Mutual Impacts of International Investment Law and Law of the Sea under the BITs and ISDS cases: a Fundamental Analysis of EEZ, Contiguous Zone, and Continental Shelf

The investment arbitration launched by Philip Morris Asia (PMA) against Australia in 20111 in relation to Australia's mandatory plain packaging of tobacco products is a recent reminder of the significant protections for intellectual property rights (IPRs) in international investment agreements. Given its focus on trademarks, the Philip Morris dispute provides a useful case study for exploring the relationship between intellectual property and international investment law. The parallel legal challenges brought by various tobacco companies against Australia in the High Court of Australia2 on constitutional grounds and by Ukraine,3 Honduras,4 the Dominican Republic,5 Cuba6 and Indonesia7 against Australia in the World Trade Organization (WTO) also make this a valuable case for demonstrating the fragmenting nature of intellectual property law at the domestic and international levels. That fragmentation poses challenges for international trade and investment law, raising questions concerning the relationship between intellectual property rights conceived at the domestic level with the protections available in international fora. For example, what significance does the High Court's conception of intellectual property under Australian law have for the claims against plain packaging under the Agreement between the Government of Hong Kong and the Government of Australia for the Promotion and Protection of Investments (‘Hong Kong-Australia BIT’)8 and the WTO's Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement)? By using the Philip Morris case study, this chapter aims to explore the complex interaction between intellectual property and international investment agreements (IIAs), meaning bilateral investment treaties (BITs), plurilateral investment treaties such as the Energy Charter Treaty, and preferential trade agreements containing investment provisions. After explaining the background to the Philip Morris dispute in its various forms, we consider the protection of intellectual property as an ‘investment’ under IIAs. We then examine three substantive investment obligations in connection with intellectual property: most-favourednation obligations, expropriation, and so-called ‘umbrella clauses’. This chapter reveals the high degree of uncertainty permeating the relationship between intellectual property and international investment law.

International investment law (IIL) is an attractive subfield within international economic law (IEL). China and Chinese investors are important actors in international investment law and process. With the rise of China, its influence on international investment law and governance is also growing. Since its reform and opening-up, China has been one of the most popular destinations for foreign direct investment (FDI), and since 2008, China has gradually become one of the largest overseas direct investment (ODI) countries. China is an active participant in the international investment regime and has concluded more than one hundred international investment agreements (IIAs), including more than ten free trade agreements (FTAs) with investment chapters. Chinese IIAs have experienced important shifts from the conservative IIAs providing limited investment protection, to the liberal IIAs providing high-level investment protection in the early 2000s, and then to the balanced IIAs protecting investment while safeguarding the regulatory rights of the host state. China has been respondent only in a few investor-state dispute settlement (ISDS) cases. China has also been participating in the ISDS reform process through its IIA practice and at the UN Commission on International Trade Law (UNCITRAL) forum. With the paradigm shift from the liberal IIAs to the balanced IIAs in IIL and the implementation of the Belt and Road Initiative (BRI), China has also been updating its old bilateral investment treaties (BITs) and participating in international investment governance reform. For example, China played the leadership role in the adoption of the G20 Guiding Principles for Global Investment Policymaking in 2016, and, more recently, the negotiations on the agreement on investment facilitation among World Trade Organization (WTO) members. At the domestic level, China has been constantly improving its FDI and ODI laws and system. For example, China adopted the negative list model for foreign investment admission in 2013, and formulated the new and united Foreign Investment Law. In recent years, Chinese investors have been actively participating in international investment arbitration. In international investment law and practice, China has faced many unique or special legal issues nationally and internationally, such as national security screening, transnational investment subsidy, state-owned enterprises’ overseas investment, the applicability of Chinese BITs to Hong Kong SAR and Macao SAR, restrictive arbitral jurisdiction provisions in old Chinese BITs, the role of labor provisions and sustainable development provisions in IIAs, the impact of the China-US trade war on IIL, compulsory technology transfer, the state capitalism debate, the BRI investment dispute settlement mechanism innovation, and the impact of the BRI and even the Chinese Model on the global economic legal order. China’s international investment law and practice and its role in the global economic order have attracted many legal scholars and practitioners both from China and from other countries. Since the 2010s, the study of the interaction between China and IIL has grown rapidly, and much academic literature on this subject has been produced.

