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The Law of Investment Treaties, 2nd Edition by Salacuse, Jeswald W (1st May 2015)

Index

From: The Law of Investment Treaties (2nd Edition)

Jeswald W. Salacuse

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From: Investment Claims (http://oxia.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved.  Subscriber: null; date: 16 January 2019

(p. 453) Index

Abs, Hermann Josef [1901-94] 437
Abs-Shawcross Draft Convention on Investment Abroad 99, 242, 437, 440
state obligations (umbrella clause) under 304–5
treaty breach provisions 437
Abs-Shawcross Draft Convention on Investments Abroad state obligations (umbrella clause) 305
absolute returns 35
absolute right of establishment 225–7
TFEU provisions on 225–7
absolute treatment standard 95
absolutism
liberalization 137–9
abuse of power 255
access to justice 90, 264
actions in bad faith 259
Additional Facility Rules
International Centre for Settlement of Investment Disputes (ICSID) 421–2
administrative acts
as subject of conflict 394
administrative tribunals
forum for investor-state arbitrations 429
admission
definition 219–20
foreign direct investment (FDI) 217–18
liberalized entry model 218
affiliated enterprises 30
Africa
Chinese investment in 33
COMESA Treaty 112–13
emerging economies 104
aggressive and hostile actions 262
Agreement between the Belgo-Luxembourg Economic Union and the Arab Republic of Egypt on the Reciprocal Promotion of Investments 179
Agreement on Encouragement and Reciprocal Protection of Investments between the Kingdom of the Netherlands and the Czech and Slovak Federal Republic 130
Agreement for the Promotion, Protection, and Guarantee of Investments Among Member States of the Organization of the Islamic Conference 108
Agreement for the Promotion and Protection of Investments (ASEAN) 109
main provisions of 109
Agreement on Trade-Related Investment Measures (TRIMs) 38, 118
agricultural land
expropriation of in Mexico 57
aliens
diplomatic protection of 60–1
security of 90
standards of treatment owed to by host countries 57–9
alternative dispute resolution (ADR) 103
host countries’ lack of experience and knowledge of 409–10
increasing use of 407–8
treaty provisions for 408–9
alternative dispute resolution (ADR) see also arbitration; conciliation; mediation
ambiguity 260
American Law Institute 56
American Society of International Law (ASIL)
sources of BITs text 159
Anglo-Iranian Oil Company 304
Angola
reservations about liberalization 112
Annulment Committee (ICSID) 302–3
anonymity
right to 429
applicable law
determining 52
prior agreement on 50
application
fair and equitable treatment 268–9, 273
national treatment 277–80
state obligations (umbrella clause) 311–12
appointing authority 403
appreciation
national currencies 284
appropriate comparators
national treatment 278
approved project
requirements for investment 195–6
Arab Court of Justice 107
Arab Investment Court 107
Arab investors
definition 106
standards of treatment owed by host state to 106–7
transfer of capital 107
arbitral awards
asset-based/cost approaches 451
arbitral decisions
giving meaning to protection and security 231
whether constitute judicial decisions 171
arbitral rules of conduct 17
(p. 454) arbitral tribunals 5, 13–14
interpretation of fair and equitable treatment 254–5
operation under customary international law 153
protection and security of foreign investment and investors 147–8
required to award full compensation 444
uniformity and consistency of decisions 18
arbitrariness
resulting in indirect expropriation 343–4
arbitrary actions
avoidance of 272–3
fair and equitable treatment 261–3
standard for 262–3
arbitration 5, 88, 102, 170–2, 306 see also investor-state arbitration
administrative costs 395
conciliation distinguished 413
definition 401–2
development of organizations for 412
disadvantages of 409
encouraged by friendship, commerce and navigation treaties (FCN treaties) 98
international procedures under BITs 152–3
interpretation under NAFTA 164–5
interstate 401–6
investor-state 9, 14–15, 22, 74, 135, 417–22
jurisprudence 414–15
nature and evolution of international 411–17
procedure 413
provisions in BITs 101
stages of 413–14
threat of 407
under United Nations Commission on International Trade law 103
unrealistic expectations 407
Arbitration Rules
UNCITRAL 412, 429, 441
arbitration tribunals
authorization of 441
arbitrators 17
Argentina 203–6
disregard for rule of law 262–3
economic crisis 262, 295, 336, 345, 369–71, 380, 386
indirect expropriation 338, 346
protection and security 236–8
Argentina-Chile BIT 243
Argentina-France BIT 368
Argentina-Italy BIT 178–9
Argentina-Spain BIT 315
Argentina-United States BIT 428
number of cases brought under 430
armed conflict
losses from 151–2
Articles on State Responsibility (ILC) 301
ASEAN Comprehensive Investment Agreement (ACIA) 3, 108–11, 181, 211
performance requirements 225
right of establishment under 222
state obligations (umbrella clauses) 303
ASEAN Declaration (Bangkok Declaration) 108
ASEAN Economic Community
foundation for 110
ASEAN Investment Area Council 110
ASEAN-Australia-New Zealand Agreement (AANZFTA) 111
ASEAN-China Economic Cooperation Agreement 111
Asia
economic crisis 295
emerging economies 104
Asian Development Bank 34
asset recovery
provision for 90
asset-based/cost approaches
valuation 450–1
Association of Southeast Asian Nations (ASEAN) 106, 122
Agreement for the Promotion and Protection of Investments 109, 348
key personnel provisions 366–7
performance requirements 361
arbitration provisions 401
establishment of 108–9
expansion of 108
objectives of 109
Protocol on Enhanced Dispute Settlement Mechanism 401, 403
Regional Comprehensive Economic Partnership (RCEP) 123
Australia
‘Pacer Plus’ negotiations 122–3
Regional Comprehensive Economic Partnership (RCEP) 123
Trans-Pacific Partnership (TPP) 123
Australia-India BIT 216
Australian Treaty Series (ATS) 157
Austria
bilateral investment treaties (BITs) concluded by 101
Austria-Bosnia-Herzegovina BIT 351
Austria-Philippines BIT
applicable exchange rate under 293
monetary transfer provisions 291
time for effecting monetary transfers under 294
Austria-Saudi Arabia BIT 184
bad faith 259
Bahrain 117
balance of payments 47
Bank of Estonia 262
bankruptcy 28–9
banks
loans by 40
Barcelona Traction case 63
(p. 455) Basel Convention on the Control of Transboundary Movement of Hazardous Waste and Their Disposal 166
Belgium
bilateral investment treaties (BITs) concluded by 101
treaty website 158
Belgium-Luxembourg BIT 243
Belgium-Luxembourg Economic Union-Burundi BIT 333
benefits 143
Benin-Belgium BIT 270
bilateral agreements
increase during seventeenth and eighteenth century 90
bilateral commercial relations
facilitating 94
bilateral construction
regimes 15–17
bilateral economic agreements with investment provision 1–2
bilateral investment treaties
post-World War II programme in US 97–8
bilateral investment treaties (BITs) 1
admission provisions in 217–18
ADR provisions 408–9
arbitration provisions in 101, 415
asset-based definitions 176
compliance with international law 148
concluding and maintaining 126–7
conditions for entry of foreign investment and investors 146
consequences of 133–40
consultation 14
context of treat terms 162–3
controlled entry model 221–3
costs to host country for violating 134
definition 1–2
definitions contained in 143
developing countries 105
development of 100–3
difference in standards amongst 154
dispute resolution 152–3, 392–435
distinguishing legitimate regulation from indirect expropriation in newer 347–8
drafting 178
effects on investment protection 133–5
Energy Charter Treaty (ECT) 420–3
European countries concluding 101
evolution of provisions into free trade agreements (FTAs) 116–18
exceptions, modifications and terminations 152, 376–91
exchange of letters as supplement to 141
expropriation and dispossession 150–1
gathering momentum of 104–5
Germany post-World War II 100–1
ICSID clauses in 103
interpretation 155–73
investment promotion 135–6
investment protection 133–4
investments covered by 176
investors covered by 206–12
investors’ rights under 430
jurisdictional provisions 219–20
length of time in force 389
long-term goals 129–30
model treaties/prototype treaties 131
monetary transfers 150
most-favoured-nation treatment 149
national treatment under 149, 274–6
negotiations 130–3
object and purpose of 162–3
offering arbitration under UNCITRAL rules 103
operational conditions 151
ordinary meaning of treaty terms 161–2
performance requirements 224–5, 358–64
post-World War II European 242–3
primary objectives of 124–7
protection and security provisions 230–40
protection and security under 233–40
protocols as supplement to 141
remedies under 443–5
requirements on treaty partners 145
scholarly commentary on 172–3
scope of application 143–5, 174–212
secondary objectives of 127–9
state obligations under 149
statistics for 105
structure of 141–54
taxation falls outside scope of 385–6
termination 388–91
territorial requirements 188–92
text 156–61
language of 160–1
sources of 156–60
transition economies 105
transparency 221, 371–2
treatment provisions 228–30
treaty title and statement of purpose 142
unreasonable or discriminatory measures 148
violations 436–51
bilateral negotiations 16, 131–2
objectives of 124
bilateral relationship 16
bilateral trade
establishing 93
blocking coalitions 16
Bolivia
Calvo clauses in Constitution 75
dissatisfaction with investor-state arbitration 435
proposal to renegotiate all BITs 387
terminates BIT with US 20
withdrawal from ICSID 19–21
Bolivia-Netherlands BIT 219
Bolivia-United States BIT
termination 391
(p. 456) bonds
as form of investment 181
security entitlements distinguished 178–9
book value 356, 451
branches 31
subsidiaries distinguished 31
Brazil
number of signed investment treaties 2
breach of contract 259
state contracts 70–2
British and Foreign State Papers 157
Brunai Darussalam
Trans-Pacific Partnership (TPP) 123
Bulgaria-Belgium BIT 425
Bulgaria-Cyprus BIT 168–9, 427
Bulgaria-Finland BIT 427
Bulgaria-Ghana BIT 243
