International Investment Law Research Papers (original) (raw)

Omnibus Law introduces "Risk-Based Business Licensing" or "Perizinan Usaha Berbasis Risiko" as the new business licensing regime to foster and boost investment climate in Indonesia. 2 In early February 2021, the Government of the Republic of Indonesia promulgates Government Regulation No. 5 of 2021 on the Organization of Risk-Based Business Licensing to elaborate further on the said business licensing.

- by Jefferson Hakim
- •
- Development Economics, Business Economics, Law and Economics, Indonesia

The attitude of Venezuela towards international investment arbitration has been widely discussed in several different sets of arbitral proceedings before the International Centre for Settlement of Investment Disputes (ICSID). For example, in an award on jurisdiction rendered by the arbi- tral tribunal in Venezuela Holdings v Venezuela, the tribunal described the long history of Venezuela’s hostility towards arbitration. The tribunal dis- missed an argument by the claimant about the interpretation of article 22 of the Decree-Law on the Promotion and Protection of Investments of 1999 (LPPI) that sought to categorise this provision as a consent given by Venezuela to submit investment disputes to ICSID arbitration.

- by Arie Afriansyah
- •
- Law, Comparative Law, International Law, International Environmental Law

En este capítulo, se ponen las relaciones entre la Unión Europea y Japón en un contexto histórico, para luego analizar más en profundidad el reciente Acuerdo de Asociación Estratégica entre los mismos, y un tema muy relevante que ha quedado fuera de los acuerdos como es la protección de las inversiones, para terminar con unas breves conclusiones.

- by Ana Gascon Marcen
- •
- Japanese Studies, Foreign Direct Investment, European Union, European Union Law

The Trade Competition Act B.E. 2560 has recently come into force. The Commission Notifications related to merger control was published in the Royal Gazette on 28 December 2018. The author wrote this article to communicate with the readers who are interested in merger control under this Act. The Article is divided into two parts. Part one is about the mergers which may result in a substantial lessening of competition under Section 51 paragraph one. Part two is about the mergers which may result in a monopoly or a dominant business operator under Section 51 paragraph two. In part one, the author compares the said provisions with the International Competition Network Recommended Practices, Singapore and Taiwan merger control. The study shows that the merger under Section 51 paragraph one is not compatible with the ICN, Singapore, and Taiwan, especially the definition of 'a substantial lessen of competition.' This issue affects the Commission's capability to regulate business operations to maintain free and fair competition.

The thesis assesses one of the core problems arising in international investment law, namely, the conflicts that international investment treaties may create with other international agreements. This topic is so important because investment treaties are primarily intended to protect the interests of foreign investors, and do not clarify how they relate to other international agreements protecting interests that may compete with the interests of foreign investors. Tensions exist, inter alia, between international investment law and other branches of international law, such as human rights, international environmental, and EU law. These tensions are exacerbated by the fragmented nature of international investment law as a law governed by several thousand bilateral treaties. Ultimately, the multiple problems of fragmentation may put the legitimacy of international investment treaties and investor-state arbitration into question. This summary gives an overview of the approach, methods questions, hypothesis, presentation, and findings of the research, which are elaborated on in the 200 pages of the original thesis.

- by Ahmad Ghouri
- •
- Political Science, International Investment Law

The concept of ‘necessity’ is used in many legal systems to delimit permissible measures from prohibited measures where such measures negatively affect the regime’s primary values, such as human rights, liberalized trade, and unimpeded use of an investment. International investment tribunals have adopted a variety of approaches to the question of whether a host state measure is ‘necessary’ to achieve its objective in relation to a number of provisions of investment treaties, including non-precluded measures clauses and fair and equitable treatment. Yet their approaches to this form of analysis are inconsistent and generally not analytically robust. By comparison, WTO tribunals have developed relatively sophisticated methods for analyzing a measure’s necessity to achieve its objective in the context of general exceptions, sanitary and phytosanitary measures and technical regulations. The WTO approach generally takes into account a number of factors including the importance of a measu...