This chapter analyzes the interaction between international investment law and human rights instruments from a socio-cultural perspective. It is argued that legal interactions between various branches of international law (either integration or fragmentation) may be analyzed as social interactions between the relevant communities. These legal interactions are affected by the particular features of relevant social settings, as well as the mutual relationships between the relevant social groups. More specifically, it is argued that the socio-cultural distance between the particular international legal settings affects the inclination of relevant decision-makers to incorporate or reject parallel legal rules developed in other branches of international law. Consequently, greater socio-cultural ‘distance’ between the involved social settings and groups is likely to decrease the prospects for mutual incorporation of legal rules developed in the other legal sphere. As to the relationship between international investment and human rights laws, the likelihood of investment tribunals to accord a significant role to human rights treaties is influenced by the cultural distance between these two branches of international law. An analysis of investment tribunals' jurisprudence indicates that investment tribunals do not hesitate to apply rules derived from certain non-investment branches of international law (state responsibility, treaty law and general principles of law regarding corruption). Despite that, they are generally reluctant to accord significant weight to human rights treaties in international investment law. An analysis of the relationships between the social settings involved in international human rights and investment laws reveals a considerable socio-cultural distance between these branches of international law. In light of this and the deep-rooted tensions between the relevant communities, it is not surprising that investment tribunals are generally reluctant to accord significant weight to human rights treaties in international investment law. Thus, the considerable socio-cultural distance between these socio-cultural settings parallels the normative distance between these branches of international law. The existing social and normative gaps between investment and human rights laws may change in the future. Past experience shows that the relationship between various branches of international law is often dynamic. Future socio-cultural changes within each community – or changes in the social interactions between the relevant communities – may narrow the normative distance between international human rights and investment laws.

Human rights matters are increasingly becoming interwoven with Arbitration. The fact that, so far, international human rights norms are, as a matter of international law, not directly applicable on a horizontal level -- that is, in the relation between foreign investors and other private parties -- makes it not straightforward to bring claims based on the breach by the foreign investor of human rights obligations before a treaty-based arbitral tribunal. Instead, such obligations exist mainly on the domestic legal level. Also, traditionally, international investment treaties are silent on issues of human rights. Although states have recently effectively included references to human rights norms in their bilateral investment treaties (BITs) and other multilateral treaties (MITs), such as the recently negotiated Draft Pan-African Investment Code (PAIC), the vast majority of contemporary BITs do not mention human rights. There is a global increase in the use of International arbitration as a dispute resolution mechanism especially in international investment disputes and the debates on: (I) obligations of foreign investors to respect human rights of host states, and (II) whether the state can sufficiently maintain policy space alongside Investment treaty obligations with International Investors and the feasibility of enforceability of an award arising from investor-state dispute. The overlap between arbitration and human right matters in Investment arbitration brings to fore the inseparability of these two seemingly distinct areas. The nagging question has been the impact of Investment treaties on the ability of the state to enforce policies which safeguard human rights and the extent of the jurisdiction of an arbitral tribunal in Human right matters arising from International Investment agreements. This is essential because most international arbitration agreements are based on Bilateral or Multilateral investment treaties. The relationship between human rights and international investment law manifests itself in different contexts and directions. Two general and broad approaches concerning human rights law exist from the perspective of investment protection: human rights can be used to support or enlarge claims of investors or they can be used to strengthen the state’s defence of its actions which are taken to respect, protect and fulfil human rights. Similarly, investment law can be viewed in two different ways from the perspective of human rights: it can be seen as creating restrictions on the state’s ability to respect, protect and fulfil the rights of occupants of the state; it may also be perceived as a breach of individual rights of investors under international investment law. This work will discuss the application of arbitration in International Investment disputes, in particular relation to emergence of Human right matters in arbitration of Investor-state disputes. It will consider the circumstances under which human rights concerns can be raised before an arbitral tribunal set up under a BIT, when and how this can be done, the limited jurisdiction of tribunals over human rights matters, and the challenge of finding a balance where there is an overlap between Human rights and arbitration.