business activity 10
business concessions
as investment 177
Byzantine Empire
trading in 36–7
treatification 89
calculability 254
law required for 11
calculation
valuation 445–6
Calvo, Carlos [1824-1906] 59
Calvo clauses
enforceability 76–7
Calvo doctrine 59, 61, 75, 415
Canada
controlled entry model 222
Foreign Investment Protection and Promotion Agreement 131, 246
indirect expropriation 344
key personnel provisions 366
performance requirements 361, 363
seeks relative right of establishment in BIT negotiations 221–2
Trans-Pacific Partnership (TPP) 123
treaty website 158
Canada Treaty Series (CTS) 157
Canada-Costa Rica BIT 176, 186
Canada-EU Comprehensive Economic and Trade Agreement (CETA) 23, 122
Canada-Jordan BIT 372
Canada-Peru BIT 183, 348
currencies of transfer under 292
exceptions to monetary transfers under 296
territoriality issues 188
Canada-USA Transboundary Agreement on Hazardous Waste (Transboundary Agreement) 166
Canadian Model Foreign Investment Protection Agreement (FIPA)
distinguishing legitimate regulation from indirect expropriation 347
cancellation 66
capital flows
NAFTA facilitating 113
capital mobilization 37
capital structure 28
capital-exporting states 8–9, 144
BITs between developing countries and 105
as collective hegemon 7
increasing BITs among 243
investment protection 193
negotiations 17
opt not to ratify Havana Charter 96
provisions on monetary transfers 150
reducing governmental transaction costs 15
capital-importing states
competition among 22
capitalism
Europe 11
capitulation treaty
between France and Ottoman Empire 90–1
case law
on definition of investment 178–9
Central America-Mexico Free Trade Agreement 122
Central Europe
emerging economies 104
Chapter Eleven tribunals
limitations on 191–2
Charter of the Association of Southeast Asian Nations 108
Charter of Economic Rights and Duties of States 80–1, 84, 86
contentious provisions 81
criticised as unbalanced 82
dispute-resolution under 83
effects of 83–4
legal nature of 83
provisions on compensation 82
Charter of the Organization of the Islamic Conference 107
Chile 117
BITs 243
Foreign Investment Commission (FIC) 258
Trans-Pacific Partnership (TPP) 123
Chile-Malaysia BIT
fair and equitable treatment 258
Chile-Tunisia BIT
expropriation provisions 322
China
BITs 243
investor-state arbitration 403
number of signed investment treaties 2
Regional Comprehensive Economic Partnership (RCEP) 123
sovereign wealth funds (SWFs) 44
state intervention 33
China-Bosnia-Herzegovina BIT 219
(p. 457) China-Brunei BIT
applicable exchange rate under 293
China-Djibouti BIT
monetary transfer provisions 287–8
China-Jamaica BIT 427
China-Japan-Korea Trilateral Investment Agreement 267
monetary transfer provisions under 286
transparency under 372–4
China-Japan-Republic of Korea Investment Agreement 122
China-Qatar BIT
protection and security under 230
China-Thailand BIT 105
Chorzòw Factory restitutio in integrum standard 437
chrysobul
early trading treaty 36–7, 89
citizenship 144
civil disturbance
compensation for 367–70
civil justice
improper administration of 264
claimants
investors as 430
national treatment 277–9
claims
effective means for asserting 405
claims to money
as investment 177
Clean Report of Findings (CRF) 190
Clinton, President William Jefferson 121
collective hegemon 7
colonialism
end of 91
spread of European 58–9
commercial arbitration 98
commercial risk
political risk distinguished 36
Committee of Experts on Public Administration 371
Common Market of the Southern Cone see Mercosur
Commonwealth of Independent States
total invested in 39
communism
consequences of ending in eastern Europe 34
effect of end of on BIT movement 104
companies/corporations
control and management 32–3
definition 32
investors as 208–11
nationals of non-treaty country holding substantial interest 145
organised in non-treaty country by nationals of treaty country 145
organised in treaty country by nationals of non-treaty country 145
ownership 33
unlimited life of 32
company law 31
compensation 25
ECT provisions on 368–9
expropriation 66, 314, 317, 351–7, 447
Hull Formula 353
standard of 352–4
valuation methods 356–7
from losses due to armed conflict or internal disorder 151–2
‘just compensation’ 447
justification for 69
for lost investments due to expropriation 68–70
‘market value’ 447
NAFTA provision relating to expropriation 353
nationalization 79
provisions under Charter of Economic Rights and Duties of States 82
‘real value’ 447
‘reasonable compensation’ 447
recognition of right to 68
standard for 446
Suez Canal nationalization 417
treaty guidance on compensation for 438–9
war, revolution and civil disturbance 367–70
competition
national treatment 274
protection of national enterprises from damaging 214
Comprehensive Import Supervision Services (CISS) Agreement 190
Comprehensive Investment Agreement (ASEAN) 3, 108–11, 181, 211
arbitration provisions under 401
expropriation provisions 351
fair and equitable treatment 244, 265
final award provisions 440
indirect expropriation 348
protection and security provisions 233
subrogation under 375
concession agreements 259
cancelling 66
concession contracts 41, 48, 89, 198–9
conciliation 102, 407
arbitration distinguished 413
categorization 410
confidentiality 410–11
definition 410
as limited form of mediation 411
mediation distinguished 410
relevance to investor-state conflicts 410–11
conference multilateralism 16
confidentiality
conciliation 410–11
investor-state arbitration 434
(p. 458) confiscation
prohibition of during hostilities 94
property 74
confiscatory regulation 66
conflict
administrative acts as subject of 394
legislation as subject of 394
potential for 392–3
public policy subject of 394
conflicts of interest 49–50
Congo
closing of law firm in 27
consensual and non-consensual obligations
state obligations (umbrella clause) 312
consent
states’ to investor-state arbitration 426
construction contracts 41
defined as investment 196
consultations
BITs 14
investor-state 406–11
context
distinction between object and purposes and 163
contingent forms of protection 244
continuing-effects clause 22
contracting parties
distinction between treatment pre-establishment and post-establishment 138
obligations on 143
requirements on 145
special meanings intended by 168
territoriality and 188
treaty title identifies 142
contracts
diplomatic protection by 77
dispute resolution 393
as form of investment 181
non-performance 258
performance 259
contractual arrangements 41–2
contractual obligations
government 259
contractual rights
foreigners in Ecuador 75
interference with as type of indirect expropriation 257, 328, 330–2
not considered property for purposes of international law 318–19
resulting from investment 28–9
contradiction 260
control attributes
investment 29–30
controlled entry model 221–3
Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York Convention) 88, 216, 412, 414, 422
Convention on the Rights and Duties of States (Montivedeo Treaty) 61–2
Convention on the Settlement of Investment Disputes between States and Nationals of Other States
(Washington Convention) 52, 88, 102, 418–22
convertible currencies 292
corporate liability 31
corruption 36
Costa Rica
investments under law of 186
Court of Justice of the European Union (CJEU) 226, 254
power to strike down member state measures 275
rulings on exceptions to monetary transfers 297–8
covered investment
definition 192
credits 41
‘creeping expropriation’ 66
criminal justice
improper administration of 264
Croatia-Chile BIT
most-favoured-nation treatment 282
Cuba
economic sanctions 377
interstate arbitration 404
Cuba-Italy BIT 404–5
currencies
appreciation 284
attempts to create multilateral framework for 95–6
convertible 292
monetary transfers 292
customary international law 5, 51, 54–64, 167
application of on state responsibility 441–3
arbitral tribunals required to award full compensation under 444
deficiencies on investment 85–6
departure from 429
developing countries’ attempts to reshape in respect of foreign investments 80
dispute resolution under 152–3
expropriation 64–70
fair and equitable treatment 271
local remedies required under 405
redress against offending host governments under 59–60
shift from to treaty law 4
customs duties 89, 98
Cyprus-Hungary BIT 349
Czech Media Council 257
Czech Republic
protection and security 236, 239
Czech Republic-Ireland BIT 439
(p. 459) Czech Republic-Netherlands BIT
dispute over 387–8
Dabhol Power 28, 396–7
damages 25, 203
authorization of 441
awards 9
valuation 445–51
de Vattell, Emerich [1714-67] 60
debentures
as form of investment 181, 202
debt 28
debt-equity ratio 28
debts
non-payment 259
decision-making
decentralized 17–18
privatized and decentralized 17–18
rational 263
regimes 14–15, 19
Declaration on the establishment of a New International Economic Order 80
Declaration on Permanent Sovereignty over Natural Resources 79–80
decolonization
aftermath of 78–85
definition
arbitral applications of investment in special situations 196–206
contained in BITs 143
issues of language 185
jurisdictional issues 185–7
legal requirement for 184–8
denial of justice 59, 264–6
Denmark
monetary transfers 290–1
Denmark-Chile BIT
most-favoured-nation treatment 282
Denmark-Hong Kong BIT
monetary transfer provisions 288
Denmark-Poland BIT 400
denunciation
inhibition of 22
Department of State Office of the Assistant Legal Adviser for Treaty Affairs
website of treaty texts 157
deprivation
right of control 67
deprivation of enterprise 27
developed economies
total invested in 39
developing countries 16
attempts to reshape customary international law affecting foreign investments 80
attitude towards tradional international law 78
bilateral investment treaties (BITs) 105
BITs 243
disagreement between industrialized countries and newly decolonized 85
enactment of foreign investment laws 213
establishing sovereignty over natural resources 78–9
sceptical of friendship, commerce and navigation treaties (FCN treaties) 98
seek to limit treaty application 193
total invested in 39
development agreements 41
Development Committee 118–19
