Resources and Events

Resources

Treaty Shopping in International Investment Law

By Jorun Baumgartner, Published by Oxford University Press, February 2017

The book examines the practice of treaty shopping—the strategic change of nationality or the strategic invocation of another nationality with the aim of accessing another investment treaty for purposes of investment arbitration—to investigate the challenges this practice poses in investment arbitration. It analyzes the practice under customary international law and international investment law, and discusses the different ways by which arbitral tribunals have dealt with the value judgment at the core of the distinction between objectionable and unobjectionable treaty shopping. The book examines past and current investment treaty drafting practice and makes concrete recommendations on how states wishing to curb the possibility of treaty shopping could reform investment agreements to make them less susceptible to the practice. Available at https://global.oup.com/academic/product/treaty-shopping-in-international-investment-law-9780198787112.

The Most-Favoured-Nation Clause in Investment Treaties

By Suzy H. Nikièma, Published by IISD, February 2017

Most-favoured nation (MFN) is a both common and controversial clause in investment treaties. It has been the object of differing and unexpected interpretations by treaty-based arbitral tribunals. In particular, since Maffezini v. Spain, an original interpretation of MFN led to the possibility for investors to import more favourable provisions from a third-party bilateral investment treaty (BIT) concluded by their host state. The controversies around MFN raise fundamental questions in the context of current changes in the international investment law and arbitration regime. Part of IISD’s Best Practices Series, this study conducts a typology of investment treaties and then an analysis of the differing interpretations by the tribunals of several key issues. The issues surrounding certain interpretations of the MFN clause and the reactions of states in their recent treaties are reviewed in order to draw lessons for states. Available in English and French at http://www.iisd.org/library/iisd-best-practices-series-most-favoured-nation-clause-investment-treaties.

Exhaustion of Local Remedies in International Investment Law

By Martin Dietrich Brauch, Published by IISD, January 2017

The customary international law rule of exhaustion of local remedies (ELR) aims at safeguarding state sovereignty by requiring individuals to seek redress for any harm allegedly caused by a state within its domestic legal system before pursuing international proceedings against that state. Investment tribunals—ruling on their own jurisdiction—have generally dispensed with the rule, allowing foreign investors initiate a claim without prior recourse to the host state’s administrative or judicial courts. In recent years, several states have reintroduced a mandatory requirement to pursue or exhaust local remedies in their investment treaties, and other states are considering a similar path. This advisory bulletin, part of IISD’s Best Practices Series, reviews state-of-the-art approaches and policy options for ELR in international investment law, based on lessons learned from customary international law, international human rights law, and investment treaty practice and jurisprudence. Available in English and French at http://www.iisd.org/library/iisd-best-practices-series-exhaustion-local-remedies-international-investment-law.

Promoting Gender Equality in Foreign Agricultural Investments: Lessons from voluntary sustainability standards

By Kathleen Sexsmith, Published by IISD, January 2017

This report analyzes the gender-related content of five major global agricultural sustainability standards and five principles for responsible investment in agriculture. It answers the question: Do the global principles and standards improve gender equality? It also examines how to build on the successes and failures of these initiatives to improve gender equality in agricultural investments. The experiences of the sustainability standards are used to provide guidance for responsible investment. Available at http://www.iisd.org/library/promoting-gender-equality-foreign-agricultural-investments-lessons-voluntary-sustainability.

IGF Guidance for Governments: Managing artisanal and small-scale mining

By Dan Paget, Nicholas Garrett & Alec Crawford, Published by the Intergovernmental Forum on Mining, Minerals, Metals and Sustainable Development (IGF), January 2017

The guidance document presents a step-by-step process for governments to develop, implement and monitor an effective artisanal and small-scale mining (ASM) management strategy. It includes steps on how to ensure effective, inclusive strategy development and implementation, as well as effective governance of the process overall. It encourages the user to focus on the local context, and to continually think about the most practical and feasible ways for a government to achieve its ASM-related sustainable development objectives. Available at http://www.iisd.org/library/igf-guidance-governments-managing-artisanal-and-small-scale-mining.

