Divergenz und Transformation

2019 ◽  
Author(s):  
Rhea Hoffmann
Keyword(s):  
High Standard ◽  
International Investment ◽  
The Other ◽  
Public Welfare ◽  
Constitutional Theory ◽  
International Investment Law ◽  
Legal Principles ◽  
Philip Morris ◽  
Investment Law ◽  
The One

Based on assumptions from constitutional theory, this book examines the effects of international investment law on domestic constitutions and finds that the democratic compromise on property protection and the protection of legal positions under international investment law are structured differently. Protection of property under international investment law is oriented towards a high standard of protection for investors, while the democratic compromise on property protection strikes a balance between property protection on the one hand and public welfare interests on the other. The constitutions of Germany, South Africa and Australia and investment disputes concerning these countries (including Philip Morris and Vattenfall) serve as case illustrations. In addition, the study shows that the divergence between these two legal principles can also lead to a transformation of the democratic property compromise.

Part VII Inter-linkages with Other Regimes, Ch.44 Investment

2021 ◽  
Author(s):  
Miles Kate
Keyword(s):  
Environmental Law ◽  
International Investment ◽  
Public Welfare ◽  
International Environmental Law ◽  
Multilateral Environmental Agreements ◽  
International Investment Law ◽  
Investment Law ◽  
Environmental Protection Policies ◽  
New Generation ◽  
The Relationship

This chapter discusses the relationship between international investment law and international environmental law. The contestation between the fields that emerged in the context of investor-state arbitration was blunt and initially resulted in the rules of international investment law being prioritized over the obligations of states under multilateral environmental agreements (MEAs), domestic environmental protection policies and decision-making, and the host state's public welfare regulatory space. Responding to that contest, the new generation bilateral investment treaties (BITs) and free trade agreements (FTAs) reflect the desire of states to work within a more balanced version of the environment/investment nexus. It is not yet, however, at a point where it can be said to be equally balanced in the engagement of international environmental law and international investment law, and there is evidently still room for significant improvements in the way in which environmental issues are understood and interpreted by arbitrators in investor-state disputes. But the culture and context in which the environment and investment are meeting is most definitely shifting and it is hoped that the trajectory continues still further in that direction.

scholarly journals Police Powers, Indirect Expropriation in International Investment Law, and Article 31(3)(c) of the VCLT: A Critique of Philip Morris v. Uruguay

2018 ◽  
Vol 9 (1) ◽  
pp. 98-124 ◽  
Author(s):  
Prabhash RANJAN
Keyword(s):  
Public Health ◽  
Legal Reasoning ◽  
International Investment ◽  
Vienna Convention ◽  
International Investment Law ◽  
Police Powers ◽  
Philip Morris ◽  
Regulatory Measures ◽  
Investment Law

AbstractGiven the global contestation against BITs and ISDS, the outcome of thePhilip Morrisv.Uruguaycase upholding Uruguay’s right to regulate for public health is important for the international investment law community. However, it is not just the outcome of a case but also the quality of legal reasoning that is significant in building the legitimacy of the ISDS system. This paper focuses on the reasoning adopted by the tribunal in deciding whether Uruguay’s regulatory measures resulted in the expropriation of Philip Morris’s investment. The paper critiques the tribunal’s use of Article 31(3)(c) of the Vienna Convention on the Law of Treaties to invoke the police powers rule in interpreting the expropriation provision of the Switzerland-Uruguay BIT. The tribunal’s reasoning was internally inconsistent and based on abuse of arbitral precedents. Clarity in legal reasoning by ISDS tribunals is imperative to boost the legitimacy of the ISDS system for all stakeholders.

scholarly journals International Investment Law and Non-Communicable Diseases Prevention

2020 ◽  
Vol 21 (5) ◽  
pp. 649-673
Author(s):  
Amandine Garde ◽  
Jure Zrilič
Keyword(s):  
International Investment ◽  
Communicable Diseases ◽  
Special Issue ◽  
Non Communicable Diseases ◽  
International Investment Law ◽  
Food Industries ◽  
Tobacco Control Policies ◽  
Philip Morris ◽  
Investment Law ◽  
Legal Expertise

Abstract It is increasingly acknowledged that non-communicable diseases (NCDs) create immense human and economic costs, disproportionately affecting developing countries. This article, which serves as an introduction to this Special Issue on international investment law and NCD prevention, outlines the international framework for the prevention of NCDs, noting the more advanced development of tobacco control policies compared to policies relating to other NCD risk factors, such as unhealthy diets and alcohol consumption. Drawing on the Philip Morris v Uruguay case, the article explains how international investment law and NCD prevention interact and the problems this interaction may raise for States willing to adopt robust NCD prevention strategies involving the regulation of the tobacco, alcohol and food industries. It concludes by introducing other contributions in this Special Issue and by highlighting the need to build legal expertise in this area.

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.

Part I The UNDRIP’s Relationship to Existing International Law, Ch.4 The UNDRIP and Interactions with International Investment Law

2018 ◽  
Author(s):  
Binder Christina
Keyword(s):  
Indigenous Peoples ◽  
Indigenous Rights ◽  
International Investment ◽  
Negative Consequences ◽  
Foreign Investors ◽  
International Investment Law ◽  
Investment Projects ◽  
Investment Law ◽  
The One ◽  
United Nations Declaration

This chapter examines the relationship of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) to international investment and economic law. Interactions between international investment law and indigenous rights are becoming more frequent. On the one hand, there is a quantitative increase in foreign investments. These investments are protected by an ever denser net of bilateral investment treaties (BITs). On the other hand, indigenous peoples' territories are often resource-rich areas with significant attraction for foreign investors. This entails a considerable risk that investment projects on indigenous territories encroach upon indigenous rights. Negative consequences include detrimental impacts on indigenous peoples' relationship to their lands, environmental degradation, and pollution. These risks are even more acute, given the importance of lands for indigenous culture. Thus, indigenous rights increasingly conflict with the rights of foreign investors and show an evident need for coordination between both systems — indigenous peoples' rights and international investment law.

Emerging Markets and the International Investment Law and Policy Regime

2018 ◽  
pp. 126-158
Author(s):  
Karl P. Sauvant
Keyword(s):  
Emerging Markets ◽  
Multinational Enterprises ◽  
Emerging Market ◽  
International Investment ◽  
Policy Regime ◽  
International Investment Law ◽  
Law And Policy ◽  
Investment Law ◽  
The One ◽  
Responsible Manner

Multinational enterprises, including those headquartered in emerging markets, operate within the confines of the international investment law and policy regime. On the one hand, this regime prescribes the extent to which these firms can invest abroad, and it provides various protections for their investments. On the other hand, the regime prescribes increasingly that the operations of these firms need to be conducted in a responsible manner. The relevant standards are formulated by governments. The chapter discusses the rise of the international investment regime, its substantive and procedural content, and how and why the regime has changed over time, paying special attention to issues relating to emerging markets. Accordingly, the focus of this chapter is on the actions of governments, illustrating in the process of the discussion how emerging market multinational enterprises can benefit both from the regime and how they are constrained by it.

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