Abstract

Less Developed Countries (LDCs) provide enormous opportunities for companies involved in the development of infrastructure. LDCs couple significant need with often insufficient 'in country' capability or expertise, meaning that foreign companies willing to expand operations into LDCs can find interesting and profitable opportunities. International infrastructure development naturally brings with it the sovereign risks associated with contracting with the government of a LDC. During the last thirty years, governments of LDCs have actively sought the execution of International Investment Agreements (IIAs) with other nations in an attempt to mitigate the appearance of sovereign risk and encourage greater international investment. This has included encouraging foreign companies in the delivery of infrastructure projects. 
 
 In the last five years, however, worldwide political support for IIAs seems to be waning, as nationalism and populism threatens to replace globalism and multiculturalism as the dominant economic and political theories in the USA, Europe and Great Britain. In a global political landscape dominated by nationalistic rhetoric, we are unlikely to see continued popular support for the protection of foreign companies against national interests by way of IIAs. We are likely to see not only fewer new IIAs, but conceivably governments revoking their agreement to existing IIAs coupled with waning support for ICSID arbitrations. The author submits, however, that there will not necessarily be a marked increase in sovereign risk as a direct result, and that LDCs will continue to provide worthwhile markets and opportunities for infrastructure development.
 
 The author submits that IIAs never in any event provided complete protection, and that protection against sovereign risk remains available through the underlying contract and in many cases, through political risk insurance. Further, international participants should look at projects with shorter timeframes to secure the return on investment, and avoiding taking sole risk on project by operating in joint ventures.

Highlights

  • 1.1 The Infrastructure Deficit and Globalisation of the Construction IndustryLarge scale infrastructure investment is desperately needed in most Less Developed Countries (LDCs)

  • During the last thirty years, governments of LDCs have actively sought the execution of International Investment Agreements (IIAs) with other nations in an attempt to mitigate the appearance of sovereign risk and encourage greater international investment

  • Notwithstanding the proliferation of IIAs over the last 25 years, and the general preclusion against uncompensated expropriation stipulated within IIAs, risk of expropriation still existed for foreign participants delivering projects of ‘national significance’ in developing nations,[13] in politically unstable nations, and in new democracies[14]

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Summary

The Infrastructure Deficit and Globalisation of the Construction Industry

Large scale infrastructure investment is desperately needed in most Less Developed Countries (LDCs). Vol 11, No 4; 2018 demand for infrastructure in LDCs, there is often a lack of 'in country' expertise to design, construct, and manage or operate complex infrastructure, and there is often a lack of sufficient funds from domestic budgets to finance the required infrastructure investments[5]. This has created opportunities for 'international contractors' willing to expand their operations into LDCs and willing to undertake longer term, concession based 'investments projects' or PPPs in LDCs6. 'Globalisation' opened the door for foreign contractors and investors to move into LDCs to invest in, and develop, infrastructure assets

Sovereign Risk and the Era of International Investment Agreements
January 2017
The Imperfect Protection of IIAs
The New Era of Nationalism and the Move away from IIAs
The Alternatives to Protection under IIAs
The Scope for International Involvement in LDC Infrastructure Projects
The history of IIAs
A Snapshot of Contemporary Expropriations
Vulnerable Projects and the Risk of Direct Expropriation
The Right of States to Expropriate and the Obligation for Compensation
21 January 2018
The Process for ICSID Award Enforcement
Adequate Contractual Risk Allocation in a Post-IIA Era
Political Risks Insurance
10. Conclusion
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