Contents
- Preliminary Material
- Dedication
- Preface
- Contents
- Table of Cases
- Table of Legislation
- Algeria
- Angola
- Argentina
- Australia
- Bolivia
- Brazil
- Canada
- Chile
- Costa Rica
- Cuba
- Democratic Peoples Republic of Korea
- Democratic Republic of Congo
- Ecuador
- Egypt
- Europe
- France
- Ghana
- India
- Japan
- Kenya
- Kuwait
- Nigeria
- Peru
- Peoples Republic of China
- Philippines
- Republic of Korea
- Republic of Panama
- Saudi Arabia
- Senegal
- South Africa
- Soviet Union
- Sudan
- Tunisia
- Turkey
- United Kingdom
- United States
- Venezuela
- Vietnam
- Table of Agreements, Conventions, Rules, and Treaties
- List of Abbreviations
- Main Text
- Part I International Investment and the Law
- 1 The Nature and Significance of International Investment
- 1.1 The Meaning of Investment
- 1.2 The Forms of Investment
- 1.3 The Nature of International Investors
- 1.4 Investors and the Role of Return and Risk
- 1.5 The Nature of International Investment
- 1.6 Forms of International Investment
- 1.7 State and Investor Interests Shaping the Laws of International Investment
- 1.8 Investment and Trade: What’s the Difference?
- 2 The Relationship between Law and International Investment
- 2.1 Introduction
- 2.2 Law Enhances or Diminishes the Predictability of Investment Transactions
- 2.3 Law Increases or Reduces Associated Transaction Costs
- 2.4 Law is an Instrument to Direct, Control, and Encourage International Capital Flows
- 2.5 Law Defines and Regulates Investment Rights, Responsibilities, and Relationships
- 2.6 Law is a Means to Resolve Investment Disputes
- 3 Three Legal Frameworks for International Investment: National, Contractual, and International
- 1 The Nature and Significance of International Investment
- Part II The National Legal Framework
- 4 Factors Shaping National Legal Frameworks for International Investment
- 4.1 Introduction
- 4.2 Four Dominant Attitudes toward International Investment
- 4.3 National Economic Systems and Development Models
- (a) In General
- (b) Models and Systems in the Developing World
- (c) The Nature of Development Model I
- (d) Implications of Development Model I for National Legal Systems
- (e) The Emergence of Development Model II
- (f) Implications of Development Model II for National Legal Systems
- (g) Conclusion: Future Models?
- 5 National Regulation of the Exit and Entry of Capital
- 6 National Regulation of Foreign Investment
- 6.1 National Foreign Investment Policy and Law
- 6.2 Regulation of Foreign Direct Investment
- 6.3 The Definition of Permitted Investments
- 6.4 Incentives and Guarantees Offered to Foreign Investment
- 6.5 Controls over Foreign Investment Operations
- 6.6 Administration of Direct Foreign Investment Regulations
- 6.7 Host Government Investment Approvals
- 6.8 Privatization of State Assets as a Means to Encourage Foreign Equity Investment
- (a) Background
- (b) Reasons for and Objectives of Privatization Programs
- (i) Relief of Governmental Budget Deficits
- (ii) Relief from Indebtedness
- (iii) Improvement of Enterprise Efficiency
- (iv) Increased Competition
- (v) Development of Private Enterprises
- (vi) Development of Wider Business Ownership
- (vii) Implementation of Pre-existing Policies
- (viii) Conditionality Imposed by International Financial Institutions
- (c) The Legal Basis of Privatization
- (d) The Privatization Process
- (e) Types of Privatization Transaction
- (f) Postprivatization Control Devices
- 6.9 National Regulation of Foreign Portfolio Equity Investment
- 6.10 National Regulation of International Debt Investments
- 6.11 Debt-to-Equity Conversions
- 7 The Challenges of Legal Change
- 4 Factors Shaping National Legal Frameworks for International Investment
- Part III The Contractual Legal Framework
- 8 The Nature and Functions of the Contractual Framework for Investments
- 9 The Negotiation of International Investment Contracts
- 9.1 The Role of Negotiation in the Investment Process
- 9.2 The Nature of the Negotiation Process
- 9.3 Barriers to Negotiating an International Investment
- 9.4 The Barrier of the Negotiating Environment
- 9.5 The Barrier of Foreign Laws and Governments
- 9.6 The Barrier of Ideological Differences
- 9.7 The Barrier of Foreign Organizations and Bureaucracies
- 9.8 The Barrier of Multiple Currencies