development contracts 299
possibility of being expropriation 71
diplomatic protection 60
aliens 60–1
by contract 77
dispute resolution 398–9
extending to shareholders of foreign companies 398–9
waiver 416
diplomatic protection
incompleteness for foreign investors 63
diplomatic relations
foreign direct investment (FDI) in conflict with 49
diplomatic representations 61
direct damages 203
direct expropriation 320, 322–5
compensation for 354–6
criteria for distinguishing indirect expropriation from 335–47
distinction between indirect expropriation and 327–8
direct investment
portfolio investment distinguished 30
discounted cash flow (DCF) 449–50
discrimination
avoidance of 272–3
BITs 148
expropriation must not be 350–1
fair and equitable treatment 261–3
national treatment 274
prohibiting 90
resulting in indirect expropriation 343–4
discriminatory measures
elements of 263
friendship, commerce and navigation treaties (FCN treaties) 97
discriminatory taking 68
discriminatory taxation 66
dispossession 25, 150–1
NAFTA provisions on 316–17
risk of 313–15
scope of clauses 318–22
dispute resolution 25, 49–50, 392–435 see also alternative dispute resolution; arbitration; conciliation; mediation
by negotiation 396–7
concerns of World Bank over 102
(p. 460) contracts 393
diplomatic protection 398–9
exhaustion of local remedies 398
fair and equitable treatment 393
impetus for reform of 434–5
informal 432
international 3
International Court of Justice (ICJ) 398
interstate arbitration 401–6
interstate consultations and negotiations 399–401
investor-state disputes 102
local courts 397–8
mechanisms for 9
non-adjudicative 408
protection and security 393
Protocol on Enhanced Dispute Settlement Mechanism (ASEAN) 401
provisions for under BITs 152–3
provisions under Energy Charter Treaty (ECT) 115
significance of 392–3
tradition methods of resolving 396–9
treaty methods 399
under Agreement for the Promotion and Protection of Investments (ASEAN) 109
under Charter of Economic Rights and Duties of States 83
under Unified Agreement for the Investment of Arab Capital in the Arab States 107
disputes
legal representation 395
long-term relationships 394
monetary value 394–5
nature of between states and investors 393–5
political nature of 394
scope of 427
Doha Round
WTO 122
domestic courts
access to 94
Dominican Republic-Central America-United States Free Trade Agreement (CAFTA-DR) 3, 115–16
main provisions of 116
signatories 115
Draft Articles on Responsibility of States for Internationally Wrongful Acts 56, 70, 383–4, 442–3
Draft Convention on the Protection of Foreign Property 99, 242
OECD
state obligations (umbrella clause) 304–5
Draft International Convention for Mutual Protection of Private Property Rights in Foreign Countries 99
Draft United Nations Code of Conduct on Transnational Corporations 246
drafting
BITs 178
due diligence 232, 240
states 367–8
due process 268, 370–4
definition 351
denial of 264–6
East African Community 112, 122
Eastern Europe
consequences of ending communism in 34
emerging economies 104
economic activity
defined under ECT 195
post-World War II 85
Economic Agreement of Bogota 242
economic cooperation 130
foreign direct investment (FDI) as form of 45
economic crises 21, 23
application of exception clauses to 381–2
Argentina 262, 295, 336, 345, 369–71, 380, 386
Asia 295
economic detriment 393
economic development 10, 12, 19–20, 78, 130
promoting 34
economic efficiency
drive for 41
economic expansion
global 95
economic exploitation 91
economic impact
regulatory measures 336–8
severity of resulting in indirect discrimination 336–8
economic independence
preserving 34
economic partnership and cooperation treaties 2
economic relationships 400
developing 90
economic sanctions
Cuba 377
Libya 377
economic transitions
predictability 12
Ecuador
Calvo clauses in Constitution 75
contractual rights of foreigners in 75
denounces nine BITs 20
indirect expropriation 330
jurisdiction 386
termination of BITs 390–1
withdrawal from ICSID 19–21
Ecuador-El Salvador BIT
protection and security under 230
(p. 461) effective means
for asserting claims 405
effectiveness
regimes 19
efficiency seekers 43
Egypt 265–6
BIT with Morocco 105
FDI 300
Egypt-Belgo-Luxembourg Economic Union BIT
definition of investment under 194
Egypt-France BIT 215
Egypt-Greece BIT 333
El Salvador 220
investments under law of 187
Electronic Information System for International Law (EISIL)
sources of BITs text 159
embolum
early trading treaty 37, 89
emergency situation
non-discriminatory treatment for investors in 369
emerging markets 104
developing MNCs/TNCs/MNEs 42
eminent domain 66
employment 47
Energy Charter Treaty (ECT) 2, 18, 24, 52, 114–15, 315
admission of investments under 224
approach to corporate investors 209
compensation provisions 368–9
currencies of transfer under 292
definition of investment under 179–80, 194–5
dispute resolution provisions 115
economic activity defined under 195
entry and residence of foreign nationals under 365–7
exceptions under 378–9
exchange rates under 293
expropriation provisions 317, 321, 325
fair and equitable treatment under 271
final award provisions 440
indirect expropriation provisions 337
interstate dispute resolution under 403
investment promotion provisions in 216
investor protection 114–15
investor-state arbitration 423
key personnel provisions 366
modification provisions 388
monetary transfer provisions 286–7
exceptions 297
most-favoured-nation treatment 280–3
nationalization provisions 317
non-discriminatory provisions 224
number of cases brought under 430
protection and security provisions 233
Russian Federation terminates application for membership of 20, 22
signatories 114
source of BITs text 159
state obligations (umbrella clause) 303
subrogation under 375
termination provisions 389–90
energy supplies
liberalization 114
securing 114
enforceability 11
Calvo clauses 76
state contracts 71
enforcement 5, 12
arbitral tribunal decisions 153
enterprises
branches 31
as form of investment 181
forms of 30–1
ownership interest in 29
subsidiaries 31
entrepreneurship
encouraging 129
entry
foreign nationals 364–7
environment 23
environmental regulations
promulgating new resulting in increased costs 393
epistemic communities
definition 17
equal treatment 59
equality 57
tension between minimum international standard principle and 58
equitable treatment
provisions under friendship, commerce and navigation treaties (FCN treaties) 97
equity 28
notions of 244
equity capital 30
equity interest 29
Erik II, King of Norway [1268-99] 89
establishment
absolute right of 225–7
TFEU provisions on 225–7
relative right of 221–5
NAFTA provisions on 222
Estonia
fair and equitable treatment 246
political and economic transition 262
Ethiopia
reservations about liberalization 112
EU-Japan Free Trade Agreement 122
EU-United States Transatlantic Trade and Investment Partnership (TTIP) 23, 123
Europe
capitalism 11
colonialism 58–9
countries concluding BITs 101
post-World War II BITs 242–3
(p. 462) European Court of Human Rights (ECtHR)
case law on proportionality 342–3
European Court of Justice (ECJ) see Court of Justice of the European Union (CJEU)
European Economic Community (EEC)
creation of 99
European Union (EU) 3, 14
absolute right of establishment 225–7
aims and objectives of 99
creation of internal market 99–100
evolution from EEC 99
flow of capital 225–7
free movement of capital 99–100, 226
freedom of movement 226
legitimate expectations under law 254
rulings of CJEU on exceptions to monetary transfers 297–8
treaties establishing 99–100
exceptions 25, 152, 376–91
generally 377–8
justifications for 382–5
self-judging nature of 380–1
to protect security and public order 378–85
exchange of letters 141
exchange rates 113, 203
applicable to monetary transfers 293
volatility 284
expansionism 58
expected returns 35
exploitation 9
exports 117
expropriation 125, 150–1, 313–57
of agricultural land in Mexico 57
by government 36
challenging 67
compensation 447
valuation methods 356–7
compensation for 66, 68–70, 314, 317, 351–7
Hull Formula 353
standard of 352–4
conditions for legality 349–57
customary international law 64–70
differences between direct and indirect 320
disproportionate tax increases as type of 328–30
ECT provisions on 317, 321, 325
essential element of 322–3
FCN treaties seek to address 95
German-owned industrial property in Upper Silesia 65
government actions equivalent or tantamount to 327–8, 331–2
historical incidences of 314
Hungary 351, 355
interference with investment management as type of 328, 332–3
just price of 65
Latvia 324–5
must be for public purpose 349–50
must not be discriminatory 350–1
NAFTA provisions on 316–17, 321, 323, 334
nature of act 320–2
nature of expropriating actor 318
protection against 25, 104
provisions under United States-Argentina BIT 166
for public benefit 107
risk of 313–15
scope of clauses 318–22
Soviet Union 73
treaty guidance on compensation for 438–9
types of property expropriated 318–19
value of undertaking at moment of dispossession 70
whether governmental acts tantamount to or has equivalent effect of 320–1
extraterritoriality 91
‘fair and equitable’
context of term 252
interpretation of term 251–2
vagueness of term 241
fair and equitable treatment 13, 25, 239–69
application of 253
arbitrary actions 261–3
as autonomous standard additional to international law 249–50
background to 241–3
balanced approach to 252
complexities of interpreting and applying 244–5
content of standard 251–66
customary international law 271
denial of justice or due process 264–6
differing concepts of 245–50
discrimination 261–3
dispute resolution 393
elements for applying 273
failure to act transparently 260–1
failure to protect legitimate expectations 253–9
foreign investment and investors 147
formulation of standard 243–4
good faith 266
as international minimum standard 245–9
interpretation 163
interpretation by arbitral tribunals 254–5
interpreting and applying by tribunals 268
legitimate expectations 266
post-World War II development 241
as umbrella clause 258
under international law 270–2
