The Limits of the Comparative Public Law Methodology in International Investment Law: An Australian Case Study

2018 ◽  
Vol 41 (2) ◽  
Author(s):  
Alexander Ferguson
Keyword(s):  
International Investment ◽  
Public Law ◽  
International Investment Law ◽  
Investment Treaty ◽  
Fair And Equitable Treatment ◽  
Australian Case ◽  
Legitimate Expectations ◽  
Investment Law ◽  
Equitable Treatment

Government conduct is increasingly reviewable by investment treaty tribunals. These tribunals often consider whether a host state has failed to afford fair and equitable treatment by defeating a foreign investor’s legitimate expectations. To discern what a foreign investor can legitimately expect, some tribunals use a comparative public law methodology that draws on domestic public law. Using Australian law as a case study, I suggest that the comparative public law methodology may not be able to achieve all of its aims.

scholarly journals Fair and Equitable Treatment and Investor’s Due Diligence Under International Investment Law

2020 ◽  
Vol 67 (2) ◽  
pp. 233-255
Author(s):  
Yulia Levashova
Keyword(s):  
International Investment ◽  
Due Diligence ◽  
International Investment Law ◽  
Host State ◽  
Fair And Equitable Treatment ◽  
Political Background ◽  
Legitimate Expectations ◽  
Investment Law ◽  
The Stability ◽  
Equitable Treatment

Abstract The investor’s due diligence has become a significant factor in determining whether the legitimate expectations of an investor give rise to protection under the FET standard. This is especially relevant when an investor’s claim for the protection of its legitimate expectations is based on the stability of a regulatory framework. The investor’s due diligence in the context of the FET standard goes beyond the risk-based business due diligence performed by a foreign investor for its own benefit. It has implications for a state’s right to regulate in the public interest and a broader notion of business responsibilities. Investors are expected to conduct proper due diligence before investing in a host state by demonstrating their reasonable efforts to collect information about the rules and regulations that are pertinent to the proposed investment. In some cases, due diligence extends to an investor’s duty to assess the possible risks related to the broader economic situation and socio-political background of a host state. Focusing on the recent renewable energy awards, this article analyses and clarifies the role of due diligence in the context of the FET standard, as well as its potential application for asserting responsible business conduct in the broader framework of international investment law.

The Application of the Principle of Proportionality to Assess Compensation: Some Reflections Arising from the Case of Joseph Charles Lemire v. Ukraine

2014 ◽  
Vol 13 (2) ◽  
pp. 199-222
Author(s):  
Sondra Faccio
Keyword(s):  
Case Law ◽  
International Investment ◽  
International Human Rights Law ◽  
Human Rights Law ◽  
International Investment Law ◽  
Investment Treaty ◽  
Fair And Equitable Treatment ◽  
Investment Law ◽  
Principle Of Proportionality ◽  
Equitable Treatment

In the last few years, the principle of proportionality has appeared with a certain frequency in international investment case law: arbitrators have employed it to determine whether the State’s regulatory measure under scrutiny represents a form of indirect expropriation, to assess violations of the fair and equitable treatment (‘fet’) standard, to counterbalance competing obligations drawn from international investment law and international human rights law, and to assess compensation. This article will focus on the so-called “quantum phase” – the part of the award devoted to the assessment of the monetary compensation due to the foreign investor for the breach of the investment treaty provision – and will discuss whether the principle of proportionality can effectively play a role in the assessment of compensation. The work will start from the analysis of the case of Joseph Charles Lemire v. Ukraine, where arbitrators expressly resorted to proportionality to verify whether the indemnity awarded to the claimant for the breach of the fet standard was adequate in light of the specific characteristics of the investment lato sensu and the investor, to then approach the issue of proportionality more in detail.

Legal Stability and Legitimate Expectations: Does International Investment Law Need a Sense of Proportion? – Joint 2nd Prize Winner of the Essay Competition 2020

2020 ◽  
Vol 5 (1) ◽  
pp. 240-264
Author(s):  
Robert Bradshaw
Keyword(s):  
Renewable Energy ◽  
International Investment ◽  
Eu Law ◽  
Legal Systems ◽  
International Investment Law ◽  
Fair And Equitable Treatment ◽  
Energy Charter Treaty ◽  
Legitimate Expectations ◽  
Investment Law ◽  
Equitable Treatment

In the aftermath of the Achmea judgment and with the European Commission’s continued efforts to curtail investor- State arbitration, EU law and international investment law may seem antithetical. However, this article considers how EU law may contribute to the development of investment law through the concept of proportionality, a general principle of EU law and various national legal systems. Tribunals have increasingly applied a proportionality analysis in their reasoning, most recently in several cases brought by renewable energy investors against Spain and Italy under the Energy Charter Treaty. These cases concern the controversial issue of when a change in the regulatory framework violates investors’ legitimate expectations and their right to fair and equitable treatment. This article argues that the proportionality standard has the potential to clarify this area of law and to promote “defragmentation” between international investment law and other legal systems.

scholarly journals AUTONOMY TO SET THE LEVEL OF REGULATORY PROTECTION IN INTERNATIONAL INVESTMENT LAW

2021 ◽  
pp. 1-40
Author(s):  
Joshua Paine
Keyword(s):  
International Investment ◽  
State Autonomy ◽  
International Investment Law ◽  
Competing Interests ◽  
Investment Treaty ◽  
Fair And Equitable Treatment ◽  
Investment Law ◽  
Regulatory Protection ◽  
The Right ◽  
Equitable Treatment

