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Article
Publication date: 29 June 2020

Agata Ferreira

International investment law has become a powerful tool of global economic governance. With its global network of international investment treaties and effective arbitration…

Abstract

Purpose

International investment law has become a powerful tool of global economic governance. With its global network of international investment treaties and effective arbitration mechanism, it has made an extraordinary leap from a relatively niche and underrated area of international law to one of the most prominent legal regimes. This paper aims to illustrate how the evolutionary trajectories of globalization and international investment law have been intertwined.

Design/methodology/approach

This paper follows the historical unfolding of international investment law against the background of the globalization phenomenon, tracing the history of globalization processes since the expansion of European interests and export of capital and the onset of the international investment legal framework.

Findings

The evolution of globalization and international investment law has always been intertwined and co-dependent, experiencing similar phases of acceleration, transformation, adjustment and progress. This paper finds that the current era of globalization is characterized by an increasing complexity and diversity of transnational interests and global connections; this is also true for international investment law, which is undergoing changes aimed at including wider contexts and interests in international investment relations.

Originality/value

The analysis contributes to a more holistic understanding of the interdependence of these two phenomena, helping to explain how international investment law has become such a powerful, globally recognized and applied legal regime.

Details

Journal of International Trade Law and Policy, vol. 19 no. 2
Type: Research Article
ISSN: 1477-0024

Keywords

Article
Publication date: 9 November 2012

Alexander J. Bělohlávek and Filip Černý

This article aims to deal with international investment disputes, with a focus on the nature of the law applicable to the merits of such disputes.

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Abstract

Purpose

This article aims to deal with international investment disputes, with a focus on the nature of the law applicable to the merits of such disputes.

Design/methodology/approach

The procedure for determining the law applicable in investment disputes, the phases of determination and the impact thereof on the applicable law were analyzed. The diagonality of the disputes and its impact on the law applicable to the merits from the perspective of the interaction between national and international law were also analyzed. Further, the authors focused on the nature of the host state's breach of obligations towards the investor anchored in the investment treaty, and the effect thereof on the law applicable to the merits. In this respect, the notion of the investment itself was analyzed according to the relevant BITs and MITs. Finally, the authors analyzed the applicability of the Ordre Public concept to investment disputes.

Findings

The study provided practical demonstrations and examples of choice of law and application issues as resolved by the tribunals established under the ICSID.

Research limitations/implications

The article deals mainly with the ICSID proceedings. Another should be also analyzed.

Originality/value

The paper provides a new insight into issues of the law applicable to investment disputes by analyzing this problematic in relation to all stages of investment arbitration proceedings. Particularly it took an innovative approach in shedding light on and analyzing the applicability of the Ordre Public concept in relation to investment protection, especially in relation to Article 52 of the ICSID Convention, and the recognition and enforcement proceedings of arbitral awards issued in the course of investment arbitration.

Details

International Journal of Law and Management, vol. 54 no. 6
Type: Research Article
ISSN: 1754-243X

Keywords

Article
Publication date: 10 May 2011

Ardeshir Atai

The purpose of this paper is to examine the remedies available under Iranian investment treaties for settlement of investment disputes. This includes the obligation of the Iranian…

Abstract

Purpose

The purpose of this paper is to examine the remedies available under Iranian investment treaties for settlement of investment disputes. This includes the obligation of the Iranian Government to provide foreign investors access to international arbitration. The sensitivity of the controversial Iranian nuclear program and the imposition of economic and financial sanctions on Iran will lead to the termination of many contracts between companies from Europe and the West and Iran, therefore, a viable solution must exist to address the rights and remedies of foreign investors. This article aims to provide an insight into Iranian treaties.

Design/methodology/approach

The main method was a survey of different treaties signed by Iran.

Findings

The discussion revealed that there are currently more than 50 treaties signed and ratified by Iran which provide arbitration as a dispute resolution forum. There are many treaties between the member countries of the European Union which make it important for the research. Iranian treaties guarantee international law remedies to foreign companies with investment in Iran by allowing them to seek redress in an international forum.

Practical implications

Iran has not signed the ICS1D Convention, meaning that the arbitration proceedings will be subject to ad hoc arbitration rules of UNCITRAL. Furthermore, ICSID rules on enforcement of the award do not apply. Therefore, the winning party must go through the Iranian courts to enforce its awards.

