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View translated passages only
Oxford Law Citator
Contents
Expand All
Collapse All
Preliminary Material
Preface
Acknowledgements
Table of Contents
List of Figures
List of Tables
List of Agreements
Treaties and other International Instruments
Domestic Instruments
List of Decisions
Arbitration Awards
Other International Decisions
National Decisions
Canada
Germany
Netherlands
Switzerland
United States
Main Text
1 The Investment Treaty Regime in Context
Introduction
The investment treaty regime in context
Three main components
The regime complex for international investment
Principles
International investment
Property rights
Legal internationalism
Norms
Independent investor rights
No investor obligations
Rules
Investment protections
Liberalization
Decision-making procedures
Negotiations
Dispute settlement
Conclusion
2 Foreign Investment: Economic and Legal Foundations
Introduction
Why do firms engage in foreign direct investment?
Foreign direct investment and the firm
Ownership advantages
Locational advantages
Internalization advantages
The economic impact of foreign direct investment
‘Investments’ and ‘investors’ covered by investment treaties
Investments
Investors
Conclusion
3 Investment Treaty Arbitration
Introduction
Features of investment treaty arbitration
Three Modes of Consent to Investor–State Arbitration
Selection of Arbitrators by the Disputing Parties
Investor Standing to Bring Arbitrations against States
No Need to Exhaust Local Remedies
Procedural Flexibility
Confidentiality of Proceedings
How does investment treaty arbitration differ from other modes of consent to investor–state arbitration?
Arbitral rules and institutions
Choice among Arbitral Rules in Investment Treaty Arbitration
Relationships between Arbitral Rules and Arbitral Institutions
The Phases of Investment Treaty Arbitrations
Compensation as the Main Remedy
Review and enforcement of awards
Review and Annulment of Arbitral Awards
Compliance and Enforcement of Arbitral Awards
Alternative dispute resolution and domestic courts as alternatives
ADR as an Alternative to Investment Treaty Arbitration
Litigation in Domestic Courts as an Alternative to Investment Treaty Arbitration
Neutrality of Investment Treaty Arbitration
Costs of Investment Treaty Arbitration
The Duration of Investment Treaty Arbitration
Conclusion
4 Standards of Investment Protection
Introduction
Relative standards of protection: MFN and NT
Post-Establishment MFN and NT
Post-establishment MFN
Post-establishment National Treatment
Investment Liberalization: NT and MFN in the Pre-Establishment Phase
Absolute standards of protection
No expropriation without compensation
Fair and equitable treatment
Denial of justice and due process
Arbitrary or unreasonable conduct
Legitimate expectations and stability of the legal framework
State responses to concerns about FET
Umbrella Clauses
Free Transfer Clauses
Carve-outs, defences, and the standard of review
Carve-outs
Defences and Exceptions
Standard of review
Compensation and damages for breach of investment treaties
Compensation for Expropriation
Damages for breach of investment treaties other than expropriation
Valuation of compensation and damages in practice
Conclusion
5 The Microeconomics of Investment Treaties
Introduction
Investment treaties as a solution to hold-up problems
How prevalent are hold-up problems in practice?
How well designed are existing investment treaties for solving hold-up problems?
Investment treaties as tools to induce efficient state decisions
Can investment treaties induce efficient government decisions in theory?
Is the model of fiscal illusion an accurate reflection of government decision-making?
The model of fiscal illusion and investor decision-making
Fiscal illusion and the legal content of investment treaties
Investment treaties as tools to redress discrimination against foreign investors
The economic benefits of non-discrimination
Do foreign investors suffer from discrimination in practice?
Non-discrimination provisions in investment treaties
Preferential procedural and substantive rights in investment treaties: the question of reverse discrimination
Conclusion
6 Investment Treaties, Foreign Investment, and Development
Introduction
The impact of investment treaties on foreign investment
Causal mechanisms
Quantitative studies of the impact of investment treaties on FDI: A summary
Estimation challenges
The dependent variable
Qualitative studies
Macroeconomic effects through changes in government decision-making
Impact of investment treaties on administrative and judicial decision-making
Methodological challenges
Macroeconomics of investment liberalization provisions
The economics of investment liberalization
The Economics of Investment Liberalization Commitments in Investment Treaties
The political economy of investment liberalization commitments
Conclusion
Appendix
7 Politics of Investment Treaties in Developed Countries
Introduction
Business interests
The ITO and the US FCN programme
The German banker
The ICSID Convention
Early European BIT programs: the importance of subrogation
European BIT programs in the 1980s–1990s
The US BIT program
The Multilateral Agreement on Investment
Summary
De-politicization
Investment treaties as a response to the New International Economic Order
Investment treaties and diplomacy
Recent developments
Conclusion
8 Politics of Investment Treaties in Developing Countries
Introduction
Investment promotion
BITs and the prisoner’s dilemma
Network effects
A careful and strategic competition for capital?
Investment treaties and domestic reforms
Liberalization
Post-establishment treatment and protection
Investment treaties and diplomacy
The role of expertise
Recent developments
Responding to investment treaty arbitration
Protecting outward investments
From BITs to broader trade and investment agreements
Conclusion
9 Legitimacy and Governance Challenges
Introduction
The investment treaty regime and national governance
Democracy
Regulatory Chill
Investment treaty arbitration as a system of dispute resolution
The function of investment treaty arbitration
Transparency
Consistency
Regime Spillovers
Arbitrator Selection
Investor obligations
Conclusion
Further Material
Bibliography
Index
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List of Agreements
From:
The Political Economy of the Investment Treaty Regime
Jonathan Bonnitcha, Lauge N. Skovgaard Poulsen, Michael Waibel
Content type:
Book content
Product:
Investment Claims [IC]
Published in print:
20 July 2017
ISBN:
9780198719540
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