected to be examined in this Article: (I) The compliance with international law by arbitral awards and their rationale; (II) The new form of arbitration which is apparently developing, the unilateral arbitration or arbitration without privity.

Diligentia quam in suis as a Technique for a Contextual Application of the Full Protection and Security Standard: Considering the Level of Development of Host States in International Investment Law

2020 ◽  
Vol 28 (4) ◽  
pp. 596-611
Author(s):  
Nitish Monebhurrun
Keyword(s):  
International Law ◽  
International Investment ◽  
Due Diligence ◽  
Foreign Investors ◽  
International Investment Law ◽  
Local Means ◽  
Security Standard ◽  
Maximum Protection ◽  
Investment Law ◽  
Full Protection

With international investment law as the background to this study, the present article examines how the full protection and security standard can be construed from the perspective of developing states hosting foreign investments. The research delves into classical public international law to argue that the diligentia quam in suis rule can be used as a means of interpretation to strike a balance between foreign investors’ and developing states’ interests when construing the full protection and security standard. The rule provides that any expected due diligence from the state party is necessarily of a subjective nature. This means that developing host states must deploy their best efforts to offer maximum protection to foreign investors not on an in abstracto basis but as per their local means and capacity. Accordingly, the standard is presented as an adaptable and flexible one which moulds its contours as per the level of development of the host state. Such flexibility does not imply condoning states’ abuse and negligence. The article explains how the diligentia quam in suis rule enables a conciliation between the full protection and security standard and the host state's level of development while rationalising the standard's application to developing nations.

The Trouble with Foreign Investor Protection

2020 ◽  
Author(s):  
Gus Van Harten
Keyword(s):  
International Law ◽  
Dispute Settlement ◽  
Foreign Investor ◽  
Foreign Investors ◽  
Global Context ◽  
Cross Border ◽  
Massive Growth ◽  
Main Effect ◽  
History Of ◽  
Legal Foundations

Governments are rightly discussing reform of investment treaties, and of the powerful system of ‘investor–state dispute settlement’ (ISDS) upon which they rest. It is therefore important to be clear about the crux of the problem. ISDS treaties are flawed fundamentally because they firmly institute wealth-based inequality under international law. That is, they use cross-border ownership of assets, mostly by multinationals and billionaires, as the gateway to extraordinary protections, while denying equivalent safeguards to those who lack the wealth required to qualify as foreign investors. The treaties thus have the main effect of safeguarding an awe-inspiring set of rights and privileges for the ultra-wealthy at the expense of countries and their populations. This book shows how ISDS came to explode in a global context of extreme concentration of wealth and of widespread poverty. The history of early ISDS treaties is highlighted to show their ties to decolonization and, sometimes, extreme violence and authoritarianism. Focusing on early ISDS lawsuits and rulings reveals how a small group of lawyers and arbitrators worked to create the legal foundations for massive growth of ISDS since 2000. ISDS-based protections are examined in detail to demonstrate how they give exceptional advantages to the wealthy. Examples are offered of how the protections have been used to reconfigure state decision making and shift sovereign minds in favour of foreign investors. Finally, the ongoing efforts of governments to reform ISDS are surveyed, with a call to go further or, even better, to withdraw from the treaties.

scholarly journals Agritourism—A Business Reality of the Moment for Romanian Rural Area’s Sustainability

2021 ◽  
Vol 13 (11) ◽  
pp. 6313
Author(s):  
Ramona Ciolac ◽  
Tiberiu Iancu ◽  
Ioan Brad ◽  
Tabita Adamov ◽  
Nicoleta Mateoc-Sîrb
Keyword(s):  
Rural Communities ◽  
Distribution Channels ◽  
Scientific Paper ◽  
Business Owners ◽  
The Future ◽  
Tourism Potential ◽  
The Moment ◽  
Managerial Experience ◽  
Over Time

The agritourism activity can be a characteristic reality of the present, considering rural area’s sustainability, being at the same time a business reality for rural entrepreneurs and a “must have” for rural communities that have tourism potential. It is a form of tourism, through which the tourist can receive a qualitative product at a reasonable price, but also a field that can ensure sustainable development over time, being at the same time environmentally friendly. The purpose of this scientific paper is to identify the aspects that make agritourism “a possible business reality of the moment”, for Romanian rural area’s sustainability. We take into account the following areas: Bran-Moieciu area—considered “the oldest” in terms of agritourism experience, and Apuseni Mountains area, with a great inclination and potential for this activity. The study conducted for these two areas is focused on several aspects: the degree of involvement in agritourism activities, considering the number of years and managerial experience, the analysis of the types of activities/experiences offered by agritourism structures, the identification of the main reasons/motivations for the orientation towards agritourism and the manner in which this field is perceived. Aspects related to the marketing-finance part of the agritourism business are also taken into account: customers, distribution channels, financial sources, shortcomings observed by agritourism business owners and possible action directions so as to improve the activity/agritourism product. Agritourism may be “a possible business reality of the moment” for the studied areas and not only, but in the future, the entrepreneur/farmer must be constantly updated because of the changing situations that appear on the market, be able to make sustainable decisions for his/her own business, which in the future will ensure its viability and obviously its long-term profitability and development, and in the same time rural area’s sustainability.

Trends in Global Disarmament Treaties

2020 ◽  
Author(s):  
Stuart Casey-Maslen ◽  
Tobias Vestner
Keyword(s):  
International Law ◽  
Biological Weapons ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
State Party ◽  
Chemical Weapons Convention ◽  
Support Mechanisms ◽  
Biological Weapons Convention ◽  
Over Time ◽  
Core Features

Abstract Since the adoption of the UN Charter, states have concluded numerous international disarmament treaties. What are their core features, and are there any trends in their design? This article discusses the five global disarmament treaties, namely the 1971 Biological Weapons Convention, the 1992 Chemical Weapons Convention, the 1997 Anti-Personnel Mine Ban Convention, the 2008 Convention on Cluster Munitions and the 2017 Treaty on the Prohibition of Nuclear Weapons. It first considers how a broad set of prohibitions of activities with respect to specific weapons has evolved over time. Then, it analyses the treaties’ implementation and compliance support mechanisms as well as their procedural aspects regarding entry into force and withdrawal. This article finds that a pattern has developed over the last two decades to outlaw all and any use of weapons by disarmament treaty, without first instituting a prohibition on their use under international humanitarian law (IHL). It also finds that reporting obligations, meetings of States Parties and treaty-related institutions are generally created, either directly by treaty or by subsequent state party decisions. Finally, there is a tendency to make the treaty’s entry into force easier, and the withdrawal more difficult. It is argued that these trends arise from states’ attempt to establish more easily disarmament treaties, design more robust disarmament treaties and more effectively protect civilians. The article concludes by reflecting whether these trends form the basis of a new branch of international law—international disarmament law—and discusses them in the context of emerging weapons and technologies.

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