No conflict proven?: Assessing the role of the World Heritage Convention in Gabriel Resources v. Romania

The article analyses the international legal guarantees of the rights of foreign investors. International legal guarantees can be classified according to the volume of their rights as General and Special Warranty. General international legal guarantees are guarantees of human rights in the area of civil and political rights and economics, social and cultural rights. These guarantees are the universally recognized basic international legal guarantees to be followed by States. International guarantees of the rights of foreign investors can be called Special in respect of general international legal guarantees as they have a special subject of regulation - obligations of states receiving foreign investment to ensure protection of property rights of foreign investors. International legal guarantees of the rights of foreign investors, as the special guarantees, are contained in international multilateral and bilateral agreements and include guarantees of property rights of foreign investors, compensation, insurance, guarantees for the settlement of international investment disputes, but these guarantees are aimed at ensuring protection of property rights of foreign investors. It should be noted that international legal guarantees for foreign investors are the legal obligations of recipient states, enshrined in international multilateral and bilateral agreements, extending its action against foreign investors, through which foreign investors have an opportunity to exercise their rights and legitimate interests in the sphere of their ownership investments in recipient states.

Investment treaties and ISDS serve not just to resolve disputes between states and foreign investors. Through interpreting foreign investor rights, they also help structure foreign investment relations. This chapter leaves the norm entrepreneurs of the late 1950s and 1960 aside to develop an analytical framework for examining how the rights of foreign investors can contribute to defining their role in and relations with states and local communities. It examines the type of rights that make foreign investment projects, their purpose, and different ways of looking at the interface between these rights, states’ right to regulate, and local communities. A transnational and socio-legal approach to property and contracts informs the analysis. The remainder of the chapter focuses on the importance of ISDS for foreign investor rights, examining the normative and distributive implications of this dispute resolution mechanism.

After being hit recently by many ISDS claims under different BITs, including one by Australian investors challenging delays in its legal system, India adopted a new Model BIT 2016 to guide negotiations which ostensibly balances the rights of foreign investors with the host State’s right to regulate. This chapter will critically discuss the ISDS provisions in India’s new Model BIT to show that it tilts the balance in favour of the host State by making it very difficult for foreign investors to bring ISDS claims against a host State. The chapter will discuss key issues pertaining to provisions dealing with the jurisdiction of ISDS tribunals, the requirement to exhaust local remedies by foreign investors for at least five years, transparency of the ISDS process, appointment of arbitrators, questions related to standard of review and governing law, and proposals for an appellate mechanism. The chapter will also contrast the ISDS provisions in India’s Model BIT with the ISDS provisions present in the ASEAN-India investment agreement, which was signed almost at the same time when India was still working towards its model BIT. The chapter argues that the ISDS provisions in the ASEAN-India investment agreement provide a much better balance between the rights of foreign investors and host State’s right to regulate. Given also that India is emerging as a major capital-exporting country, India could consider amending the ISDS provisions in the model BIT and use instead the ISDS provision in the ASEAN-India investment agreement as the template for negotiating future treaties and as it reviews its older ones.

This article examines an influential narrative of foreign investor rights and the international investment regime. It draws on twenty five of the World Investment Reports (WIRs) issued by the United Nations Conference on Trade and Development (1991-2015). It argues that the justifications provided by these reports have contributed to shaping a global commodity conception of property. These WIRs describe foreign investor rights following a narrative of wealth maximisation by transnational corporations (TNCs), and focus on a TNC-assisted restructuring of host states and local communities. Since the mid-2000s, these reports have balanced this narrative because of the increasing consensus that international investment treaties unduly constrain regulatory space. Ultimately, however, this article shows that the recent WIRs promote an approach to public regulation that is not inconsistent with a global commodity conception of property.

This article examines an influential narrative of foreign investor rights and the international investment regime. It draws on twenty-five of the World Investment Reports (WIRs) issued by the United Nations Conference on Trade and Development (1991–2015). It argues that the justifications provided by these reports have contributed to shaping a global commodity conception of property. These WIRs describe foreign investor rights following a narrative of wealth maximisation by transnational corporations (TNCs), and focus on a TNC-assisted restructuring of host states and local communities. Since the mid-2000s, these reports have balanced this narrative because of the increasing consensus that international investment treaties unduly constrain regulatory space. Ultimately, however, this article shows that the recent WIRs promote an approach to public regulation that is not inconsistent with a global commodity conception of property.

The international investment regime is probably the most controversial area of international law today. This article argues that looking at the interpretation of foreign investor rights can help us to better understand this regime and the challenges it poses to states and local actors. Relying on property and contract law theory, this article shows that the arbitral interpretation of foreign investor rights privileges wealth maximization over propriety. This leads arbitrators to draw on particular theories of property and contractual reliance. The analysis of these interpretative moves brings to the front crucial normative and distributive implications of the international investment regime.

