The Future of International Investment Regulation: Towards a World Investment Organisation? (original) (raw)
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Towards a World Investment Tribunal: New Era in Investor – State Dispute Settlement
International Conference on Social Science Research, 2018
Introduction: Globalisation, in one sense, may be described as “free movement of goods, capital, humans and information alongside the World”. In this respect, the contradiction between the followers of “national treatment” and “minimum international standards” has been the most crictical debate among developped exporter countries and developing countries. Free movement of capital and foreign direct investments are the one of the most significant in globalization era. International treaty arbitration has become the major and most effective means of investor - State dispute settlement (ISDS) mechanism as a result of foreign investors’ and capital exporter States’ widespread and strong demands of confidence. Material and Methods: It is possible to classify the evolution of ISDS in four era, namely emergence or infancy, dichotomy, prolification and finally re-orientation. Recent attempts in the cadre of Canada – EU Investment Agreement (CETA), TTIP and UNCTAD announce the oncoming constitution of a permanent Investment Court and the very first establishment of an Appellate body in ISDS proceedings. This presentation examines the basis and development of treaty arbitration, the structure and features of the permanent Investment Tribunal and the Appellate body as well as the contribution of the mentionned bodies into international investment law. Results: A permanent World investment tribunal and appelate body will constitute the birth of a new era in ISDS. It is observed that the international law had a corrective effect over the national regulations in ICSID arbitral awards regardless the choosen applicable law, however, it is not possible to argue that an unity of jurisprudence is created yet. In addition, it is noticed that different arbitration tribunals have given contradictory judgements on similar cases. Discussion: Hence, it is deduced that a permanent Investment Court and the Appellate body will gradually contribute to the aims of the enhancement of ‘minimum international standards’ and creation of an unity of jurisprudence in the settlement of international investment and trade disputes, as well as of streghtening the ethical principles and impartiality of arbitrators. Acknowledgement: It is a contribution to the emerging discussion on a World investment tribunal and it underlines its effect on the creation of a standart international investment law.
International Review of Management and Business Research, 2014
IntroductionArbitration tribunals have occasionally rendered contradictory awards1 in investment arbitrations. These conflicts have raised urgent concern about the necessity of establishing appellate mechanism to harmonize the situation so as to achieve a consistent and coherence result facilitating predictability and consistency in international investment disputes. Conflicting awards based upon the same facts or identical worded provision in the treaty will create a threat to the international legitimate order and the continued existence of investment treaties. It is likely that investors will be advised to structure their investments in a manner that multi-dispute resolution mechanisms can be established through multiple investment treaties.The purpose of the paper is to review the recently proposed appellate mechanisms in international investment treaty arbitration and critically analyze the various objections to appellate mechanisms in the international investment sphere. It is...
Abstract: Explores the evolution of the current regime involving foreign direct investment, bilateral investment treaties and investment treaty arbitration, and considers why a harmonised multilateral investment agreement has never been adopted. Reflects on past attempts to harmonise the customary foreign direct investment regime, the resolution of investment disputes over the past century, and the establishment of arbitration forums across the world. Looks at how international treaty arbitration works and how its substantive norms can potentially conflict with obligations arising out of international trade agreements. Keywords: Arbitral tribunals, Bilateral investment treaties, Foreign investment, Harmonisation, International commercial arbitration, International investment disputes Accepted Paper Series
The Reform of International Investment Law: Whose Rule of Law?
European journal of risk regulation, 2024
Public and political controversies over Investor-State Dispute Settlement (ISDS) have prompted reform processes in international investment law, at bilateral, regional and multilateral levels, with different actors shaping the future of international investment governance. In its essence, the options for the ISDS reform reflect the diverging perspectives on the rule of law in international law. Ultimately, they present a choice about who should control power over States' action in issues of public importancethe States who have created the system, or international investment tribunals who have shaped the legal development of the system. This paper considers the application of the rule of law as a normative meta-principle to international investment law and its dispute settlement, and it sheds light on different perspectives of this concept, as they shape the ongoing ISDS reform(s).
