Investor Due Diligence and Legitimate Expectations

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.

Screening of Foreign Investments and the Bilateral Investment Treaties of Bangladesh

Since 1960, about 2852 bilateral investment treaties (BITs) have been signed. Of them, 2298 BITs are in force at present. In the last 61 years, the WTO members failed to conclude a global treaty to regulate FDI in host countries, consequently, the BITs have played a significant role to regulate FDI. As a member of the WTO, Bangladesh has signed 31 BITs so far with various states to allow and increase the inflow of FDI into the country. Bangladeshi foreign investment laws and BITs mainly protect foreign investors. However, neither of them has any specific provision regarding the screening of foreign investments in Bangladesh. Two questions have been addressed in this paper: (a) Do the BITs of Bangladesh allow the host state for screening of foreign investments at the entry stage? (b) Should the screening of FDI be required during the pre-entry stage in Bangladesh? In this paper, a doctrinal research method has been used to critically analyze 15 BITs to explore whether there is any reference for screening of foreign investments in Bangladesh. We find that the existing Bangladesh BITs have provisions to promote and protect foreign investments but have no reference in relation to the screening of foreign investments. Therefore, the author has recommended that the Government of Bangladesh can consider specific provisions for screening of FDI in future BITs.

Protracted Refugee Situations and the “Warehousing” Option: The Intractability of Kenya’s Dadaab Refugee Complex

This article examines the phenomenon of Protracted Refugee Situations (PRS) and the so-called warehousing of refugees in the case of Kenya’s Dadaab refugee complex. We analyze the intractability of PRS in this particular case and argue that there are four main features that make it so: (1) a host state that views the refugees primarily as a security threat and takes very little responsibility for their well-being; (2) UNHCR acting as a surrogate state with very little influence over the Kenyan government and little incentive or capacity to remedy the situation; (3) an ongoing political situation in Somalia that prevents the safe return of refugees; and (4) a general failure on the part of wealthier countries to commit to substantial resettlement initiatives.

Export Credit Agencies, International Investment Law and the Spectre of Unsustainable Developing Countries' Debts

This article argues that the activities of Export Credit Agencies (ECAs), which provide political risk insurance to cover exports and foreign direct investments (FDIs), may be undermining the goals of Investor-State Dispute Settlement (ISDS). ISDS is supposed to limit investment disputes so that they are between the investor and host-state of the investment (investor-state disputes). However, since ECAs are quasi-governmental organisations that support FDIs, they can effectively elevate such investment disputes so that they are between the host-state and home-state of the investor (state-to-state disputes). This has implications for the necessity defence in international investment disputes, which is likely to feature in cases triggered by governmental measures taken in response to the COVID-19 pandemic. Further, the article argues that the activities of ECAs often precipitate unsustainable debt accumulation in developing countries. And these situations are becoming increasingly combustible because ECAs have escalated their activities to season investment programmes with foreign and geopolitical influence. This may worsen in the aftermath of the COVID-19 pandemic. The article concludes that increased transparency and a sustainability element in the activities of ECAs are essential to both expose these risks more broadly and to create a space under the canopy of international economic law for more sustainable growth from the understory of developing nations.

Gendered aspects of distress migration:

A qualitative study conducted among Rohingya refugees in Bangladesh provides empirical confirmation of two types of adverse consequence that frequently occur following distress migration: harsh and exclusionary host state policies, and exacerbation of power inequities (and related abuse) within the refugee community. This article describes research that explored the circumstances of female Rohingya refugees living in the Cox’s Bazar refugee camps in Bangladesh after fleeing genocidal violence in Myanmar. The refugees describe harsh gendered aspects of their forced displacement, including limited access to needed protection and services as well as intra-community hardships exacerbated by the impact of displacement and segregation. Both sets of outcomes constitute preventable human rights violations that require redress.

The brain drain as exploitation

When skilled individuals emigrate from developing states to developed states, they leave a burdened state behind and bring their valuable human capital to a state that enjoys vast advantages by comparison. Most of the normative debate to date on this so-called ‘brain drain’ has focused on the duties that skilled emigrants owe to their home state after they emigrate. This article shifts the focus to the question of whether their host state acquires special duties toward their home state and argues for an affirmative answer to that question. After identifying the conditions under which ‘exploitative free-riding’ can occur, the article shows that the brain drain is a case of exploitation that gives rise to special duties of compensation for developed host states.