Stabilization Clauses in International Investment Law

Stabilization Clauses in International Investment Law
Author: Jola Gjuzi
Publisher: Springer
Total Pages: 545
Release: 2018-12-05
Genre: Law
ISBN: 3319972324

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This book analyzes the tension between the host state’s commitment to provide regulatory stability for foreign investors – which is a tool for attracting FDI and generating economic growth – and its evolving non-economic commitments towards its citizens with regard to environmental protection and social welfare. The main thesis is that the ‘stabilization clause/regulatory power antinomy,’ as it appears in many cases, contradicts the content and rationale of sustainable development, a concept that is increasingly prevalent in national and international law and which aims at the integration and balancing of economic, environmental, and social development. To reconcile this antinomy at the decision-making and dispute settlement levels, the book employs a ‘constructive sustainable development approach,’ which is based on the integration and reconciliation imperatives of the concept of sustainable development as well as on the application of principles of law such as non-discrimination, public purpose, due process, proportionality, and more generally, good governance and rule of law. It subsequently re-conceptualizes stabilization clauses in terms of their design (ex-ante) and interpretation (ex-post), yielding stability to the benefit of foreign investors, while also mitigating their negative effects on the host state’s power to regulate.

Between Fair and Equitable Treatment and Stabilization Clause

Between Fair and Equitable Treatment and Stabilization Clause
Author: Moshe Hirsch
Publisher:
Total Pages: 0
Release: 2015
Genre:
ISBN:

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One of the most challenging questions in contemporary international Investment law relates to the balance between the competing needs of allowing a reasonable policy space for host states and enabling foreign investors to plan their operations in advance. The central question addressed by this article is whether and under what circumstances should regulatory changes undertaken by host states constitute a breach of the fair and equitable (FET) clause. Contemporary investment law anchors the balance between those competing interests in the contractual and semi-contractual sphere. An analysis of investment tribunals case law on 'stable legal environment' (or 'regulatory framework') indicates that this term includes three central components: (i) contractual and semi-contractual arrangements (e.g., contracts, licenses, concessions); (ii) unilateral promissory statements or specific representations (often made in a contractual environment); and (iii) the host state's regulatory measures at the time of the investment. The first two components are certainly the predominant components of 'legal environment.' Investors expectations created either by contractual arrangements, semi-contractual arrangements or promissory statements - are considered 'legitimate expectations' and are protected by the FET principle. As for the third component, host states' regulatory measures alone are insufficient in forming legitimate expectations protected by FET clauses. Only when such regulatory measures are accompanied by additional and exceptional factors, may the combination thereof amount to a breach of legitimate expectations protected by the FET principle. A brief review of the primary functions of contractual arrangements indicates that contractual and semi-contractual instruments are suitable for the advance allocation of risks involved in regulatory changes.

The Right of States to Regulate in International Investment Law

The Right of States to Regulate in International Investment Law
Author: Yulia Levashova
Publisher: Kluwer Law International
Total Pages: 320
Release: 2019-07-18
Genre: Law
ISBN: 9789403509310

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Due to the ongoing recent expansion of public interest issues worldwide, the state's right to regulate has been recaptured as a prominent concept in international investment law. The fair and equitable treatment (FET) standard provision in the text of an international investment agreement (IIA) has become a detailed clause clarifying the specific obligations of a state towards an investor under the FET standard. However, striking the right balance between the interests of host states and investors in these new treaty formulations has proved to be challenging. This book greatly clarifies the field by offering the in-depth analysis of the application of the state's right to regulate in relation to FET standard provisions in IIAs and to decisions by arbitral tribunals in FET cases. Recognising that the role of tribunals is to balance the state's public interests and the interests of the investor when interpreting and applying the FET standard, the author pursues such seminal issues and topics as the following: the legitimacy of the objective of the state's measure; obligations and responsibilities of investors towards a host state; the nature and impact of a change to a national regulatory framework; special economic and sociopolitical circumstances in a host state; and due diligence and risk assessment as a condition for the protection of an investor's legitimate expectations. Multiple IIAs concluded by the OECD Member States, as well by Russia and China between the developing countries, and the prominent investment law cases on the FET standard are examined in detail. The analysis pays particular attention to how investment jurisprudence in FET cases has been reflected in such new IIAs as the Comprehensive Economic and Trade Agreement between the European Union (EU) and Canada (CETA), the EU-Vietnam FTA and the EU-Singapore FTA. These case studies demonstrate the evolution of the IIAs' FET standard provisions and how they balance the application of the FET standard and the state's right to regulate. Suggestions are provided for drafting formulations of the FET standard that can contribute to achieving such a balance. In the clear light it sheds on the legal conditions under which states may regulate in the public interest and its contribution to the reforms that are currently taking place in the field of international investment law, this book constitutes an exemplary framework to evaluate investment decisions on the FET standard and the right to regulate. It is sure to prove extremely useful for practitioners who work on investment cases, policymakers involved in negotiating and drafting of IIAs, policy advisors of governmental and non-governmental organisations and academics in international investment law.

