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 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.

The Transformation of Global Intellectual Property Protection

This chapter traces the transformation of global intellectual property protection. The classical Convention regime, epitomised by the Paris Convention protecting industrial property and the Berne Convention protecting copyright, dominated the international IP scene for about a century. Other norm sets have become relevant for IP more recently. These often strengthen IP rights or grant them complementary protection and include international investment agreements (IIAs), predominantly in the form of bilateral investment treaties (BITs) and investment chapters in trade treaties; the protection of property ownership as a fundamental right; private regulation of IP; and IP-specific counter-norms. Ultimately, this transformation of global IP law necessitates a broadening of the constitutional discourses relevant for IP. Constitutional pluralism, new constitutionalism, and societal constitutionalism represent the main currents of such global constitutional discourses.

The New Constitutional Architecture of Intellectual Property

This chapter sketches some of the central features of the transforming constitutional architecture of intellectual property. It studies the characteristics of this constitutional development from the perspective of social acceleration, in particular. This enables the discussion of novel developments of IP, beyond the traditional constitutional treatments and the idea that human rights could re-establish the lost balance of IP. The chapter argues that the prevailing new constitutionalist architecture of IP is best understood through the role of constitutional norms in both accelerating and decelerating change. In particular, it contends that the judicature, the executive, and the private sphere increasingly replace legislators as the key drivers of IP policies; that locking-in mechanisms like the three-step test and international investment agreements (IIAs) provide the needed stability for the acceleration developments; and that the notion of structural proprietarian bias captures the spirit of the prevailing multipolar IP constitutionalism.

Canada’s Pro-Ban Stance on Double-Hatting: Playing the Long Game in ISDS Reform?

The practice of arbitrators and counsel in investor-state dispute settlement (ISDS) cases simultaneously playing both roles — known as “double-hatting” — has been the subject of much controversy in recent debates on ISDS reform, notably, at the United Nations Commission on International Trade Law’s (UNCITRAL) Working Group III where a Draft Code of Conduct for Adjudicators in International Investment Disputes is under discussion. While Canada has been less than consistent in its approaches to ISDS in recent international investment agreements (IIAs), its position against double-hatting has been rather constant. This article explores whether this stance reveals a commitment on the part of Canada towards increased judicialization of ISDS or reflects a “flavour of the month” reform likely to change with differing IIAs and negotiating partners. Analysis of Canada’s recent IIA practices, including its model Foreign Investment Promotion and Protection Agreement, released in May 2021, and the positions it has taken at UNCITRAL’s Working Group III, lead the author to conclude that Canada appears committed to increased judicialization of ISDS in the long run.

Multilateral Investment Court – a Cure for Investor-State Disputes Under Extra-EU International Investment Agreements?

Both branches of international economic law – international investment and trade law are currently in crisis. Many reforms have been proposed to cure the shortcomings of their dispute resolution mechanisms. Distinctive though they are, it seems that the newest EU’s proposal to establish the Multilateral Investment Court is heavily inspired by the dispute settlement system which exists in the World Trade Organization. The new system has been introduced to replace the investor-State dispute settlement mechanism existing in most investment treaties. In this article, the author assesses the objectives of the reform through the prism of successes and failures of the WTO dispute settlement system.