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