Staatliches Regulierungsinteresse im Investitionsschutzrecht

The State ◽

State Sovereignty ◽

Development Trends ◽

Public Discussion ◽

The Public ◽

Margin Of Appreciation ◽

The public discussion on the legitimacy of international investment law requires a reevaluation of the concept of state sovereignty in international investment law. The monograph sets out different concepts of an a priori precedence of the interests of the state over the interests of the investor and vice versa. Furthermore, it describes different models of reconciling these interests by way of giving the state a margin of discretion. In particular, the transfer of the margin of appreciation doctrine to international investment law, as well as the concept of empiric and normative deference, are the focus of this monograph. Finally, the author explores how investor-state arbitration achieves a reconciliation of interests by way of interpreting and applying rules of international investment law without the need to apply concepts from other legal systems. Based on these findings, the author evaluates different development trends in the drafting of investment treaties.

Sources of International Investment Law

10.1093/law/9780198745365.003.0050 ◽

2018 ◽

Author(s):

Jorge E. Viñuales

Keyword(s):

International Law ◽

Foreign Investment ◽

The State ◽

Conventional Theory ◽

Basic Understanding ◽

Investment Law ◽

Practical Implications

This chapter addresses the challenges posed by the practice of international investment law to the conventional theory of the sources of international law. After a brief overview of the main ‘sources’ of ‘international investment law’, the chapter examines three challenges to this basic understanding, which arise from the need to account for the domestic laws governing different aspects of foreign investment transactions, the detailed jurisprudential norms generated by investment tribunals to specify broadly formulated norms, and the norms of general international law expressing the sovereignty of the State. For each category of norms, the chapter selects several problems that put the most widely accepted understanding of the sources of international law to test. It then explains why the problems examined have potentially important practical implications. The chapter concludes with some observations on the interactions between practice and the theory of the sources of international law.

The Role of Regional Courts in the Development of International Investment Law: The Case of NAFTA Chapter 11 Dispute Settlement Framework and ECtHR

The Law and Development Review ◽

10.1515/ldr-2017-0035 ◽

2018 ◽

Vol 11 (1) ◽

pp. 77-95

Author(s):

Collins C. Ajibo

Keyword(s):

Human Rights ◽

Dispute Settlement ◽

European Court ◽

Margin Of Appreciation ◽

Investment Law ◽

Nafta Chapter 11

AbstractRegional courts have synthesized, articulated, and elucidated certain principles of law that influence the development of international investment law. The contributions of NAFTA Chapter 11 dispute settlement framework and European Court of Human Rights (ECtHR), in particular, have been outstanding. For instance, NAFTA jurisprudence has guided investor-state dispute settlement (ISDS) tribunals through influential precedents. Similarly, the doctrine of proportionality and the margin of appreciation doctrine which emerged from the ECtHR jurisprudence have become embedded in international investment law. Indeed, given the unique contributions of regional courts and their rapid proliferation, it can be predicted that they will play even more significant roles in the future development of principles of international investment law. Arguably, such emergent principles should be subjected to a prior scrutiny and filtering by ISDS institutions as a precondition to full incorporation into international investment law to foster their legitimacy and credibility.

Part II Substantive Aspects, Ch.21 Cultural Heritage in International Investment Law

The Oxford Handbook of International Cultural Heritage Law ◽

10.1093/law/9780198859871.003.0021 ◽

2020 ◽

Author(s):

Vadi Valentina

Keyword(s):

Cultural Heritage ◽

Direct Investment ◽

Legal Framework ◽

Economic Interests ◽

Public And Private ◽

The Public ◽

Private Interests ◽

This chapter evaluates whether the existing legal framework adequately protect cultural heritage vis-à-vis the economic interests of foreign investors. It aims to address this question by examining recent arbitrations and proposing three principal legal tools to foster a better balance between economic and cultural interests in international investment law and arbitration. This recent jurisprudence highlights that arbitral tribunals are increasingly providing consideration to cultural concerns. Yet, the interplay between the protection of cultural heritage and the promotion of foreign direct investment in international investment law and arbitration continues to pose two main problems: one ontological, concerning the essence of international investment law and international law more generally; and one epistemological, concerning the mandate of arbitral tribunals. The chapter then considers three principal avenues that can facilitate a better balance between the public and private interests in international investment law: a ‘treaty-driven approach’; a ‘judicially driven approach’; and counterclaims.

