Development Of Investment Law Research Articles

A New Test Toward Consistency in International Investment Arbitration

Abstract The issue of inconsistency in international investment arbitration has become more evident with the proliferation of investment disputes. This article analyzes the value as well as the desired extent of consistency and coherence for investment arbitration, and further proposes a new test that would enhance consistency and foster the development of investment law. By matching the current status of investment arbitration with three identified conditions for the application of stare decisis or jurisprudence constante, this article concludes that strictly applying the doctrines to achieve consistency is neither feasible nor favorable for the investment arbitration regime. Further, while the public nature of this dispute-resolution mechanism requires consistency and coherence, existing attempts and approaches in this regard have significant limitations. As such, this article proposes a soft precedents test to reach a balance between consistency and flexibility. The test requires the tribunals to consider previous cases in good faith when facing the same or similar issues discussed therein, and the core consideration in whether to agree with previous cases is to develop international investment law. It is suggested that this proposed test would help to clarify, enrich and develop the content of the law within the investment arbitration community.

The Urgency of RCEP in the Development of Indonesia Investment Law

The problem of investment regulation in Indonesia has always been a major obstacle for domestic and foreign investors. This study was conducted to analyze the problem of investment regulation in Indonesia, especially in Law No. 11 of 2020 concerning Job Creation after the ratification of the RCEP Agreement, and the urgency of RCEP particularly for the development of investment law in Indonesia. This is normative research which used descriptive qualitative method to analyze the legal materials. The data was processed systematically based on legal principles. Although Law No. 11 of 2020 has impact on many amendments to the laws, but there are weaknesses in the regulation of investment, which are the lack of transparency, community participation, investment protection, fair and equal treatment implementation, and legal certainty. As long as the response to RCEP is good, the ratification of RCEP will open up opportunities for Indonesia to open market access. Therefore, Indonesian Government needs to remove some restrictions, support ease of doing business, change laws and regulations flexibly, and apply the principle of openness to the public.

Drafting Investment Law: Patterns of Influence in the Regional Comprehensive Economic Partnership (RCEP)

ABSTRACT The investment chapter in the recently signed Regional Comprehensive Economic Partnership (RCEP) has the potential to affect investment decisions in the Asia-Pacific region and beyond. Yet, we know relatively little about the pathways through which countries determine the content of investment law in preferential trade agreements (PTAs). In this article, we use quantitative text analysis to test theoretically informed conjectures about the negotiation process. We focus on which of the signatories’ past agreements most influenced RCEP, and whether countries chose to draw more from treaty practice through their previous PTAs or bilateral investment treaties (BITs). Our analyses yield several noteworthy findings. First, we show that no single country dominated the negotiation process, instead RCEP represents an effort to reconcile overlapping agreements around a more common template. Second, contrary to the fears of some observers, we show that larger powers such as China and Japan did not overwhelmingly impact the agreement, instead portions were influenced by Association of Southeast Asian Nations agreements, the Comprehensive and Progressive Trans-Pacific Partnership, and others. Finally, we show that, on average, countries drew more from PTAs than BITs, but that they switch strategically between them to reuse language that they deem important for the development of investment law.

The sources and formation of fair and equal treatment as an indicator of the international investment law development

The sources and formation of fair and equal treatment as an indicator of the international investment law development

Effecting Consistency in Investor-State Dispute Settlement Through the Introduction of Precedent in a Multilateral Investment Court

In recent years, the current Investor-State Dispute Settlement (ISDS) system has been a subject of reform discussions triggered by several factors, amongst which includes the lack of consistency in ISDS decisions commonly rendered by arbitration tribunals. This undesirable fact places the current ISDS system in conflict with essential rule of law values such as stability, reliability, predictability, and equality - which inevitably diminish the legitimacy of the current system. Undeniably, the un-uniform investment treaties underlying ISDS decisions is a valid justification for divergent outcomes, however, the recognition that a majority of investment treaties share similar if not identical legal standards also makes the argument for consistent ISDS decisions legitimate and in fact necessary to foster the harmonious development of investment law across the network of identical treaty standards. To this end, the use of “precedent” is critical in achieving the aforesaid goal. Notably, albeit informally, the use of precedent is already a recognised practice in ISDS, yet inconsistent decisions persist. As a turning point, this article advocates that consistency in ISDS decisions can be best achieved through the “formal introduction of a system of precedent”, in “a Multilateral Investment Court (MIC)”, which is possible without jeopardizing the inherent differences contained in International Investment Agreements (IIA).

