Investment Law Research Articles

Political and security instability and its effects on foreign investment: with reference to Iraq's experience after 2003

The research deals with the conceptual framework of political and security stability and foreign investment, the theoretical framework for the impact of political and security stability on foreign investment, and the practical aspect that affected political and security stability on foreign investment in Iraq for the period 2003-2021. The research aims to explain the reasons for the modest levels of foreign investment in Iraq and the fluctuation of its flows. Since 2003 and studying the causes of this imbalance, and among these reasons the security and political instability for the period under study, the Iraqi society was chosen as a sample for the research, and simple statistical tools were used in the analysis. The measurement method (SPSS) and linear programming were excluded because the results obtained are negative and do not explain Scientific explanation of the relationship between the two variables. Therefore, the method of direct analysis was resorted to through the tables obtained related to the index of political and security instability, and the results were positive and depended on solid scientific facts.
 On the outside world and then lift the economic sanctions imposed on Iraq, and the issuance of the investment law for the year 2006 had a great impact in encouraging the flow of foreign investment to Iraq. Although these flows are still modest and weak, and most of them are in the oil sector, and what indicates the obstacles to foreign investment are the security and political instability and cases of administrative and financial corruption were among the reasons that prevented the provision of an appropriate investment climate capable of attracting foreign investments. And the research recommended that Political stability is an attractive factor for foreign investors to invest their money inside the country because stability is one of the important elements for the investor and the economy of Iraq must be developed because Iraq’s economy is a one-sided renter economy that depends on oil and the development of the rest of the sectors to advance the economic reality and build a strong state. The instability index is considered one of the dangerous and important indicators, and due to the fluctuations of government systems and their unstable policies in recent times, this has led to a deterioration in conditions and a decrease in the demand for invest.

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.

Rethinking the Salini Test: A Comprehensive Examination and Proposal for Improvement in Defining International Investment

This dissertation critically examines the Salini test, a foundational tool in international investment law (IIL), with a specific focus on its fourth criterion: "Contribution to the Host State's Economic Development." Through an in-depth analysis of various case studies, the research highlights the inherent challenges and controversies surrounding the Salini test, particularly its potential rigidity and the subjectivity embedded in the economic contribution criterion. The study underscores the need for the Salini test to evolve in response to contemporary investment trends, such as green investments, social impact ventures, and the increasing importance of intangible assets. Drawing from past arbitration decisions, academic research, and expert opinions, the dissertation offers suggestions for refining the Salini test to make it more adaptable and relevant in the modern investment landscape. These recommendations encompass defining clear parameters for economic contribution, balancing economic inputs with other considerations, and introducing mechanisms for periodic review. Furthermore, the research forecasts the future of IIL with an improved Salini test, outlining both the opportunities, such as enhanced consistency and predictability, and challenges, including implementation hurdles and potential over-complexity. In conclusion, as the international investment domain continues to transform, the Salini test must be rethought and refined to remain a robust and pertinent instrument in this ever-evolving field.

POLITICAL REFORM OF NATIONAL ECONOMIC LAW (Analysis of the Impact of Globalisation on National Investment Law)

<em>The objective of this study is to investigate the relationship between investment law and state sovereignty, and subsequently formulate a framework for future national investment law policies aimed at promoting economic growth and safeguarding sovereignty. The present study is characterized as normative in its methodology, employing both a statutory and conceptual approach. The findings indicate that investment plays a significant role in enhancing both the economy and employment expansion. Governments globally are engaged in a competitive effort to establish an improved business climate that facilitates investment activities. However, it is imperative to restrict this endeavor and prioritize domestic capital, as evidenced by the 1966 MPRS Decree. This directive provides guidance to Indonesian policymakers that foreign investment or aid should not be disregarded for its role in developing the struggling Indonesian economy. Nevertheless, it is crucial to first rely on the potential of domestic resources as a means of generating development funds. This approach ensures that the availability of foreign funding sources does not lead to dependence on external parties. Furthermore, foreign sources of funds must be utilized for the benefit of the domestic economy. Foreign investment in Indonesia must also be subjected to limitations in this context</em>

The Impact of China-US Trade Conflict on Foreign Investment in China

The trade war between China and the United States, as the two largest global economies, has had a profound impact on both countries. However, China, being a developing nation that has attracted significant interest from investment companies worldwide, has been particularly affected by this conflict. The trade war has presented numerous challenges for companies looking to invest in China, but there have been notable improvements in recent years. This study aims to delve into the examination of the influence of objective changes and subjective changes experienced by investors on the ultimate outcomes of their investments. By analyzing both the tangible and intangible factors affecting investment decisions and outcomes, a comprehensive understanding of the trade war's impact on investment in China can be gained. Objective changes refer to the concrete alterations in trade policies, tariffs, and regulations that have been implemented as a result of the trade war. These changes may include increased tariffs on certain products, revised import and export regulations, or modifications to investment laws. These objective changes can directly impact the costs, profitability, and feasibility of investments in China. On the other hand, subjective changes pertain to the perceptions, attitudes, and sentiments of investors toward investing in China amid the trade war. These subjective changes can be influenced by factors such as geopolitical tensions, market uncertainty, and the perceived risks associated with investing in a country engaged in a trade war.