- 9.9 The Barrier of Political Instability and Sudden Change
- 9.10 The Barrier of Cultural Differences
- 9.11 Negotiating Investment Contracts with Foreign Governments
- (a) In General
- (b) Government Attitudes toward Negotiation
- (c) Governments Feel Different
- (d) The Special Negotiating Powers of Foreign Governments
- (e) Governments’ Special Negotiating Constraints
- (f) A Government Deal is Never Done
- (g) Coping with Corruption in Government Negotiations
- (h) Guidelines for Negotiating with Governments
- 9.12 Negotiating Long-Term Investment Contracts
- 10 The Nature and Content of International Investment Contracts
- 10.1 Introduction
- 10.2 Wholly Owned Foreign Direct Investments
- 10.3 International Joint Ventures
- 10.4 International Joint Venture Contracts
- 10.5 The Content of International Joint Venture Agreements
- (a) In General
- (b) Preambles and Recitals
- (c) Organization and Capitalization
- (d) Control and Management
- (e) Reimbursement of Preincorporation Expenses
- (f) Financial Policies
- (g) Other Partner Obligations and Guarantees
- (h) Accounting and Auditors
- (i) Transfer of Shares
- (j) Applicable Law and Dispute Settlement
- (k) Termination
- 10.6 International Investment in Infrastructure
- (a) Background
- (b) Project Finance Transactions
- (c) The Advantages and Risks of International Infrastructure Investments
- (d) Parties to International Infrastructure Investments
- (e) The Infrastructure Approval Process
- (f) Financing International Infrastructure Projects
- (g) The Legal and Contractual Framework for Infrastructure Investments
- (h) Concession Contract Provisions
- (i) Concession Rights and Obligations
- (ii) The Project Company
- (iii) Timing
- (iv) Land Acquisition
- (v) Appointment of an Independent Engineer
- (vi) Fees, Tariffs, Tolls, and Compensation
- (vii) Operation and Maintenance
- (viii) Profit Sharing and Other Payments to the Government
- (ix) Termination
- (x) Governing Law and Dispute Settlement
- (xi) Other Provisions
- (i) Other Project Contracts
- 10.7 A Case Study of Infrastructure Investment: The Dabhol Power Company in India
- 10.8 International Loan Contracts
- 11 Political Risk Insurance
- 11.1 Political Risk
- 11.2 Political Risk Insurance
- 11.3 National Governmental Programs
- 11.4 The United States Overseas Private Investment Corporation (OPIC)
- (a) Background
- (b) Objectives
- (c) Organizational Structure
- (d) OPIC Investment Insurance in General
- (e) OPIC Protection against Inconvertibility
- (f) OPIC Protection against Expropriation
- (g) OPIC Protection against Political Violence
- (h) Eligible Investors
- (i) Eligible Investments
- (j) Eligible Host Countries
- (k) Obtaining OPIC Political Risk Insurance
- (l) Investor Claims Against OPIC
- (m) Other OPIC Activities
- 11.5 Multilateral Political Risk Insurance Programs
- 11.6 The Multilateral Investment Guarantee Agency (MIGA)
- 11.7 Private Sources of Political Risk Insurance
- 12 Contractual Stability, Instability, and Renegotiation
- 12.1 The Challenge of Contractual Stability
- 12.2 Defining Renegotiation
- 12.3 Post-Contract Renegotiations
- 12.4 Intra-Contract Renegotiations
- 12.5 Extra-Contract Renegotiation
- 12.6 A Case of Extra-Contract Renegotiation: The Dabhol Power Project in India
- (a) Background
- (b) The Forces for Changing the Investment Agreement
- (c) Renegotiating the Dabhol Project
- (d) The Terms of the Renegotiated Investment Agreement
- (e) The Aftermath
- (f) The Aftermath of the Aftermath
- (g) The Lessons of Dabhol: Principles to Guide Extra-Contract Project Renegotiations
- (i) Principles to Follow before Contractual Breakdown
- 1 Work to Create a Business Relationship between the Parties and Recognize that a Signed Contract Does Not Necessarily Create an International Business Relationship
- 2 Building a Relationship Takes Time, so Don’t Rush Negotiations and Use Negotiation Preliminaries Fully
- 3 Consider Providing for Renegotiation in Appropriate Transactions
- 4 Consider a Role for Mediation or Conciliation in the Deal
- (ii) Renegotiation Principles after Contractual Breakdown
- 1 Hostile, Belligerent, or Moralistic Responses to Demands for Renegotiation are Generally Ineffective
- 2 It is Important to Understand the Basis of the Other Side’s Demand for Renegotiation.
