International Investment Law

Introduction 1. International Investment Law in a Changing World Introduction A New Turn in International Investment Law Reform of the Investor-State Dispute Settlement Mechanism Public View on the Investor-State Dispute Settlement Mechanism Changing State Practice The Investor-State Dispute Settlement Mechanism at a Cross Roads The Impact of Change in State Practice Attempts to Reconcile Competing Principles The Inherent Weaknesses of International Investment Law Indications for the Future Conclusions Suggestions for further reading 2. Evolution of International Investment Law Introduction The Early Years National Treatment versus International Minimum Standard The Era of Gunboat Diplomacy Diplomatic Protection and the Treatment of Aliens in International Law The Calvo Doctrine The Hull Formula Conclusion Suggestions for further reading 3. International Efforts to Regulate Foreign Investment Introduction The Havana Charter of 1948 The UN Declaration on Permanent Sovereignty Over Natural Resources Attempts to Develop the Law Through the New International Economic Order The 1974 Charter of Economic Rights and Duties of States The UN Draft Code of Conduct for Transnational Corporations An Appraisal of the Eff orts Made in the UN The Role of the World Bank International Convention on the Settlement of Investment Disputes A ‘Silent Revolution’ in International Law? The Multilateral Investment Guarantee Agency The 1992 Guidelines of the World Bank The WTO Agreements and Foreign Investment The OECD Guidelines and the Multilateral Agreement on Investment The 2011 OECD Guidelines The International Labour Organization’s Guidelines Other Voluntary Schemes An Inconclusive End to the Twentieth Century in Foreign Investment Regulation The Eff orts Made at the Dawn of the Twenty-First Century The UN Commission and Council on Human Rights Towards a Binding Instrument on Multinational Enterprises and Human Rights Anti-Corruption Conventions A New Transparency Convention on Investor-State Investment Arbitration International Bar Association Guidelines on Conflicts of Interest Investment Arbitration Resolution of the Institut de Droit International The World Economic Forum in Davos and Investment Policy The Shift in Emphasis on the Need for an International Agreement Conclusions Suggestions for further reading 4. Protection of Foreign Investment in Customary International Law Introduction Protection under International Law and Domestic Law The Fundamental Principles of Foreign Investment Protection The Objectives of the Principles Definition of Investor and Investment Fair and Equitable Treatment in Customary International Law Full Protection and Security Most-Favoured-Nation Treatment National Treatment Protection against Expropriation in Customary International Law The Standards of Compensation in Customary International Law Access to International Arbitration Conclusion Suggestions for further reading 5. Protection of Foreign Investment Through Bilateral Investment Treaties Introduction The Origins of Bilateral Investment Treaties The Content of Bilateral Investment Treaties The Significance of Bilateral Investment Treaties Bilateral Investment Treaties for the Promotion of Foreign Investment Greater Standard of Protection under Bilateral Investment Treaties Bilateral Investment Treaties as Insurance against Political Risks Bilateral Investment Treaties as a Tool for Globalisation, Economic Liberalisation and Privatisation Mechanism to Expand International Standards and to Codify the Lex Specialis Effect of Bilateral Investment Treaty Provisions as Obligations Erga Omnes? Decentralisation of the Law of Foreign Investment Limiting the Freedom of Action of States Outlining the Conditions for Expropriation Deviations from the Hull Formula Exhaustion of Local Remedies Investor-State Dispute Settlement Mechanism Latin American Volte-Face US Volte-Face Acceptance of a Wider Definition of Investment Like Circumstances Pre-Establishment Rights Definition of the Applicable Law Time Limitations of a Claim Contractual Character of Bilateral Investment Treaties Protection under Stabilisation Clauses in Investment or State Contracts Protection under The Umbrella Clause Protection under Regional Trade and Investment Treaties Protection under Free Trade Agreements and Model Bilateral Investment Treaties The Changing Character of Bilateral Investment Treaties Conclusion Suggestions for further