International Investment Law: Reconciling Policy and Principle (2nd Revised edition)
By: Professor Surya P. Subedi (author)Paperback
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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
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- ID: 9781849462457
2nd Revised edition
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