- by Andrew D Mitchell
- •
- Comparative Law, Economics, International Law, International economic law

In this comparative and analytical study, I offer the most comprehensive and detailed account of China's Treaty Policy and Practice in International Investment Law and Arbitration published to date. After outlining the evolution of China's macroeconomics and ideological stance toward foreign investment, I analyze the relationship between the model investment treaties China adopted over the time and those of other traditional key players in the field (Germany, UK, France, Italy, Netherlands). Most innovatively, by analytically surveying several key provisions (including ISDS, expropriation, MFN, NT, FET, FPS) of 120 International Investment Agreements concluded by China, this work manages to draw an objective assessment of the investment treaty policy and practice of a nation that has quickly become a leading importer and exporter of capital across the globe.

В статье анализируется государственное регулирование прямых иностранных инвестиций и влияние государственной инвестиционной политики на импорт и экспорт капиталов в Канаде. Делается вывод о важной роли разумного баланса публичных и... more

El Galeón San José, desde los primeros indicios de su descubrimiento, ha estado inmerso en disputas jurídicas y diplomáticas con diversas partes que afirman tener derecho sobre él. No obstante, el único con la capacidad de decisión sobre el futuro de este navío es Colombia y sus gobernantes. Este articulo presenta la evolución de la situación legal del Galeón San José, bajo el derecho interno colombiano y, también, presenta los últimos avances analizando sus consecuencias. En un inicio, Colombia buscó la manera de extraer y parcialmente comercializar el Galeón; actualmente, ha podido lograr cumplir las expectativas internacionales y darle una mayor protección con un enfoque en la protección de su patrimonio cultural. Sin embargo, la situación es más complicada que esto, todavía queda por resolver su situación con el inversionista encargado del proyecto del Galeón San José, del que, hasta el día de hoy, no se sabe cómo se le va a remuneración por su labor.

Uno de los principales argumentos que se ha usado para justificar la creación del régimen de arbitraje de inversiones es que las cortes nacionales son parciales e inadecuadas para dirimir disputas entre inversores y Estados. La respuesta a este supuesto problema fue la creación de un régimen de “justicia” paralelo establecido por medio de
una red de 300 Tratados de Libre Comercio y cerca de 2.500 tratados de protección de inversiones.
Estos acuerdos internacionales incluyen el mecanismo de solución de disputas inversor-Estado (ISDS por su sigla en inglés) que otorga a los inversores extranjeros el derecho a que demanden a los gobiernos ante tribunales de arbitraje internacional, sin que necesiten agotar primero las instancias judiciales nacionales.

- by Luciana Ghiotto and +1
- •
- International Investment Law, Justicia, Acceso a la Justicia, Isds

step by step explanation of guidelines to investments, and invsting.

It is observed that the jurisdiction of ICSID Arbitral Tribunal established by Washington Convention differs from and exceeds the traditional experiences of arbitration in international commercial and investment dispute resolution. Thanks to ICSID mechanism instituted in a period when the struggle for a binding international investment agreement had been unsuccesful in order not to leave international investments subject to the jurisdiction of domestic laws, an international arbitration tribunal provided important contribution to the development of international investment law. Taking its parties, jurisdiction and jurisprudence into account, institution of international arbitration on investment disputes lies at the borderline of private and international law. It is rare in international law that a State in its sovereign power become an equal party with a private person before a judicial body. The aim of this study is to discuss the international nature and the status under international law of ICSID Arbitration Tribunal with its parties, source and bases of jurisdiction, types and subject matter of cases, applicable law and norm penetration.

The article discusses the issue of reform in Investor-State Dispute Settlement (ISDS) through the lens of the theory of heuristics and biases identified by cognitive psychology and behavioural economics. Reform proposals in ISDS have been heavily pathdependent on past theories and existing institutions in the field of international adjudication. A behavioural theory of international institutions can help design ISDS mechanisms that are better suited to the actual decision-making processes in international adjudication. The article presents various debiasing instruments for the ISDS context, such as 'nudges', which could form part of the institutional design of the new dispute resolution fora together with rational design instruments. Transparency mechanisms, levels of review, training and evaluation, consider-the-opposite strategies and new legal default rules should become embedded in the reformed ISDS, alongside a pluralistic rather than specialized court structure.