The international investment regime is probably the most controversial area of international law today. This article argues that looking at the interpretation of foreign investor rights can help us to better understand this regime and the challenges it poses to states and local actors. Relying on property and contract law theory, this article shows that the arbitral interpretation of foreign investor rights privileges wealth maximization over propriety. This leads arbitrators to draw on particular theories of property and contractual reliance. The analysis of these interpretative moves brings to the front crucial normative and distributive implications of the international investment regime.

India is the highest importer of foreign capital. The rights of foreign investors are protected through investment treaties, most of which are bilateral. India has recently issued a model bilateral investment treaty (BIT), which would form the basis for negotiating all future BITs. Model BIT is therefore an important statement about state practice. The recently issued Model BIT of 2015 introduces drastic changes in comparison to the 2003 Model BIT. The circumstances of the 2015 Model BIT are very different from the 2003 Model BIT and the change in circumstances has been accounted for the changes that have taken place in the 2015 Model BIT as compared to the 2003 Model BIT. The 2003 Model BIT followed a capital exporting country model, as India was still predominantly a capital exporting state. The 2015 Model BIT aims to protect India’s regulatory space while allowing protection to foreign investors under the BIT. This article analyses the shift in the treaty practice. This Model BIT brings about changes in the definition, jurisdiction, and the scope of protection, access to dispute resolution and introduction of exceptions and carve out provisions. The 2015 Model BIT seeks to reduce India’s exposure to potential investment claims. This shift in treaty practice is important since it has tendency to influence interpretation of treaties.

Introduction. Attracting foreign investment in the country's economy is a priority for its economic development and strengthening independence. Ukraine needs to form qualitatively new ways and methods of developing international investment activity. They should be based on a continuous study of international investment processes and their relationships. The purpose of the study is to assess the current state, determine the conditions, ways and mechanisms of attracting foreign investment in the country's economy. Results. In the article we have done an analytical study of the volume and structure of foreign investment in the economy of Ukraine. The negative phenomenons in the investment process and their main causes were identified. The main problem is the lack of innovative investments. The composition of the criteria for evaluating the effectiveness of investment was determined. The factors which determine the attractiveness and prospects of investment were identified: macroeconomic; regulatory policy; favourable market entry; openness of the economy; tax system; inflationary stability; accessability of resources; political stability. The composition of investment risks was determined: low rates of reform; insufficient protection of the rights of foreign investors; imperfection of the legislative base; corruption. Recommendations on increase of foreign investment were formulated: providing legislative guarantees for investors; observance the legal rights of investors and decision of the disputes; stabilization of the legal base; information support; stabilization of the political situation, etc. Conclusions. Difficult economic conditions do not guarantee a sufficiently high profitability of projects to cover country-related risk. To improve the investment climate, it is necessary to reduce the number of formal procedures, their cost and time. Key words: foreign investment, national economy, risks, state guarantees.

This paper offers the first detailed English-language analysis of international investment arbitration law and practice in Thailand. Part 1 briefly introduces burgeoning foreign direct investment (FDI) and investment treaties in the Asian region, followed by more recent emergence of significant investor-state dispute settlement (ISDS) claims. Part 2 sketches the expansion of inbound FDI into Thailand from the 1980s, and more recent outbound investment especially into neighbouring developing countries. This expansion prompted Thailand to enter into dozens of Bilateral Investment Treaties (BITs), including ISDS-backed protections especially from the mid-1990s, and Free Trade Agreements including investment chapters from 2004.Part 3 outlines the first two treaty-based claims filed against Thailand, especially the 2009 arbitration award in favour of Walter Bau due to a lack of ‘fair and equitable treatment’ related to a Don Muang airport tollway concession project. However, Part 3 also examines cases where the Thai government has been subject to arbitration claims under concessions or other contracts with foreign investors. Thailand’s policy response has focused on restricting the capacity of public authorities to agree to arbitration clauses in concession contracts (in 2004) and other public contracts (in 2009, partly liberalised in 2015). Thailand also revised its Model BIT to somewhat reduce parallel treaty-based protections for foreign investors, but only from 2013.Nonetheless, Thailand joins other countries in the region (like Vietnam, Korea and Australia) that have weathered high-profile ISDS claims, but have decided not to let old investment treaties expire (as in Indonesia). Instead, they are negotiating future treaties with provisions recalibrating the rights of foreign investors and host states. However, Thailand has maintained the comparatively unusual extra response of maintaining restrictions on public authorities agreeing to arbitration in investment contracts.