The State as a Respondent in Central and Eastern European Investment Arbitrations

International Community Law Review ◽

10.1163/187197311x556862 ◽

2011 ◽

Vol 13 (1-2) ◽

pp. 93-110

Author(s):

Joanna Gomula

Keyword(s):

The State ◽

Eastern European ◽

Investment Law ◽

European Investment

AbstractHersch Lauterpacht would have welcomed the development of international investment law and the surge in investor-State arbitrations. However, he may have been surprised at the extent of the erosion of the perception of the State as a sovereign on the international plane, which has been occurring in recent years. This article examines some international investment arbitrations in which Central and Eastern European States have been involved. It points out the factors that make these States particularly vulnerable as respondents and contains an overview of the different approaches taken by investment tribunals in these cases.

The New Italian Model Bit Between Current and Future Trends

The Italian Review of International and Comparative Law ◽

10.1163/27725650-01010006 ◽

2021 ◽

Vol 1 (1) ◽

pp. 113-131

Author(s):

Maria Chiara Malaguti

Keyword(s):

Future Trends ◽

Investment Policies ◽

The Public ◽

Investment Treaty ◽

Investment Law ◽

Italian Model ◽

Corporate Social ◽

New Generation

Abstract In 2021, the new Italian Model Bilateral Investment Treaty has been published. It replaced the 2003 Model bit and can be considered as a significant example of the “new generation of bit s”, which try to better balance investor rights with the public prerogatives of States. The Model Treaty also introduces significant innovations as to the conduct of arbitrators and the corporate social responsibility of investors and is also aimed at coordinating Italian and European foreign investment policies. This article offers a view of this new Model bit and tries to insert it in the broader context of the proposed reforms regarding international investment law and arbitration.

Justice and the Reform of International Investment Law

The Law and Development Review ◽

10.1515/ldr-2021-0110 ◽

2021 ◽

Vol 0 (0) ◽

Author(s):

Krista Nadakavukaren

Keyword(s):

Dispute Resolution ◽

Core Values ◽

State Sovereignty ◽

Sovereign Power ◽

Law System ◽

Justice As Fairness ◽

The Core ◽

Abstract This paper focuses on the reforms proposed to investment law, in particular in relation to dispute resolution, from the standpoint of justice. It sets out the ways that the proposed adoption of a standing investment court with an appellate instance would impact the justice of the international investment law system by focusing on the notion of justice as fairness. By assessing the impacts of the proposed changes’ limits on the discourse about investment law, I argue that the effects of the proposed reforms will dampen tribunal exchanges about contentious legal interpretations. This will not move the system closer to a fully just international order because the core values are not ones of discourse but rather those of protecting state sovereignty. Justice, if it follows, will be only that which fits within the framework of heightened sovereign power.

International Investment Law and the Public Law Analogy: The Fallacies of the General Principles Method

Journal of International Dispute Settlement ◽

10.1093/jnlids/idy028 ◽

2018 ◽

Vol 9 (4) ◽

pp. 654-678

Author(s):

Daniel Peat

Keyword(s):

Public Law ◽

The Public ◽

Economic Nationalism

India and Bilateral Investment Treaties ◽

10.1093/oso/9780199493746.003.0002 ◽

2019 ◽

pp. 47-96

Author(s):

Prabhash Ranjan

Keyword(s):

Economic Growth ◽

Foreign Investment ◽

Economic Approach ◽

Economic Nationalism ◽

The Public ◽

Economic Growth Model ◽

Investment Law ◽

Soviet Russia

This chapter looks at the evolution of India’s approach towards international investment law, against the backdrop of India’s overall and economic approach towards foreign investment. After independence, from the period of 1947–1965, India followed a relatively open and liberal foreign investment regime. Jawaharlal Nehru’s economic pragmatism ensured that India kept its doors open to foreign investment though the economic growth model was led by the public sector. India also consciously did not indulge in nationalization of foreign investment in total contradiction to what countries like Soviet Russia and China did. However, India turned towards the Left during Indira Gandhi’s times imposing restrictions on foreign investment. India’s approach towards international investment law, at least at the multilateral level, reflected the domestic approach towards foreign investment. At the bilateral level, India appeared more open to international law on protection of foreign investment although India did not sign a BIT during this phase.