Since the genesis of modern international investment law dating back to 1959 with the first bilateral investment treaty (BIT) signed between Pakistan and Germany and the emergence of international trade law in the form of the World Trade Organization (WTO) in 1994, which can be traced back to the GATT 1947, the two fields of law have developed separately. The WTO framework brings together 164 members committed to a single undertaking comprised of a large number of covered agreements, understandings and plurilateral agreements aimed at liberalizing trade in goods and an increasing range of services. International investment law, on the other hand, consists of a web of more than 3,200 separate investment agreements, whether BITs or investment chapters in regional trade agreements (RTAs) including recent mega-regional agreements. Only a small part of international investment law is to be found in the multilateral framework. This paper seeks to explore the aspects of international trade and investment law which make them different, as well as those aspects which may bring them together. The overriding question posed in this paper is whether the capacity of states to regulate their economies as well as protect the health and the environment of their citizens has been curtailed by either trade or investment law as is feared by many persons around the world. Would these fears be allayed if the two bodies of law were brought united? Or is it preferable to maintain two separate fields of international law, one controlled by states and the other open to the initiative of private interests?

State capitalism is reemerging today. Some governments, notably newly emerging economies such as China and Russia and oil producing countries in the Middle East are placing much emphasis on state-led economic development, and they are making much use of state-owned enterprises (SOEs) to achieve that end. In some cases, SOEs enjoy privileges and immunities that may distort market competition between SOEs and foreign private firms. This paper explores this issue by examining the existing rules of international trade and investment law on competitive neutrality between SOEs and foreign private firms, and tracing the recent attempts of regulating SOEs through free trade agreements (FTAs), and, to a much limited extent, through bilateral investment treaties (BITs), so as to fill the gaps of existing rules of international trade and investment law on SOEs. As state capitalism and competitive neutrality are fairly new issues in contemporary international trade and investment law, it is still hard to know which of the recent attempts at regulating SPEs through FTAs and BITs is more effective than the other, etc. Continuous observation and assessment of the treaty practice is needed before we can reach any meaningful conclusion on this and other issues for the regulation of SOEs under international trade and investment law.

