Search results

This chapter seeks to reveal what are the implications of the corporate social responsibility (CSR) debate on international investment law by focusing on the specific example of public health. The right to health is one of the human rights secured in international law and in the national legislation of a majority of States. This chapter will provide examples of investment cases concerning tobacco control measures, imposed by the Host States for the purpose of improving public health, though challenged by the tobacco companies under International Investment Agreements (IIAs) in investment tribunals. These specific examples cast rather general questions regarding the legal framework of international investment framework and its role in providing sufficient policy space for Host States to implement the public policies and to ensure that foreign companies adhere to the CSR standards.

In order to investigate what are the implications of the CSR debate on international investment law on the example of tobacco industry, the author performs a literature review and analyze two tobacco disputes and its possible implication on the public health debate and protection of foreign investors.

This case study illustrates the complex paradigm that interlink economic and human rights obligations of States on one side of the spectrum and property rights and social responsibilities of tobacco companies on the other side.

This chapter addresses a very topical and pertinent issue in public international law, namely: the role of public interest norms in the regime of foreign direct investment.

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.

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.

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.

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.

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.

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.

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

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

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.

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.

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

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.

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.

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.

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.

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.

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.

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

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.

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.

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.

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.

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).

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.

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.

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.

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.

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

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.

Doctrinal research. Contains qualitative analysis.

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.

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.

This paper aims to examine the extent to which these reforms address the limitations of Saudi Arabia’s previous investment framework. Long viewed as a hostile environment in which to do business, the Saudi Government has enacted a broad sweep of measures aimed at restoring investor confidence in central aspects of the country’s evolving private law framework.

This paper offers a timely assessment of the raft of foreign investment reforms, both legislative and regulatory, that have been introduced in Saudi Arabia over the last decade.

The paper will proceed by outlining the perceived failings of the old investment regime before going on to reforms.

It will consider the remaining obstacles to the flow of foreign investment in Saudi Arabia in the context of the dual forces that have historically defined the Kingdom’s ambivalent investment law regime.