On Investment Law and Questions of Change

This article analyses the various ways in which investment law raises questions of change. It distinguishes between changes in international investment norms, and changes in a host state’s regulatory system which is subject to the control of such norms, and explains how these different manifestations of change relate to the distinct yet interrelated issues of interpretation and application. The article explains why, given features of the contemporary investment regime, on questions of interpretation, concerning the content of international investment norms, arbitrators operate within wider processes of law-development over which states, as treaty masters, also exercise significant influence. In contrast, arbitrators dominate the process of applying international investment norms to particular investor-state disputes to determine whether changes in a host state’s regulatory system breach applicable investment norms. This claim is demonstrated in relation to the two most prominent investment treaty standards: fair and equitable treatment, and the protection against indirect expropriation

Transparency in International Investment Law: The Good, the Bad, and the Murky

How transparent is the international investment law regime, and how transparent should it be? Most studies approach these questions from one of two competing premises. One camp maintains that the existing regime is opaque and should be made completely transparent; the other finds the regime sufficiently transparent and worries that any further transparency reforms would undermine the regime’s essential functioning. This paper explores the tenability of these two positions by plumbing the precise contours of transparency as an overarching norm within international investment law. After defining transparency in a manner befitting the decentralized nature of the regime, the paper identifies international investment law’s key transparent, semi-transparent, and non-transparent features. It underscores that these categories do not necessarily map onto prevailing normative judgments concerning what might constitute good, bad, and murky transparency practices. The paper then moves beyond previous analyses by suggesting five strategic considerations that should factor into future assessments of whether and how particular aspects of the regime should be rendered more transparent. It concludes with a tentative assessment of the penetration, recent evolution, and likely trajectory of transparency principles within the contemporary international investment law regime

International Investment Law

Since the middle of the twentieth century, the field of international investment protection has gone through a period of more or less continuous expansion. From a single bilateral investment treaty (‘BIT’) signed between Germany and Pakistan in November 1959, international investment law has seen the proliferation of some 3,200 investment treaties governing the treatment of foreign investors by the host States where they do business. As a historical matter, the substantive elements of modern investment law emerged from a loose network of customary international law protections that pre-existed the treaties now dominating the regime. Customary international law had long required host States to extend certain guarantees of decent treatment to foreign citizens within their jurisdiction. The systematic codification of these customary norms into a far-flung network of treaties began in earnest with the late nineteenth century emergence of so-called ‘friendship, commerce, and navigation’ treaties, which incorporated existing customary rules and adopted various new substantive requirements. The treaty network took its next step when BITs proper emerged in the mid-twentieth century, characterised principally by the extension of dispute resolution options to individual investors. As customary investment law was gradually codified at the retail level, the law of treaties began to loom much larger in meta-regulation of the regime. This chapter will explore some of the ways that the modern law of treaties interacts with the modern law of international investment protection. It will focus in particular on a handful of areas where the formal categories of treaty law map awkwardly onto the reality of modern investment law and adjudication

Self-determination and foreign direct investment: reimagining sovereignty in international investment law

International investment law can be criticized for its understanding of sovereignty. Informed by the works of Koskenniemi, this article re-imagines ‘sovereignty’ based on a host state population exercising its right to economic self-determination. Recent transparency initiatives in international investment law support this conceptualization of sovereignty. Further, the stance taken aligns with the continuous evolution of the international investment law regime. The establishment of a different perspective on sovereignty in international investment law highlights the need for an alternative understanding of this term if international investment law is to achieve widespread approval