Fair and Equitable Treatment

Fair and Equitable Treatment
Author: United Nations Conference on Trade and Development
Publisher:
Total Pages: 0
Release: 2012
Genre: Discrimination
ISBN: 9789211128277

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"In recent years, the concept of fair and equitable treatment has assumed prominence in investment relations between States. While the earliest proposals that made reference to this standard of treatment for investment are contained in various multilateral efforts in the period immediately following World War II, the bulk of the State practice incorporating the standard is to be found in bilateral investment treaties which have become a central feature in international investment relations. In essence, the fair and equitable standard provides a yardstick by which relations between foreign direct investors and Governments of capital-importing countries may be assessed. It also acts as a signal from capital-importing countries, for it indicates, at the very least, a State's willingness to accommodate foreign capital on terms that take into account the interests of the investor in fairness and equity."--Provided by publisher.

International Investment Law and Gender Equality

International Investment Law and Gender Equality
Author: Sangwani Patrick Ng’ambi
Publisher: Routledge
Total Pages: 160
Release: 2020-03-27
Genre: Law
ISBN: 0429664540

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This book analyses the impact that stabilization clauses have on the development of human rights and gender laws in resource rich nations. Given the fact that stabilization clauses freeze the law for as long as the contract subsists there has been debate on the negative impact stabilization clauses have on the progressive development of human rights in the host State. Firstly, the book examines the mechanisms investors utilise in protecting themselves from host State prerogatives. It then explores the theoretical basis on which stabilization clauses are applied and upheld by arbitral tribunals, and assesses how they can be drafted in a way that protects human rights, particularly in relation to gender discrimination, without forcing the resource rich nations to lose momentum in attracting foreign direct investment. Using Zambia and the Gender Equity and Equality Act of 2015 as a case study, the book explores the compatibility of the legislation with the stabilization clauses contained in the country’s Development Agreements. The book will be of interest to practitioners, scholars and students of international investment law, human rights law and contract law.

'Fair and Equitable Treatment' in International Investment Law

'Fair and Equitable Treatment' in International Investment Law
Author: Roland Kläger
Publisher: Cambridge University Press
Total Pages: 411
Release: 2011-06-23
Genre: Law
ISBN: 110737586X

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A breach of fair and equitable treatment is alleged in almost every investor-state dispute. It has therefore become a controversial norm, which touches many questions at the heart of general international law. In this book, Roland Kläger sheds light on these controversies by exploring the deeper doctrinal foundations of fair and equitable treatment and reviewing its contentious relationship with the international minimum standard. The norm is also discussed in light of the fragmentation of international law, theories of international justice and rational balancing, and the idea of constitutionalism in international law. In this vein, a shift in the way of addressing fair and equitable treatment is proposed by focusing on the process of justificatory reasoning.

International Investment Law

International Investment Law
Author: Marc Bungenberg
Publisher: Hart Pub Limited
Total Pages: 2000
Release: 2014-11-30
Genre: Law
ISBN: 9781849463638

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International investment law is a subject of growing importance and complexity. Anyone interested in international investment law will appreciate the comprehensive, thoughtful and detailed exploration of this area which this distinguished group of German scholars have provided.

General Exception Clauses in International Investment Law

General Exception Clauses in International Investment Law
Author: Levent Sabanogullari
Publisher: Nomos Verlagsgesellschaft
Total Pages: 0
Release: 2018
Genre: Investments, Foreign
ISBN: 9783848749836

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This book is the first comprehensive monography dedicated to general exception clauses in international investment law. The inclusion of these clauses in investment contracts is a reaction to the severe doubts about the legitimacy of international investment law. They seek to strike a more equitable balance between investment protection and non-economic objectives, such as the protection of public health. Based on an empirical study on the prevalence of these clauses in current contract practice, it sheds light on the origins of these clauses in world trade law and offers an explanation for their notable omission in early investment contracts. After discussing the advantages and risks of general exceptions in investment law, it highlights their potential future interpretation by arbitral tribunals. Finally, the study analyses the interplay between general exceptions and selected standards of protection, such as the prohibition of expropriation and the standard of fair and equitable treatment.

Shifting Paradigms in International Investment Law

Shifting Paradigms in International Investment Law
Author: Steffen Hindelang
Publisher: Oxford University Press
Total Pages: 497
Release: 2016
Genre: Business & Economics
ISBN: 0198738420

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In light of the controversies surrounding the impact of investment treaties and arbitration, this book reflects on the major changes in the area of international investment law.