Though this review pertains to the relatively new 2020 English-language edition of de Nanteuil's International Investment Law, the work itself is nearly a decade old. The title was first published in French in 2014, with an updated French-language edition appearing in 2017. Conceived as a textbook, the work differs in key respects from a typical US legal textbook. Whereas US textbooks typically consist of assembled excerpts of published judicial opinions accompanied by light editorial commentary, de Nanteuil's work mostly contains the author's narrative, with carefully selected brief quotations to legal authorities provided only when highly relevant. No fulltext primary source materials are provided, although a table of cases and a table of legislation (which includes references to both domestic legislation and multi-and bilateral treaties) are provided at the beginning of the work. Whereas much scholarly legal writing is accompanied by a substantial number of footnotes, de Nanteuil offers a limited number of citations to relevant legal materials, including treaties, domestic laws, and judicial or arbitral opinions, typically without parenthetical explanations. In discussing opinions, de Nanteuil provides few details concerning the factual scenarios of underlying disputes, limiting his discussion to the outcomes and impacts of awards and decisions on international investment legal doctrine more broadly. Though classified as a textbook, those seeking a reference work on this topic will appreciate that the text is structured as an extended outline, with every chapter offering detailed topical headings and subheadings, each of which is assigned a numerical reference. A detailed table of contents accompanies not only the work as a whole but also individual chapters. De Nanteuil begins the work by describing the evolution of international law governing investment relationships. He describes the manner in which actors once leveraged traditional international legal protections, such as those for diplomatic endeavors or private law mechanisms, including contracts, while today, bilateral investment treaties are the most prevalent legal tools applied to investment transactions involving State and foreign non-State actors. Though the work's title suggests that its focus is on international legal frameworks, domestic law is not ignored; Chapter 2 discusses the continuing importance of domestic laws relevant to cross-border investment relationships and summarizes selected relevant laws in four jurisdictions: France, Germany, the United Kingdom, and the United States. With respect to international law governing investments, de Nanteuil structures his introductory discussion around the sources cited in the Statute of the International Court of Justice, which is familiar to many scholars and students of international law (and to legal information professionals interested in the same). He emphasizes here that treaties, particularly bilateral investment treaties, are today the dominant source of international investment law. He supports his assertions with data provided by leading international bodies working to harmonize investment law and investment disputes, such as the United Nations Conference on Trade and Development (UNCTAD) and the International Centre for Settlement of Investment Disputes (ICSID). He points to major multilateral treaties whose primary subject is not investment law, but that do contain pertinent provisions, and to two sources that the reader might not initially consider in the investment context: customary law and "general principles" of law. With respect to case law, de Nanteuil discusses several influential decisions of international and regional courts. Having provided this context, the remaining ten chapters cover the most relevant legal principles, both substantive and procedural, found in legal mechanisms governing investment law today. De Nanteuil presents various approaches to challenges such as defining key concepts including "investor," "investment," "property," and "the State." With respect to procedure, the work focuses primarily on arbitration as a mode of dispute resolution, covering such issues as obligations to negotiate, the role of domestic remedies, jurisdiction, consent, counterclaims, and post-award concerns-those being annulment and enforcement. Particular substantive protections are afforded

ABSTRACTThis article analyses the primary provisions of the China–South Africa Bilateral Investment Treaty (BIT) and illustrates that this BIT differs in many ways from South Africa’s BITs with Western countries. Given current shifts in international investment policy and law in both South Africa and China, this article suggests that it is necessary to carefully consider the future of the China–South Africa BIT, ultimately arguing that South Africa should adopt differential policies towards the China–South Africa BIT by maintaining or updating the existing BIT between these two nations. An updated BIT could act as a model for future South–South BITs and should integrate new elements which are in line with the development of international investment law, maintain a balanced interest between the host state and foreign investors, and conform to the fundamental realities of the partner countries.

78Sea — Jurisdiction — Collisions — Collision occurring in exclusive economic zone beyond twenty-four mile limit — Whether foreign nationals accused of responsibility for collision are liable to prosecution before municipal courts of coastal StateJurisdiction — Territorial — Maritime belt — Contiguous zone — Exclusive economic zone — Twenty-four mile limit of contiguous zone — Extent of jurisdiction of coastal State beyond this limit in exclusive economic zoneSea — Contiguous zone — Nature and extent — Twenty-four mile limit — The law of Chile

The now defunct Tribunal of the Southern African Development Community (SADC) was called upon a few times to decide cases related to the protection of (foreign) property rights during its short lifespan of less than five years. The most controversial of these cases was Mike Campbell (Pvt) Limited and others versus the Republic of Zimbabwe (the Campbell case), which led to the eventual suspension of the Tribunal. At the heart of the case was the legality of a postcolonial land reform program and the classic tension in international investment law between the promotion of public interest and the protection of individual property rights. The Tribunal stirred controversy by condemning the land reform program without due regard to its underlying public policy rationale. Much of the scholarly writing on the Campbell saga has focused on Zimbabwe’s hostile reaction and the impact of the Tribunal’s demise on the protection of human rights in the region. Relatively little attention has been given to its implications for the SADC investment protection regime. This chapter sets out to examine the investment jurisprudence and legacy of the Tribunal focusing on the Campbell decision. This landmark decision is largely similar to the decisions of the two arbitral tribunals established under the auspices of the International Centre for Settlement of Investment Disputes (ICSID) to try essentially the same subject matter. All three tribunals ruled against Zimbabwe’s expropriation of white-owned commercial farms using different legal bases. While the SADC Tribunal drew upon international human rights treaties and instruments, the ICSID tribunals relied on Bilateral Investment Treaties (BITs). The divergent legal bases provide an interesting context for reflection on the convergence of international human rights and investment law on the protection of property rights. The interplay between these two international law regimes has received increasing attention in academic literature over the last few years. This chapter contributes to this emerging literature by analysing the investment case law of a de facto human rights court.