Hak Menguasai Tanah oleh Negara dalam Penggunaan Tanah untuk Investasi

Along with the enactment of Law Number 11 of 2020 concerning Job Creation which regulates land acquisition for investment, there are several conflicts about that. These investment provisions prevent investors to invest their capital in Indonesia. One way to fulfill investors' wishes is to carry out legal transplantation and harmonization. The problems are related to land control by the state for investment and the existence of investment laws and Job Creation laws which has problems with current legal provisions, as well as how to utilize transplantation in harmonization of laws and regulations governing investment. This article aims to find a solution to accelerate regulation through transplantation and harmonization of law in the land sector. This research uses normative juridical methods. The results found were that the investment regulations in the land sector, and the regulations in the job creation law, still overlap so that it becomes an obstacle for investors. Therefore, the acceleration of regulations to fulfill investors' desires is carried out through transplantation and legal harmonization.

ANALISIS YURIDIS SECURITIES CROWD FUNDING DALAM PERSPEKTIF UNDANG-UNDANG PENANAMAN MODAL DAN UNDANG-UNDANG PASAR MODAL

Technology-based fundraising or crowdfunding has become a popular trend in corporate funding thanks to the development of the internet. This research uses a normative juridical method by examining library materials to analyze legal protection in crowdfunding services based on the Investment Law and the Capital Market Law. The results showed that legal protection of crowdfunding activities has not been maximized. There is legal uncertainty regarding OJK regulations that are responsible for losses due to third party errors. There needs to be more detailed rules regarding liability in this case. In addition, the current legal structure in the crowdfunding activity platform is considered not clear enough in risk reduction and loss prevention for users. The lack of information due to the low level of knowledge of the Indonesian people about crowdfunding is also a challenge in efforts to protect actors and users from the risks of this activity. Nevertheless, crowdfunding activities have great potential in improving the Indonesian economy after the recession due to the Covid-19 pandemic

Understanding Financial Management and Investments with Regards to Corporate Law and Management

This summary covers the complex relationship between financial management, investment and corporate law in the Indian business environment. India's dynamic economic landscape requires a holistic approach to address the complexities of capital optimization, strategic financial decision-making and compliance with regulatory frameworks. Through the lens of corporate governance, the study explores the symbiotic relationship between ethical leadership, sound governance structures and financial success, illustrated by a transformational case study of the Tata Group. The challenges of the crossroads emphasize the constant need for companies to find a balance between risk and return, while the recommendations emphasize the importance of collaboration, continuous training and technical solutions. As India becomes a global economic powerhouse, this study highlights the critical role of the harmonious interplay of financial strategies, investments and execution in driving sustainable growth and stakeholder value.

Monetary Transfer Provisions and the Rule of Law from the International Investment Law Perspective

Monetary transfer provisions (MTP) are a standard feature of investment treaties. Despite their crucial importance for the realisation of foreign investment, and interpretation difficulties, they have not attracted much doctrinal attention to date. They are also rarely considered by investment tribunals. The extent of economic sanctions imposed on Russia in response to the 2022 aggression against Ukraine, and Russian retaliatory measures, foreclose most alternative opportunities for capital exporting. As a result, we may expect a wave of MTP claims against Russia, once the country rejoins the international community. The article summarizes the debate and makes suggestions for balancing public and private interests in this sensitive area for the economic rationality of investment and the financial basis of state survival. At the same time, it is a first step toward further research situating the issues of transfer clauses and monetary sovereignty in the broader context of public safety and the legality of economic sanctions.

The road(s) not taken—the past, present, and future of international investment law reform

Abstract In this 37th annual Freshfields Lecture, I explore several roads the international community could have taken in lieu of investor-state arbitration. What choices did they contemplate making – what roads did they consider taking – and what prompted them to make the choices they did? I titled the presentation the past, present, and future of reform of investment arbitration, and I will organize the talk around those three areas. First, I will talk about the past, and about four key choices the international community made over the course of the twentieth century that continue to affect the reform process. I’ll then address the present state of affairs at Working Group III, and how those decisions are influencing the reform process. I will close with a few projections about the future.

