National investment boards or agencies operate in several countries with a view to attract foreign investment. Towards this objective, they often maintain websites highlighting the advantages of investing in their country. This article surveys some common categories of representations and promises made on the websites of national investment boards and discusses their potential legal implications. The article suggests that, under certain circumstances, such online statements may be viewed by tribunals as unilateral acts of states that create commitments under international law.<\/p>\n
Unilateral acts of states and their value in international law<\/i><\/p>\n
Various rulings of the International Court of Justice (ICJ), and its predecessor the Permanent Court of International Justice (PCIJ), have ackowledged that states can assume obligations on the international plane through unilateral statements.[1]<\/a> In the Eastern Greenland<\/i> case, the PCIJ held Norway to be bound by the \u2018Ihlen Declaration,\u2019 a statement by its Foreign Minister, in response to a query from a Danish diplomat, that Norway would not object to the Danish settlement of Greenland.[2]<\/a><\/p>\n Elaborating on the law in this regard, the ICJ stated in the Nuclear Tests<\/i> case, with reference to the French statements that no further tests would be carried out in the South Pacific:<\/p>\n \u201cIt is well recognized that declarations made by way of unilateral acts, concerning legal or factual situations, may have the effect of creating legal obligations. Declarations of this kind may be, and often are, very specific. When it is the intention of the State making the declaration that it should become bound according to its terms, that intention confers on the declaration the character of a legal undertaking, the State being thenceforth legally required to follow a course of conduct consistent with the declaration. An undertaking of this kind, if given publicly, and with an intent to be bound, even though not made within the context of international negotiations, is binding. In these circumstances, nothing in the nature of a quid pro quo nor any subsequent acceptance of the declaration, nor even any reply or reaction from other States, is required for the declaration to take effect, since such a requirement would be inconsistent with the strictly unilateral nature of the juridical act by which the pronouncement by the State was made.\u201d[3]<\/a><\/p>\n Distilling the key principles from the pronouncements of the ICJ and the PCIJ, the International Law Commission (ILC) has formulated a set of \u2018Guiding Principles applicable to unilateral declarations of States capable of creating legal obligations.\u2019[4]<\/a> The ILC clarifies that \u201cto determine the legal effects of such declarations, it is necessary to take account of their content, of all the factual circumstances in which they were made, and of the reactions to which they gave rise.\u201d[5]<\/a> Additionally, the ILC highlights the requirement that the statement must be made by an authority vested with the authority to bind the state internationally.<\/p>\n Against this background, it may be argued that statements made by national investment boards on their websites may, in certain circumstances, be categorised as unilateral acts\/declarations of states and obligations may arise for the states concerned as a result. As recognized by the ICJ, \u201cwith increasing frequency in modern international relations other [natural or legal] persons representing a State in specific fields may be authorized by that State to bind it by their statements in respect of matters falling within their purview.\u201d[6]<\/a> As detailed below, the legal implications of online statements by national investment agencies depend on whether the statements are attributable to the state and whether the statement demonstrates an intention by the state to assume international obligations towards foreign investors\/investment.<\/p>\n The effect of online statements \u2013 the experience so far<\/i><\/p>\n In Brandes Investment Partners v. Venezuela<\/i>[7]<\/a>, the claimant attempted to source the consent of Venezuela for ICSID<\/span> arbitration to statements published on the websites of various embassies of that country.[8]<\/a> The arbitral tribunal rejected the submission and refused to construe these as a submission to ICSID jurisdiction. However, unfortunately the tribunal\u2019s treatment of the issue was cursory and it did not supply reasons for this finding.[9]<\/a> However, the fact that the tribunal examined the statements at issue in detail and did not dismiss them as inadmissible suggests that statements on websites may be an effective way of creating a commitment to submit to jurisdiction or a means of creating other commitments under international law.<\/p>\n A survey of statements by national investment board websites<\/i><\/p>\n A survey of the websites of various national investment boards identifies some of the representations and promises made to 1. General statements about economic conditions<\/p>\n Several national investment boards make statements on their websites about the state of the economy, growth projections, availability of labour and natural resources, infrastructure, growth projections, etc. Some examples are listed below:<\/p>\n <\/p>\n
\ninvestors in a bid to attract foreign investment. Below are the main categories of statements that appear on these websites along with examples for each:<\/p>\n