- 3 Evaluate the Worth of the Claim for Breach of Contract against the Value of a Continuing Relationship with the Other Side
- 4 Look for Ways to Create Value in the Renegotiation
- 5 The Parties should Fully Understand the Alternatives to Succeeding in the Renegotiation—Especially their Costs
- 6 Make Sure All Necessary Parties in the Renegotiation are Involved Either Directly or Indirectly
- 7 The Right Process for the Renegotiation is Important
- 8 Consider a Role for a Mediator in the Renegotiation Process
- (i) Principles to Follow before Contractual Breakdown
- 12.7 Conclusion
- Part IV The International Legal Framework
- 13 The Foundations of the International Legal Framework for Investment
- 13.1 In General
- 13.2 International Conventions
- 13.3 International Custom
- 13.4 General Principles of Law
- 13.5 Customary International Law and General Principles of Law Governing Investment
- 13.6 Customary International Law Concerning Expropriation and Breach of State Contracts
- 13.7 Challenges to the Capital-Exporting States’ Position on International Investment Law
- 13.8 Perceived Deficiencies of International Investment Law
- 14 The Treatification of International Investment Law
- 14.1 Introduction
- 14.2 Historical Background of the Treatification Process
- (a) The Early Beginnings
- (b) The Emergence of a Treaty Framework for Investment Protection in the Seventeenth and Eighteenth Centuries
- (c) Further Developments in the Eighteenth, Nineteenth, and Early Twentieth Centuries
- (d) From World War I until World War II
- (e) The Immediate Aftermath of World War II
- (f) The Later Post-World War II Years
- (g) The Development of the Bilateral Investment Treaty (BIT) and the Creation of the International Centre for Settlement of Investment Disputes (ICSID)
- (h) The Gathering Momentum of the BIT Movement
- (i) The Development of Multilateral Regional and Sector Investment Agreements
- (j) The Evolution of BIT Provisions into Free Trade Agreements
- (k) Toward a Global Treaty on Investment
- (l) Conclusion
- 14.3 The Objectives of the Movement to Negotiate Investment Treaties
- 14.4 The Primary Objectives of Investment Treaties
- 14.5 Secondary Objectives of Investment Treaties
- 14.6 Long-Term Goals of Investment Treaties
- 14.7 The Treaty Negotiation Process
- 14.8 Conclusion
- 15 The Nature and Content of Investment Treaties
- 15.1 Introduction
- 15.2 Treaty Structure
- 15.3 Treaty Title and Statement of Purpose
- 15.4 Definitions and Scope of Application of Investment Treaties
- 15.5 Investment Promotion, Admission, and Establishment
- 15.6 General Standards of Treatment of Foreign Investments
- 15.7 Monetary Transfers
- 15.8 Expropriation and Dispossession
- 15.9 Operational and Other Conditions
- 15.10 Losses from Armed Conflict or Internal Disorder
- 15.11 The Consequences of Treaty Violations
- 15.12 Dispute Settlement
- 15.13 Treaty Exceptions, Amendments, and Terminations
- 15.14 Conclusion
- 13 The Foundations of the International Legal Framework for Investment
- Part V Conclusion
- Part I International Investment and the Law
- Further Material