STUDI IMPLEMENTASI QIYAS DALAM ISTINBATH HUKUM ZAKAT BISNIS DAN INVESTASI SYARIAH

Assets that must be given zakat are all forms of wealth obtained from agricultural products in a halal manner, whether in the form of goods or services. This research is motivated by the diversity of livelihoods which are sources of wealth for Muslims both domestically and abroad in the modern era. The wealth of the Prophet's time was still very limited and there were relatively few types, whereas in modern times there are relatively many types, some of which cannot be touched, making it difficult for Muslims to understand the categories of zakat for the wealth they own. The more diverse the types of assets, the more important it is for contemporary fiqh scholars and Islamic scholars to provide legal certainty regarding the zakat of assets so that all muzakki wealth is clearly known about the zakat obligation. This type of research is normative qualitative, with primary data from journals and books, secondary data on laws and tertiary data from popular dictionaries and encyclopedias. The results of this research are that all Muslim business and investment results must be given zakat if they are within a period of one year (haul) and the amount is worth IDR: 81,000,000.00 (nisobnya). The results of this istinbath on business and investment law determine that zakat is obligatory based on the study of ushul fiqh using the qiyas methodology. Asholnya Tijarah (having added value) is equated with investment results and business results (having added value). The illat is Tijarah, Investment, all types of business both provide added value so the law must be given zakat.

Investment Contracts and the Reform of Investment Arbitration: Towards Sustainability

Abstract This article aims to contribute to the debate surrounding the reform of international investment law and arbitration, focusing on the role of the investment contract. It will discuss how this instrument can make international investment law and arbitration more balanced, by imposing ad hoc obligations upon the investor to strengthen the sustainability of foreign direct investment (FDI); and by providing for State-investor arbitration in case of breach. The article will also assess how contractual provisions may have the effect of grounding counterclaims by States in investment treaty arbitration, allowing for new avenues for sustainable development in investor-State arbitration.

The Third World and the Quest for Reparations: Afterword to the Foreword by Antony Anghie

Abstract In his Foreword, Antony Anghie contrasts two systems of reparations: the Third World system, which is about reparations for colonial expropriation and disenfranchisement, and the Western system, according to which, in the context of decolonization, newly independent states were allowed to expropriate foreign corporations only in return for full compensation. While the Western system has been firmly anchored in international law through the law of aliens and – later – investment law, the Third World system still meets with resistance in international legal discourse. Convinced that international law should be instrumental in overcoming its own colonial origins, I attempt in the following article to explore possible legal foundations by countering the main arguments raised against demands for reparations from the global South: their disruptive effects on today’s societies, conceptual and technical legal obstacles, as well as the doctrine of non-retroactivity of the law. Not being a TWAIL scholar myself, I hope that this might serve as a constructive contribution to a common cause.

Environment Risks and Their Responses to Chinese Companies Investing in Countries along the Belt and Road: Solutions Based on the International Investment Law

In recent years, Chinas investment in countries along the Belt and Road has gradually expanded. Minerals, energy, manufacturing, infrastructure, engineering construction, etc. are key industries for Chinese companies to invest in countries along the road. Legal deficiencies in the host countrys environment, behavioral defects of overseas investment companies, and the lack of regulatory norms and weak supervision of environment risks in China increase the potential environmental liability risk of Chinese companies. On the purpose of reducing the occurrence of environment risks, this paper takes the international investment law as the entry point, adopts the literature review method and data induction method, and combines a large number of environment risk treatment cases of Chinese companies in the project investment, and proposes five solutions: include environmental protection clauses when signing international treaties with host countries; Strengthen companies environmental responsibilities and environmental disclosure obligations; Special legislation for overseas investment by companies; Fully use the role of overseas investment insurance and establishing a diversified mechanism for resolving international environmental disputes.

Legal Protection for the Foreign Investor in Jordan in Light of International Agreements

Objective: This study seeks to determine the mechanism that the state undertakes to provide security for the foreign investor, and is the protection provided by the host country to the foreign investor commensurate with what the latter offers. The study also aims to introduce the concept of investment from a legal point of view, what international agreements have been exposed to, and the concept of guarantees of aspects of investor protection in the host country.
 
 Method: The author adopted this study the descriptive-analytical and comparative approach, as well as the relevant international agreements.
 
 Result: The Jordanian Investment Law No. 30 of 2014 and the Jordanian Investment Law No. 80 of 2019 amending Law No. 77 of 2016 granted the foreign investor sufficient guarantees to enable him to invest his money safely and securely inside the Kingdom,
 
 Conclusion: The legal protection for the investor on which the decision to invest his money is based is the most important guarantee and facilities provided by the host country and in light of the increase in the movement of foreign investments between countries.