Originality/value

The value of the paper is to government organization, international institutions and multinational companies with substantial economic interest in Iranian energy and natural resources. For the first time, the topic has been covered in a research paper. There are no articles in Iranian bilateral investment treaties (BITs) addressing dispute resolution through arbitration. This is the first piece of work that actually conducted a thorough analysis of Iranian BITs.

Details

Journal of Money Laundering Control, vol. 14 no. 2
Type: Research Article
ISSN: 1368-5201

Keywords

Article
Publication date: 8 March 2021

Emmanuel T. Laryea and Oladapo O. Fabusuyi

The purpose of this study is to critically examine the move to Africanise international investment law (IIL) aimed at promoting sustainable development on the continent.

Abstract

Purpose

The purpose of this study is to critically examine the move to Africanise international investment law (IIL) aimed at promoting sustainable development on the continent.

Design/methodology/approach

The study analyses the move by African countries to “Africanise” IIL by incorporating specific and innovative provisions and features in their international investment agreements (IIAs) for the benefit of African economies. This is evidenced by provisions in African regional investment instruments such as the 2007 Common Market of Eastern and Southern Africa Investment Agreement and the 2008 Economic Community of West African States Supplementary Act on Investments produced by the different African regional economic communities (RECs), new-generation IIAs such as the 2016 Nigeria-Morocco IIA and the China-Tanzania IIA and the African Union’s Pan-African Investment Code 2016. The common features of these instruments include linking the objective of investment promotion and protection to sustainable development; excluding portfolio investments; including provisions on investor-obligations; and reserving wide scope of regulatory space for host-states, including the ability to take emergency measures without incurring liability to investors. Some of these provisions are rare in IIAs.

Findings

The study finds that, while the efforts are commendable, there are real challenges. Firstly, there are inconsistencies in the regimes existing on the continent due to differences in the contents of the international investment instruments promulgated by the different RECs, and also differences in the content of IIAs signed by some member-states of the RECs with countries external to the RECs. Secondly, there are governance gaps and a lack of enforcement in practice, which would undermine the effectiveness of the laws being forged. Thirdly, the Africanised IIL alone would not attract investment if other important determinants, such as critical infrastructure, remain lacking. Fourthly, there is under-representation of Africa in the arbitral institutions that develop and enrich the laws, which, if it continues, would undermine the effectiveness of the Africanisation provisions being included in IIAs.

Research limitations/implications

While the research discusses both law and policy, more is discussed of the law, owing to space limitation.

Practical implications

It is anticipated that this research will impact the content of the investment protocol under the African continental free trade area and beyond and will prompt review of existing and future IIAs by member states of the various RECs to align them for consistency. It is also hoped that this research will impact the review of various investment instruments of the RECs with the aim of harmonising them. It is further hoped that this research would contribute to addressing the challenges that militate against the achievement of the goals of Africanising ILL for sustainable development.

Originality/value

The study is original. It has not been published previously and the authors have found no existing publication that addresses the issues covered in this study.

Details

Journal of International Trade Law and Policy, vol. 20 no. 1
Type: Research Article
ISSN: 1477-0024

Keywords

Article
Publication date: 13 September 2011

Ben Chigara

This article aims to examine the sustainability of European and SADC states' practice of agreeing bilateral investment agreements (BITs) for the promotion and protection of…

Abstract

Purpose

This article aims to examine the sustainability of European and SADC states' practice of agreeing bilateral investment agreements (BITs) for the promotion and protection of foreign investments in light of the latter's recent inauguration of Black Economic Empowerment (BEE) as a basic norm of regional customary international law and strategy for countering the social and economic legacy of apartheid rule on their territories for over half a century.

Design/methodology/approach

The approach taken is textual analysis and deconstruction of emergent SADC BEE legislation, substantive BIT legislation provisions, dispute settlement mechanisms and emergent jurisprudence on the tensions between BEE policy and BIT obligations.

Findings

The strong elements of exclusivity between European/SADC BIT dispute settlement mechanisms on the one hand, and the “ouster clauses” of SADC BEE legislation and regulations on the other, are mutually incompatible. This incompatibility threatens the sustainability of the EU/SADC states' BIT dynamic for the promotion and protection of foreign direct investments (FDIs).

