scholarly journals Absence of a Universal Treaty on Foreign Investment and Movement toward It

2016 ◽  
Vol 9 (5) ◽  
pp. 299
Author(s):  
Leila Raeisi ◽  
Abdolnaeim Shahriari

Foreign investment is today one of the most important pillars of economic and social development. Having passed several ups and downs, the legal regime governing foreign investment could be now called the result of a vast range of developments. An in-depth study of these developments will provide a comprehensive outlook for preparing a roadmap of the law on foreign investment both from a national and transnational perspective. In this regard, one main question would be whether the development of rules in the field of foreign investment has prepared the required conditions and basis for conclusion of a universal treaty on foreign investment? Plus it is to be clarified as to what would be the appropriate approach for regulation of foreign investment from the international aspect. While studying the developments in the recent decades, the present paper will review the perspectives for conclusion of a universal foreign investment treaty and the process for such a treaty.

Author(s):  
Jure Zrilic

Foreign investors often sustain injuries during violent situations, such as riots, revolutions, civil wars, and international armed conflicts. There is a great deal of uncertainty about how effective investment treaty protections are in volatile times, how they relate to other applicable legal frameworks, and how they affect the state security policy and the post-conflict transition to peace. This book explores how foreign investment is protected in times of armed conflict under the investment treaty regime. It does so by combining insights from different areas of international law, including international investment law, international humanitarian law, international human rights law, the law of state responsibility, and the law of treaties. While the protections have evolved over time, with the investment treaty regime providing the strongest legal framework for protecting investors yet, there has been an apparent shift towards safeguarding a state’s security interests in recent treaty practice. The book identifies and analyses the flaws in the existent normative framework, but also highlights the potential that investment treaties have for minimizing the devastating effects of armed conflict. It offers an analytical framework for assessing the investment treaty regime in times of armed conflict, distinguishing between different paradigms and different types conflicts. It argues that a new approach is needed to appropriately balance the competing interests of host states and investors when it comes to investment protection in armed conflicts.


Jurnal Hukum ◽  
2016 ◽  
Vol 31 (2) ◽  
pp. 1833
Author(s):  
Rihantoro Bayu Aji