- by Andrej Lang
- •
- European Law, European Union Law, EU Law, International Investment Law

Public expropriation of private property requires the injured parties to be appropriately compensated. When there is an international component to such ‘takings’, arbitration panels rely on the relevant bilateral investment treaty (BIT) in order to determine the amount, or quantum, of compensation. BIT arbitration and jurisprudence now ubiquitously rely on the Hull formulation for compensation which, in turn, has come to be interpreted as the ‘market value’ of the property taken. Rarely, however, is this market value evident. Takings arbitration has therefore come to rely on a ‘private buyer model’ which presupposes the validity of (sometimes controversial) economic theories to establish compensation paid by the State. Yet, given the widespread support for State prerogatives in defining and executing domestic policy interventions (i.e., ‘embedded liberalism’), the circumscribed role of the State’s ability to manage its own property rights regime represents a concerning trend toward technocratic governance.
I argue that the recent observance that BITs' compensation clauses are loosening stems from governments' realisation that compensation at market value has little meaning in the context of government takings. Indeed, the very idea of treating the government as just another market participant misinterprets free exchange and, more fundamentally, subtlety weakens the Grand Compromise of embedded liberalism - a compromise that no government wishes to destroy."

- by Anthony Bonen
- •
- Property Rights, International Investment Law, Theory of Value, Compensation

SUMA RIO: I. La expropiación de la propiedad privada de nacionales y extranjeros en México: marco legal interno e internacional. II. ¿Con templa el derecho mexicano un concepto de expropiación indirecta? III. Concep to de expropiación indirecta y la causa de utilidad pública: ¿límites a la capacidad de regulación del Estado mexicano? IV. Los casos del capítulo XI del TLCAN presentados en contra de México y el desarrollo de un nuevo concepto de expropiación. V. Lecciones para una posible armonización de los criterios internacionales e internos.

As several European countries are striving to phase out certain energy sources, clean energy producers have been subject to many subsidies and competitive advantages. Increasingly, States are employing taxation measures to discourage production and achieve their phase-out goals. These measures are subject to international law applicable to the energy sector that shall be considered before executing them, such as the Energy Charter Treaty.
The Energy Charter Treaty is a binding international agreement that covers all aspects of commercial energy activities, including trade, investment and taxation, and has been ratified by several Eastern European States. Taxation measures are foreclosed from the application of the Energy Charter Treaty by Article 21, except for cases involving indirect expropriation. Since the release of the Yukos v Russia Award in 2014, a debate has encircled the question of whether taxation measures adopted in bad faith may be excluded from the application of Article 21 ECT. This debate has polarized in the recent Spanish Saga investment arbitration cases where, inter alia, due to taxation measures adopted by Spain to balance its green energy subsidy program, Spain has appeared as respondent in more than 40 investment arbitrations. Building on the outcomes of the Spanish Saga awards, this paper aims to enumerate main aspects States will want to take into account when introducing energy related tax policies to ensure compliance with their ECT obligations.

- by Sebastian A Green Martinez and +1
- •
- International Relations, Tax Law, International Law, International Investment Law

This chapter aims to provide a comprehensive framework for understanding how the principle of good faith functions within international investment law in order to outline the roles the good faith plays within the discipline. This assessment covers different conceptualizations of the principle of good faith within the rules, arguments, and arbitral awards, but also the practical advantages it may provide for parties in the course of arbitral proceedings. The offered conceptual framework comprises the evaluation of the principle in general international law and in relation to international investment law and arbitration, overview of substantive and procedural derivatives of the principle, and overall assessment of the function and relevance of the principle in contemporary investment law, policy, and arbitration. How the good faith principle, within existing procedural concepts and substantive rules, but also as a self-standing standard, may play out is demonstrated by the overview of relevant arbitral jurisprudence and presented through different stages of an arbitral proceeding. States tend to rely on good faith to deny claimants’ rights to seize the tribunal (Article 41(5) of the ICSID Rules), to challenge jurisdiction or admissibility, to limit obligations arising under investment treaties or otherwise employ good faith as a defense in merits, and to minimize or exclude compensation. Claimants primarily rely on good faith as a part of the substantive standard of fair and equitable treatment, to expand interpretation of investment treaties and maximize their chances for compensation. Recent trends demonstrate the inherent balancing function of the good faith principle given that claimants and respondents alike rely on the good faith argument using it both as entitlement and defense, while arbitral tribunals have shown readiness to employ different variants of the good faith principle.