This chapter examines the relationship of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) to international investment and economic law. Interactions between international investment law and indigenous rights are becoming more frequent. On the one hand, there is a quantitative increase in foreign investments. These investments are protected by an ever denser net of bilateral investment treaties (BITs). On the other hand, indigenous peoples' territories are often resource-rich areas with significant attraction for foreign investors. This entails a considerable risk that investment projects on indigenous territories encroach upon indigenous rights. Negative consequences include detrimental impacts on indigenous peoples' relationship to their lands, environmental degradation, and pollution. These risks are even more acute, given the importance of lands for indigenous culture. Thus, indigenous rights increasingly conflict with the rights of foreign investors and show an evident need for coordination between both systems — indigenous peoples' rights and international investment law.

Regulation of foreign investment presents one of the most topical and controversial subjects in EU law and international investment law. The introduction of EU competence over foreign direct investment (FDI) in Article 207 TFEU after the Lisbon Treaty as well as the recent successful challenge of Member States Bilateral Investment Treaties (BITs) regarding their compatibility with EU law, indicate the emerging importance of EU foreign investment law. Within this framework, the purpose of this book is to identify whether and to what extent the EU has become an international actor in the field of foreign investment. Exploring the existing legal framework on the scope and exercise of EU competence and its legal effects, it examines the foundations upon which EU investment policy is based and will be based in the future. The book examines EU foreign investment law firstly from an EU law perspective. It addresses questions relating to the definition of foreign investment, the scope of EU competences, the actual exercise of EU powers, the substantive content of existing and future EU International Investment Agreements (EU IIAs), the objectives of EU investment policy and its EU law effects, in particular as regards the compatibility of Member States BITs with EU law. Secondly, the book examines the influence that the EU exerts on international law and regulation of foreign investment. Specific attention is paid to the substantive content and orientation of EU IIAs, taking a comparative approach to the content of BITs, as well as to the ramifications of EU foreign investment regulation for international law, especially with regard to the EU's international responsibility. Taking into account the recent developments in this field, this book addresses the legal, practical and political concerns that the creation of an EU common investment policy creates.

Article 121 of the 1982 United Nations Convention on the Law of the Sea (LOS Convention) retains the traditional definition of an island as: ‘a naturally formed area of land, surrounded by water, which is above water at high-tide’ (paragraph 1), and attributes to it the same maritime spaces as the mainland. These spaces are at present: the 12 mile territorial sea (TS), the 24 mile contiguous zone (CZ), the continental shelf (CS) and the 200 mile exclusive economic (or fishery) zone (EEZ) (paragraph 2). However, unlike the 1958 Geneva Convention on the Territorial Sea which gives the same legal status to all natural islands, paragraph 3 of Article 121 limits the legal entitlement of islands to maritime spaces by providing that:‘Rocks which cannot sustain human habitation or economic life of their own shall have no exclusive economic zone or continental shelf’.

This chapter discusses the use of sources of international law in the settlement of disputes arising under bilateral, regional and multilateral investment treaties and investment chapters in free trade agreements. It focuses specifically on particularities this field of international law displays in comparison to general international law and assesses to which extent these specificities are a Sonderweg of international investment law that has little relevance outside the field, or whether investment law can serve as a loadstar for how the use and relative importance of sources of international law more generally may change also elsewhere is the focus of the present chapter. The chapter addresses, first, the importance of bilateral treaties in international investment law and shows that their bilateral form is not opposed to the emergence of a genuinely multilateral regime of international investment governance. Second, the chapter discusses the preeminent importance arbitral decisions assume in determining and developing the content of international investment law. Third, the chapter addresses the increasing influence of comparative law in investment arbitration and its impact on its understanding of sources. Fourth, the chapter discusses how soft law instruments influence international investment law, even though they are not binding law. The chapter argues that the particular 'sources-mix' in international investment law is chiefly a product of the existence of compulsory dispute settlement through investment treaty arbitration and the sociological composition of the field. International investment law may therefore serve as an indicator of how the sources of international law may evolve also in other international legal regimes in the presence of standard recourses to binding dispute settlement.