Legal Stability and Legitimate Expectations: Does International Investment Law Need a Sense of Proportion? – Joint 2nd Prize Winner of the Essay Competition 2020

In the aftermath of the Achmea judgment and with the European Commission’s continued efforts to curtail investor- State arbitration, EU law and international investment law may seem antithetical. However, this article considers how EU law may contribute to the development of investment law through the concept of proportionality, a general principle of EU law and various national legal systems. Tribunals have increasingly applied a proportionality analysis in their reasoning, most recently in several cases brought by renewable energy investors against Spain and Italy under the Energy Charter Treaty. These cases concern the controversial issue of when a change in the regulatory framework violates investors’ legitimate expectations and their right to fair and equitable treatment. This article argues that the proportionality standard has the potential to clarify this area of law and to promote “defragmentation” between international investment law and other legal systems.

EFFORTS IN OBSTACLING THE PERFECTION OF INVESMENT LAW DEVELOPMENT IN INCREASING INVESTMENT IN INDONESIA

The purpose of this research is to find obstacles and obstacles to perfect investment law which is part of a strategy to increase investment in Indonesia. This research is a quantitative research. Where this research finds and describes obstacles in the development of Indonesian investment law for the better in an effort to increase investment in Indonesia for the better. The improvement of investment law development in Indonesia in accordance with the global order begins with Law No. 1 Year 1967 on Foreign Investment (PMA) and Law No. 6 of 1968 on Domestic Investment (PMDN), which is then followed by the issuance of Presidential Decree Number 29 Year 2004 concerning the Implementation of Investment in Foreign Capital Investment and Domestic Investment through One Roof Service System. The reconstruction of the capital investment law is conducted by the issuance of Law Number 25 Year 2007 regarding Investment which regulate domestic investment and foreign investment. The agency authorized to coordinate the implementation of investment in Indonesia is the Investment Coordinating Board (BKPM). The consideration of the appointment of BKPM as the only government agency that handles investment activities in the framework of PMA and PMDN is in order to increase the effectiveness in attracting investors to invest in Indonesia. Previous researches have not discussed the strategy of increasing capital investment so that it becomes the difference between this research and previous research (originality).

Legal Stability and Legitimate Expectations: Does International Investment Law Need a Sense of Proportion? (Joint 2nd Prize Winner of the Essay Competition 2020)

In the aftermath of the Achmea judgment and with the European Commission’s continued efforts to curtail investor-State arbitration, EU law and international investment law may seem antithetical. However, this article considers how EU law may contribute to the development of investment law through the concept of proportionality, a general principle of EU law and various national legal systems. Tribunals have increasingly applied a proportionality analysis in their reasoning, most recently in several cases brought by renewable energy investors against Spain and Italy under the Energy Charter Treaty. These cases concern the controversial issue of when a change in the regulatory framework violates investors’ legitimate expectations and their right to fair and equitable treatment. This article argues that the proportionality standard has the potential to clarify this area of law and to promote ‘defragmentation’ between international investment law and other legal systems.

The Strategy to Increase Investment in Indonesia and Obstacles of Perfection of Investment Law

This study aims to examine and find barriers to the refinement of investment law development as an effort to implement strategies to increase investment in Indonesia. This article is qualitative research. Examine and find barriers to the refinement of investment law development as an effort to implement strategies to increase investment in Indonesia.The reconstruction of the capital investment law is conducted by the issuance of Law Number 25 Year 2007 regarding investments which regulate domestic investment and foreign investment. The consideration of the appointment of BKPM as the only government agency that handles investment activities in the framework of PMA and PMDN is in order to increase the effectiveness in attracting investors to invest in Indonesia. Previous researches have not discussed the strategy of increasing capital investment so that it becomes the difference between this research and previous research (originality).

Development of Investment Laws in Improving Indonesia Capital Investments

Foreign investment has decisive role, given that developed countries still need capital, let alone a developing countries need it more. District and city governments throughout Indonesia, explore the potential of their respective regions in order to carry out promotions, so that they will be able to attract in investment. Following up on this eagerness, the District/City Government each issues a Regional Regulation (called Perda), in order to increase Local Income (PAD), regardless of the interests of the community and other impacts, Target to increase PAD is the people and investors in general at the authority of the District / City, finally competing to issue regional regulations (Perda) without taking into account other aspects, which could hinder investment in their respective regions. Among others, regional regulations regarding parking fees, street lighting fees and licensing in the industrial trade and investment sectors. Keywords : Investment Law Development, Improvement of Capital Investment DOI : 10.7176/JLPG/85-25 Publication date :May 31 st 2019

