BALANCING INVESTOR PROTECTION WITH A STATE’S REGULATORY AUTONOMY IN THE AMENDED SADC FIP

This article focuses on the 2016 Amended Annex 1 to the Southern African Development Community (SADC) Finance and Investment Protocol (FIP) (the Amended Annex), which entered into force on 22 August 2017. It aims at a comprehensive assessment of the adequacy of the Amended Annex in balancing investor protection with SADC member states’ quest for domestic policy space in the content of the treaty provisions. Prior to the amendment, the 2006 SADC FIP contained clauses that were considered challenging in the old international investment agreements (IIAs) – such as broad definitions of “investor” and “investment”, provision for international arbitration as a recourse, and according foreign investors fair and equitable treatment (FET) and most favoured nation (MFN) treatment. The challenges associated with bilateral investment treaties (BITs) (especially investor-state dispute settlement (ISDS) mechanisms, restrictions on sovereign policy space and regulatory autonomy) necessitated a review by the SADC member states of the 2006 SADC FIP. The purpose of this article is to reflect on the implications of the 2016 Amended Annex 1 to the SADC FIP with a view to finding a balance between protection enjoyed by investors and the host states’ right to regulate. The article adopts a comparative international law approach, which is useful in order better to understand a SADC member country’s approach to foreign investment protection.

The Investment Protection Rules of the EU-Canada Trade Agreement

This article provides an in-depth analysis of the substantive protection provided to investors against indirect expropriations under the EU-Canada Free Trade Agreement (ceta) and under the Constitution of Finland. More specifically, we analyse these respective spheres of protection in a regulatory context in Finland where Canadian investors operate actively: industrial mining. The purpose of the comparative analysis is to provide tentative answers to three broad research questions: Can investors challenge legitimate public interest measures under ceta’s investment protection rules? Is the protection provided under ceta co-extensive with the protection provided under the constitutions of countries placing high on global rule of law rankings? And are countries upholding the rule of law safe from investor claims under ceta’s reformed investment protection rules? A more general purpose is to bring more depth and nuance into the debates concerning the reform of the investment treaty regime, which often travel at a high level of abstraction.

THE INVESTMENT PROTECTION AT SEA UNDER THE INVESTMENT TREATIES: TACKLING THE PROBLEM OF TRANSNATIONAL INVESTMENTS

According to the provisions of investment agreements, one of the terms of investment at sea is the nexus between the investment and the maritime zones of the host state. Therefore, an investment is under treaty protection when it is under the geographical realm of states. Hence, the protection status beyond the state maritime boundaries is facing problems. Today, lack of clear rules in this filed can create challenges for the future investments as well. Purpose: to show how investment protection of international investment agreements beyond the states jurisdiction at sea can be created. Methods: general scientific methods of theoretical knowledge, as well as general logical methods and research techniques are used in analyzing existing investment agreements and ICSID awards. Results: the paper proposes a solution for extending the investment protection of treaties to the high sea that it is the cross-border nature of some investments that can find in the Energy Charter Treaty (1994) and the ICSID decision on Deutsche Bank AG v. Democratic Socialist Republic of Sri Lanka. Ultimately, the article shows what is the cross- border nature and how it resolves the problem of investment at high sea.

Ecological sustainability in investment-State dispute settlement: Risks of legal pluralism in practice

Due to the fragmentation of International Law, Investor-State dispute settlement is usually an area in which tension are felt between investment protection and public policy space, especially in matters concerning the environment, public health or human rights. This tension is even more dangerous in health emergencies, such as the covid-19 syndemic, and has a deeper impact on low and middle-income countries. In light of the above, this article aims to identify and analyse three investor-State disputes involving low and middle-income countries, in which the collision between investment protection and ecological sustainability sets of norms evidences the risks of legal pluralism in International Law.

Implement the ECFA: Prospects of a Bilateral Investment Agreement between Mainland China and Taiwan

After Ma Yingjeou’s re-election in 2012, Mainland China and Taiwan will continue cooperation in economic fields. Concluding a Bilateral Investment Agreement (BIA) will be a priority. Based on the similarities of current laws and the investment protection agreements concluded by Mainland and Taiwan with other countries respectively, Mainland China and Taiwan can possibility agree upon major provisions of a BIA. Solutions are provided to both macro and micro challenges against a successful BIA.

Justice and Authority in Investment Protection

What role should concerns about distributive justice play in international investment law? This paper argues that answers to fundamental and contestable questions of social and global distributive justice are a necessary, if implicit, premise of international investment law. In particular, they shape our views on the purpose of investment law, and in turn determine the scope of authority that investment law can claim, and that states should accord it. The implausibility of achieving international consensus on these questions constitutes a substantial objection to the harmonization of investment law or the consistent operation of a multilateral investment court.