Originality/value

Demonstration of BEE as SADC's emergent basic norm of social reconstruction for countering the social and economic legacy of apartheid rule in affected states and implications of that for EU/SADC policy on the promotion and protection of FDIs.

Article
Publication date: 27 January 2021

Tanjina Sharmin and Emmanuel Laryea

Over the past two decades, the application of most-favoured-nation (MFN) clauses in international investment agreements (IIAs) to dispute settlement matters has generated…

Abstract

Purpose

Over the past two decades, the application of most-favoured-nation (MFN) clauses in international investment agreements (IIAs) to dispute settlement matters has generated controversy. The purpose of this paper is to help resolve some of the controversies by examining the rule of law issues that may arise from such application of MFN.

Design/methodology/approach

The study describes controversies regarding the application of MFN to dispute settlement as per the extant literature on the subject. It explores the elements of rule of law in investor-state arbitration. The paper then analyses the implications of applying MFN to dispute settlement matters for the elements of rule of law. Based on such analysis, the study argues that the application of MFN to dispute settlement matters undermines certain elements of rule of law.

Findings

The paper has outlined the relevant elements of rule of law in investor-state arbitration as access to dispute settlement; judicial (or tribunal) independence, fairness and impartiality; consistency and predictability of law and decisions; transparency; accountability and subjection of dispute forums and systems to law. It found that the application of MFN undermines various components of rule of law, in particular of consistency and predictability and the requirement of tribunals to adjudicate within the limits of the law.

Originality/value

The findings of this study will help future investor-state arbitral tribunals to decide on the application of MFN to dispute settlement matters.

Details

Journal of International Trade Law and Policy, vol. 20 no. 1
Type: Research Article
ISSN: 1477-0024

Keywords

Article
Publication date: 11 April 2022

Tanjina Sharmin and Emmanuel Laryea

This paper aims to examine the prospect for international investment disputes in the aftermath of the COVID-19 pandemic due to measures implemented by the Australian government to…

Abstract

Purpose

This paper aims to examine the prospect for international investment disputes in the aftermath of the COVID-19 pandemic due to measures implemented by the Australian government to tackle the pandemic.

Design/methodology/approach

Doctrinal research. Contains qualitative analysis.

Findings

This paper finds that claims based on the protections in the International Investment Agreements (IIAs) signed by Australia are unlikely to succeed and that Australia’s COVID-19 measures can be justified as necessary measures under the general and security exception clauses included in more recent IIAs and under customary international law.

Originality/value

In the context of the COVID-19 pandemic, scholars have written papers apprehending possible claims by international investors against emergency measures adopted by host countries to face the pandemic which might also have damaged the interest of the foreign investors. The existing literature is too vague and general. To the best of the authors’ knowledge, this is the first paper that draws some specific conclusions in this regard applicable to the COVID-19 regulatory measures taken by Australia. While the existing literature projects the possibility of such investor claims, this paper argues that at least no such claim would succeed against the COVID-19 measures taken by Australia.

Details

Journal of International Trade Law and Policy, vol. 21 no. 2
Type: Research Article
ISSN: 1477-0024

Keywords

Article
Publication date: 18 October 2019

Rao Qasim Idrees, Rohimi Shapiee and Haniff Ahamat

The phenomena of arbitral forum shopping to resolve a commercial investment dispute is still under development and more complicated in many states. However, for Pakistan, it seems…

Abstract

Purpose

The phenomena of arbitral forum shopping to resolve a commercial investment dispute is still under development and more complicated in many states. However, for Pakistan, it seems in an evolutionary phase, where the country is struggling hard to adopt the best practice of dispute resolution through forum shopping clauses. This struggle is even more inflated with huge Chinese investment through China Pakistan economic corridor (CPEC) projects in Pakistan, which come alongside with commercial investment disputes. For this purpose, the current treaty or contract-based system between China and Pakistan and litigation based domestic civil court structure look obsolete, hence, appear to require reinstatement of forum shopping clauses under concerned treaties or contracts for CPEC investment-related issues.