under municipal law 254
(p. 463) under Vienna Convention on the Law of Treaties (VCLT) 251–2
when treaty does not contain provision on 269
fairness
notions of 244
Federal Department of Foreign Affairs (Switzerland)
treaty database 157
federalism
Mexico 260
final awards
under North American Free Trade Agreement (NAFTA) 440
financial crises see economic crises
financial institutions
loans by 40
financial obligations
state 284
foreign aid 104
foreign capital
slowing of flow 21
Foreign Claims Settlement Commission 74
Foreign and Commonwealth Office (FCO)
website with links to full texts of treaties 157
foreign companies
diplomatic protection to investors in 63
extending diplomatic protection to shareholders of 398–9
foreign direct investment (FDI) 24
admission of 217–18
barriers to 219–20
benefits to host countries 47
by state-controlled MNCs 42
calculability of transactions 11
competition for 22
concerns over outward flows of capital 49
conditions for in BITs 146
conflict with diplomatic relations 49
countries with high outflows 105
defining attributes 37
definition 38–9
early form in Venice 37
Egypt 300
estimate of total 39
fair and equitable treatment 147
foreign portfolio investment distinguished 39–40
as form of economic cooperation 45
forms of 38
Germany post-World War II 100–1
historical development 36–7
India 28
liberalization of laws on 214
limitations and restrictions on 47
long-term nature of 22
management 31
nature and significance of 26–45
as ‘obsolescing bargains’ 254–5
ownership rights conferred by 39
potential costs of 47
promoting 11, 124–7, 135–6, 214–17
regime for 6–9
relationship with international trade 117–18
sovereignty and 213–27
standards of treatment of foreign investments and investors 146–9
state interests 44–5
state responsibility for 6
transparency 214
Foreign Investment Commission (FIC) (Chile) 258
foreign investment laws/foreign investment codes/joint venture laws 213
foreign investment policies 135
Foreign Investment and Promotion Agreement 131
Foreign Investment Protection and Promotion Agreement (Canada) 246
foreign investors
conditions for in BITs 146
fair and equitable treatment 147
non-discriminatory treatment for in emergency situation 369
protection 147–8
standards of treatment of in BITs 148–9
foreign managers
right of host countries to bring into 85
foreign nationals
entry and residence 364–7
protection under friendship, commerce and navigation treaties (FCN treaties) 98
foreign portfolio investment
definition 39–40
foreign direct investment (FDI) distinguished 39–40
foreign trade 91
leading to early forms of international investment 36
former colonial powers
bilateral treaty programmes of 101
Framework Agreement on the ASEAN Investment Area 110
France
bilateral investment treaties (BITs) concluded by 101
BITs 243
capitulation treaty between Ottoman Empire and 90–1
France-Argentina BIT 437–8
definition of investor under 212
free movement of capital 99–100
EU 226
free trade agreements (FTAs) 2
evolution of BIT provisions into 116–18
fair and equitable treatment under 246, 265
indirect expropriation under 344
(p. 464) key personnel provisions 366
obligations imposed by 117–18
sources of BITs text 160
US 222
free trade agreements (FTAs) see also North American Free Trade Agreement (NAFTA)
Free Trade Area of the Americas
impetus towards establishing 115
free trade areas (FTAs) 105
Free Trade Commission (FTC) 14, 239, 401
fair and equitable treatment 248
interpretation of NATFA terms under 164–5
free zone status
revocation of 333
freedom from interference 59
freedom of movement 275
EU 226
friendship, commerce and navigation treaties (FCN treaties) 92–4, 231, 415
discriminatory measures under 97
encouragement of arbitration 98
equitable treatment provisions 97
exceptions to monetary transfers under 204
incorporation of Hull formula 98
new provisions for 97
post-World War II
innovations 97–8
United States 242
property provisions 97
protection of foreign nationals under 98
public ownership provisions 97
scepticism of developing countries 98
settlement of interstate disputes under 402–3
US preference for 97
full protection and security 25
origin of term 231
futures
as form of investment 181
gambling establishments
regulation of 256
General Agreement on Tariffs and Trade (GATT) 95, 118, 225, 381
Uruguay Round 118, 121, 359
General Agreement on Trade in Services (GATS) 118, 382
General Assembly Resolution 1803 on Permanent Sovereignty over Natural Resources 78–80, 84
General Assembly Resolution 3201 - Declaration on the Establishment of a New International Economic Order 80
General Assembly Resolution 3281 - Charter of Economic Rights and Duties of States 80–1, 84, 86
contentious provisions 81
criticised as unbalanced 82
dispute-resolution under 83
effects of 83–4
legal nature of 83
provisions on compensation 82
General Principles of Law 51, 56–64
as source of international law 55
German merchants
protection for establishment in London 89
Germany
BITs 243
entry and residence of foreign nationals 365
foreign investment post-World War II 100–1
number of signed investment treaties 2
Germany-Antigua and Barbuda BIT 218
Germany-Argentina BIT 178
definition of investment in 204–5
protection and security 238
Germany-China BIT 272
Germany-Pakistan BIT
protection and security under 230
state obligations (umbrella clause) 305
Germany-Philippines BIT 220
Ghana-Guinea BIT 192
global agreements
resistance to 15–16
global treaty on investment
efforts to establish 118
failure to create 96–7
globalization 41, 44
going-concern value 357, 449
good faith 266
provisions under Vienna Convention on the Law of Treaties (VCLT) 381
governance
improving 129
governing law
investor-state arbitration 424–5
government corporations 33
government liability 259
government permits
revocation as type of expropriation 328, 333–4
governmental acts
detrimental 393
duration of to be indirect expropriation 338–9
whether tantamount to or has equivalent effect of expropriation 320–1
governments
transparency 260
Greece
Interministerial Privatization Committee 227
Greece-Egypt BIT 266
gross domestic product (GDP) 123
Group of 77 246
guarantees 36
(p. 465) Guidelines for Multinational Corporations (OECD) 110
Guidelines on the Treatment of Foreign Investment 118–19
gunboat diplomacy 60, 63, 399
Harvard Business School 12
Havana Charter for an International Trade Organization 95–6, 241
Hay, Eduardo [1877-1941]
correspondence with Cordell Hull 57, 68
hegemonic stability 7–8
Henry II, King of England [1133-89] 89
home countries 37
investor interests 48–9
protection of nationals abroad 59–60
right to pursue claims against foreign countries 60
treatment of claims 63
host countries 37
admission of investment 218–21
adverse actions by 9
capital flows 284
favourable conditions 10, 12
foreign investment interests 47
interventions with 15
jurisdiction 187–8
lack of experience and knowledge of ADR 409–10
negotiation with as form of dispute resolution 396–7
protection and security 234–5
respondent in claims 430
right to bring foreign managers into 85
right to regulate 255
sovereignty 19
standards of treatment owed to aliens by 57–9
treatment of claims 63
host countries state obligations (umbrella clause) 306
Hughes, Charles Evans [1862-1948] 94
Hull, Cordell [1871-1955] 61
correspondence with Eduardo Hay 57, 68
Hull Formula 68–9, 353, 446
incorporation into friendship, commerce and navigation treaties (FCN treaties) 98
Hungary
expropriation 349–51, 355
hybrid investments 29
immovable property
acquisition of interests in 188
as form of investment 181
as investment 177
immunity
extraterritorial 91
sovereign 416
impartiality
investor-state arbitration 434
impermanence
regimes 19
income capitalization approaches
valuation 449–50
independence
investor-state arbitration 434
India
foreign investment 28
Regional Comprehensive Economic Partnership (RCEP) 123
treaty website 158
India-China BIT 375
indirect damages 203
indirect discrimination
arbitrariness resulting in 343–4
degree of interference in property rights for 335–9
loss of control resulting from 336–8
Mexico 343–4
severity of economic impact resulting in 337–8
indirect expropriation 314–15, 320, 322, 325–7
Argentina 338, 346
compensation for 354–6
criteria for distinguishing direct expropriation from 335–47
discrimination resulting in 343–4
distinction between direct expropriation and 327–8
distinguishing legitimate regulation from 347–8
duration of governmental acts to be 338–9
Ecuador 330
Energy Charter Treaty (ECT) provisions on 337
frustration of legitimate expectations amounting to 339–41
interference with contractual rights as type of 257, 328, 330–2
lack of proportionality resulting in 341–3
Mexico 342–3
NAFTA provisions on 337, 344–5
non-transparency resulting in 343–4
sole effects versus purpose 345–6
state denial of existence of 326
types of government measures that may constitute 328–34
under free trade agreements (FTAs) 344
indirect ownership 206
indirect shareholders 202
indirect shareholdings
as form of investment 204–6
Indonesia
BIT with Netherlands first to include ICSID clause 103
terminates BITs 20–1
violation of TRIMs agreeement 359
(p. 466) industrial development contracts 48
industrialized countries
disagreement between newly decolonized developing nations and 85
inflation
risk of 284
infrastructure construction contracts 48
institutional investors 40, 43
insurance
political risk 374
intangible rights 319
intellectual property rights
as investment 177, 181
Inter-American Development Bank 34
inter-regional agreements 122–3
interim awards 405
Interministerial Privatization Committee (Greece) 227
internal disorder
losses from 151–2
internal market
creation by EU 99–100
international arbitration see arbitration
International Bank for Reconstruction and Development (IBRD) 95
international bonds 40–1
International Centre for Settlement of Investment Disputes (ICSID) 3, 18, 86, 152–3, 169, 171, 315, 404, 423
Additional Facility Rules 421–2
Annulment Committee 302–3
arbitration 198
conciliation 410
creation of 100–3
establishment 420–1