Abstract This article argues that State autonomy in setting the level of protection for permissible regulatory aims can be better operationalised in the investment treaty regime. The article draws on comparative insights from WTO law, where it is established that WTO members have the right to determine the level of protection for permissible regulatory aims, although significant disciplines are placed on the means used to achieve those aims. It is then argued that investment treaties are, properly interpreted, consistent with the idea that States retain autonomy to determine the level of protection for permissible regulatory aims. Finally, the article proposes removing from the fair and equitable treatment and indirect expropriation standards proportionality balancing stricto sensu, as this undermines State autonomy in setting the level of protection. Overall, this article argues for a partial reorientation of investment law, in which non-discriminatory measures that pursue a permissible regulatory aim, including at a particular level, should not amount to a breach of a treaty where a State uses the means that involve the least possible restriction of the competing interests protected by relevant investment treaty obligations.

Beyond Gold Reserve Inc. v Bolivarian Republic of Venezuela: The Host State’s Capacity to Regulate Extractive Activities in Light of Canadian Firms’ Experience in International Investment Treaty Arbitration

2015 ◽  
Vol 52 ◽  
pp. 261-295
Author(s):  
JEAN-MICHEL MARCOUX
Keyword(s):  
International Investment ◽  
International Investment Law ◽  
Investment Treaty ◽  
Treatment Provision ◽  
Fair And Equitable Treatment ◽  
Gold Reserve ◽  
Investment Agreement ◽  
Investment Law ◽  
Negative Impacts ◽  
Equitable Treatment

AbstractIn a recent award involving Gold Reserve Inc., an international investment arbitral tribunal concluded that Venezuela had to pay compensation of US $713 million for violations of the fair and equitable treatment provision of an international investment agreement between Canada and Venezuela. This decision contrasts sharply with the outcome of other investment disputes concerning Canadian extractive companies. Relying on a detailed analysis of awards involving EnCana Corporation, Glamis Gold Ltd. and Vannessa Ventures Ltd., this article recalls that host states can take measures to increase the benefits and limit the negative impacts of extractive industries’ activities without breaching their obligations under international investment law.

scholarly journals Investor Due Diligence and Legitimate Expectations

2021 ◽  
pp. 1-17
Author(s):  
Shaun Matos
Keyword(s):  
International Investment ◽  
Due Diligence ◽  
International Investment Law ◽  
Host State ◽  
Fair And Equitable Treatment ◽  
Legitimate Expectations ◽  
Investment Law ◽  
Strict Requirement ◽  
Equitable Treatment

Abstract This article examines the significance of investor due diligence in the context of a claim that a host State has breached its obligation to provide fair and equitable treatment (FET). Despite increasing reliance on due diligence exercises, there are considerable differences in how tribunals understand and use such exercises. These differences are related to different visions of the function and future of international investment law. After exploring the different approaches that are taken, this article will argue that the most coherent approach is to treat investor due diligence as merely a technique for assessing investor reasonableness and prudence, rather than a strict requirement.

scholarly journals Fair and Equitable Treatment Between the International and National Rule of Law

2019 ◽  
Vol 20 (4) ◽  
pp. 513-552 ◽  
Author(s):  
Velimir Živković
Keyword(s):  
Decision Making ◽  
Rule Of Law ◽  
International Investment ◽  
The Rule Of Law ◽  
International Investment Law ◽  
Investment Protection ◽  
National Rule ◽  
Fair And Equitable Treatment ◽  
Investment Law ◽  
Equitable Treatment

Abstract Promoting the rule of law is a potentially strong legitimating narrative for international investment law. Illustrating the interlinkage, the ubiquitous ‘fair and equitable treatment’ (FET) standard embodies distinctly rule of law requirements. But these requirements remain open-textured and allow understanding their meaning in either more ‘international’ or ‘national’ way. An ‘international’ understanding – detached from the host State’s vision on how the rule of law should look like – should remain dominant. But I argue that decision-making under the FET standard should also involve a systematic engagement with how these requirements would be understood in the host State’s law and how they were complied with from that perspective. Whilst not determinative for establishing a breach, this assessment better respects the expectations of the parties, strengthens the persuasiveness of findings and helps enhance the national rule of law as a key contributor to the ultimate goal of investment protection – economic development.

International Investment Law in Central Asia

2015 ◽  
Vol 16 (5-6) ◽  
pp. 1089-1124 ◽  
Author(s):  
Mavluda Sattorova
Keyword(s):  
International Investment ◽  
International Investment Law ◽  
Investment Protection ◽  
Investment Treaty ◽  
Regional Investment ◽  
Central Asian ◽  
History Of ◽  
Investment Law ◽  
Law Making

Despite the fact that Central Asian states have not been involved in regional investment treaty-making on a scale and thrust similar to that of ASEAN and NAFTA, their evolving approaches to international investment law merit attention, not least because of the unique geopolitical characteristics of the region. The aim of this article is to fill the gap in the existing scholarship by exploring regional characteristics of Central Asian participation in international investment law-making. It will critically evaluate the history of numerous regionalisation efforts and, through a case study of two Central Asian states, Kazakhstan and Uzbekistan, examine the shared patterns in the evolution of national approaches to investment protection rules. In particular, the identity of Central Asian states as rule-takers and the factors underlying the emergence of distinctive national stances on the scope and objective of investment rules will be analysed.

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