Since the late 1950s, international investment law has experienced a new term so-called 'umbrella clauses' aimed for the protection of the observance of obligations agreed between foreign investors and host states. However, since the beginning of the new millennium, the umbrella clauses have faced a bunch of criticism, being condemned for eradicating the difference between contracts and public international law. Wordings in international energy investment agreements, including Energy Charter Treaty have caused the question that whether these clauses cover all obligations or specific commitments to investors. In this article, the notion of umbrella clauses has been discussed and Article 10(1) of the Energy Charter Treaty has been explained by references to the case-law of international arbitration courts.

Chinese state-owned enterprises pose an increasing number of challenges to the international trade regime. One of the issues is how to regulate state-owned enterprises under the World Trade Organization’s rules on subsidies. This paper tackles the issue that whether an SOE can be a ‘public body’ that provides subsidies to other enterprises under the Agreement on Subsidies and Countervailing Measures. Appellate Body’s jurisprudence on this issue is not clear, and the debate regarding the proper line between “public body” and “private body” continues. This paper is the first attempt to provide a systematic and objective analysis of three different approaches in interpreting the term ‘public body,’ providing a framework for further discussions on the proper legal status of Chinese SOEs under the WTO legal regime. By examining the negotiation history and varying approaches to the issue, this paper identifies the problems of current Appellate Body’s approach and provides proposals for future clarification.

- by Ru Ding
- •
- Development Studies, International trade law, International Investment Law
- by Walid BEN HAMIDA
- •
- International Law, Arbitration Law, International Investment Law, Arab Laws

This book deepens the study of the law of treaties by offering specific solutions to current legal problems. It provides a high-level theoretical and practical approach, touching upon all major current issues of the law of treaties. It is noteworthy that each subject-matter discussed in this work was thoroughly analyzed and supported by a rigorous methodology, including the use of the most accurate terminology and a well-reasoned explanation of each of the issues addressed in accordance with the most authoritative legal scholarly writings. This work is also a helpful reference for governmental and diplomatic officials, legal practitioners and the legal academia at large in trying to understand how international acts are negotiated and adopted, what the rules are for the formulation of reservations and introduction of amendments to conventional texts, how a State is definitely deemed to be bound by an international act or treaty, which the effects are of a treaty that came into force and how treaties should be applied at the international level, etc.

Discusses the Investment Code in Egyot as of March 2015, Investment and economic policies, FDI flows into Egypt and the "business-as-usual" policies of the post 30-June-2013 Egyptian State. With info on international arbitration against Egypt, as well as key stories on violations, including tax evasion, environmental degradation, and labour rights violations.

Le Code panafricain d’investissements, adopté fin 2016 par un comité d’experts de l’Union africaine, constitue un modèle intéressant de ces nouveaux textes internationaux visant à concilier le droit des investissements étrangers, le développement durable et la responsabilité sociale des entreprises. L’instrument est original et son potentiel est important pour les progrès de la Responsabilité sociétale des entreprises ou des organisations (RSE/RSO) dans les pays d’Afrique subsaharienne, et particulièrement dans les pays francophones qui ont une tradition de droit codifié. La force juridique de ce Code est néanmoins à construire, et demande une action volontaire de toutes les parties prenantes.

Were joint ventures to be considered as one of the very first forms of investment made available to foreign business actors in China, the present dissertation aims at verifying whether, notwithstanding the constant development observable in this country's economic and legal environment, nowadays joint ventures still constitute a safe and efficient tool for accessing the Chinese market, or whether foreign investors may be exposed to relevant limitations and risks when resorting to such business structure. Therefore, after a short introduction on the reasons and the incentives behind the creation of joint ventures, focus will be made, first, on the technical aspects and procedures that would need to be complied with when establishing a joint venture in China and, second, on the main critical issues which may arise when entering China's market and legal system, paying here particular attention on IPRs protection. In the conclusive remarks, it will be noted how China appears to offer sufficiently satisfactory tools to enable foreign business actors to successfully carry out their economic activity through the establishment of joint ventures.

- by Alessandra Moroni
- •
- Intellectual Property, Corporate Law, China, Business Law

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.