reading 6. Fleshing Out the Principles Through Jurisprudence Introduction Fleshing Out the Principles of Foreign Investment Law Definition of Investment Standard Claims by Foreign Investors Definition of Expropriation The Right to Expropriate Direct and Indirect Expropriation Determination of the Nature and Amount of Compensation The Rights of Shareholders Exhaustion of Local Remedies Extension of the Frontiers of the Law of Foreign Investment The Trend in Creative Interpretation of the Law Controversy Raised by Inconsistency The Trend Towards Extensive Protection From International Minimum to Maximum Standard of Treatment Jurisprudence on Regulatory Expropriation Modification of Customary International Law? Extension of Bilateral Investment Treaty Protection to Contractual Undertakings Extension of the Most-Favoured-Nation Clause to Establish Jurisdiction Conclusion Suggestions for further reading 7. Current Issues in International Investment Law Introduction The Law at a Crossroads Absence of Guidelines on the Standard of Compensation The Impact of Cross-Fertilisation of Competing Principles Problems Posed by the Expansive or Creative Trend in Interpretation The Notion of ‘Police Powers’ of States and Regulatory Expropriation Legitimate Expectations of Foreign Investors and the Regulatory Powers of States Regulatory Measures to Protect the Environment Regulatory Measures to Protect Human Rights Regulatory Measures in Pursuance of Social and Economic Objectives Regulatory Powers and the Protection under Investment or State Contracts Catch-All Interpretation of the Principle of Fair and Equitable Treatment The Extent of Protection under the Most-Favoured-Nation Clause Public Disputes and Private Tribunals Difficulty in Application of Domestic Law by International Tribunals Multiplication of Proceedings and Investment Tribunals The Trend in Treaty-Shopping, Forum-Shopping and Nationality-Shopping Reverse Discrimination between Domestic and Foreign Investors Anti-Corruption Law and Investment Disputes The Institution of Exceptions and the Law of Foreign Investment States Seeking to Restrain Tribunals Rather than vice versa The Principle of Tabula Rasa and Investment Treaties and Contracts The Notion of International Public Policy and Investment Protection The Doctrine of Necessity in International Investment Law The Notion of Force Majeure in Foreign Investment Law Resource Nationalism and the Revival of the Calvo Doctrine The Attempt to Seek Protection against Commercial Risks The Investor-State Dispute Settlement Mechanism Stabilisation and Umbrella Clauses Conclusions Suggestions for further reading 8. Addressing Current Challenges in International Investment Law Introduction A Global Comprehensive Treaty on Foreign Investment A Global Model Treaty A Set of Interpretative Statements or Draft Articles by the International Law Commission Balanced Free Trade Agreements and Bilateral Investment Treaties Enhancing the Balancing Role of Investment Tribunals and Courts Creating an Appeal Mechanism against Arbitral Awards Creation of an International Investment Court Settlement of Investment Disputes by the WTO DSB Revision of Investment Contracts Revision of Bilateral Investment Treaties Through a Protocol Revision of ICSID, UNCITRAL and Other Arbitration Rules Access for Victims to International Courts and Tribunals Defining the Standard or Conditions of Compensation Defining the Limits of the Amount of Compensation Provision for Remedies Other than Monetary Compensation Discouraging ‘Cherry-Picking’ in the Application of Rules National Investment Courts Defining Responsibilties of Foreign Investors Alternative Dispute Settlement Mechanisms and an Independent Ombudsman Enabling Governments to Sue Companies Enabling Civil Society Organisations and Individuals to Sue Foreign Investors Recalibrating the Interpretative Authority of Governments Use of General Exceptions to Protect the Policy Space of States Greater Protection Through National Law National Arbitration as Opposed to International Arbitration National Commercial Courts or Hybrid Courts Other National Dispute Avoidance and Dispute Settlement Mechanisms Protection of Foreign Investment by Promoting Human Rights Requirement to Exhaust Domestic Remedies Conclusions Suggestions for further reading Concluding Observations International Investment Law: Past, Present and Future Convergence of Views Change in State Practice The Future Direction