THE DEVELOPMENT OF INTERNATIONAL INVESTMENT DISPUTE SETTLEMENT SYSTEMS
Akademik Hassasiyetler, 2019
Foreign direct investment is currently one the fastest growing parts of international law. It has increased due to the proliferation of bilateral investment treaties (BIT). The contribution of the BITs has ensured the protection of foreign investors and investment. In other words, in cases where there is a dispute, the investor will settle the dispute before the impartial and independent arbitration tribunal instead of the courts of the host state. Thus, BITs limit the host states' sovereignty by providing arbitration method. Although the introduction of arbitration method is considered to be a big step after the Second World War, it cannot be said that it solves the fundamental problem over the time. Before the war, when an investment dispute arose, the investor was used to go to the court of the host state and see the sovereignty power. After the war, investor has been encountered the same effect in the execution of the arbitral award in the host state. Therefore, the focus of the article will be on the history of international investment law based on dispute settlement systems of BITs compared with historical investment dispute settlement systems. In addition, it is argued that the application to arbitration does not change the result of state sovereignty. It may signal future problems in this field since it causes revisiting to the court system. The most obvious example of this is the efforts to establish a multilateral investment court.
The New Developments in International Investment Law: A need for Multilateral Investment Treaty?
Potchefstroom Electronic Law Journal, 2018
This work contributes to the global discussion on the desirability of the multilateral investment treaty to ensure coherence in the way foreign investment is protected across the globe. The paper argues that whereas the international community is not ready yet to adopt multilateral rules on investment liberalisation, the time is ripe for multilateral rules on the standards of protection backed up by a multilateral court with a two-tier system. Most importantly, this contribution provides a template for the content of the standards of protection, having observed the new approaches to the traditional standards of protection typically enshrined in the bilateral investment treaties.
A Brave, New, International Investment Court in Context. Towards a Paradigm Shift of the ISDS
LSN: International Courts & Tribunals (Topic), 2019
The idea of a Multilateral Investment Court seems to be one of the most prominent initiatives of the “multilateralization” of international investment law during this century. The creation of a new international, permanent court concentrated on settling investor – state disputes is an extraordinary challenge. Possible problems relate not only to the negotiations concerning the organizational and procedural aspects necessary to ensure the efficient operation of this type of body. It is also necessary to take into account the dynamics of the functioning of international adjudication as such, as well as the controversies surrounding the international legal protection of foreign investments.
Law and World, 2020
An economic development of the states highly depends upon the fl ow of private international investment. Whilst the creation of suitable investment climate which would guarantee the fair and equitable treatment of foreign investment within the depoliticised and impartial dispute resolution system had been objective of the World Bank, the International Centre for Settlement of Investment Disputes was established under its auspices. The primary objective of the ICSID Convention has been viewed on facilitating and safeguarding of private international investment through the creation of a favourable investment climate. Arbitration under the ICSID, serves not only in favour of investors but also of host states. Whilst the favourable means are offered to the both parties for dispute resolution according to the major provisions of the Convention, the "[e]xecution of the awards", represent the slight alteration in the disadvantageous position of the foreign investor. The aforementioned alteration as the time consuming process, fulfi lled within the state bureaucracy is more sensibly approached by the foreign investors in developing countries, under which the political risk and demand for foreign investment protection is always one of the highest extent. However, by virtue of signing the Convention, the states not only accept the proposed dispute resolution mechanism, but also declare and desire to welcome the foreign investment. As states aforementioned attempts could be related to the creation of the Global Forum for delivering better Investment Climate, the demands of the World Bank in the sphere is one of the most signifi cant importance.
Reforming International Investment Arbitration: an Introduction
The Law & Practice of International Courts and Tribunals
For over a decade, investor-state dispute settlement (ISDS) has suffered a socalled legitimacy crisis.1 Critics have argued that ISDS is pro-investor, biased against developing countries, beset by incoherent jurisprudence and plagued by a lack of transparency and excessive costs and compensation.2 While the 1 Amongst the first scholarly critiques was Susan D. Franck's, "The Legitimacy Crisis in Investment Treaty Arbitration:
2013
The international investment regime faces broader challenges, as reflected especially in the discussions regarding the investor-state dispute-settlement mechanism and the quest to make the international investment regime more oriented toward sustainable development objectives and to strengthen disciplines for the behavior of multinational enterprises. A number of options of how the regime can be improved are laid out in this booklet, including engaging in fact finding processes; establishing consensus-building working groups; formulating a model international investment agreement; building specific mechanisms to improve the investment regime. and commencing intergovernmental processes. An international investment consensus-building process is advocated to facilitate the improvement of the international investment regime.