scholarly journals Using Arbitration for Resolving Foreign Investment Disputes: A Comparative Study of Laws on Arbitration in Ghana and China

2016 ◽  
Vol 9 (7) ◽  
pp. 1 ◽  
Author(s):  
Shirley Ayangbah
Keyword(s):  
International Law ◽  
Foreign Investment ◽  
International Investment ◽  
Customary International Law ◽  
Republic Of China ◽  
The Past ◽  
The Republic ◽  
The Right ◽  
Procedural Rights ◽  
Comparative Manner

<p>International Investment in recent times is seen as one of the fastest-developing areas of international law. In the past decades, there has been a dramatic increase in the number of bilateral investment treaties and other agreements with investment related provisions that grant foreign investors important substantive and procedural rights, including, most importantly, the right to sue individuals, organizations and even the state hosting their investment for violations of customary international law and treaty obligations. Dispute becomes an inevitable phenomenon as individuals, organizations and countries continue to engage in foreign investment and as such there is the need for dispute solving mechanism to resolve such disputes as and when they arises. Even though there are several dispute solving mechanisms, arbitration seems to be a well-established and widely used mechanism to end dispute probably due to the efficiency and flexibility nature of it. The laws governing arbitration differ from one country to the other and it is for this reason that investors need to be abreast with the different arbitration laws  so as to enable them make inform decisions as to whether to resort to arbitration  or not. This paper analyses the arbitration laws of The Republic of Ghana and Peoples Republic of China in a comparative manner by drawing on the similarities and difference with respect to arbitration laws and procedure in these two countries. The paper is divided into three parts. The first part of this paper gives a brief background as well as the characteristics of the concept of arbitration. The second part looks as the similarities and difference of arbitration between the selected countries, and the final part looks at the arbitration phase and post arbitration phase of the two countries.</p>

Expropriation in International Investment Law

2017 ◽  
Author(s):  
Freya Baetens
Keyword(s):  
World War Ii ◽  
International Law ◽  
Due Process ◽  
Legal Framework ◽  
International Investment ◽  
Customary International Law ◽  
International Investment Law ◽  
Minimum Standards ◽  
Due Process Of Law ◽  
The Right

Expropriation is the taking of foreign property by a state, whether for public purposes or other reasons. Historic instances of expropriation included outright takings of property, but nowadays expropriation is most commonly a result of indirect governmental measures that have the equivalent effect of a formal taking of property. International law protecting foreigners from the taking of their property began to be incorporated into treaties in the 19th and 20th centuries. Meanwhile, judicial pronouncements, particularly in the aftermath of World War II, paved the way for customary international law on this issue. This included the development of minimum standards for lawful taking of foreign property, including that expropriation must be for a public purpose; applied in a nondiscriminatory manner; carried out with due process of law; and accompanied by payment of prompt, adequate, and effective compensation. Nowadays, the international legal framework for regulating the right to take foreign property is largely contained in international investment agreements (IIAs). IIAs incorporate the minimum standards for lawful expropriatory measures developed in customary international law, but also provide additional rules on the types of property protected, requirements for such protection, and the actions from which property is protected. One of the biggest questions faced by international investment tribunals interpreting IIAs is the distinction between compensable indirect expropriations and legitimate, non-compensable regulatory measures. Arbitral tribunals are also yet to agree on principles for quantifying compensation and criteria for valuing expropriated property. Much of the literature in this article is devoted to these thorny issues.

Investment law’s Roots in Customary International law

2017 ◽  
Author(s):  
XU Shu ◽  
WU Yingying ◽  
JIA Henry Hailong
Keyword(s):  
International Law ◽  
International Investment ◽  
Deep Roots ◽  
Customary International Law ◽  
International Investment Law ◽  
Investment Protection ◽  
Trade Law ◽  
Investment Law ◽  
The One ◽  
The Right

The existing regimes of international investment law and trade law both face a prominent issue, namely, the balance between investment protection/trade liberalization on the one hand and the right of host states/importing countries to regulate for non-economic purposes on the other hand. However, investment law has taken an approach that is different from that of trade law in dealing with the issue. In addressing the balancing issue, this chapter finds investment law has deep roots in customary international law and argues that the roots of investment law in customary international law can partially explain why investment law is kept apart from trade law in this context.

scholarly journals Legal Analysis of Supporting Methods of Foreign Investors in Nationalization and Property Confiscation

2020 ◽  
Vol 7 (10) ◽  
pp. 469
Author(s):  
Javad Sabih Maleki ◽  
Siamak Karamzadeh
Keyword(s):  
International Law ◽  
Foreign Investment ◽  
Economic Security ◽  
Foreign Investor ◽  
Legal Analysis ◽  
Foreign Investors ◽  
Customary International Law ◽  
Effective Manner ◽  
Property Confiscation ◽  
The Right