Today, one of the most critical factors for attracting investment, especially foreign investment, is protecting investors and safeguarding their rights in international trade. Disregard for ownership and investors' rights in international trade, and concerns over their violation in various forms such as expropriation, nationalization, confiscation, and seizure of property, has consistently been a significant challenge in the realm of international commercial law. This article, by elucidating the position of safeguarding investment rights and international trade, aims to explore how this right can be protected. A key objective of this study is to examine the commonalities and differences between Iranian and international law to identify potential weaknesses or strengths in this area. The findings of this research, derived from library studies and utilizing a descriptive-analytical method, reveal that the private ownership rights of foreign investors can be fully respected under Islamic and Iranian law. One of the critical issues examined in this legal domain is the possibility of considering international human rights as part of the governing law and, consequently, recognizing human rights obligations for both parties in the investment relationship. In this context, Iranian law, regarding strategies for safeguarding the aforementioned rights, benefits from Islamic teachings and aligns itself with international legal standards. Thus, the violation of private ownership rights of foreign investors creates liability for the host state.

In recent years, investment treaty arbitration (ITA) has come under scathing criticism for failing to balance rights of foreign investors (investment protection) with host country’s right to regulate (regulation). In view of this, many countries have adopted new bilateral investment treaty (BIT) practice aimed at ensuring that foreign investment is protected from arbitrary state action without undermining the ability of host states to regulate in public interest.

The article is devoted to the study of the protection of the rights of foreign investors during the state of war in Ukraine. The author focuses on the fact that this topic is currently relevant due to the fact that the reconstruction of Ukraine will become necessary. The war caused the outflow of foreign investments from our country. In addition, corruption, pressure from the authorities, and unfair justice are the reasons why foreign investors leave Ukraine. Every investor aspires to work in a state where law and justice reign, so Ukraine, which aspires to membership in the European Union, should create just such a state. Therefore, its primary task is to create a favorable business climate for foreign investors to carry out their activities. Current Ukrainian legislation guarantees compensation and indemnification of losses to a foreign investor, guarantees are also provided in case of termination of investment activity; state guarantees for the protection of foreign investments are defined. In accordance with the Law of Ukraine «On State Support of Investment Projects with Significant Investments in Ukraine», the state provides support to large investment projects. In connection with the introduction of the state of war in Ukraine in 2024, the Law of Ukraine on the insurance of investments against war risks entered into force. The Cabinet of Ministers of Ukraine established a credit agency that provides investment insurance. Although the war made Ukraine unattractive to foreign investors, the authorities are taking all possible measures to improve the country’s investment climate. The author draws attention to the need to study and transpose the experience of successful countries in this regard. For example, Australia offers quite good conditions to foreign investors - consistent economic growth, highly qualified labor force, strategic location, efficient administration and judicial system, and good infrastructure. Mexico is also attractive to foreign investors, the «Invest in Mexico» business center has been created to assist investors. The war is an accelerant for positive changes in the state, and after its end, the reconstruction of Ukraine is an important task, therefore the efforts of all branches of government should be directed at overcoming all obstacles to the effective work of foreign investors in our state.

Concerns about the restrictions imposed by Bilateral Investment Treaties (BITs) on states ability to regulate for public interest have given way to moderate reform. Now some BITs recognize the right to regulate, specifically in the areas of environment, health and safety. However, these changes don’t address the main interests of developing countries, including core values concerning economic justice or industrial policy objectives. The cases of South Africa and Brazil suggest there are alternative paths. South Africa enthusiastically embraced BITs as a way to attract investment but soon realized the constraints they imposed on the state’s ability to further economic justice according to its post-apartheid Constitution. It decided to terminate its BITs, adopt a new investment protection act limiting the protection of foreign investors, and decided to use domestic courts to solve disputes. Brazil decided not to enter BITs and instead pursued Agreements on Investment Cooperation and Facilitation (ACFIs) that delimited the rights of foreign investors. These examples show that developing countries have options outside the BITs. Conversely, they suggest that to truly accommodate the interests of developing countries, the right to regulate under BITs has to be expanded considerably to include distributive justice concerns and industrial policy goals. Otherwise, the investment regime will reinforce global inequalities and likely force countries to exit the system.

The article examines the problem of the relationship between the “new generation” and “old generation” bilateral investment treaties among the BRICS member countries. It is noted that most of the bilateral agreements are so-called “old generation” agreements. Such agreements are generally unbalanced, that is, they impose obligations only on the state receiving the investment, and grant rights to foreign investors. Investment treaties often limit the regulatory powers of states, especially in areas such as health and environmental protection.The “new generation” treaties provide for investors’ obligations in relation to business, human rights, environmental protection; protect the state’s right to exercise regulatory powers. Some treaties include a mechanism for settling investment disputes, but require, first of all, the exhaustion of local legal remedies before arbitration and strict deadlines for referring a dispute to arbitration. It is noted that Russia needs to reform its investment treaties by including in them, in particular, provisions to limit the use of the “umbrella clause”, a ban on the use of most-favored-nation treatment for the settlement of investment disputes; measures limiting the rights of foreign investors that the recipient state has the right to take when there is a threat to the security and sovereignty of the state, and which cannot be classified as illegal expropriation.