Investment Law Research Articles

The Contribution of Investment to the Effectiveness of Economic Diplomacy between Ethiopia and China

This study delves into the intricate dynamics of economic diplomacy between Ethiopia and China, focusing on the pivotal role of investment in shaping their bilateral relations. The objectives of this research are to examine the nature and extent of investment cooperation, analyze the impacts of Chinese investments on Ethiopia's economic growth and technological advancement, explore the reciprocal relationship between investment and diplomatic ties, and assess the strategic implications for both countries. The central research question asks about the contribution of Chinese investment to the effectiveness of economic diplomacy between Ethiopia and China. Employing a qualitative methodology, this study utilizes case studies, policy analysis, and scholarly literature review to gather and analyze data from official reports, government publications, academic articles, and interviews with key stakeholders. Noteworthy investment projects such as the Addis Ababa-Djibouti Railway and industrial parks serve as focal points for understanding the impacts of Chinese investments. Findings indicate that Chinese investments have significantly contributed to Ethiopia's economic growth, particularly in infrastructure development and industrialization. These investments have also facilitated technology transfer, skill development, and job creation in vital sectors like manufacturing and renewable energy. The Ethiopia-China partnership demonstrates a mutually beneficial relationship, with investments enhancing diplomatic ties and strategic cooperation. However, challenges such as debt sustainability and environmental impacts highlight the need for a balanced approach to investment-driven economic diplomacy. In conclusion, this study provides valuable insights into the transformative role of Chinese investments in Ethiopia-China economic diplomacy. The findings contribute to a deeper understanding of the interplay between investment, economic growth, and diplomatic relations. Recommendations include refining investment laws, prioritizing infrastructure investments, engaging in proactive media campaigns, diversifying investments, strengthening dialogue with China, bolstering domestic capacities, promoting inclusive development, and enhancing training programs. These recommendations offer practical guidance for policymakers and stakeholders seeking to foster sustainable international partnerships.

IMPROVING THE MECHANISMS FOR ENSURING THE RIGHTS AND OBLIGATIONS OF INVESTORS IN PUBLIC INTERNATIONAL LAW

International investment law plays a crucial role in facilitating cross-border investment flows and promoting economic development. However, the current mechanisms for ensuring the rights and obligations of investors in public international law face a number of challenges, including fragmentation of the legal landscape, limitations of investor-state dispute settlement (ISDS) mechanisms, and the tension between protecting investor rights and safeguarding states' regulatory space.This article proposes a series of reforms to improve the mechanisms for ensuring the rights and obligations of investors in public international law. These reforms include harmonization and consolidation of investment treaties, modernization of ISDS mechanisms, clarification of investor obligations, and promotion of sustainable investment practices.

Is a jurisdictional decision in international investment law res judicata?

Die internasionale beleggingsregstelsel word toenemend gekritiseer as gevolg van ’n persepsie dat daar wanbalanse in die stelsel is wat in beleggers se guns werk, wat aanleiding gee tot omstrede debatte oor die regte en verpligtinge van partye. Een terugkerende kwessie draai om gevalle van parallelle prosesse, geïllustreer deur sake soos CME Czech Republic BV v The Czech Republic en Lauder v Czech Republic, waar beleggers en meerderheidsaandeelhouers afsonderlik identiese eise voor beleggingstribunale ingestel het. Die beginsel van res judicata, gewortel in die versekering van finaliteit en prosedurele doeltreffendheid, het na vore gekom as ’n potensiële oplossing om parallelle litigasie te voorkom. Nietemin bly die toepassing daarvan in beleggingsarbitrasie omstrede, veral ten opsigte van besluite oor jurisdiksie. In hierdie bydrae word die kompleksiteite rondom res judicata in beleggingsarbitrasie krities ondersoek, met die fokus op die toepassing daarvan op jurisdiksionele besluite. Die artikel ontleed debatte oor die vraag of sodanige besluite binne die tribunaal die effek van res judicata moet hê en ondersoek scenario’s waar tribunale ongunstige toekennings oor jurisdiksie uitreik. Deur analise van relevante sake en regsbeginsels word met hierdie artikel daarna gestreef om prosedurele doeltreffendheid met regverdigheid te versoen, sonder om die afdwingbaarheid van tribunale se beslissing te ondermyn of om ’n party van die reg te ontneem om beswaar aan te teken waar nuwe feite ’n tribunaal van jurisdiksie ontneem. Die beginsel van res judicata, alhoewel bekend in nasionale reg, neem unieke dimensies aan in beleggingsarbitrasie. Die toepassing van res judicata verskil tussen ICSID- en nie-ICSID-prosedures, met implikasies vir jurisdiksionele uitdagings en die finaliteit van besluite. Tribunale het geworstel met die vraag of besluite orr jurisdiksie as finaal en bindend beskou moet word, wat tot teenstrydige interpretasies en prosedurele onsekerhede gelei het. In hierdie artikel word die rigiede toepassing van res judicata op jurisdiksionele besluite gekritiseer en word geargumenteer ten gunste van ’n meer genuanseerde benadering wat prosedurele doeltreffendheid met partye se regte sal balanseer. Dit beklemtoon die praktiese uitdagings van die toepassing van res judicata op aanhoudende prosesse en stel alternatiewe meganismes voor om prosedurele regverdigheid te beskerm. Deur die praktiese implikasies van res judicata te ondersoek, dra hierdie artikel by tot verdere debat binne beleggingsarbitrasie en bied insigte in die versoening van teenstrydige belange in die nastrewing van billike geskilbeslegting.