Lex Petrolea and International Investment Law: Law and practice in the Persian Gulf

By Nima Mersadi Tabari, Published by Routledge, 2016

The book analyzes jurisprudence on the settlement of upstream petroleum disputes between host states in the Persian Gulf and foreign investors. The author considers the historical, political, and socio-economic roots of the existing frameworks and levels of protection offered to foreign investors. Focusing on petroleum-related disputes, he initially delivers a comprehensive survey of the jurisprudence of international investment law and investment treaty arbitration. Following on from this, in three dedicated chapters, the author provides in-depth analysis of the legal regimes governing the matter in the major producers of the region: Saudi Arabia, Iraq and Iran. Available at https://www.routledge.com/Lex-Petrolea-and-International-Investment-Law-Law-and-Practice-in-the/Tabari/p/book/9781138656499.

Non-Discrimination and the Role of Regulatory Purpose in International Trade and Investment Law

By Andrew D. Mitchell, David Heaton, & Caroline Henckels, Published by Edward Elgar, 2016

Non-discrimination requirements, such as MFN treatment and national treatment obligations, are central to both international trade law and international investment law. Significant inconsistencies between the fields are evident, however, in the way adjudicators have treated key elements of the test for discrimination. The authors survey and criticize the manner in which tribunals have employed the concept of regulatory purpose in determining whether discrimination has occurred, and propose a new definition of regulatory purpose that assists in framing the test for unlawful discrimination in both fields of law. The book compares and contrasts trade and investment law, drawing out several parallels and suggesting areas in which one legal system might answer or shed light on questions arising in the other. Available at http://www.e-elgar.com/shop/non-discrimination-and-the-role-of-regulatory-purpose-in-international-trade-and-investment-law.

Private Investments and Agriculture: The importance of integrating sustainability into planning and implementation

By Livia Bizikova, Published by IISD, December 2016

Agriculture is often a significant source of livelihoods and food security for people in many countries. Recently, we have seen an increase in large-scale investment into agriculture. Important policy questions are: To what do extent these large-scale agricultural investments contribute to improving local livelihoods, and economic and environmental conditions? And how do these contributions compare with needed investments in agriculture to reduce rural poverty and food insecurity? This briefing note examines some dimensions of these questions, focusing on the following areas: impacts on water quantity, land and soil quality, land tenure and community benefits, and off-farm migration. Available at http://www.iisd.org/library/private-investments-and-agriculture-importance-integrating-sustainability-planning.

Reassertion of Control over the Investment Treaty Regime

By Andreas Kulick (Ed.), Published by Cambridge University Press, December 2016

Driven by public opinion in host states, contracting parties to investment agreements are pursuing many avenues to curb a system that is being perceived as having run out of control. This book examines the many issues of procedure, substantive law, and policy which arise from this trend. From procedural aspects such as frivolous claims mechanisms, the establishment of appeals mechanism or state–state arbitration, to substantive issues such as joint interpretations, treaty termination or detailed definitions of standards of protection, the it identifies and discusses the main means by which states do or may reassert their control over the interpretation and application of investment treaties. Each chapter tackles one of these avenues and evaluates its potential to serve as an instrument in states’ reassertion of control. Available at http://www.cambridge.org/br/academic/subjects/law/international-trade-law/reassertion-control-over-investment-treaty-regime.

International Investment Law and Water Resources Management: An appraisal of indirect expropriation

By Ana Maria Daza-Clark, Published by Brill | Nijhoff, December 2016

Hydrological variability, increasing competition for water, and the need for regulatory flexibility may increasingly compel governments to adopt measures with significant economic impact on foreign investment. The book offers an appraisal of indirect expropriation, revisiting the police power doctrine. Through the lens of international investment law, the author explores a framework that assesses the legitimate exercise of police power with particular attention to the special nature of water resources. Available at http://www.brill.com/products/book/international-investment-law-and-water-resources-management.

