International Investment Disputes Research Articles

International Investment Disputes Resolution in the EAEU when Changing the Investor’s Personal Law

The paper identifies regulatory gaps in the Treaty on the Eurasian Economic Union in relation to the status of an investor when changing their personal law after making investments. There are also gaps in the procedural mechanism for organizing and conducting conciliation procedures in accordance with the above agreement on the initiative of an individual — the applicant whose legal interests were violated. Based on the results of a study carried out from the perspective of comparative law and a formal-dogmatic approach, the author proposes solutions to improve the international legal regulation of investment activities within the EAEU on the identified issues in order to create a favorable investment climate for attracting foreign investment to the Russian Federation from partner countries in the EAEU. The theoretical significance of the work lies in the formulation of the author’s definition of the concept of international legal innovations and the designation of their characteristics based on a doctrinal understanding of examples of UNCITRAL rule-making practice.

Contemporary Dilemmas of International Investment Law: From the Perspective of Settlement of International Investment Disputes

The current state of international investment law consists of thousands of International Investment Agreements (IIAs) and Investor-State Dispute Settlement (ISDS) mechanisms that create safeguards in international investment law and provide foreign investors with the means to mitigate the political risks they face in host countries. However, the number of effective international investment treaties is generally decreasing, and new investment treaties also exclude investor-state dispute settlement mechanisms. Based on past litigation, it is easy to see that the majority of investors who have successfully initiated litigation against host States have come from developed countries. Litigation against the host State by investors from the global South has been relatively few and far between, and has mostly been dismissed, and even when it has been successfully filed, it has not been successful. As a result, the dispute settlement mechanism is not inherently fair. It can be said that this mechanism is a symbol of protectionism in the post-colonial era, which is no longer suitable for the current time. This paper addresses these issues by providing a comprehensive analysis of the current state of development of international investment treaties and the current state of investor-state dispute settlement mechanisms.

Improvements to the system of host country regulatory authority in the Investor-State Dispute Settlement (ISDS) Mechanism

As the ISDS mechanism has been widely applied, its shortcomings have been gradually magnified, and the host country's right to regulate has been constantly challenged by foreign investors in international investment dispute settlement, and the sovereignty and public interests of the host country have been undermined as a result. This paper examines the existing problems of the host country's right to regulate, and analyses in depth the motivation for strengthening the host country's right to regulate in the context of the reform of the ISDS mechanism, taking into account past cases and practical experience. At the same time, by comparing and analysing the relevant theories of domestic and foreign scholars on the ISDS mechanism, the paper highlights the necessity of strengthening the host country's right to regulate in order to maintain a balance between the interests of both the host country and the investors, and proposes a feasible and practicable reform plan in this regard.

BIT·FTA상 외국인투자심사 실행에 관한 연구

Countries with foreign investment screening mechanism have developed practices to avoid international investment disputes. These practices include using security exceptions, exceptions to dispute settlement provisions, and schedules to Annex regarding non-conforming measures in investment agreements. These practices do not specify specific national security requirements and are subject to full self-judgment. Countries with a long history of foreign investment screening, such as the United States, Canada, and Australia, actively use these practices to exclude foreign investment screening from international agreement obligations. These countries interpret the national security exception jurisprudence as applying to foreign investment screening, meaning that foreign investment screening is entirely self-judged.
 However, South Korea does not have a consistent approach to foreign investment screening in its Bilateral Investment Treaties (BITs) and Free Trade Agreements (FTAs). The security exception clause in these agreements is different in each agreement, and the contents of the reservations are not uniform. However, it can be interpreted that Korea has decided to treat foreign investment screening as an exception to international law, since it joined the Regional Comprehensive Economic Partnership (RCEP), which stipulates that the screening regime shall not be subject to the dispute settlement provisions.
 Foreign investment screening is likely to become more important as a policy tool in the era of expanding national security. The concept of national security has evolved from being applied only in exceptional emergencies such as war to encompassing more permanent situations such as economic security, high-tech protection, supply chain crisis response, and climate change. State measures to protect national security have also become more permanent. Given these circumstances, it is important to reconsider whether it is appropriate to treat foreign investment screening as an exception to international law. Allowing foreign investment screening as an exception to international law could lead to a crisis in the international legal system due to potential abuse of this exception. However, from the government's perspective, securing policy space for foreign investment screening can be advantageous in effectively addressing the growing threat to national security. Therefore, it is crucial to contemplate the stance and standards that should be established for the foreign investment screening practice in Korea moving forward.