final award provisions 441
governance 420
investor-state negotiations 406
jurisdiction 168, 174–5, 204, 421–2, 430, 434
locating decisions of 172
relationship with World Bank 421
source of BITs text 158–9
withdrawal from 19–20, 435
work since inception 103
International Chamber of Commerce (ICC) 412
conciliation 410
forum for investor-state arbitration 429
International Code of Fair Treatment of Foreign Investment 98–9
international conventions 51–4
international cooperation
regimes as instances of 8
International Court of Justice (ICJ) 51, 54, 170
dispute resolution 398
interpretation of protection and security 232
jurisdiction of 98
protection and security of foreign investment and investors 147–8
ruling on minority shareholdings 201
treaty provisions agreeing to jurisdiction of 98
International Criminal Court 15
international economic relations
governance 81
International Finance Corporation 34
international human rights 15
international investment see foreign direct investment (FDI)
international investment treaties (IITs)
background to 1–6
from World War I until World War II 94–5
history 87–140
early beginnings 88–9
eighteenth, nineteenth and early twentieth centuries 92–4
seventeenth and eighteenth centuries 90–2
immediately following World War II 95–7
later post-World War II years 97–100
international law 25 see also customary international law
attitude of developing countries towards traditional 78
challenges to western views on international investment law 72–84
compliance of BITs with 148
contractual rights not considered property for purposes of 318–19
discriminatory taking prohibited by 68
dispute resolution under 50
fair and equitable treatment 270–2
as additional standard for 249–50
foundations of investment 46–86
general principles of law as source of 55
limits set by generally accepted principles of 62
peremptory norms 53
positivism 414–15
public purpose 67
sources of 51–6
sovereignty under 213
state and investor interests shaping 46–50
subsidiary sources of 55–6
taking under 65–7
treatification of investment law 4, 87–8
VCLT guidance on interpretation under 165–7
western views of 66
International Law Commission 56, 77
Articles on State Responsibility 301
international loans 40–1
International Monetary Fund (IMF) 35, 95, 293
distinguishes between direct and portfolio investment 30
(p. 467) international organizations 31
definition 34–5
lack of multilateral 18
sources of BITs texts 158–9
international responsibility scope of 443
international trade
relationship with international investment 117–18
International Trade Organization (ITO) 95–6, 241
international treaties
consequences of violations 436–51
imprecise nature of texts 436–41
provisions on damages 436
internationalization
state contracts 71
interpretation 7
arbitrations on state obligations (umbrella clause) 308–11
basic rules in Vienna Convention on the Law of Treaties (VCLT) 156
difficulties of 155
fair and equitable treatment 244–5, 268–9
rules of 156
supplementary means of 168–70
Vienna Convention on the Law of Treaties (VCLT) permits recourse to supplementary means of 168–70
interstate arbitration 401–6
background to 402–3
Cuba and Italy 404
World Bank 417–18
World Bank’s proposed convention on 418–20
interstate consultations
as form of dispute resolution 399–401
interstate disputes
settlement under friendship, commerce and navigation treaties (FCN treaties) 402–3
intra-firm trade 117
investment see also foreign direct investment (FDI); private investment
approved project requirements 195–6
arbitral applications of definitions in special situations 196–206
attributes of 27
case law on definition of 178–9
control attributes 29–30
covered by BITs 176
covered investment 192
definition 26–7, 176, 318
employing broad definition of 202
excludes order or judgments by judicial or administrative action 182
extending definition of 192–3
failure to create global treaty on 96–7
forms of 27–31, 176
approved project requirements 195–6
broad-asset based definitions with exhaustive list of 183–4
broad-asset based definitions with illustrative list of investment forms 177–80
broad-asset based definitions specifying substantive investment characteristics and illustrative forms 180–3
international 38–42
sector requirements 194–5
temporal requirements 192–3
hybrid investments 29
indirect shareholdings 204–6
legal requirement for definition in BITs 184–8
liberalization 16, 119
limitations on definition of 184–96
meeting definition of 175
minority shareholdings as 200–4
non-exclusive definition 144
promotion 11, 124–7, 135–6
property and contractual rights resulting from 28–9
protection 11, 124–5, 133–5, 197
scope under United Kingdom-Croatia BIT 193
sector requirements 194–5
short-term transactions distinguished 181
territoriality 188–92
use of term 26–7
investment accords 299
Investment Area Council (ASEAN) 110
investment contracts
cancelling 66
possibility of being expropriation 71
investment disputes
definition 427
investment management
interference with as type of expropriation 328, 332–3
investment protection
capital-exporting countries 193
investment transactions
trade transactions distinguished 38
investment treaties
background to 46
development of 24
interpretation 24
negotiations 86
provisions not uniform 24
scope 25
Investment Treaty Arbitration (ITA)
locating decisions of 172
sources of BITs text 159
investment tribunals 13
investment-related agreements 1
(p. 468) InvestmentClaims.com 172
sources of BITs text 160
investor
meeting definition of 175
investor conduct
regulating 23
investor protection
Energy Charter Treaty (ECT) 114–15
foreign investment and investors 147–8
under IOC’s Agreement 108
investor-state arbitration 9, 14–15, 22, 74, 135, 411–35
available forums 429
conditions precedent to invoking 427–9
confidentiality 434
cost of 431–2
differing natures of provisions for 425–9
establishing mechanisms for 441
goal of valuation 448
governing law 424–5
growth of 171–2
growth and significance of 429–32
impartiality of 434
impetus for reform of 434–5
incorporation into treaties 422–4
increasing number of 431
independence 434
jurisdiction 426
lack of transparency in 434
possible negative effect on international relationships 431
purpose of 441
state’s consent to 426
statistics for 430
statute of limitations on 428
waiver of rights to 432–4
investor-state disputes 102
consultations and negotiations 406–11
costs of 134
Investor-State Law Guide 172
investor-state negotiations
ICSID 406
UNCTAD 406
investor-state obligations 25
investors
companies as 208–11
conditions for foreign in BITs 146
covered by BITs 206–12
definition of in Switzerland 208–9
diplomatic protection considered incomplete for foreign 63
ECT approach to corporate 209
fair and equitable treatment 147
foreign investment interests 48
increasing returns to 36
natural persons as 207
nature of disputes between states and 393–5
nature of 31–5, 42–4
private right of action of violation of regime rules 15
rights of 4
Saudi Arabia’s definition of 207
standards of treatment of foreign in BITs 146–9
state-owned entities as 211–12
states as 211–12
treatment of 228–9
types of 31
US BITs including definition of 211–12
Iran
nationalization of Anglo-Iranian Oil Company 304
Iran-United States Claims Tribunal 295, 319, 333, 345, 447, 449
Israel 117
Italy
bilateral investment treaties (BITs) concluded by 101
interstate arbitration 404
United States-Italy FCN Treaty 98
Italy-Morocco BIT 185
Italy-Venezuela FCN treaty 232
Italy-Venezuela Mixed Claims Commission 232
Japan 117
controlled entry model 222
economic partnership and cooperation treaties 2
gathering momentum of bilateral investment treaties (BITs) 104
performance requirements 361
prudential measures provisions 382
Regional Comprehensive Economic Partnership (RCEP) 123
seeks relative right of establishment in BIT negotiations 221–2
Trans-Pacific Partnership (TPP) 123
Japan-China BIT 408
Japan-Korea-China Trilateral Investment Agreement 344
Japan-Kuwait BIT 367
Jay Treaty 93, 402
Jordan 117
Jordan-Italy BIT 272, 306–7
Jospin, Lionel 120
judgments
not considered investment 182
judicial decision-making 51–2, 55
judicial decisions 170–2
definition 56
giving meaning to protection and security 231
whether arbitral decisions are 171
juridical persons 212
jurisdiction 38, 187
challenges to 50, 186
International Centre for Settlement of Investment Disputes (ICSID) 168, 174–5, 204, 421–2, 430, 434
(p. 469) investor-state arbitration 426
issues of definition 185–7
treaty provisions agreeing to ICJ 98
just compensation 70, 98, 447
just price
expropriation 65
justice
abstract notions of 58
access to 90
denial of 264–6
duty of states to conform to international standards of 62
Kelsen, Hans [1881-1973] 242
Kenya-Slovakia BIT 381
key personnel 365–6
knowledge seekers 43
knowledge transfer 364
Korea-Congo BIT 353
Korea-Japan BIT
exceptions to monetary transfers under 295–6
Kuwait
gathering momentum of bilateral investment treaties (BITs) 104
sovereign wealth funds (SWFs) 43
Kuwait-Japan BIT 222
public order exception 380
Lalumière Report 120
land purchase agreements 41
language
BITs 160–1
issues of definition 185
variation in protection and security 237–8
Latin America 61
challenge to western views on international investment law 75–8
emerging economies 104
threatened by US domination 59
Latvia
expropriation 324–5
indirect expropriation 337
Lauterpacht, Elihu 304, 415
law firms
role in decision-making process 17
law of responsibility 78
lawyers
role in decision-making process 17
League of Arab States 106
legal obligations 5
legal persons 212
legal relationship 38
legal representation
disputes 395
legislation
as subject of conflict 394
legitimate expectations
creating 256–7
failure to protect under fair and equitable treatment 253–9
fair and equitable treatment 266
frustration of amounting to indirect expropriation 339–41
Mexico 339–40
Lena award 415
lex specialis
treaties 5
liability 31
liberalization 130, 137–9, 214
absolutist evaluation of 137–9
African countries’ reservations about 112
energy supplies 114
investment 16, 119
relativist evaluation of 139–40