Foreign investment law in Central and Eastern Europe

One of the most remarkable developments in Central and Eastern Europe (CEE) has been the region's opening to foreign direct investment. CEE states saw foreign investment climb from minuscule amounts in 1989 to more than $7 billion in 1992. All CEE states have enacted new laws on foreign investment as well as related legislation in areas such as taxation and company and environmental law. The authors describe these efforts at legal reform and assess their impact on foreign investment in light of what is known about investor motivation. They concentrate on the role of foreign investment law, referring occasionally to other aspects of law that apply to domestic and foreign investors. They find that specialized foreign investment laws can play a useful role during the transition to a market economy. Of particular importance is their role in sending a strong signal to foreign entrepreneurs that the host country is serious about economic reform and is willing to work with investors to establish mutually beneficial arrangements. Foreign investment laws are also often used to target special incentives to foreigners and create an island of legal development that may differ from -- and sometimes outpace -- other legal development. In such ways they tend to create investment"enclaves."But to the extent that an enclave separates foreign from domestic investors, it can quickly outlive its usefulness. The incentives it fosters may not only bleed domestic treasuries, but may also lead to bureaucratic structures that complicate the investment environment and elevate information and transaction costs for foreign investors. As quickly as possible, the transforming economies should dismantle the enclave and put domestic and foreign investors on an equal footing. This may well mean that foreign investment laws are no longer needed. The Czech and Slovak Federal Republic was the first CEE country to abolish specific foreign investment legislation in favor of a broad commercial code covering all investors. If an enclave does exist, policymakers should focus on the concerns critical to foreign firms. In the design of investment laws to date, the CEE countries have perhaps paid too much attention to preferential tax schemes, ignoring other costs foreign investors face. Policymakers should focus on reducing uncertainty and transaction costs through clear and simple legislation, contract enforcement, arbitration and other alternative dispute resolution mechanisms, stronger protection of property rights, dissemination of information on laws and on business opportunities, and an end to unnecessary bureaucratic intervention. Complex regulations not only increase investor uncertainty but divert bureaucratic resources that the host country cannot afford to squander.Environmental Economics&Policies,Legal Products,National Governance,International Terrorism&Counterterrorism,Trade and Regional Integration

Public and Private in International Investment Law: An Integrated Systems Approach

Members of the invisible college of international investment lawyers are engaged in a fierce battle over the conceptual foundations of their common legal enterprise. The debate centers on whether the international legal regime governing foreign direct investment is a de facto transnational public governance system or merely an institutional support structure for the settlement of essentially private investment disputes. These attempts to establish the public versus private nature of the regime are misconceived. International investment law deals with both public and private concerns, impacts upon both public and private actors, and crosses over traditional divides separating public law from private law and public international law from private international law. In light of these overlaps, the regime should instead be analyzed from an integrated systems perspective. This approach better comports with the regime’s complex interlocking nature. It is also better suited to the pragmatic challenge of accommodating the conflicting claims of diverse stakeholders within the confines of an outmoded but rapidly evolving legal schema. I illustrate this with concrete examples of minor interventions at three different levels of the regime that could produce major shifts in the prevailing balance between investor and non-investor rights at other levels of the regime. I argue that this strategy represents at once a more feasible and more sensible means of improving international investment law than other alternatives

The boundaries of Most Favored Nation treatment in international investment law

Copyright © 2012 MJIL Online.No abstract available

Public and Private in International Investment Law: An Integrated Systems Approach

Members of the invisible college of international investment lawyers are engaged in a fierce battle over the conceptual foundations of their common legal enterprise. The debate centers on whether the international legal regime governing foreign direct investment is a de facto transnational public governance system or merely an institutional support structure for the settlement of essentially private investment disputes. These attempts to establish the public versus private nature of the regime are misconceived. International investment law deals with both public and private concerns, impacts upon both public and private actors, and crosses over traditional divides separating public law from private law and public international law from private international law. In light of these overlaps, the regime should instead be analyzed from an integrated systems perspective. This approach better comports with the regime’s complex interlocking nature. It is also better suited to the pragmatic challenge of accommodating the conflicting claims of diverse stakeholders within the confines of an outmoded but rapidly evolving legal schema. I illustrate this with concrete examples of minor interventions at three different levels of the regime that could produce major shifts in the prevailing balance between investor and non-investor rights at other levels of the regime. I argue that this strategy represents at once a more feasible and more sensible means of improving international investment law than other alternatives