The Anti-Reformist Stance in Investment Law

Abstract This article articulates an ‘anti-reformist’ stance toward the reform of international investment law and dispute settlement. The mainstream debates over the future of investment law are generally ‘reformist,’ in the sense that they seek to maintain the system of special legal rights afforded to a discrete class of persons defined as ‘investors’. This system of special rights amplifies investors’ power vis-à-vis other constituencies and is premised on flimsy assumptions about the investor’s vulnerability that are not borne out either in theory or in practice. Drawing on recent work in other fields, this article sketches an anti-reformist approach that asserts these fundamental challenges, even as it remains engaged in contemporary reform debates. It also discusses the near-term implications of this approach for procedural and substantive reform of investment treaties, as well as the long-range goals of an anti-reformist stance.

Study on the Expansion of ICSID Arbitration Jurisdiction

With the development of the global economy, international investment gradually occupies an important position in the market, and at the same time it also brings some legal disputes, ICSID is the direct main body to resolve international investment disputes, while its arbitration jurisdiction is the prerequisite and the primary issue for the arbitral tribunal to resolve international investment disputes. At present, the expansion of ICSID's arbitration jurisdiction is an issue that needs to be addressed by the international community. This paper is divided into four parts, the first part of the overview starts from the main body ICSID, the second part analyzes the expansion path of ICSID's arbitration jurisdiction and its reasons, the third part puts forward the reform path of ICSID's arbitration jurisdiction, and the fourth part puts forward China's countermeasures.

A Study on the Legitimacy of Public Health Measures in Response to COVID-19 under International Investment Disputes

A Study on the Legitimacy of Public Health Measures in Response to COVID-19 under International Investment Disputes

State Immunity in International Investment Disputes: Role of State Immunity in Resolving Investment Disputes and Adjudication Implications

State Immunity in International Investment Disputes: Role of State Immunity in Resolving Investment Disputes and Adjudication Implications

Implementation of Human Rights in International Investment Legal Relations: Selected Issues of Dispute Resolution Practice

The paper covers certain provisions of a comprehensive study of the implementation of human rights in international investment legal relations. The author attempted to reveal the relevance of the ongoing research and assess the significance of the interaction between international investment law and international human rights law in modern realities. The paper reveals the main options for the interaction of international investment law and international human rights law, both in material and procedural aspects. The author focuses on the practice of resolving international investment disputes in relation to the actions of the host state with reference to the protection of human rights as one of the options for manifesting the relationship between the two branches of public international law. The author reveals the existing patterns in the practice of resolving investment disputes. As a key conclusion, the author puts forward the idea that it is possible to generalize the results of a harmonious interpretation (construction) and the formation of an appropriate unified legal framework for the norms of international public law with a view to its subsequent harmonious application.

Recent Cases in International Investment Law Involving Local Government on Investment Disputes

An understanding of the importance of regulating investment treaties and implementing measures in accordance with existing rules has been generally understood by States in foreign direct investment. However, the local government where the location of foreign investment activities is carried out has not received sufficient attention. As a result, various cases of international investment disputes have arisen caused by actions taken by local governments. This study discusses how the tribunal views and interprets actions taken by local governments in relation to violations of foreign investor rights. In the span of time over the past eight years, no less than six hundred cases of foreign investment disputes have been investigated. Of these, three available and final cases became the subject of discussion in research and became examples to link them with the legal skills of local government officials in mitigating the occurrence of foreign investment case disputes. The results of this study show that in terms of understanding the rules of international investment law, the government in the country can mitigate or handle the case better with foreign investment disputes.

Standing in international investment and trade disputes

International investment agreements employ dispute settlement procedures that differ markedly from their counterparts in trade agreements. A prominent and controversial difference arises with respect to the issue of “standing”: Who has the right to complain to adjudicators about a violation of the agreement? While trade agreements limit standing to the member governments (state-to-state dispute settlement), investment agreements routinely extend standing to private investors as well (investor-state dispute settlement). We develop parallel models of trade and investment agreements and employ them to study this difference. We find that the difference in standing between trade and investment agreements can be understood as deriving from the fundamentally different problems that these agreements are designed to solve. Our analysis also identifies some important qualifications to the case for including investor-state dispute settlement provisions in investment agreements, thereby offering a potential explanation for the strong political controversy associated with these provisions.

