International investment law : reconciling policy and principle / Surya P Subedi, O.B.E., DPhil (Oxford), Barrister (Middle Temple), Professor of International Law, Univeristy of Leeds, United Kingdom, Member, Institut de Droit International.
2016
K3830 .S88 2016 (Map It)
On loan from Cellar, due 11. Dec 2016
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Author
Title
International investment law : reconciling policy and principle / Surya P Subedi, O.B.E., DPhil (Oxford), Barrister (Middle Temple), Professor of International Law, Univeristy of Leeds, United Kingdom, Member, Institut de Droit International.
Published
Oxford ; Portland, Oregon : Hart Publishing, 2016.
Call Number
K3830 .S88 2016
Edition
Third edition.
ISBN
9781509903016 (pbk. : alk. paper)
1509903011 (pbk. : alk. paper)
9781509903023 (Epub)
1509903011 (pbk. : alk. paper)
9781509903023 (Epub)
Description
xxxii, 306 pages ; 25 cm
System Control No.
(OCoLC)936687643
Bibliography, etc. Note
Includes bibliographical references and index.
Available in Other Form
Online version: Subedi, Surya P., 1958- International investment law Third edition. Oxford ; Portland, Oregon, USA : Hart Publishing Ltd, 2016 9781509903023 (DLC) 2016005576
Record Appears in
Table of Contents
Preface to the Third Edition
v
List of Abbreviations
xiii
Table of Cases
xvii
Table of Legislation
xxiii
Table of Conventions, Treaties, Agreements
xxv
Introduction
1
1.
International Investment Law in a Changing World
8
Introduction
8
New Turn in International Investment Law
8
Gradual Rejection of the Investor-State Dispute Settlement Mechanism
9
Public Opposition to the Investor-State Dispute Settlement Mechanism
11
Changing State Practice
13
Reasons for Opposition to the Investor-State Dispute Settlement Mechanism
14
Impact of Change in State Practice
15
Attempts to Reconcile Competing Principles
17
Inherent Weaknesses of International Investment Law
19
Indications for the Future
20
Conclusions
21
2.
Evolution of International Investment Law
22
Introduction
22
Early Years
22
National Treatment versus International Minimum Standard
23
Era of Gunboat Diplomacy
27
Diplomatic Protection and the Treatment of Aliens in International Law
27
Calvo Doctrine
29
Hull Formula
32
Conclusion
34
3.
International Efforts to Regulate Foreign Investment
35
Introduction
35
Havana Charter of 1948
35
UN Declaration on Permanent Sovereignty over Natural Resources
37
Attempts to Develop the Law Through the New International Economic Order
40
1974 Charter of Economic Rights and Duties of States
41
UN Draft Code of Conduct for Transnational Corporations
43
Appraisal of the Efforts Made in the UN
44
Role of the World Bank
46
International Convention on the Settlement of Investment Disputes
47
'Silent Revolution' in International Law?
49
Multilateral Investment Guarantee Agency (MIGA)
51
1992 Guidelines of the World Bank
52
WTO Agreements and Foreign Investment
55
OECD Guidelines and the Multilateral Agreement on Investment
57
2011 OECD Guidelines
60
International Labour Organization's Guidelines
60
Other Voluntary Schemes
61
Inconclusive End to the Twentieth Century in Foreign Investment Regulation
65
Efforts Made at the Dawn of the Twenty-first Century
65
UN Commission and Council on Human Rights
67
Towards a Binding Instrument on Multinational Enterprises and Human Rights
70
Anti-Corruption Conventions
70
New Transparency Convention on Investor-State Investment Arbitration
73
International Bar Association Guidelines on Conflicts of Interest
74
Investment Arbitration Resolution of the Institut de Droit International
74
World Economic Forum in Davos and Investment Policy
75
Shift in Emphasis on the Need for an International Agreement
76
Conclusions
77
4.
Protection of Foreign Investment in Customary International Law
78
Introduction
78
Protection Under International Law and Domestic Law
78
Fundamental Principles of Foreign Investment Protection
79
Objectives of the Principles
80
Definition of Investor and Investment
81
Fair and Equitable Treatment in Customary International Law
86
Full Protection and Security
90
Most-Favoured-Nation Treatment
91
National Treatment
94
Protection Against Expropriation in Customary International Law
98
Standards of Compensation in Customary International Law
104
Access to International Arbitration
105
Conclusion
105
5.
Protection of Foreign Investment Through Bilateral Investment Treaties
107
Introduction
107
Origins of Bilateral Investment Treaties
107
Content of Bilateral Investment Treaties
108
Significance of Bilateral Investment Treaties
109
Bilateral Investment Treaties for the Promotion of Foreign Investment
110
Greater Standard of Protection Under Bilateral Investment Treaties
111
Bilateral Investment Treaties as Insurance Against Political Risks
113
Bilateral Investment Treaties as a Tool for Globalisation, Economic Liberalisation and Privatisation
114
Mechanism to Expand International Standards and to Codify the Lex Specialis
115
Effect of Bilateral Investment Treaty Provisions as Obligations Erga Omnes?