Sau hơn 45 năm hoạt động, ASEAN đã đạt được nhiều thành tích và dần dần chứng tỏ vai trò của mình trong phạm vi quốc tế. Thành công phải nhắc đến của ASEAN là việc tạo ra các thị trường thân thiện và thuận tiện để thu hút đầu tư trực tiếp nước ngoài (FDI), góp phần đáng kể vào sự hội nhập của khu vực. Trong thực tế, FDI luôn luôn đóng một vai trò chiến lược trong phát triển không chỉ với ASEAN mà còn rất nhiều khu vực hợp tác kinh tế khác trên toàn thế giới. Với những lợi thế của nguồn lao động giá rẻ và vốn tài nguyên của các nước thành viên, ASEAN đã xây dựng một môi trường kinh doanh hấp dẫn cho các công ty đa quốc gia tìm kiếm lợi nhuận thông qua việc thực hiện các kênh đầu tư FDI.
Vì sức ép cạnh tranh thu hút FDI ngày càng gay gắt đặc biệt từ hai đối thủ mạnh trong khu vực là Trung Quốc và Ấn Độ, Hội nghị Thượng đỉnh lần thứ 5 của ASEAN (1995) đã đưa ra ý tưởng thành lập AIA (ASEAN Investment Area). Đây được xem như là một phần cơ bản quan trọng trong quá trình giảm chi phí giao dịch, tăng cường chính sách xúc tiến FDI cũng như phát triển hài hòa nền kinh tế giữa các quốc gia thành viên.Trong bài tiểu luận này, nhóm tiểu luậnsẽ xem xét một loạt khía cạnh từ các bài nghiên cứu và tài liệu liên quan đến sự ảnh hưởng của FDI đến hội nhập của ASEAN, qua đó xây dựng mô hình kinh tế lượng nhằm phân tích định lượng các yếu tố ảnh hưởng. Hy vọng tiểu luận này sẽ đem đến những kiến thức sâu sắc hơn về FDI nói chung và những ảnh hưởng của nó tớisự hội nhập của các quốc gia ASEAN khác nhau trong đó có Việt Nam.Qua đó, nhóm cũng xin đưa ra những nhận định riêng và một số giải pháp nhằm phát huy tối đa những ưu thế của Việt Nam nhằm đẩy mạnh thu hút FDI và tăng cường hội nhập trong khu vực cũng như trên thế giới.

Encyclopedia entry on fair and equitable treatment.

The rapid expansion of Chinese investments in Africa has generated considerable interest among analysts of law, politics and economics. The said investments have sparked both hope and uncertainty about the true intentions of China on African soil and the implications they have
on the development of African economies. Without sufficient official data available in most African countries, let alone less transparent Namibia and Zimbabwe, especially with regards to data related to Chinese investments, it is rather complicated to determine with certainty the actual negative or positive contribution of Chinese investments to the said economies. In trying to decode the controversies that are attached to Chinese investments in Africa, one is left to question the laws binding the two countries and the regulatory framework within which Chinese investors conduct their business. This Report is a critical legal analysis of the law and practice with regards to Chinese investments in Namibia and Zimbabwe. The analysis is hinged mainly on compliance - the question being the extent to which Chinese investors are complying with the given laws; the causes for lack of compliance and the implications of that extent of compliance or lack thereof.
The report moves from the general to the particular i.e. from a general look at Africa, the perceptions that the people in Africa have about Chinese investors to specific considerations of the happenings in Namibia and Zimbabwe through the lenses of the concept of compliance. The report presents a short literature review about/on this and moves on to look at specific areas in Namibian and Zimbabwean economy such as labour and criminal law.

In the recent case of Ping An Life Insurance Company of China, Limited and Ping An Insurance (Group) Company of China, Limited v. Kingdom of Belgium ("Ping An et al v. Belgium") the position of the Respondent prevailed in the jurisdictional phase. The relevance of this case lies in the fact that the existence of two successive BITs places the claims of the Ping An Group at the risk of falling into a black hole (i.e., a gap between two successive BITs that may deprive (allegedly) valid claims of a jurisdictional basis). The Claimants, fearing this outcome, have alleged that no remedy would be available if the Tribunal agreed with Belgium's interpretation of the new BIT. This comment specifically focuses on the interpretation of the investor-State dispute settlement clause of said successive BITs under international law and on the potential effects of the inter-temporal rule of international law to the dispute under analysis.

- by Sebastian A Green Martinez
- •
- Law, International Law, Public International Law, Jurisdiction