The investment law development to increase investment in Indonesia

PurposeThe law development, especially in the field of investment, is not only directed to achieve the vision of Indonesia 2030, but it is directed to make Indonesia a great nation, protect the potential and plurality of Indonesia and realize the welfare of the nation, both economically independent and having qualified human resources. Based on the description, the purpose of this paper is to examine and find forms of refinement in the investment law development of Indonesia in accordance with the global order.Design/methodThis paper is qualitative research. This paper examines and finds forms of refinement in the investment law development of Indonesia in accordance with the global order.FindingsThe refinement form of investment law development in Indonesia in accordance with the global order begins with Law Number 1 of 1967 on Foreign Investment (PMA) and Law Number 6 of 1968 concerning Domestic Investment (PMDN), which is then followed by the issuance of Presidential Decree Number 29 of 2004 concerning the Implementation of Investment in Foreign Capital Investment (PMA) and Domestic Investment (PMDN) through One Stop Service System. The reconstruction form of the capital investment law is by the issuance of Law Number 25 of 2007 regarding Investment which regulates the domestic investment and foreign investment. The authorized official to coordinate the implementation of investment in Indonesia is the Investment Coordinating Board (BKPM). The consideration of BKPM appointment as the only government agency that handles investment activities of PMA and PMDN is to increase the effectiveness in attracting investors to invest in Indonesia. Therefore, by one stop service, it is expected that the service to the investors will be faster than the previous implementation. One Stop Service System means that the implementation of investment consists of policies and planning of investment development, promotion and investment cooperation, approval services, licensing and investment facilities, control of investment implementation and management of investment information system. Approval services, licensing and investment facilities on PMA and PMDN shall be implemented by BKPM, based on the delegation of authority from the Minister/Head of Non-Department Institution which handle the relevant investment business fields through one stop service system.Originality/valueThis paper only focuses on the investment law development in Indonesia that has never been done before (originality).

Nineteenth Century Arbitrators’ Powers—Has There Been Any Progress to Date?

Abstract Investment arbitrators’ authority has been a focus of attention today, e.g. regarding the extent of their powers to interpret and apply the law, to conduct arbitral proceedings, to dissent from their fellow co-arbitrators, and with regard to their duty to be impartial and independent. Two hundred years ago, practitioners, arbitrators and states confronted similar challenges, and through legal doctrines, treaties and practices a path was laid out for future generations of practitioners and arbitrators, where clear legal lines were drawn to distinguish between arbitrators’ procedural and substantive powers and their duties with regard to each of them. The consent and sovereignty of states were duly deferred to by arbitrators and umpires, limiting their job to settle a case. Thus, arbitrators had the duty of impartially interpreting and applying the law of nations, i.e. the natural law, and to deliver a final and binding award. Arbitrators were not bound by precedents, and if they made an unjust or unfair decision, beyond the law, countries could refrain from complying with it, which limited arbitrators’ interpretive powers. In conclusion, not much has changed to date with regard to the procedural powers given to arbitrators. The authority delegated to them by states was to strictly settle the case; no power to develop the law was ever given, which still applies now. Hence, the only important change that has been introduced today is that of claiming the so-called inherent power to help in the development of investment law, which is being driven mainly by arbitrators, and not by states.

Charles Brower’s problem with 100 per cent—dissenting opinions by party-appointed arbitrators in investment arbitration

This contribution is a replique to Charles Brower and Charles Rosenberg’s article ‘The Death of the Two-Headed Nightingale: Why the Paulsson-van den Berg Presumption that Party-Appointed Arbitrators are Untrustworthy is Wrongheaded’, which appeared in Arbitration International in 2013, to the extent that it discussed dissenting opinions (the ‘Nightingale Article’). The Nightingale Article is a reaction to a study published in 2009 in which it was reported that 100 per cent of the separate opinions issued in investment arbitrations by party-appointed arbitrators have been rendered by the arbitrator appointed by the losing party. In this replique , a number of the arguments advanced in the Nightingale Article are rebutted: ‘dissenting opinions are a significant feature of international dispute settlement’; ‘[t]his figure alone [22 per cent of the decisions and awards have a dissenting opinion by a party-appointed arbitrator] serves to minimize any concerns regarding dissenting opinions in investment arbitration’; ‘concerns about neutrality are unwarranted’; ‘offers a unique tool to produce a better award’; ‘the development of investment law’; and ‘the authority of the award’. It is concluded that none of them provide a satisfactory answer to the fact that 100 per cent of the separate opinions of party-appointed investment arbitrators have been issued by the arbitrator appointed by the party that has lost the case.