Olabisi D Akinkugbe, Sara L Seck
4.01 In this chapter, we provide a broad overview of some notable foreign direct investment (FDI) policy developments by both home and host states. The overview is divided into two parts and three geographical regions. The first part draws attention to developments in implementation of business and human rights norms with a focus on select European countries and Canada. The second part highlights some developments that are noteworthy in the African context both at the regional and national levels. 4.02 The underpinning question that guides the analysis in both...
9.01 Investment treaty jurisprudence continued to develop at a rapid rate during 2017. This contribution highlights certain notable contributions made by tribunals during the year in the areas of merits, provisional measures, remedies and settlements, and annulments and challenges to awards. 9.02 Across the spectrum of investment treaty case law in 2017, tribunals addressed many interesting issues relating to the substance of treaty guarantees. This section categorizes those issues into six sections, as follows: (1) human rights, social and environmental issues;...
Olabisi D. Akinkugbe, Sara L. Seck, Adebayo Majekolagbe
This chapter reviews home state policies on responsible Outbound Foreign Direct Investment (ODI). Mainly, the chapter considers the extent to which ODI policy developments in 2018 facilitate or inhibit responsible investment. As such, this chapter is divided into two parts. The first part focuses on recent responsible ODI policy developments in Canada, Australia, and Europe. Recognizing the increasing involvement of emerging market multinational corporations (MNCs) in ODI, policies and initiatives on responsible investment in select emerging economies are next considered. The chapter closes with some concluding reflections on the ODI trends of emerging economies such as Brazil, Nigeria, and India.
2019 Developments in Investment Treaty Arbitration: Jurisdiction, Admissibility, Procedure, and Conduct »
This chapter explores developments in investor-state dispute settlement (ISDS) in the period of January–December 2019 in relation to, on the one hand, jurisdiction and admissibility and, on the other, procedure and conduct. It determines the existence of a qualifying investment and looks at the fate of jurisdictional objections relating to the recent Achmea judgment of the Court of Justice of the European Union (CJEU). The chapter then addresses some important developments that have marked the most recent decisions of arbitral tribunals. Tribunals continue to decide a broad range of jurisdictional and procedural issues. Among them, the impact of the Achmea judgment on the jurisdiction of tribunals called to decide intra-EU, and in particular intra-EU Energy Charter Treaty (ECT), cases has been the object of a number of jurisdictional decisions, all of which rejected the impact of the judgment. Another noteworthy development is an apparent tendency to consistently deny application of the most-favoured nation (MFN) standard to the treaty's dispute settlement clause and to consider that compliance with waiting clauses is mandatory. Other noteworthy decisions concern the meaning of covered ‘investments’ pursuant to new generation investment treaties, increasingly numerous arbitrator challenges, decisions on provisional measures, non-disputing party interventions, third-party funding, and security for costs.
This chapter highlights notable contributions made by investment treaty tribunals during 2019, in the areas of provisional measures, merits, quantum, other remedies, settlements, annulments, and domestic challenges to awards. Starting with provisional measures, two broad themes can be seen in the few decisions that surfaced in 2019, namely with respect to: (i) the relation between parties and their counsel; and (ii) the powers of investment tribunals to interfere in domestic criminal proceedings. On the merits of investment awards, several developments are worth mentioning. Tribunals have dealt in sometimes novel and interesting ways with matters ranging from adverse inferences to attribution, not to mention the ongoing interpretation of classic investment protections such as the fair and equitable treatment (FET) standard or umbrella clauses. On the whole, 2019 was a typical year in the field of investment arbitrations: tribunals have once again found in favour of and against governments or investors (or neither of them), sometimes clarifying the field's emerging jurisprudence, while, at other times, blurring it further.
This chapter looks at movements in foreign direct investment (FDI) flows in 2019 and why one needs to analyse these within a broader context, beginning in 2001. This is when FDI flows fall and broader economic ‘secular stagnation’ in advanced economies begins. From the perspective of FDI, this long-standing stagnation seems to be characterized not simply by low or declining levels, but by FDI no longer responding to its fundamental drivers (proxied here by GDP). The chapter then considers statistical trends in FDI in 2019, and tries to strike a balance between short-term (immediate) explanations and long-running (underlying) factors. It also explores policy trends in FDI in 2019 within the context of increasing global competition and inter-state rivalry. The chapter reviews new regional trade agreements and growing use of national security screening mechanisms on inward FDI, along with developing economy investment liberalization policies to attract more FDI while leveraging it better. Finally, it analyses China–US direct investment dynamics and rivalry within these broader developments.
In November 2004 the United States adopted a new model negotiating text for its bilateral investment treaties (BITs). The 2004 model was the first comprehensive revision of the model BIT since 1994 and the most comprehensive revision since the program's inception. This article compares the 2004 model with its 1994 predecessor.