Nationalization of foreign investor assets does not serve the interests of countries because it disrupts the economic security of states and ultimately leads to a reduction in foreign investment. Governments have sought to minimize investor nationalization and property confiscation in order to attract foreign investment. In the event of expropriation of a foreign investor, governments are required to compensate the investor. The position of customary international law on how to pay compensation and methods of assessing damages includes procedures based on national law, treaties and judicial decisions or arbitration. In order to support investors, it is necessary that the right to nationalize property and expropriation of investors should be very limited. Further, in case of nationalization, the damage must be compensated in a desirable and effective manner. The foreign investor must enjoy the same rights as domestic investors and at the same time have the right to transfer their capital and profits abroad. Appropriate measures should also be taken to amend national laws in order to consolidate and guarantee the ownership of foreign investors.

scholarly journals China-Taiwan Threats of Force and the Paradox of the ‘Nuclear Weapons Principle’

2021 ◽  
Vol 23 (4) ◽  
pp. 403-426
Author(s):  
Sondre Torp Helmersen
Keyword(s):  
International Law ◽  
Nuclear Weapons ◽  
Use Of Force ◽  
The Other ◽  
Apparent Paradox ◽  
Customary International Law ◽  
Republic Of China ◽  
The Republic Of China ◽  
The Republic ◽  
The One

Abstract The People’s Republic of China (‘China’) has adopted legislation threatening to invade the Republic of China (‘Taiwan’) if the latter declares independence. Threats of force are prohibited by the UN Charter Article 2(4) and equivalent customary international law. This article proceeds along two apparently contradictory strands. On the one hand, the prohibition probably does not apply to non-State entities such as the Republic of China. One the other hand, the ICJ stated in the Nuclear Weapons opinion that ‘if the use of force itself in a given case is illegal […] the threat to use such force will likewise be illegal’. If the Republic of China declares independence it will become a State, making a PRC invasion illegal. Therefore, the PRC’s current threats should also be illegal. The best way to resolve this apparent paradox is to say that the ICJ’s ‘Nuclear Weapons principle’ must be nuanced.

The Specter of the Past: Reconstructing Conservative Historical Memory in South Korea

2021 ◽  
Vol 49 (3) ◽  
pp. 337-362
Author(s):  
Myungji Yang
Keyword(s):  
South Korea ◽  
Historical Memory ◽  
Political Legitimacy ◽  
New Right ◽  
Historical Narratives ◽  
Right Wing ◽  
Far Right ◽  
The Past ◽  
The Republic ◽  
The Right

Through the case of the New Right movement in South Korea in the early 2000s, this article explores how history has become a battleground on which the Right tried to regain its political legitimacy in the postauthoritarian context. Analyzing disputes over historiography in recent decades, this article argues that conservative intellectuals—academics, journalists, and writers—play a pivotal role in constructing conservative historical narratives and building an identity for right-wing movements. By contesting what they viewed as “distorted” leftist views and promoting national pride, New Right intellectuals positioned themselves as the guardians of “liberal democracy” in the Republic of Korea. Existing studies of the Far Right pay little attention to intellectual circles and their engagement in civil society. By examining how right-wing intellectuals appropriated the past and shaped triumphalist national imagery, this study aims to better understand the dynamics of ideational contestation and knowledge production in Far Right activism.

scholarly journals Private Actors, Public Goods and Responsibility for the Right to Water in International Investment Law: An Analysis of Urbaser v. Argentina

2018 ◽  
pp. 1-24
Author(s):  
Edward Guntrip
Keyword(s):  
Water Supply ◽  
International Law ◽  
International Investment ◽  
Human Right ◽  
Public And Private ◽  
Foreign Investors ◽  
International Investment Law ◽  
Investment Law ◽  
The Right ◽  
Water Supply Services

International investment law balances public and private interests within the broader framework of international law. Consequently, when water supply services, which constitute a public good, are privatized and operated by foreign investors, questions arise regarding whether foreign investors could be held responsible for the right to water under international law. This article considers how the tribunal in Urbaser v. Argentina allocated responsibility for compliance with the right to water between the host State and the foreign investor when resolving a dispute over privatized water services. It highlights how the tribunal in Urbaser v. Argentina supports different understandings of public and private based on whether the human rights obligation is framed in terms of the duty to respect or protect. The article argues that the tribunal’s rationale overcomplicates the process of allocating responsibility for violations of the human right to water when water supply services have been privatized.

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