secondary objective of BITs 127–8
liberalized entry model
foreign direct investment (FDI) 218
Library of Congress THOMAS website 158
Libya
economic sanctions 377
licences
as form of investment 181
limitations
on definition of investment 184–95
limited liability 31–2
limited partnerships
formed by merchants for shipping goods 36
liquidation value 357, 451
liquidity 33
Litvinov Assignment 74
Llewellyn, Karl Nickerson [1893-1962] 87
loan agreements
defined as investment 196
local courts
for resolving investor-state disputes 397–8
local currency
free conversion of 104
local industries
strengthening 47
local remedies
exhaustion of 398
required under customary international law 405
locally incorporated corporations
defined as investment 196
London Court of Arbitration 412
long-term concessions 71
long-term relationships
disputes 394
loss of control
resulting from indirect discrimination 336–8
losses
from armed conflict or internal disorder 151–2
Maharashtra State Electricity Board (MSEB) 396–7
(p. 470) Malaysia 105, 196
Trans-Pacific Partnership (TPP) 123
Malaysia-Australia FTA 344
Malaysia-Chile BIT
most-favoured-nation treatment 282
management
entry and residence of personnel 364–7
manufacturing 37
market liberalization see liberalization
‘market value’ 447
determining fair 448
market/sales comparison approach
valuation 449
Mavrommatis case 60–1
mediation 407
conciliation distinguished 410
increased use of 409
mega-regional economic groupings 23
merchants
form limited partnerships for shipping goods 36
protection of 94
Mercosur 111–12
composition of 111
established by Treaty of Asunciòn 111
Protocol of Buenos Aires for the Promotion and Reciprocal Protection of Investments coming from Non-
Mercosur State Parties 111
Protocol of Colonia for the Promotion and Reciprocal Protection of Investments in Mercosur 111
Mexico
expropriation of agricultural land in 57, 61
federalism 260
indirect discrimination 343–4
indirect expropriation 342–3
legitimate expectations 339–40
performance requirements 361, 363
protection and security 235
regulation of gambling establishments 256
tax rebates 278
Trans-Pacific Partnership (TPP) 123
Mexico-Spain BIT 334
Middle East 106
military intervention
redress through 60
minimum standards 250
application and enforcement of 59–64
fair and equitable treatment as 245–9
Minimum Standards of Treatment (NAFTA) 248–9
minority shareholders 202, 204
minority shareholdings
defined as investment 200–4
Mixed Claims Commission 64
mixed enterprises 31
definition 35
model treaties/prototype treaties 131, 170
dispute resolution 408–9
distinguishing legitimate regulation from indirect expropriation in newer 347–8
fair and equitable treatment 265, 271
final award provisions 440
performance requirements 360, 362
purpose of 131–2
sources of BITs text 160
modifications 25, 152, 376–91
scope of 387–8
monetary reserves
reduction in 284
monetary transfers 90, 113, 284–98
capital-exporting states 150
currency of transfers 292
exceptions 294–8
exchange rates applicable to 293
influence of most-favoured-nation treatment 289
restrictions on 288–9
right to make 285–9
significance of 284–5
time for effecting 294
types of payment covered by 289–91
unrestricted 288
monetary value
disputes 394–5
Morocco
BIT with Egypt 105
most-favoured-nation treatment 25, 93, 95, 109, 222–4, 243, 280–3, 370
BITs 149
effects of 281–2
influence on monetary transfer 289
seventeenth and eighteenth century 90
variety of formulations 281
movable property
as form of investment 181
as investment 177
multi-national corporations (MNCs)/multinational enterprises (MNEs)/transnational corporations (TNCs) 42
enterprises pursued by 42–3
institutional investors 43
intra-firm trade 117
new types evolving 43
perceptions of 43
Multilateral Agreement on Investment (MAI) 119–20
failure to secure 121
negotiations 120–1
multilateral conventions
post-World War II development of 98–100
Multilateral Investment Guarantee Agency (MIGA) 118
multilateral negotiations 133
multilateral treaties 2
multinational trade rules
development of 97
municipal arbitrations 415
(p. 471) municipal law
fair and equal treatment 254
mutual prosperity 130
mutual protection 126
NAFTAClaims.com
sources of BITs text 160
nation-states
formation of 90
national courts 5
forum for investor-state arbitrations 429
national enterprises
protection from damaging competition 214
national interest
tensions with treaty obligations 376
national law
exceptions for specified 385–6
perceived limitations in resolving investment disputes 50
national security - see - protection and security
national treatment 25, 274–80
application of standard 277–80
appropriate comparators 278
BITs 149, 274–6
difference in treatment 279–80
NAFTA provisions on 276, 279–80
resistance to 275
under TFEU 275
with whom should claimant be compared 277–9
nationality 144
nationalization 25, 65, 150
compensation for 79
Energy Charter Treaty (ECT) provisions 317
NAFTA provisions on 316–17
risk of 313–15
scope of clauses 318–22
nationalized property
restitution 68
nations
fundamental interests of 58
natural persons
as investors 207
natural resource agreements 48
natural resources 37
development of 47
establishing sovereignty over 78
necessity
state of 383–5
negative governmental interference 9
negotiations see also bilateral negotations; multilateral negotiations
asymmetric nature of 16
capital-exporting states 17
as form of dispute resolution 399–401
investment treaties 86
investor-state 406–11
as method of dispute resolution 396–7
Multilateral Agreement on Investment (MAI) 120–1
Netherlands
bilateral investment treaties (BITs) concluded by 101
BIT with Indonesia first to include ICSID clause 103
Venezuela terminates BIT with 20
Netherlands Model BIT
monetary transfer provisions 286
Netherlands-Argentina BIT 272
Netherlands-Czech Republic BIT
fair and equitable treatment 257
indirect expropriation under 330–1
protection and security 236, 239
Netherlands-Indonesia BIT 422
Netherlands-Poland BIT 307–8
Netherlands-Romania BIT
provisions on corporate investors 210–11
Netherlands-Venezuela BIT
state obligations (umbrella clause) 308–9
New Economic Policy 73
New International Economic Order (NIEO) 79–80, 148, 314, 415
legal validity of 84
new markets
developing 42
new provisions 23
New Zealand
‘Pacer Plus’ negotiations 122–3
Regional Comprehensive Economic Partnership (RCEP) 123
Trans-Pacific Partnership (TPP) 123
non-adjudicative dispute resolution 408
non-contingent forms of protection 244
non-discrimination
Energy Charter Treaty (ECT) 224
national treatment 274
non-governmental organizations (NGOs) 120–1
intervention in multilateral negotiations 133
non-governmental sources
BITs texts 159–60
non-payment of debts 259
non-precluded measures provisions 379
non-transparency
resulting in indirect expropriation 343–4
north-north BITs 105
North American Agreement on Environmental Cooperation (NAAEC) 166
North American Free Trade Agreement (NAFTA) 2–3, 14, 18, 23–4, 52, 105, 121, 127, 166–7, 259
arbitral tribunals under 401
Chapter Eleven tribunals 191–2
claims under 172
compensation for expropriation under 353
currencies of transfer under 292
(p. 472) definition of investment under 180
determination of appropriate comparators under 278
dispossession provisions 316–17
distinction between direct and indirect expropriation 327–8
distinguishing legitimate regulation from indirect expropriation 347
expropriation provisions 316–17, 321, 323, 334
fair and equitable treatment under 243–4, 247–9, 262, 271
Free Trade Commission 239, 401
governs final awards in investor-state disputes 440
indirect expropriation under 337, 344–5
interpretation of arbitration under 164–5
investment chapter of 7
investor-state arbitration 423
key personnel provisions 366
Minimum Standards of Treatment 248–9
modification provisions 388
monetary transfer provisions 287, 291
national treatment provisions of 276, 279–80
nationalization provisions 316–17
number of cases brought under 430
performance requirements 361–3
protection and security under 233
right of establishment under 222
scope of 113–14
signatories 113
standard for compensation under 446–7
state obligations (umbrella clauses) 303
territoriality 191–2
North Korea
number of signed investment treaties 2
Norway
sovereign wealth funds (SWFs) 43
nuclear non-proliferation regime 15
object and purposes
BITs 162–3
distinction between context and 163
obligations
contracting parties 143
definition 178
tensions between national interests and treaty 376
obligee
state obligations (umbrella clause) 312
obsolescing bargains 12, 87
FDI as 254–5
problems with 299–301
October Revolution 73
official publications
sources of BITs texts 156–8
onerous regulations 66
opinio juris sive necessitatis 54
options
as form of investment 181
orders
not considered investment 182
Organisation of American States (OAS)
source of BITs text 158–9
Organisation for Economic Co-operation and Development (OECD) 120–1
attempts to establish global rules on investment 119
Draft Convention on the Protection of Foreign Property 99, 242
state obligations (umbrella clause) 304–5
Guidelines for Multinational Corporations 110
Multilateral Agreement on Investment (MAI) 120–1
Organisation of Islamic Co-operation (OIC) 107–8
Ottoman Empire
capitulation treaty between France and 90–1
Overseas Private Investment Corporation (OPIC) (United States) 329, 375
ownership 206
companies/corporation 33
importance of 33–4
utilities 34
ownership interest 28–9
‘Pacer Plus’ negotiations 122–3
Pacific Islands Forum ‘Pacer Plus’ negotiations 122–3
pacta sunt servanda principle 72
Pakistan 189–91
Pakistan-Switzerland BIT 428
state obligations (umbrella clause) 310
Paraguay 189, 191
peremptory norms
international law 53
performance requirements 224–5, 358–64
abolition of 104
Association of Southeast Asian Nations (ASEAN) 361
Canada 361, 363
Japan 361
Mexico 361, 363
model treaties/prototype treaties 360, 362
NAFTA 361–3
trade-related investment measures (TRIMs) 359
Ukraine 363–4
United States 360, 361
Permanent Court of International Arbitration 70, 315