Актуальные вопросы реализации прав человека в международных инвестиционных правоотношениях

The article focuses on the study of issues of human rights implementation in international investment legal relations, both in the substantive and procedural aspects. The author attempts to reveal the relevance of the research topic and assess the significance of the interaction of international investment law and international human rights law in modern realities. The article reveals the options for the interpenetration of the two branches of public international law, as well as the problems arising as a result of such interaction. Emphasis is placed on the search for a new balance between international investment law and international human rights law, and on the possible identification of ways to promote the protection of human rights while encouraging and protect-ing foreign investment. An attempt is made to identify and comprehensively analyze the possibility of preven-tive integration of human rights in international investment legal relations, as well as its advantages and disad-vantages. Furthermore, the study of substantive and procedural aspects of interaction between international investment law and international human rights law identifies the importance and prospects of the impact of soft law on the realization of human rights in international investment relations. Special attention is paid to the prac-tice of resolving international investment disputes with reference to the protection of human rights as one of the options for the manifestation of the interpenetration of branches of international public law. The author identi-fies the existing patterns in the practice of resolution of international investment disputes. As one of the key conclusions the idea of the possibility of generalization of the results of harmonious interpretation (explanation) and the formation of an appropriate unified legal framework of international public law for its subsequent har-monious application is put forward.

PITFALLS IN THE DOMESTIC AND INTERNATIONAL COMMERCIAL ARBITRATION IN PAKISTAN

Arbitration is a well-known and increasingly popular alternative dispute resolution method. It is a safe, cost-effective, and time-efficient alternative dispute resolution method. The arbitration system saves both parties time and money by avoiding lengthy legal proceedings. In the Indian subcontinent, arbitration has been practised for many years under the name "Panchayat." Even in the absence of a legal system, the Panchayat served to settle conflicts. In these panchayats, decisions were made in accordance with ethical standards, cultural norms, and religious principles, and the decisions made by the panchayat were respected and held in high regard. (Kumar, 2017) During the British Raj (1858–1947), the Panchayat system underwent a period of decline. The British legalized local arbitration and replaced it with a codified system of law. (Hussain & Arafat, 2022) They enacted numerous regulations, leading to the enactment of the Arbitration Act of 1940, which governs arbitration in Pakistan. Following Pakistan's independence in 1947, the Panchayat system was reinstated and is still widely used in rural areas, where it is carried out in accordance with cultural norms and usages. There are no provisions in the 1940 Act regarding the Panchayat system, and its amendment has the potential to harmonise the country's arbitration system. (Mukhtar. 2016) Pakistan introduced international arbitration by signing and later implementing the New York Convention in 1958 by enacting the Recognition and Enforcement (Arbitration Agreements and Foreign Arbitral Awards) Act and the Arbitration (International Investment Dispute) Act in 2011. Although Pakistan has signed the UNCITRAL Model Law on International Commercial Arbitration, it has not yet been incorporated into domestic law. A stable and comprehensive system of international arbitration has become a necessity at the current time to attract foreign investors and other stakeholders to the country. However, Pakistan needs to improve in many areas of international arbitration, particularly in the enforcement and recognition of foreign awards and lex arbitri. (Rizwan Hussain, 2012) These challenges are explained in this essay using case laws.

DEFINITION OF THE NOTION OF «INVESTMENT» UNDER THE 1965 CONVENTION ON THE SETTLEMENT OF INVESTMENT DISPUTES BETWEEN STATES AND NATIONALS OF OTHER STATES

The article analyzes scientific and the International Center for Settlement of Investment Disputes’ practical approaches to the interpretation of the notion of «investment» enshrined in the 1965 Convention on the Settlement of Investment Disputes between States and Nationals of Other States. The necessity of the research is due to, on the one hand, the absence of a unified, generally accepted definition of the notion of «investment», and, on the other hand, its role in resolving the issue of the jurisdiction of the International Center for Settlement of Investment Disputes over the resolution of international investment disputes. This issue is becoming increasingly relevant, given the steady economic and rapid technological development, which contributes to the emergence of new types of assets, in particular crypto assets. These latter may become the subject matter of an international investment dispute. Considerable attention has already been paid to this issue in a foreign legal opinion, whereas domestic science lacks research in this realm, which also indicates the relevance of this study. The article focuses on two main approaches, which are used by the International Center for Settlement of Investment Disputes while interpreting the notion of «investment». It is stated that the first approach, known in the English-language literature as the «double- barrelled test», lies in conducting a double study of the notion of «investment» by an arbitration panel – in accordance with a definition proposed by an international investment agreement, and in accordance with the 1965 Convention on the Settlement of Investment Disputes between States and Nationals of Other States. The second approach implies the direct appeal of arbitration panels to a term «investment», agreed by the States Parties to a relevant bilateral investment treaty. It is established that each of these approaches has certain advantages and disadvantages, the analysis of which allowed the author to offer recommendations on the merging of specified approaches in the process of defining the notion of «investment».