 AbstractActually the existence of foreign investment in Indonesia is not new phenomenon, due to foreign investment exist since colonialism era.The existence of foreign investment is still continuing to Soeharto era until reformation era. Spirit of foreign investment in colonialism era, Soharto era, and reformation era are different. Foreign investment in colonialsm era just explore of nation asset and ignore of nation welfare, and this matter is different from the character of foreign investment in Soeharto era also reformation era. Eventhough the involvement of foreign investor have any benefits to the host country, but on the other hand foreign investment have business oriented only whether the investment is secure and may result of profit. Refer to The Law Number 25 Year of 2007 Concerning Investment (hereinafter called UUPM) can not be separated from various interest that become of politic background of the law, even the law tend to liberalism of investment. Liberalism in the investment sector particularly of foreign investment basically exist far from issuing of UUPM, and the spirit of liberalism also stipulate in several rules among others The Law Number 5 Year of 1999 Concerning Prohibitation of Anti Trust and Unfair Competition, The Law Number 22 Year of 2001 Concerning Oil and Gas, The Law Number 7 Year of 2004 Concerning Water Resource, and also The Law Number 30 Year of 2009 Concerning Electricity.   Many rules as mentioned above has liberalism character and also indicator opposite wit the right to manage of the state to nation asset that relate to public interest as stipulated in the Indonesia Constitution. Actually the issuing of UUPM in case of implementation of article 33 Indonesia Constitution (UUD NRI 1945). Due to opportunity by Government to foreign investment as stipulate by article 12 UUPM and also the existence of many rules as well as The Law Number 5 Year of 1999 Concerning Prohibitation of Anti Trust and Unfair Competition, The Law Number 22 Year of 2001 Concerning Oil and Gas, The Law Number 7 Year of 2004 Concerning Water Resource, and also The Law Number 30 Year of 2009 Concerning Electricity, so the foreign investment that relate to public service is more exist in Indonesia. The existence is reflected many foreign companies. Free of foreign investment relate to public service is opposite with spirit of article 33 Indonesia Constitution. Keywords: Foreign Investment, Right of  State, Article 33 Indonesia Consitution AbstrakEksistensi penanaman modal asing (investasi asing) di Indonesia sebenarnya bukan merupakan fenomena baru di Indonesia, mengingat modal asing telah hadir di Indonesia sejak zaman kolonial dahulu.   Eksistensi penanaman modal asing terus berlanjut pada era orde baru sampai dengan era reformasi. Tentunya semangat penanaman modal asing pada saat era kolonial, era orde baru, dan era reformasi adalah berbeda. Penanaman modal asing pada saat era kolonial memiliki karakter eksploitatif atas aset bangsa dan mengabaikan kesejahteraan rakyat, hal ini tentunya berbeda dengan karakter penanaman modal asing pada era orde baru, dan era reformasi. Sekalipun kehadiran investor membawa manfaat bagi negara penerima modal, di sisi lain investor yang hendak menanamkan modalnya juga tidak lepas dari orientasi bisnis (oriented business), apakah modal yang diinvestasikan aman dan bisa menghasilkan keuntungan. Melihat eksistensi Undang–Undang Nomor 25 Tahun 2007 tentang Penanaman Modal (UUPM) tidak dapat dilepaskan dari beragam kepentingan yang mendasari untuk diterbitkannya undang–undang tersebut, bahkan terdapat kecenderungan semangat dari UUPM lebih cenderung kepada liberalisasi investasi. Liberalisasi pada sektor investasi khususnya investasi asing pada dasarnya eksis jauh sebelum lahirnya UUPM ternyata juga tampak secara tersirat dalam beberapa peraturan perundang–undangan di Indonesia. Perundang–undangan tersebut antara lain Undang–Undang Nomor 5 Tahun 1999 tentang Larangan Praktek Monopoli dan Persaingan Usaha Tidak Sehat, Undang–Undang Nomor 22 Tahun 2001 tentang Minyak Dan Gas Bumi, Undang–Undang Nomor 7 Tahun 2004 tentang Sumber Daya Air, dan Undang–Undang Nomor 30 Tahun 2009 tentang Ketenagalistrikan.Banyaknya peraturan perundang–undangan yang berkarakter liberal sebagaimana diuraikan di atas mengindikasikan bahwa hak menguasai negara atas aset bangsa yang berkaitan dengan hajat hidup orang banyak sebagaimana diamahkan oleh Undang–Undang Dasar 1945 (Konstitusi) mulai “dikebiri” dengan adanya undang–undang yang tidak selaras semangatnya. Padahal, UUPM diterbitkan dalam kerangka mengimplementasikan amanat Pasal 33 Undang–Undang Dasar Negara Republik Indonesia Tahun 1945 (UUD NRI 1945). Dengan adanya peluang yang diberikan oleh pemerintah kepada investor asing sebagaimana yang diatur dalam Pasal 12 UUPM ditambah lagi dengan adanya Undang–Undang Nomor 5 Tahun 1999 tentang Larangan Praktek Monopoli dan Persaingan Usaha Tidak Sehat, Undang–Undang Nomor 22 Tahun 2001 tentang Minyak Dan Gas Bumi, Undang–Undang Nomor 7 Tahun 2004 tentang Sumber Daya Air, dan Undang–Undang Nomor 30 Tahun 2009 tentang Ketenagalistrikan, maka investasi asing yang berhubungan dengan cabang– cabang yang menguasai hajat hidup orang banyak semakin eksis di Indonesia. Terbukanya investasi asing atas cabang–cabang produksi yang menguasai hajat hidup orang banyak tentunya hal ini bertentangan dengan konsep hak menguasai negara sebagaimana diatur dalam Pasal 33 UUD NRI 1945. Kata Kunci: Investasi Asing, Hak Menguasai Negara, Pasal 33 UUD NRI Tahun          1945


2013 ◽  
Vol 38 (02) ◽  
pp. 364-402 ◽  
Author(s):  
Michelle Oberman

Laws governing adolescent sexuality are incoherent and chaotically enforced, and legal scholarship on the subject neither addresses nor remedies adolescents’ vulnerability in sexual encounters. To posit a meaningful relationship between the criminal law and adolescent sexual encounters, one must examine what we know about adolescent sexuality from both the academic literature and the adults who control the criminal justice response to such interactions. This article presents an in-depth study of In re John Z., a 2003 rape prosecution involving two seventeen-year-olds. Using this case, I explore the implications of the prosecution by interviewing a variety of experts and analyzing the contemporary literature on sexual norms among youth. I also relate a series of interviews conducted with the major players in the prosecution. Examining this case from a variety of perspectives permits a deeper understanding of how the law regulates adolescent sexual encounters and why it fails.