The ASEAN Comprehensive Investment Agreement: The Regionalisation of Laws and Policy on Foreign Investment

By Julien Chaisse & Sufian Jusoh, Published by Edward Elgar, 2016

International investment law is one of the fastest growing areas of international economic law and policy which increasingly rely on large membership investment treaties such as the Association of Southeast Asian Nations’ (ASEAN) Comprehensive Investment Agreement (ACIA). This book examines the role of this specific international treaty on investment and situates it in the wider global trend towards the regionalisation of laws and policy on foreign investment. According to the authors, collective commitment to a common standard contributes to depoliticise any potential conflict between individual investors and host states, making the agreement particularly crucial to discussions involving ASEAN Member States and between ASEAN and Dialogue Partners as well as to investment decisions including investment liberalisation and investment facilitation. Available at http://www.e-elgar.com/shop/the-asean-comprehensive-investment-agreement. 

Performance Requirements and Investment Incentives Under International Economic Law

By David Collins, Published by Edward Elgar, 2016

The book analyzes performance requirements and investment incentives as vital tools of economic policy. Adopting a consciously broad definition of both instruments, it assesses their treatment under international economic law, and links the debate surrounding the use of such tools to the rise of emerging markets as key participants in economic globalization. Focusing on the inter-relation between performance requirements and investment incentives, the author illustrates the problems caused by their differential control and considers some possible approaches to achieving effective oversight. Drawing on network governance theory, he considers a unified regime of governance, which would allow for more comprehensive and systematic evaluation. Available at http://www.e-elgar.com/shop/performance-requirements-and-investment-incentives-under-international-economic-law.


Events 2017

March 29 

GENEVA TALKS ON FOREIGN INVESTMENT IN AFRICA, “The Rise of Investor Obligations in African Investment Agreements,” Universities of Geneva and Lausanne, at University of Geneva, Geneva, Switzerland, http://aila.org.uk/resources/Pictures/Geneva%20Talks%20-%2029%20March%202017.pdf

March 30–31

2017 OECD GLOBAL ANTI-CORRUPTION & INTEGRITY FORUM, “In the Public Interest: Taking Integrity to Higher Standards,” Organisation for Economic Co-operation and Development, at OECD Conference Centre, Paris, France, https://www.oecd.org/cleangovbiz/integrity-forum-2017.htm

April 2 

CONFERENCE “A PARADIGM SHIFT IN INTERNATIONAL INVESTMENT LAW,” Africa International Legal Awareness (AILA) & University of Geneva Faculty of Law, at Cairo Regional Centre for International Commercial Arbitration, Cairo, Egypt, http://aila.org.uk/page-1806075

April 4

JOINT UNCITRAL–LAC CONFERENCE ON DISPUTE SETTLEMENT, United Nations Commission on International Trade Law (UNCITRAL) & Ljubljana Arbitration Centre (LAC), at Slovenian Chamber of Commerce and Industry, Ljubljana, Slovenia, http://www.sloarbitration.eu/en/Joint-UNCITRAL-LAC-Conference

April 11

EXPERT MEETING “DEVELOPING A NEW ACCOUNTABILITY AND DISPUTE SETTLEMENT MECHANISM ON INVESTMENT,” IISD & American University Washington College of Law’s Program on International and Comparative Environmental Law, at American University, Washington D.C., United States, http://www.iisd.org/event/washington-expert-meeting-developing-new-accountability-dispute-settlement-mechanism-investment

April 12–15 

111TH ASIL ANNUAL MEETING, “What International Law Values,” American Society of International Law (ASIL), at Hyatt Regency Capitol Hill, Washington D.C., United States, https://www.asil.org/annualmeeting

April 12

14TH ANNUAL ITA–ASIL CONFERENCE, “Third-Party Funding in International Arbitration: Legal & Ethical Considerations,” Institute for Transnational Arbitration (ITA) & ASIL, at Hyatt Regency Capitol Hill, Washington D.C., United States, http://www.cailaw.org/Institute-for-Transnational-Arbitration/Events/2017/ita-asil.html