Design/methodology/approach

The authors choose a legal research method. The research design is a comparative analysis between CPEC contracts and dispute resolution mechanism between China and Pakistan and also the domestic civil court’s litigation system. This analysis selected by the authors due to inefficient bilateral investment arrangements and efficient resolution of future commercial disputes in CPEC. While the international arbitration system is included in the assessment were particular in the time and space context. The comparison comprises on dispute resolution clauses in free trade agreement (FTA) and bilateral investment treaties (BIT) between China and Pakistan and the system of resolving disputes by CPEC clauses.

Findings

The authors finds that in the absence of CPEC forum shopping clause under dispute resolution system, Pakistan is highly at risk to lose foreign investors, and therefore, set back the goal of long term economic sustainability in the region. However, China has already made its investment policies safer with establishing three international commercial courts (also referred to as Belt and Road courts), one in Xi’an for the land-based Silk Road Economic Belt, one in Shenzhen for the Maritime Silk Road and one in Beijing that will serve as the headquarters. These courts will be offering litigation, arbitration and mediation services. According to one view, China aims to have all belt and road initiative (BRI) disputes resolved by these courts. This makes Pakistan position more awkward and needs proactive measures, as CPEC investment is based on Pakistan foreign direct investment policies and legal structure. Therefore, it will be complicated and less favourable for Pakistan to deal with such cases under Chinese Courts.

Originality/value

The paper’s primary contribution is finding that comprehensive analysis of alternative dispute resolution mechanism between China and Pakistan over CPEC investment is inevitable. A socio-legal research combine with an examination of Singapore International Commercial Court functions and mechanism and CPEC plans further contributes to ascertain the best model of the settlement of commercial disputes under investments in Pakistan. This research paper anticipates future economic and legal problems, which Pakistan may encounter.

Details

Journal of International Trade Law and Policy, vol. 18 no. 3
Type: Research Article
ISSN: 1477-0024

Keywords

Article
Publication date: 23 March 2022

Ahmad Heidari

The purpose of this study is to examine the legal system that overrules these concerns within the body of the international investment laws. The question which remains is how can…

Abstract

Purpose

The purpose of this study is to examine the legal system that overrules these concerns within the body of the international investment laws. The question which remains is how can host countries and their ruling bodies maintain their national security without disregarding the legitimate expectations of foreign investments and their international responsibilities?

Design/methodology/approach

Balancing the relationship between the national security of the host country and the legitimate expectations of the foreign investments is one of the oldest challenges within the body of the international investment laws because the realization of the right to maintain the national security, without regulating the host countries, leaves room for corruption, and meeting the legitimate expectations of the foreign investments can lead to the disruption of the national sovereignty of the host country.

Findings

Studies show that the international investment laws do not take a clear stance when it comes to regulating the relationship between the national security of the host countries and the legitimate expectations of the foreign investments and that they are, in fact, in some cases, paradoxical and disorganized; there are instances of attempts to overprotect the national security of the host country, while the rights and the benefits of the foreign investments are disregarded,

Originality/value

At times there is an attempt to expand the realm of legitimate expectations of the foreign investments which would, in turn, disrupt the national security of the host country.

Details

Journal of International Trade Law and Policy, vol. 21 no. 2
Type: Research Article
ISSN: 1477-0024

Keywords

Article
Publication date: 12 March 2018

Moses Oruaze Dickson

The purpose of this study is to examine the nature of the protection afforded to foreign investors and whether this protection has been exercised to the detriment of host states…

Abstract

Purpose

The purpose of this study is to examine the nature of the protection afforded to foreign investors and whether this protection has been exercised to the detriment of host states. In other words, is the regulatory authority of host states being compromised by the content of the investment agreements entered into? If so, is there scope for reform? The need to reform investor-state arbitration was recently pushed forward by the European Union Commission in the Transatlantic Trade and Investment Partnership.

Design/methodology/approach

It is conceptual.

Findings

It proposed an investment court system as a replacement for investor-state arbitration. However, there is great ambivalence on whether these reforms would result in a rebalance of investment agreements in favour of host states. Thus, this paper provides a range of solutions to the challenges posed by investor-state arbitration through proposals for a regional and world investment court.

Research limitations/implications

The findings made in this research will inform both academics and practitioners in the field of international law on whether the investment court proposal will bring about the desired changes.

Originality/value

Secondary sources

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