Since the conclusion of the first bilateral investment treaty (BIT) between Germany and Pakistan in 1959, the practices of the BITs have remained solely within the purview of nation states. According to the United Nations Conference on Trade and Development (UNCTAD), BITs are defined as “agreements between two countries for the reciprocal encouragement, promotion and protection of investments in each other's territories by companies based in either country”. A similar definition has been adopted by leading scholars. Therefore, in looking at state practices in BITs and investor-State arbitration cases, pertinent international organizations and most of the literature seem to assume that ‘states’ refers to sovereign states. Nonetheless, this assumption has been challenged recently by borderline cases where ‘states’ refer to something other than what is generally considered a sovereign state. One such example is a supranational organization, of which perhaps the best-known example is the European Union (the EU): a supranational organization with competence transferred to it by sovereign states. With the entry into effect of the Lisbon Treaty (1 December 2009), the EU has been conferred with exclusive competence over FDI. In exercising this new competence, the EU has sought, and been granted, a mandate to negotiate a stand-alone BIT with China (the envisaged EU-China BIT). Even before the entry into force of the Lisbon Treaty, the EU, by virtue of the use of ‘mixed agreements’, has concluded a number of free trade agreements (FTAs) which include an investment chapter. Another example is an unrecognized sovereign state. One such state, largely unrecognized in international community, is Taiwan. Taiwan recently concluded an investment protection agreement with China, which asserts that Taiwan is but a renegade province. But Taiwan has also concluded BITs with India and Japan, neither of which maintain official diplomatic relations with Taiwan. Thus, these two BITs were signed by semi-official agencies or non-governmental organizations with implicit or explicit authority delegated from the national governmental authority. The third anomaly relates to sub-state entities within a federal system, or the special administrative regions of China. One such example is Hong Kong, which using the title ‘Hong Kong, China’, has concluded and maintains a number of bilateral agreements with sovereign states. Using the status of a separate customs territory, Hong Kong has also concluded some FTAs that also include investment chapters. In view of these peculiarities, this article aims to redefine the ‘state’ in international investment law by looking at three anomalies to sovereign states: a supranational organization, an unrecognized state, and a sub-state entity. Referencing the three aforementioned cases, this article argues that sovereign states are not the sole actors in international investment law and policies – there are some subtle, but significant, variations. Specifically, this article explores the attribution difficulties that arise in linking these anomalous actors with their member states, governmental authority, or central government respectively. With regards to investor-State arbitration, there are two pertinent questions. The first concerns where, and against whom, an investment dispute should be brought. The second question relates to the enforcement of an arbitral award. Currently, the International Centre for the Settlement of Investment Disputes (ICSID) regime plays a key role in investor-State arbitration. In view of the fact that the ICSID convention does not provide an opportunity for these three anomalies to participate, this article proposes to soften the state-centric definition of ‘state’ in Additional Facility Rules so as to provide an opportunity for the participation of these three anomalous entities. In so doing, investor’s rights may also receive better protection. Further, given that most free trade agreements include investment chapters, softening the definition of state-centric ‘state’ and including these three anomalous entities will close the gap between trade regime and investment regime, bringing them closer. This article concludes that in exploring the contemporary role of the state in investor-State arbitration, a prerequisite is to redefine the state in a way which would cover many actors other than sovereign states. In view of this new reality, a closer look at attribution will play a key role in defining state responsibility in international investor-State disputes.