Download the latest issue of ITN: ITN Quarterly March 2013

A Distinction Without a Difference? The Interpretation of Fair and Equitable Treatment Under Customary International Law by Investment Tribunals

Matthew C. Porterfield – March 22, 2013
Porterfield

Broad interpretations of the standard for fair and equitable treatment (FET) by investment tribunals have become a source of increasing controversy. In theory, linking FET to customary international law (CIL), which is formed through the “general and consistent practice of states” that they follow out of a sense of legal obligation (opinio juris), results in a standard of protection that is more deferential to the regulatory authority of governments than the “autonomous” standard. In practice, however, investment tribunals continue to construe even CIL-based FET provisions to impose broad limits on government authority by accepting, without any evidence of state practice or opinio juris, the pronouncements of previous tribunals as definitive evidence of the standard under CIL.

Enabling Risky Business: Human Rights and the Role of Officially Supported Trade Finance and Investment Guarantees

Matthias Sant’Ana – March 22, 2013
Sant'Ana

The expanded role played by Export Credit Agencies (ECAs) since the global financial crisis has not been matched with stronger rules that address the human rights-related impacts of ECA financed projects. Given narrow set of regulations that currently apply to ECAs, this brief article argues that more needs to be done to ensure that ECA financed projects do not cause harm to home states.

 

How to Incorporate Human Rights Obligations in Bilateral Investment Treaties?

Patrick Dumberry and Gabrielle Dumas Aubin – March 22, 2013
Multicolor handprints on a white background

Very few BITs refer directly to human rights issues. However, when they do, they clearly do not impose any binding obligations on foreign corporations. The following paragraphs will provide a concrete analysis of how BITs could be drafted (or redrafted) to incorporate non-investment obligations.

 

Remedies in Investor-State Arbitration: A Public Interest Perspective

Margaret B. Devaney – March 22, 2013
Devaney

While an extensive body of literature maps the tensions between regulatory sovereignty and investor protection in international investment law and analyses the balancing of private and public interests in arbitral practice, only a small sub-set of this literature makes reference to public interest considerations at the remedies stage of the investor-state arbitration process.

 

Land Grab v Food Security: Can Global Regulation Cope?

Christian Häberli and Fiona Smith – March 22, 2013
Smith

Agro-FDI is a two-edge sword: only when managed properly will it bring food security benefits. However, the current global governance structure for agro-FDI unevenly distributes rights and obligations between the host state, the investor and the investor’s home state.