Penyelesaian Sengketa Investasi Asing Melalui Mekanisme Arbitrase Internasional (Studi Kasus: Rafat Ali Rizvi Melawan Republik Indonesia)

One of the goals of the state is to create fair and prosperous society by carrying out development in various fields including the fields of economy, education and infrastructure. The country's development certainly requires large amounts of funds, but not all countries have these funds. The lack of funds which needed by the state is an entry point for investors to invest their capital, which is through foreign investment. Besides the investment, foreign investment also brings expertise, technology transfer, and can increase the productivity of the host country. However, the implementation of foreign investment do not always go well, investment problems will arise and in the end it can become foreign investment dispute. Investment dispute settlement is an important part of foreign investment in Indonesia and that is the form of protection for foreign investors. Investment disputes settlement in Indonesia begins with deliberation and consensus. If the deliberation and consensus not achieved, then the parties can take investment dispute settlement through international arbitration. The most common international investment dispute settlement mechanism is Investor-State Dispute Settlement (ISDS). Beside that, there is State-State Dispute Settlement (SSDS) mechanism. Submission of international investment disputes can be submitted to international arbitration forums, through International Centre for Investment Dispute (ICSID). One of the cases of foreign investment disputes that involved Indonesia is between Rafat Ali Rizvi and Republic of Indonesia.

USE OF CONCILIATION AS A METHOD FOR INTERNATIONAL INVESTMENT DISPUTE SETTLEMENT IN INTERNATIONAL INVESTMENT AGREEMENT

An International Investment Agreement is an agreement formed between countries which provides a legal umbrella for carrying out foreign investment activities for related parties. One of the problems criticized in international investment agreements is related to settlement methods that tend to use arbitration, which is currently widely criticized in practice. The aim of this research is to assess the effectiveness of conciliation as a method of resolving international investment disputes and the advantages of using conciliation as a method of resolving international investment settlements for Indonesia. This research uses descriptive analytical methods and data analysis is carried out using qualitative juridical methods. From the results of this research, it can be seen that in practice conciliation is still not widely used to complete a settlement. However, seeing the many criticisms of settlements through arbitration, it can be said that there is a push to use other settlement alternatives to complete a settlement. In this case, conciliation can be an option and has many advantages considering the characteristics of fast, efficient and flexible conciliation.

World Trade Organization Rules Before Investment Tribunals: Facilitating Cross-Fertilisation While Appreciating Particularities

Abstract The private organisation of production through global value chains has tightened the material connection between international trade and foreign investment while being simultaneously politicised by certain actors. This paper seeks to explore how the rules generated, interpreted, and applied in the World Trade Organization (WTO) have been received by arbitral tribunals deciding investment disputes. Three avenues make this reception possible: first, provisions in investment agreements rendering WTO law directly applicable to investment disputes; second, principles of interpretation allowing recourse to WTO rules as a tool for the interpretation of investment law; third, the authoritative value of WTO case law on points of general international law concerning the settlement of international (investment) disputes. These three avenues allow investment tribunals to build on the law and practice of the WTO with a view to facilitating the cross-fertilisation between the two fields, while appreciating the substantive, procedural and institutional particularities of investment law.

The Role of ICSID in International Economic Law

ABSTRACT The International Centre for Settlement of Investment Disputes was established in 1966 as a facility for the resolution of international investment disputes. Today, it has 158 member states and has administered roughly 70% of all known investor-state cases. International Centre for Settlement of Investment Disputes has taken a leadership role in modernizing the procedures for investor-state dispute resolution, especially in the 2006 and 2022 amendments to those rules.

Compliance Politics and International Investment Disputes: A New Dataset

Compliance Politics and International Investment Disputes: A New Dataset

Application of Mediation Mechanism in International Investment Dispute Settlement

Transnational trade not only brings economic development but also produces many international investment disputes. As a result, many dispute settlement methods have emerged. The international investment dispute settlement Institution has gradually developed into a permanent institution for dispute settlement, with arbitration as the main means. However, the arbitration process has exposed many drawbacks since its development for a long time. Although mediation was relatively mature in other countries, its value was not appreciated until the end of the 20th century. As more and more international voices have pointed out the disadvantages of international investment arbitration, which not only increases economic losses but also takes a long time, the International Center for Settlement of Investment (hereinafter referred to as ICSID) is also making continuous reforms and adopted a new amendment on July 1, 2022, emphasizing the method of mediation mechanism. The current mediation system in international investment has gradually moved from theory to practice, so it is necessary to conduct further research on the development and future construction of mediation mechanisms. Literature research and comparative research are used in this paper to analyze. Since mediation and ADR mechanism have been introduced into the dispute settlement mechanism, the analysis of the mediation system puts forward suggestions on the current development dilemma and future construction of the mediation mechanism.