The Energy Charter Treaty at a critical juncture: of knowns, unknowns, and lasting significance

Abstract This article envisions the future of international investment law and arbitration amidst the need to accelerate the shift towards renewable energy. Recognizing the risks of predicting the unknown, the article charts the delicate balance between forecasting a future legal framework and respecting past complexities. Focusing on the Energy Charter Treaty (ECT), the article analyses ‘known-knowns’ rooted in positive law and ‘known-unknowns’ in the ECT’s future. The article examines the ECT’s design and scope in the first part, showing its pivotal role in organizing the renewable energy market through fair and equitable treatment and expropriation provisions. Against this backdrop, the article explores potential continuation, modernization, or abandonment scenarios and argues for a nuanced and anticipatory approach to the Treaty’s evolving dynamics. It underscores the variety of pending cases, the potential resurgence of State contracts, and the shift to contract-based arbitration influenced by ECT decisions. Given the impasse over the ECT’s modernization and the paradoxical nature of the ongoing energy transition, the ECT will continue to shape international investment law and international energy governance for the foreseeable future.

Report on the First CELIS NOW Conference ‘The Age of Open Strategic Autonomy’

On 11–13 May 2023, the CELIS Institute’s Early-Career Scholars’ and Practitioners’ Network on the Law and Practice of Economic Warfare (CELIS NOW) organized its first conference on ‘The Age of Open Strategic Autonomy’ in Berlin, Germany. This new network is designed to provide its members with a unique opportunity to exchange ideas and engage with the growing community of scholars and practitioners interested in investment and trade law in this changing geo-economic world. The CELIS Institute is an independent non-profit, non-partisan research enterprise dedicated to promoting better regulation of foreign investments in the context of security, public order, and competitiveness. CELIS NOW was established by Jonas Fechter (University of Münster) and Janosch Wiesenthal (University of Passau) in 2022, in order to create a forum for early-career lawyers in the field of trade and investment law. Since then, CELIS NOW has grown in size. At this first conference, about 40 lawyers who are professionally engaged with geo-economic trends gathered in Berlin to exchange ideas related to the emerging doctrine of Open Strategic Autonomy. The conference was generously supported by BLOMSTEIN and Freshfields Bruckhaus Deringer. This report summarizes the conference proceedings. Open Strategic Autonomy, Economic Warfare, Economic Security, Geo-Economics, Investment Law, Trade Law, Investment Screening, Foreign Subsidies, Anti-Coercion Instrument

Wendy Miles KC on The Role of Law in Promoting, Facilitating and Protecting Investment in Net Zero What Is It and Why Does It Matter? (8th Annual EFILA Conference Keynote Speech 2023)

The keynote reflected on the challenges of developing a holistic approach, which would combine investment law, environmental and social justice elements in order to achieve the necessary energy transition. It is clear that all are in the same boat and that collective effort is required, with particular focus on sme s. No solutions are proposed but the investment law community is called up to open up its mind for this holistic approach.

Report on the 8th Annual EFILA Lecture on ESG Investment Strategy

On 13 October 2022, the European Federation for Investment Law and Arbitration (efila) hosted its 8th Annual Lecture in Brussels on “esg Investment Strategy”. For the first time two speakers rather than one discussed esg issues from different perspectives. Jillian Kirn provided the legal framework regarding esg, while Laurent Lhopitallier explained the practical implications of implementing esg from Sanofi’s experience. The ensuing debate illustrated that esg is moving fast and that the increasing disclosure obligations for companies will have a significant impact on companies’ esg ambitions. The challenges that the growth of esg will pose was also discussed, in particular as regards the collecting verifiable esg data and the ranking of companies based on this data. Generally, it was concluded that both companies and States must be more ambitious in the esg standards they aim to achieve.

Monetary Transfer Provisions and the Rule of Law from the International Investment Law Perspective

Monetary transfer provisions (mtp) are a standard feature of investment treaties. Despite their crucial importance for the realisation of foreign investment, and interpretation difficulties, they have not attracted much doctrinal attention to date. They are also rarely considered by investment tribunals. The extent of economic sanctions imposed on Russia in response to the 2022 aggression against Ukraine, and Russian retaliatory measures, foreclose most alternative opportunities for capital exporting. As a result, we may expect a wave of mtp claims against Russia, once the country rejoins the international community. The article summarizes the debate and makes suggestions for balancing public and private interests in this sensitive area for the economic rationality of investment and the financial basis of state survival. At the same time, it is a first step toward further research situating the issues of transfer clauses and monetary sovereignty in the broader context of public safety and the legality of economic sanctions.