International Investment Law
Hart Publishing (Verlag)
978-1-84946-245-7 (ISBN)
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This book offers an up-to-date, scholarly overview of the law of foreign investment, incorporating a thorough and succinct analysis of the principles and standards of treatment available to foreign investors in international law. It is authoritative and multi-layered, offering an analysis of the key issues and an insightful assessment of recent trends in the case-law, from both developed and developing country perspectives. A major feature of the book is that it deals with the tension between the law of foreign investment and other competing principles of international law. In doing so, it proposes ways of achieving a balance between these principles and the need to protect the legitimate rights and expectations of foreign investors on the one hand, and the need not to unduly restrict the right of host governments to implement their public policy, including the protection of the environment and human rights, and the promotion of social and economic justice within the host country, on the other.
Since the first edition was published a number of landmark decisions have been produced by various international investment tribunals, calling for an update in what is a fast growing and rapidly changing investment environment. In addition, scholars and other actors, both non-governmental and inter-governmental, have responded to the agenda set by the first edition of this book; thus the second edition also reflects on the work of some of these major actors in the field.
This is perhaps the first book of its type authored by an international lawyer who has taught, researched and advised in both the developed and developing world over the past 25 years. The wealth of experience he brings to the task enables him to develop unique insights into the interplay between the law, economics and politics of foreign investment, making this book essential reading for students, scholars, practitioners and diplomats interested in the contemporary law of foreign investment.
Surya P Subedi, OBE, DPhil, FRSA, is Professor of International Law, University of Leeds, and a Barrister at Tanfield Chambers in London. He has been designated to serve on the Panels of Arbitrators and of Conciliators of ICSID and on the Panels of the Dispute Settlement Body of the WTO.
Introduction
1 Evolution of Foreign 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
2 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 Efforts Made in the UN
The Role of the World Bank
International Convention on the Settlement of Investment Disputes (ICSID)
A 'Silent Revolution' in International Law?
Multilateral Investment Guarantee Agency (MIGA)
The 1992 Guidelines of the World Bank
The WTO Agreements and Foreign Investment
The OECD Guidelines and the Multilateral Agreement on Investment
The International Labour Organization's Guidelines
Other Voluntary Schemes
An Inconclusive End to the 20th Century in Foreign Investment Regulation
The Efforts Made at the Dawn of the 21st Century
The UN Commission and Council on Human Rights
Anti-Corruption Conventions
The Shift in Emphasis on the Need for an International Agreement
Conclusions
3 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
Defi nition 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
4 Protection of Foreign Investment through Bilateral Investment Treaties
Introduction
The Origins of Bilateral Investment Treaties
The Content of BITs
Signifi cance of BITs
BITs for the Promotion of Foreign Investment
Greater Standard of Protection under BITs
BITs as Insurance against Political Risks
BITs as a Tool for Globalisation, Economic Liberalisation and Privatisation
Mechanism to Expand International Standards and to Codify Lex Specialis
Effect of BIT 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 Settlement of Disputes
Latin American Volte-Face
Acceptance of a Wider Defi nition of Investment
Like Circumstances
Pre-establishment Rights
Defi nition of the Applicable Law
Time Limitations of a Claim
Contractual Character of BITs
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 BITs
The Changing Character of BITs
Conclusion
5 Fleshing Out the Principles through Jurisprudence
Introduction
Fleshing Out the Principles of Foreign Investment Law
Standard Claims by Foreign Investors
Defi nition 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
Modifi cation of Customary International Law?
Extension of BIT Protection to Contractual Undertakings
Extension of the MFN Clause to Establish Jurisdiction
Conclusion
6 Current Issues in Foreign 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 MFN Clause
Public Disputes and Private Tribunals
Diffi culty 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 Contracts
The Notion of International Public Policy and Investment Protection
The Doctrine of Necessity in Foreign 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
Conclusions
7 Addressing Current Challenges in Foreign Investment Law
Introduction
A Global Comprehensive Treaty on Foreign Investment
A Global Model Treaty
A Set of Interpretative Statements or Draft Articles by the ILC
Balanced FTAs and BITs
The Role of Investment Tribunals and Courts
An Appeal Mechanism against Arbitral Awards
Creation of an International Investment Court
Settlement of Investment Disputes by the DSB of the WTO
Revision of Investment Contracts
Revision of BITs through a Protocol
Revision of ICSID, UNCITRAL and other Arbitration Rules
Access for Victims to International Courts and Tribunals
Defi ning the Standard or Conditions of Compensation
Defi ning 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
Conclusions
8 Concluding Observations
| Erscheint lt. Verlag | 1.8.2012 |
|---|---|
| Verlagsort | Oxford |
| Sprache | englisch |
| Maße | 171 x 244 mm |
| Gewicht | 472 g |
| Themenwelt | Recht / Steuern ► EU / Internationales Recht |
| ISBN-10 | 1-84946-245-3 / 1849462453 |
| ISBN-13 | 978-1-84946-245-7 / 9781849462457 |
| Zustand | Neuware |
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