1989 ◽  
Vol 48 (3) ◽  
pp. 436-471 ◽  
Author(s):  
M. J. Detmold

Law is practical. Legal reasoning is practical reasoning. We could make nothing of a judge who having listened to counsel's arguments and reflected about the law governing his case thought that the state of knowledge that he had achieved was the natural termination of his enterprise and submitted his conclusions to the editors of Halsbury's Laws of England rather than performed the action of giving judgment. The parties would be outraged, and rightly. And if the judge continued to do such a thing he would be dismissed. Legal reasoning is practical in the sense that its natural conclusion is an action (in the judge's case the action of giving judgment) rather than a state of knowledge. This is taking “practical” in a strong sense. By this definition thought is practical whose natural conclusion is an action (or decision against action): its strongest contrast is with theoretical thought whose natural conclusion is knowledge. But it also contrasts with hypothetical thought about action (say, my thinking it would be good to play cricket again). I do not call this practical because it does not conclude in an action or decision against action (others do; for example John Finnis in Fundamentals of Ethics; my reasons for differing in this matter will emerge). A judge's practical reasoning towards the action of giving judgment has priority for our understanding of law over that vast range of practically idle things that lawyers do, from the construction of digests like Halsbury to casual reflection about the rule in Shelley's case (of course there is one sort of doing involved in both these, but not legal doing). It is important here to be clear about this priority. It is a priority of practicality, not a priority of judges or lawyers.


2004 ◽  
Vol 19 (3) ◽  
pp. 289-298 ◽  
Author(s):  
Moritaka Hayashi

AbstractThis article considers the gaps in the existing legal regime on deep-sea fisheries and explores a more effective global governance system. It is proposed that a new global agreement, modeled on the 1995 UN Fish Stocks Agreement, be negotiated covering deep-sea stocks as well as other high seas resources, so that all fisheries on the high seas may be covered. The proposed agreement would complete the gaps in high seas fisheries regime and serve as an effective link between the UN Convention on the Law of the Sea and regional fisheries bodies. As a short-term measure, FAO should prepare a set of guidelines covering all types of deep-sea fisheries, including shared and transboundary stocks as well as discrete high seas stocks. In addition, FAO's Committee on Fisheries should be strengthened in its global governance role, including co-ordination of all regional fisheries bodies


2019 ◽  
Author(s):  
Michael W. Yarbrough

Law forms one of the major structural contexts within which family lives play out, yet the precise dynamics connecting these two foundational institutions are still poorly understood. This article attempts to help bridge this gap by applying sociolegal concepts to empirical findings about state law’s role in family, and especially in marriage, drawn from across several decades and disciplines of South Africanist scholarly research. I sketch the broad outlines of a nuanced theoretical approach for analyzing the law-family relationship, which insists that the relationship entails a contingent and dynamic interplay between relatively powerful regulating institutions and relatively powerless regulated populations. Accordingly, while my argument broadly distinguishes the more repressive regimes of colonialism and apartheid from the more expansive post-apartheid legal regime, it also partially undoes that periodisation by highlighting limits and evasions of repressive law and obstacles impeding access to post-apartheid law’s expansive promises.


2021 ◽  
Vol 16 (3) ◽  
pp. 10-22
Author(s):  
Todor Kolarov

The article strives to analyse the origin of the institute of procedural substitution (for the lack of a better term) in Bulgaria through historic overview, starting with the law of Ancient Rome, going through ius commune and finishing with the contemporary legal regime. From a procedural standpoint, the conclusion is that the institute came into being at the end of the XIX and beginning of the XX century. While manifestations of procedural substitution can be found in the Roman law, this is not an indication of a formulation of the legal institute itself.


2012 ◽  
Vol 15 (1) ◽  
Author(s):  
Azlinor Sufian

Malaysia is one of the signatories to the proclamations of Asia & Pacific Decade of Disabled Persons (1993-2002), yet Malaysia is still lacking of comprehensive laws as regards to rights of persons with disabilities. The only law available is the Uniform Building (Amendment) By Laws, 1991(UBBL Amendment 1991) that provides for building requirements for disabled persons. This by law may be regarded as an initial step taken by Malaysia to ensure a disabled person’s right to full participation in social development. Despite the existence of this by law, most buildings in Malaysia do not have proper facilities or provide easy access for persons with disabilities. Similarly as far as housing is concerned there is no statutory requirement stipulating that housing (in particular public housing) should be designed to accommodate the needs of persons with disabilities. It is the aim of this article to look into some legal provisions related to barrier free buildings including housing in Malaysia.


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