116
Decentralisation of the Law of Foreign Investment
117
Limiting the Freedom of Action of States
117
Outlining the Conditions for Expropriation
118
Deviations from the Hull Formula
119
Exhaustion of Local Remedies
120
Investor-State Dispute Settlement Mechanism
121
Latin American Volte-Face
123
US Volte-Face
125
Acceptance of a Wider Definition of Investment
128
Like Circumstances
129
Pre-establishment Rights
130
Definition of the Applicable Law
130
Time Limitations of a Claim
131
Contractual Character of Bilateral Investment Treaties
131
Protection Under Stabilisation Clauses in Investment or State Contracts
132
Protection Under the Umbrella Clause
133
Protection Under Regional Trade and Investment Treaties
135
Protection Under Free Trade Agreements and Model Bilateral Investment Treaties
138
Changing Character of Bilateral Investment Treaties
142
Conclusion
145
6.
Fleshing Out the Principles Through Jurisprudence
146
Introduction
146
Fleshing Out the Principles of Foreign Investment Law
146
Definition of Investment
149
Standard Claims by Foreign Investors
149
Definition of Expropriation
150
Right to Expropriate
151
Direct and Indirect Expropriation
152
Determination of the Nature and Amount of Compensation
156
Rights of Shareholders
160
Exhaustion of Local Remedies
163
Extension of the Frontiers of the Law of Foreign Investment
164
Trend in Creative Interpretation of the Law
166
Controversy Raised by Inconsistency
168
Trend Towards Extensive Protection
171
From International Minimum to Maximum Standard of Treatment
173
Jurisprudence on Regulatory Expropriation
174
Modification of Customary International Law?
178
Extension of Bilateral Investment Treaty Protection to Contractual Undertakings
182
Extension of the Most-Favoured-Nation Clause to Establish Jurisdiction
185
Conclusion
187
7.
Current Issues in International Investment Law
189
Introduction
189
Law at a Crossroads
190
Absence of Guidelines on the Standard of Compensation
191
Impact of Cross-Fertilisation of Competing Principles
193
Problems Posed by the Expansive or Creative Trend in Interpretation
196
Notion of 'Police Powers' of States and Regulatory Expropriation
197
Legitimate Expectations of Foreign Investors and the Regulatory Powers of States
200
Regulatory Measures to Protect the Environment
201
Regulatory Measures to Protect Human Rights
204
Regulatory Measures in Pursuance of Social and Economic Objectives
207
Regulatory Powers and the Protection Under Investment or State Contracts
208
Catch-All Interpretation of the Principle of Fair and Equitable Treatment
211
Extent of Protection Under the Most-Favoured-Nation Clause
214
Public Disputes and Private Tribunals
215
Difficulty in Application of Domestic Law by International Tribunals
216
Multiplication of Proceedings and Investment Tribunals
217
Trend in Treaty-Shopping, Forum-Shopping and Nationality-Shopping
218
Reverse Discrimination Between Domestic and Foreign Investors
221
Anti-Corruption Law and Investment Disputes
222
Institution of Exceptions and the Law of Foreign Investment
224
States Seeking to Restrain Tribunals rather than Vice Versa
226
Principle of Tabula Rasa and Investment Treaties and Contracts
227
Notion of International Public Policy and Investment Protection
228
Doctrine of Necessity in International Investment Law
229
Notion of Force Majeure in Foreign Investment Law
232
Resource Nationalism and the Revival of the Calvo Doctrine
232
Attempt to Seek Protection Against Commercial Risks
234
Investor-State Dispute Settlement Mechanism
234
Stabilisation and Umbrella Clauses
239
Conclusions
240
8.
Addressing Current Challenges in International Investment Law
241
Introduction
241
Global Comprehensive Treaty on Foreign Investment
241
Global Model Treaty
244
Set of Interpretative Statements or Draft Articles by the International Law Commission
245
Balanced Free Trade Agreements and Bilateral Investment Treaties
246
Enhancing the Balancing Role of Investment Tribunals and Courts
248
Creating an Appeal Mechanism Against Arbitral Awards
251
Creation of an International Investment Court
255
Settlement of Investment Disputes by the WTO DSB
256
Revision of Investment Contracts
258
Revision of Bilateral Investment Treaties Through a Protocol
259
Revision of ICSID, UNCITRAL and Other Arbitration Rules
259
Access for Victims to International Courts and Tribunals
261
Defining the Standard or Conditions of Compensation
262
Defining the Limits of the Amount of Compensation
265
Provision for Remedies Other than Monetary Compensation
265
Discouraging 'Cherry-Picking' in the Application of Rules
266
National Investment Courts
267
Defining Responsibilties of Foreign Investors
269
Alternative Dispute Settlement Mechanisms and an Independent Ombudsman
269
Enabling Governments to Sue Companies
269
Enabling Civil Society Organisations and Individuals to Sue Foreign Investors
270
Recalibrating the Interpretative Authority of Governments
273
Use of General Exceptions to Protect the Policy Space of States
273
Greater Protection Through National Law
274
National Arbitration as Opposed to International Arbitration
276
National Commercial Courts or Hybrid Courts
277
Other National Dispute Avoidance and Dispute Settlement Mechanisms
277
Protection of Foreign Investment by Promoting Human Rights
278
Requirement to Exhaust Domestic Remedies
279
Conclusions
281
Concluding Observations
282
International Investment Law: Past, Present and Future
282
Convergence of Views
285
Change in State Practice
289
Future Direction
290
Index
293