locating decisions of 172
(p. 473) Permanent Court of International Justice 60–2, 65, 414, 444
interpretation of umbrella clauses 301–2
Peru
Calvo clauses in Constitution 75
Trans-Pacific Partnership (TPP) 123
Peru-Paraguay BIT
expropriation provisions 320
Peru-Thailand BIT 243
Philippines 189–90
Philippines-Switzerland BIT
state obligations (umbrella clause) 310
Poland
expropriation of German-owned industrial property 65
police power
arbitrary or discriminatory exercise of 66
political relationships 400
political risk 12, 24, 313–15
commercial risk distinguished 36
evaluating 5
increasing 22
insurance 374
protection against 36
political safety seekers 43
Ponzi schemes 186
portfolio investment
direct investment distinguished 30
positivism
international law 414–15
power
dilution of 16
power of eminent domain 64, 66
pre-establishment/post-establishment
treatment of contracting parties according to 138
pre-investment and development activity 199
pre-investment expenditures
defined as investment 197, 200
Pre-Shipment Inspection (PSI) Agreement 190
precedent
no doctrine of binding 170
predictability
economic transitions 12
prediction 11
price controls 36
principle of equality 57
tension between minimum international standard principle and 58
private investment
reduction of barriers to 34
private investors 31, 34
types of 32–3
privatization
public services 394
privatized decision-making 17–18
privileges 61, 143–4
extraterritorial 91
procedural fairness 264
procurement 263
production
improving means of 47
promissory notes
defined as investment 196
Venezuela 189
promissory notes Venezuela 188
promotion
foreign direct investment (FDI) 11, 124–7, 135–6, 214–17
property
confiscation 74
protection of 90
provisions under friendship, commerce and navigation treaties (FCN treaties) 97
ruling that public contracts is 72
state’s power of eminent domain to take 64
types of expropriated 318–19
property protection clauses 93
property rights 315, 332
asserting 67
degree of interference required for indirect expropriation 335–9
as form of investment 181
resulting from investment 28–9
proportionality
case law of ECtHR on 342–3
lack of resulting in indirect expropriation 341–3
prosperity 10, 12, 19–20
protection guarantees
reinforcing 98
protection and security 23, 214, 230–40, 269
BITs provisions on 233–40
dispute resolution 393
diversion of views on 239
ECT provisions on 233
exceptions to protect 378–85
foreign investment and investors 147–8
host countries 234–5
investment 11, 124–5
minimum international standard of 58
modern era 233–9
mutual 126
NATFA provisions on 233
preserving 34
scope of 240
variation in language relevant to 237–8
Protocol of Buenos Aires for the Promotion and Reciprocal Protection of Investments coming from Non-
Mercosur State Parties (Mercosur) 111
Protocol of Colonia for the Promotion and Reciprocal Protection of Investments in Mercosur (Mercosur) 111
Protocol on Enhanced Dispute Settlement Mechanism (ASEAN) 401, 403
protocols 141
(p. 474) prudential measures 382
public benefit
expropriation for 107
public contracts
ruling that is a property or vested right 72
public health 23
public interest
protecting 429
public order
exceptions to maintain 378–85
public ownership
provisions under friendship, commerce and navigation treaties (FCN treaties) 97
public policy
subject of conflict 394
public purpose
expropriation must be for 349–50
international law 67
public service concessions 299
public services
privatization 394
publicist
definition 56
Pure Theory of Law 242
rationality 263
raw-materials
seeking 42
‘real value’ compensation 447
‘reasonable compensation’ 447
reciprocity
notion of 126
regime analysis 9
regimes
ability to withstand external threats and challenges 19
application of theory to investment treaties 10–15
bilateral construction 15–17
challenges and prospects 19–21
decision-making 14–15
decision-making processes 19
development of theory of 6–7, 9
effectiveness 19
elements of 10–15
epistemic communities 17
impermanence of 19
as instances of international cooperation 8
legitimacy 8
norms 12–13
principles 10–12
reasons of building 8
reasons for nations joining 8–9
robustness 19
stability 21
theoretical explanation as to what states form 7
types of 15–18
Regional Comprehensive Economic Partnership (RCEP) 123
regional international arrangements 2
regional investment agreements
development of 106–16
movement towards 122–3
regulation
confiscatory 66
determining nature of 66
distinguishing legitimate from indirect expropriation 347–8
onerous 66
unreasonable 66
regulatory measures
increasing number of arbitral claims challenging 340–1
severity of economic impact resulting in indirect discrimination 336–8
‘regulatory taking’ 66
regulatory taking 314–15
relationship building
secondary objective of BITs 128–9
relationships
dynamics established by treaties 9
relative right of establishment 221–5
NATFA 222
relativism
liberalization 139–40
remedies
legally authorised 28–9
under BITs 443–5
renegotiation
Bolivia 387
renunciation provisions 77
‘repatriation’
use of term 286
replacement value 356, 451
research
scholarly commentary on BITs 172–3
residence
foreign nationals 364–7
respondent
host nation as 430
responsibility
law of 78
restitution
nationalized property 68
refusal to make 73
retained earning 30
returns 35–6
enhancing 36
revocation
government permits or licences
as type of expropriation 328
revolution
compensation for 367–70
right of control
deprivation of 67
right of review 268
(p. 475) rights of action
private investors for violation of regime rules 15
rights of investors 4, 144
riots 36
risk analysis 36
risk management 11, 48
robustness
regimes 19
Romania
state obligations (umbrella clause) 301
Root, Elihu [1845-1937] 58
rule of law
strengthening 129
Russia
post-Revolution 73
Yukos expropriation 22, 315, 350
Russia-Republic of Korea BIT 243
Russian Federation
terminates application for membership of ECT 20–1
Saudi Arabia
definition of investors 207
Secretaria de Gobernacion (SEGOB) 256
sector
requirements for investment 194–5
sectoral agreements
sources of BITs text 160
sectoral investment agreements
development of 106–16
security of energy 114
security entitlements
bonds distinguished 178–9
seizure of assets 393
self-judging
nature of exception clauses 380–1
serial multilateralism 16
share purchases 29
shareholders 178
definition 32
shares
as form of investment 177, 181, 202
passive ownership 206
Shawcross, Lord [1902-2003] 437
short-term transaction
investments distinguished 181
significance
investment treaties 4–6
Singapore 117
sovereign wealth funds (SWFs) 44
Trans-Pacific Partnership (TPP) 123
single international regime 7
single market 275
skills transfer 364
socialism
elimination of 34
Somalia
number of signed investment treaties 2
South Africa
dissatisfaction with investor-state arbitration 435
termination of BITs 20–1, 391
South Korea 105
Regional Comprehensive Economic Partnership (RCEP) 123
South-East Europe
total invested in 39
south-south BITs 105
Southern African Development Community (SADC) 112, 122
sovereign equality 59
sovereign immunity 416
sovereign states
emergence of following end of colonialism 91
sovereign wealth funds (SWFs)
calls for increased transparency and regulation of 44
estimated assets of 44
increasing importance of 43–4
state-owned multinational corporations distinguished 34
sovereignty 8, 47
foreign direct investment (FDI) and 212–27
host countries 19
natural resources 78
preserving 34
under international law 213
undermining 61
Soviet Union
challenge to western views on international investment law 73–5
consequences of ending communism in 34
expropriation 73
monetary transfers in former 297
New Economic Policy 73
recognition of by US 74
refusal to make restitution for seized foreign property 73
Spain-Argentina BIT 427, 437
most-favoured-nation treatment 282–3
Spain-Chile BIT
most-favoured-nation treatment 283
Spain-Mexico BIT
expropriation clauses 342
fair and equitable treatment 257–8
protection and security 235
Special Drawing Rights 293
special meaning
intended by parties 168
Sri Lanka 197
protection and security 234
stability
regimes 21
stabilization agreements 48
standardization 25
(p. 476) standards 228–83
overview of general treatment 229–30, 269–73
performance requirements 358–64
treatment of foreign investments and investors in BITs 146–9
variation in BITs 154
state attribution
state obligations (umbrella clause) 312
state contracts
breaches of 70–2
enforceability 71
governance of 71
internationalizaton of 71
performance 71
state interests
foreign direct investment (FDI) 44–5
state intervention
China 33
state investors 34
types of 33–4
state loans
repudiation of Russian 73
state of necessity 383–5
state obligations (umbrella clause)
Abs-Shawcross Draft Convention on Investments Abroad 304–5
application of 307–11
arbitrations on interpretation 308–11
ASEAN Comprehensive Investment Agreement (ACIA) 303
consensual and non-consensual obligations 312
Energy Charter Treaty (ECT) 303
fair and equitable treatment as 258
formulations of 305–7
framework for applying 311–12
general provisions of 301–3
historical background 304–5
host countries 306
interpretation by Permanent Court of International Justice 301–2
NAFTA 303
nature and source of obligation 312
obligee 312
performance and non-performance considered 299–300
problems with obsolescing bargain 299–301
Romania 301
state attribution 312
UNCTAD 305
under BITs 149
under VCLT 308
state responsibility 6, 78
application of customary international law on 441–3
state-controlled entities (SCEs) 33
state-owned enterprises (COEs) 33
state-owned entities
as investors 211–12
state-owned multinational corporations 42
sovereign wealth funds (SWFs) distinguished 34
Statement on Interpretation of Certain Chapter 11 Provisions 165
statement of purpose 142
states
due diligence 367–8
duty to conform to international standards of justice 62
financial obligations 284
government actions equivalent or tantamount to expropriation 327–8, 331–2
as investors 211–12
nature of disputes between investors and 393–5
