A Historical Account of the Internationalization of Invest Disputes: What the Global South Should Know When Negotiating Bilateral Investment Treaties

Abstract

Under international law, and perhaps in the context of the ICSID Convention, it is fair to state that; the potential for investment disputes is more likely with respect to foreign investments hosted in the global south. In most situations when investment disputes arise, foreign investors often allege that an act that includes regulatory initiatives of the host state or an omission attributable to the host state, has occasioned a violation of applicable investment agreement. Sometimes the basis for the alleged breach results from underlying contractual claims by the foreign investor. Thus, investment claims have created the intellectual foundation for a spirited debate over whether the insulation of contractual claims from treaty claims should be standardized under international investment law and arbitration. There are valid arguments on both sides of the divide. In spite of good attempts to articulate a more acceptable position on the issue, including the suggestion of an integrationist approach to reconcile the opposing propositions on this critical matter, the jury of scholars is still out on that question. Arbitral jurisprudence has provided little or no guidance on the resolution of the debate either