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International Investment Law Reconciling Policy and Principle

ISBN-10: 1841138797
ISBN-13: 9781841138794
Edition: 2008
List price: $76.00
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Description: This book presents an up-to-date and scholarly overview of the law of foreign investment, as well as a comprehensive and succinct analysis of the main principles and the standards of treatment available to foreign investors in international law.

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Book details

List price: $76.00
Copyright year: 2008
Publisher: Bloomsbury Publishing Plc
Publication date: 9/29/2008
Binding: Paperback
Pages: 229
Size: 6.50" wide x 9.25" long x 0.50" tall
Weight: 0.374
Language: English

This book presents an up-to-date and scholarly overview of the law of foreign investment, as well as a comprehensive and succinct analysis of the main principles and the standards of treatment available to foreign investors in international law.

Preface
List of Abbreviations
Table of Cases
Table of Statutes, Conventions, Treaties, Agreements Etc
Introduction
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
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
ICSID
A 'Silent Revolution' in International Law?
MIGA
The 1992 Guidelines on the Treatment of Foreign Direct Investment
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
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
Definition 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
Protection of Foreign Investment through Bilateral Investment Treaties
Introduction
The Origins of BITs
The Content of BITs
Significance 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 Definition of Investment
Like Circumstances
Pre-Establishment Rights
Definition 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
Fleshing Out the Principles through Jurisprudence
Introduction
Fleshing out the Principles of Foreign Investment Law
Standard Claims by Foreign Investors
Definition 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
Modification of Customary International Law
Extension of BIT Protection to Contractual Undertakings
Extension of the MFN Clause To Establish Jurisdiction
Conclusion
Current Issues in the Law of Foreign Investment
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
Difficulty 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
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
Defining the Standard or Conditions of Compensation
Defining 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
Concluding Observations
Index

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