police powers of 326–7
types of government measures that may constitute indirect expropriation 328–34
status
determination of 144–5
Statute of the International Court of Justice 51–2, 54–6, 170
statute of limitations
investor-state arbitration 428
stock
as form of investment 181, 202
Stockholm Chamber of Commerce 422–3
forum for investor-state arbitrations 429
subrogation
obligation 374–5
United States 375
subsequent agreement/subsequent practice
interpretation 164–5
subsidiaries 31
branches distinguished 31
definition 55
Suez Canal
compensation for nationalization 417
suppliers’ credits 41
survival clauses 22
Sweden
BITs 243
Sweden-Latvia BIT
expropriation provisions 324
Switzerland
bilateral investment treaties (BITs) concluded by 101
definition of investor in 208–9
Switzerland-Philippines BIT
territoriality issues 188
Switzerland-Slovakia BIT
definition of investor under 208
taking
requirement of expropriation 323
under international law 65–7
Tanzania 206
(p. 477) tax increases
disproportionate as type of expropriation 328–30
tax rebates
Mexico 278
tax stabilization agreements 299
taxation
discriminatory 66
falls outside scope of BITs 385–6
onerous 66
teachings of publicists 55
technology
slowing of 21
technology transfer 47, 364
termination 22, 25, 152, 376–91
territoriality 188–92
text
BITs 156–61
language of 160–1
sources of 156–60
Thailand
BIT with China 105
third parties
actions taken by 273
Third Report on Diplomatic Protection 77
THOMAS website 158
time limits
for effecting monetary transfers 294
title transfer 65
Tractatenblad 157
trade
attempts to create multilateral framework for 95–6
interrelationship with investment 38
trade law
violations of 153
trade transactions
investment transactions distinguished 38
trade-related investment measures (TRIMs) 225, 359–60, 364
Indonesia’s violation of 359
traders
protection of 94
trading
early history of 36–7
trans-border economic activity
developing 90
Trans-Pacific Partnership (TPP) 23, 123
transactions
calculability of 11
lowering costs of 9
‘transfer’
use of term 285
transfer of assets 206
transfer of capital 37
Arab investors 107
transfer of title 65
transition economies
bilateral investment treaties (BITs) 105
total invested in 39
transitional economies
BITs 243
transparency 199, 267–8, 370–4
BITs 221
definition 371
failure of 260–1
foreign direct investment (FDI) 214
governments 260
lack of in investor-state arbitration 434
treaties
consequences of violations 436–51
imprecise nature of texts 436–41
provisions on damages 436
seventeenth and eighteenth century development of 90
Treaties of Friendship, Commerce and Navigation 2
Treaties and Other International Acts Series (TIAS) 157
treatification
definition 4
historical background 88–102
international investment law 4, 87–8
Treaty of Amity, Commerce, and Navigation, Between His Britannic Majesty and The United States of
America 1794 (The Jay Treaty) 93, 402
Treaty of Amity, Economic and Consular Rights between the United States and Iran
exceptions to monetary transfers under 294–5
treaty analysis 9
Treaty of Asunciòn
establishes Mercosur 111
Treaty Establishing the Common Market for Eastern and Southern Africa (COMESA) 112–13
fair and equitable treatment 244
Treaty on the Functioning of the European Union (TFEU) 3
absolute right of establishment under 225–7
fair and equitable treatment under 244
national treatment under 275
objectives 127
treaty law
shift from customary international law to 4
Treaty of Lisbon
effect of 298
status of foreign investment under 123
treaty protection
definition of investment 185
Treaty Series (TS) 157
treaty terms
context of 162–3
distinction between context and object and purposes 163
ordinary meaning of 161–2
treaty title 142
(p. 478) treaty-making
significance of 5
since World War II 3
Tripartite Agreement among the Common Market for Easter and Central Africa (COMESA) 122
Turkey
controlled entry model 222
Turkey-Pakistan BIT
most-favoured-nation treatment 282
Uganda
reservations about liberalization 112
Ukraine
investor-state negotiations 406
performance requirements 363–4
Ukraine-Lithuania BIT 185–6
provisions on corporate investors 210
UN Economic and Social Council
Committee of Experts on Public Administration 371
Unified Agreement for the Investment of Arab Capital in the Arab States 2–3, 106
comparison to BITs 107
dispute resolution under 107
monetary transfers under 290
scope of 107
Unite States-Ecuador BIT
jurisdictional objections 386
United Arab Emirates-Malaysia BIT 243
United Kingdom (UK)
bilateral investment treaties (BITs) concluded by 101
United Kingdom-Argentina BIT 437
United Kingdom-Bangladesh BIT
exceptions to monetary transfers under 295
United Kingdom-Colombia BIT 179
United Kingdom-Croatia BIT
scope of investment under 193
United Kingdom-Egypt BIT
protection and security 235
United Kingdom-Sierra Leone BIT
expropriation provisions 322
United Kingdom-Sri Lanka BIT 424
definition of investment under 202
protection and security provisions 233–4
United Kingdom-Tanzania BIT
interpretation of language in 206
United Nations Charter 416
United Nations Commission on International Trade Law (UNCITRAL) 307, 315
Arbitration Rules 412, 423, 429, 441
arbitration under 103, 168
United Nations Conference on Trade and Development (UNCTAD) 1, 39, 42, 44, 105, 108, 122, 139, 184, 214
formulations of state obligations (umbrella clause) 305
investor-state negotiations 406
source of BITs texts 158–9
United Nations Treaty Collection (UNTS)
source of BITs text 158
United Nations (UN) 14
Draft Code of Conduct on Transnational Corporations 246
United States Treaties and Other International Agreements (UST) 157
United States (US) 128
BITs including definition of investor 211–12
Bolivia terminates BIT with 20
compensation for expropriation 68–9
controlled entry model 222
expropriation of Norwegian shipping 318–19
FCN treaties 92–3
free trade agreements (FTAs) 2, 222
indirect expropriation under 344
gathering momentum of bilateral investment treaties (BITs) 104
key personnel provisions 366
Latin America threatened by domination by 59
most-favoured-nation stastus 93
Overseas Private Investment Corporation (OPIC) 329
performance requirements 360–1
post-World War II FCN treaties 242
post-World War II programme of bilateral treaties 97–8
preference for friendship, commerce and navigation treaties (FCN treaties) 97
recognizes Soviet Union 74
seeks relative right of establishment in BIT negotiations 221–2
subrogation 375
Trans-Pacific Partnership (TPP) 123
Treaties of Friendship, Commerce and Navigation 2
Treaty of Amity and Commerce 93
United States-Argentina BIT 203, 262, 378, 380–2, 384–6
interpretation issues 166
United States-Bahrain BIT 381
United States-Brunei FCN treaty 231
United States-Chile free trade agreement 222
United States-Ecuador BIT 278, 405
United States-Egypt BIT 270–1
United States-Estonia BIT 246, 262
United States-Grenada BIT 223
United States-Italy FCN Treaty 98, 232
United States-Japan Treaty of Friendship, Commerce and Navigation 366–7
United States-Mexico General Claims Commission 62, 64, 76
United States-Moldova BIT 329
United States-Morocco BIT 437
United States-Poland BIT 408
(p. 479) United States-Rwanda BIT 268
United States-Sri Lanka BIT 197–9
United States-Turkey BIT 198, 408
United States-Uruguay BIT 222, 229, 267, 344, 347–8, 385
definition of investment in 181–2
exceptions to monetary transfers under 296
protection and security 236
unrealistic expectations 407
unreasonable measures
avoidance of 272–3
unreasonable regulation 66
unreasonableness
BITs 148
Upper Silesia
expropriation of German-owned industrial property in 65
Uruguay 128
Uruguay Round
GATT 118, 121, 359
US Model Bilateral Investment Treaty 131, 193, 209
distinguishing legitimate regulation from indirect expropriation under 347
exchange rates under 293
fair and equitable treatment provisions 246
monetary transfer provisions 287
utilities
ownership 34
valuation
asset-based/cost approaches 450–1
basic approaches to 448–51
compensation for expropriation 356–7
damages 445–51
diversity of calculation 445–6
goal of investor-state arbitration 448
going-concern value 449
income capitalization approaches 449–50
market or sales comparison approach 449
value added tax (VAT) 330
value of undertaking at moment of dispossession 70
Venezuela
dissatisfaction with investor-state arbitration 435
promissory notes 189
terminates BIT with Netherlands 20–1
termination of BITs 390
Venezuela-Netherlands BIT
termination 390
Venice
early form of foreign direct investment (FDI) 37
early trading rights 89
Verdragenbank 157
Vernon, Prof. Raymond [1913-99] 11–12, 87, 254, 299, 303
vested rights
ruling that public contracts is 72
Vienna Convention on the Law of Treaties (VCLT) 52–3, 124, 142, 165, 169–70, 212, 442
basic rules of investment treaty interpretation 156
fair and equitable treatment under 251–2
good faith provisions 381
governing law under 425
guidance on interpretation under international law 165–7
language of BITs 160–1
modifications under 387
ordinary meaning of treaty terms under 161–2
permits recourse to supplementary means of interpretation 168–70
state obligations (umbrella clause) 308
termination provisions 388–9
Vietnam
Trans-Pacific Partnership (TPP) 123
Villalobos brothers 186–7
visas
refusal of grant 393
waiver
diplomatic protection 416
rights to investor-state arbitration 432–4
war
compensation for 367–70
Washington Consensus 20–1
Weber, Max [1864-1920] 11, 254
wholly-owned subsidiaries 37
Wilberforce, Lord Richard Orme [1907-2003] 411
World Bank 3, 34–5
concerns over dispute resolution 102
inter-state arbitration 417–18
proposed convention on interstate arbitration 418–20
protection mechanism developed by 199
relationship with International Centre for Settlement of Investment Disputes (ICSID) 421
World Bank Group 119
World Investment Report 2014 133
World Trade Organization (WTO) 14–15, 17–18, 38, 95, 118, 121, 270, 359
dispute resolution process 14–15
Doha Round 122
World War II
treaty-making since 3
Yukos expropriation 22, 315, 350, 390
Zaire
protection and security 234–5