How Can Indigenous Voices Be Maximized in Existing Mechanisms for Holding Multinational Corporations Accountable for Environmental Harm? A Study of International Environmental, Human Rights, and Investment Law Mechanisms Through the Inter-American Lens

How Can Indigenous Voices Be Maximized in Existing Mechanisms for Holding Multinational Corporations Accountable for Environmental Harm? A Study of International Environmental, Human Rights, and Investment Law Mechanisms Through the Inter-American Lens

Prescriptive Pricing and Stabilisation Clauses in Investment Agreements

‘Prescriptive’ pricing methods, which employ reference prices and fixed margins for tax purposes, have gained prominence as a pragmatic approach to combatting commodity trade mispricing and tax evasion, especially for countries with limited tax administration capabilities. While these methods hold promise for facilitating enforcement, reducing administrative burdens, and curtailing abusive tax avoidance practices, concerns have arisen about their potential deviation from established international rules and principles. The perceived risk of legal liabilities and investor claims, including ‘unfair treatment’ under investment treaties, acts as a significant uncertainty factor in the adoption of such methods. Thus, the present chapter addresses the legal aspects of ‘prescriptive’ pricing methods within the parameters of international investment law, offering a multifaceted perspective on challenges involving the scope of defence arguments that states can mobilise under international investment law to justify such methods and exploring the right and duty of states to regulate corporate conduct and economic activities under human rights law, as well as the practical limitations to this approach in present lawmaking practices.

Can Ukrainians Claim Compensation for War Damage under the Russia-Ukraine BIT? An International Investment Law Experiment

Can Ukrainians Claim Compensation for War Damage under the Russia-Ukraine BIT? An International Investment Law Experiment

Institutionalizing Investor-State Dispute Prevention in China

China's 2019 Foreign Investment Law establishes a formal mechanism to handle complaints by foreign-invested enterprises (FIEs)—i.e., Chinese enterprises that are wholly or partly foreign-owned. Its “complaint agencies” are empowered to prevent disputes by facilitating settlements; they do not have adjudicatory authority. Beyond the immediate objective of dispute prevention, this essay argues that the FIE complaint mechanism was intended to strengthen central oversight and control over subnational governments. However, the mechanism may be hindering its intended objectives in practice. In particular, the flexibility and informality of its processes encourage ad hoc settlements between FIEs and errant subnational governments in ways that may undermine the exercise of central administrative powers.

Reforming International Investment Law to Advance Tax Justice

Reforming International Investment Law to Advance Tax Justice

How the International Investment Law Regime Undermines Access to Justice for Investment-Affected Stakeholders

How the International Investment Law Regime Undermines Access to Justice for Investment-Affected Stakeholders

The Legal and Practical Issues of Environmental Protection Provisions in International Investment Law

International investment is an important form of cooperation between countries. International investment mainly in the form of investment agreements, through the signing of treaties to effectively protect the interests of investment importing countries and host countries. However, environmental problems are inevitable during the process of economic development. The deterioration of the environment will bring harm to the country and the whole world. This paper focuses on the legal and practical issues on environmental protection provisions in the area of international investment law, by means of analysing previous cases. Conclusively, these legal issues include vacancy in the specific context of environmental protection clauses, ambiguity of application and lack of legally binding force. As for practical issues, lack of evidence, lack of supervision and defeat in the evidence on compliance with environmental regulations are discussed in this paper. In closing, this paper also offers some suggestions to solve the issues mentioned above.

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.