Christoph Schreuer, Matthew WeinigerFrom: The Oxford Handbook of International Investment Law
Edited By: Peter T Muchlinski, Federico Ortino, Christoph Schreuer
This chapter begins with a discussion of precedent in international law. It then discusses the practice of investment treaty tribunals, inconsistent decisions, interpretative statements by states, and institutionalized mechanisms.
The Law of Investment Treaties (2nd Edition)
Jeswald W. Salacuse
This chapter begins with an introduction to investment treaties, often referred to as international investment agreements (IIAs), and the building of a global regime for investment since the end of World War II through the negotiation of such treaties. It sets out the definition and types of IIAs. It then discusses the significance of investment treaties; the application of regime theory to investment treaties; regime challenges and prospects; and factors that will foster the stability and continued growth of the investment regime. The chapter also describes the aim and scope of the book and gives a brief summary of the contents of following chapters.
The Law of Investment Treaties (2nd Edition)
Jeswald W. Salacuse
Since the inception of international investment, foreign investors have sought assurances from the sovereigns in whose territory they invest that their interests will be protected from negative actions by the sovereign and local individuals. This chapter begins with a historical background of the treatification process, which came about due to the perceived weaknesses of customary international law applying to foreign investments. It then discusses the objectives of the movement to negotiate investment treaties; the primary and secondary objectives of investment treaties; long-term goals of investment treaties; the treaty negotiation process; and the consequences of investment treaties, including the growth in investor–state arbitration cases to settle investment disputes.
This chapter analyzes South Africa's decision to terminate its investment treaties and the underlying objectives of South Africa's new investment regime, namely: (1) reinforcing the ‘sovereign right to regulate in the public interest’; (2) doing away with international investment arbitration; and (3) placing foreign and domestic investments on an equal footing. It examines the standards of investment protection not explicitly laid down in the Promotion and Protection of Investment Bill 2013 and inquires whether these standards are otherwise protected by the constitution or other laws. The chapter concludes that whilst South Africa's policy decision on its investment protection regime is open to debate, the government has followed a comprehensive, transparent, and inclusive process, in which relevant stakeholders have been heard and with which they have engaged.
Part VI The Post-Award Phase, 30 A Practical Guide: Research Tools in International Investment Law »
Julien FouretFrom: Arbitration Under International Investment Agreements: A Guide to the Key Issues (2nd Edition)
Edited By: Katia Yannaca-Small
This chapter aims to help the new investment arbitration practitioner identify and find the main legal sources for dealing with international investment law issues. Three different topics need to be addressed in order to cover, as extensively as possible, the legal issues generally raised during an arbitration based on an international investment agreement. First, even though the stare decisis rule does not exist in international arbitration, including investment arbitration, previous rulings are often used and analyzed by arbitrators. Second, when dealing with investment arbitration, it is likely that the claim will be treaty based. Finally, and most importantly, in international investment disputes, arbitral tribunals rely on all the sources of public international law identified in Article 38(1) of the Statute of the International Court of Justice, which provides for the Court to apply.
The UNCITRAL Arbitration Rules: A Commentary (2nd Edition)
David D Caron, Lee M Caplan
Part I Transnational Corruption and International Efforts at its Control, 3 A Typology of Corruption in Foreign Investment »From: Corruption in International Investment Arbitration
Aloysius P Llamzon
This chapter categorizes the many modalities of transnational corruption within two groups — transactional and variance bribery. Transaction bribes are payments routinely and often impersonally made to a public official to secure or accelerate the performance of that official's duties. The payment is not made in order to secure the public official's divergence from a substantive norm. Instead, the payment is made simply to ensure that the public official performs his duty more efficiently, hence the term ‘grease money’ or the euphemism ‘facilitation payment’. Variance bribes involve payments made in order to obtain a favourable result through a deviation from the proper application of a norm. The bribe might be paid in order to suspend the operation of a legal prescription, or in order to have a public official exercise his discretion in a manner favourable to the payer.
A Uniform, Internationally Oriented Legal Framework for the Recognition and Enforcement of Foreign Arbitral Awards in Mainland China, Hong Kong and Taiwan? »
José Alejandro Carballo Leyda
The growth in commercial transactions with Mainland China, Hong Kong Special Administrative Region and the Taiwan region (Taiwan) as well as the economic integration in the entire area have lead to an increase in disputes. Considering the importance of arbitration as a mechanism for resolving commercial disputes in the area, the paper discusses whether a substantial ‘clash’ between their legal frameworks for the recognition and enforcement of foreign arbitral awards can be observed. After a critical analysis, the paper concludes that these frameworks are either subject to or modelled on the New York Convention. Yet, each has a distinct approach to the implementation, and dissimilarities arise. Furthermore, the specific legal framework for the recognition and enforcement of Mainland China awards in Hong Kong and Taiwan, and vice versa, still raises some concerns and is not fully reliable.