Foreign Investment Law Research Articles

New Challenges in Corporate Governance for Mainland Companies: Addressing Adjustments in the Articles of Association in Response to the New Company Law and Foreign Investment Law

New Challenges in Corporate Governance for Mainland Companies: Addressing Adjustments in the Articles of Association in Response to the New Company Law and Foreign Investment Law

Evolution of Australia's Foreign Investment Review and Its Impact on Government Investors

Through a number of legislative reforms, most notably the Foreign Acquisitions and Takeovers Act of 1975 and its ensuing revisions, Australia's foreign investment policy has changed. The goal of the approach is to preserve national security while luring in international investment. The Foreign Investment Review Board (FIRB), which assesses foreign investments using a "national interest test," is a crucial component of this structure. With an emphasis on Chinese investments, this article investigates how these policies have affected state-owned businesses in particular. It examines potential changes to Australia's foreign investment laws in the future and draws attention to the difficulties presented by the FIRB review procedure.

Assessing the Impact of Foreign Direct Investment on Vietnam's Socioeconomic Development and Proposing Policy Recommendations

In recent years, Vietnam has emerged as one of the world's top 20 destinations for foreign direct investment (FDI). Since reforming its Foreign Investment Law in 1987 and joining the World Trade Organization (WTO) in 2007, the country has implemented numerous tax and investment procedure reforms. This influx of FDI has significantly boosted Vietnam's economic growth, job creation, and social welfare. However, challenges persist—complex legal procedures and weak links between FDI and domestic businesses have been ongoing issues for four decades. Moreover, new global economic trends such as the global minimum tax, sustainable development, digital transformation, and the shift towards a circular economy demand timely and appropriate government reforms. These reforms are crucial for developing suitable foreign investment policies and effective FDI attraction strategies. This article aims to examine Vietnam's current FDI landscape, assess its socio-economic impact in recent years, and propose recommendations for a more selective and effective FDI strategy moving forward.

China's Foreign Investment Law and TRIMs Agreement: Conflicts, Amendments, and Applications

This article explores the developmental trajectory of China's Foreign Investment Law and its consistency issues with the WTO TRIMs Agreement. Covering four developmental stages from 1979 to 2020, it provides a detailed account of the evolution and amendments of China's legal framework on foreign investment. The article identifies inconsistencies in national treatment, elimination of quantitative restrictions, and transparency principles, analyzing adjustments and revisions made across these stages to align with international trade environments and WTO requirements. Despite significant progress, the article highlights areas for further improvement, such as the implementation of national treatment principles and resolution of transparency issues.

China's Foreign Investment Law and TRIMs Agreement: Conflicts, Amendments, and Applications

This article explores the developmental trajectory of China's Foreign Investment Law and its consistency issues with the WTO TRIMs Agreement. Covering four developmental stages from 1979 to 2020, it provides a detailed account of the evolution and amendments of China's legal framework on foreign investment. The article identifies inconsistencies in national treatment, elimination of quantitative restrictions, and transparency principles, analyzing adjustments and revisions made across these stages to align with international trade environments and WTO requirements. Despite significant progress, the article highlights areas for further improvement, such as the implementation of national treatment principles and resolution of transparency issues.

Artificial Intelligence and Foreign Investment Law Arbitration: an Analysis of Regulatory Framework Implications

Abstract This paper proposes a structured, tiered framework through a UNCITRAL Model Law to gradually integrate artificial intelligence (AI) into foreign investment law arbitration in an ethical and effective manner. It also explores the critical role arbitration institutions can play in facilitating AI implementation. It details how AI can assist arbitrators by searching vast datasets, automating routine tasks, and enhancing decision-making through analysis of previous cases. Current AI regulations in regions like the EU, UK, and Canada fall short in addressing the complexities of cross-border arbitration and ensuring interoperability. By emphasising the distinct contributions of the proposed UNCITRAL Model Law and arbitration institutions, the paper highlights a multi-faceted strategy to overcome challenges posed by outdated international conventions, inconsistencies in bilateral investment treaties, and the lack of comprehensive guidance. This approach aims to refine the integration of AI in arbitration processes, enhancing efficiency, fairness, and the legitimacy of the arbitration system.

Perbandingan Hukum Penanaman Modal dan Investasi Di Indonesia dan Di Tiongkok

Indonesia and China are two countries with rapidly developing economies in Southeast Asia. These two countries have great potential to attract foreign investment. However, there are differences in investment and foreign investment regulations in the two countries. This research aims to compare investment and foreign investment laws in Indonesia and China. This research uses normative legal research methods with a comparative approach. Research data was obtained from literature studies, namely laws, government regulations and other related literature. The research results show that there are similarities and differences in foreign investment and investment regulations in Indonesia and China. Similarities include, recognition of the rights of foreign investors; providing incentives for foreign investors; and resolving investment disputes. The differences include the subject of investment, business fields open to foreign investment, investment requirements. From this research, researchers can draw the title, namely Comparison of investment law and foreign investment in Indonesia and China

Locating the 1948 Economic Agreement of Bogotá: The Rise and Fall of Latin America’s International Economic Law Project

Abstract This article claims that Latin America developed a competing International Economic Law project in the 1940s. These ideas and practices served the region to imagine its economic development process. Through the work of economists and lawyers – especially international lawyers – Latin America envisioned a future of industrialization and designed a strategy to make it happen. In the 1940s, many Latin Americans were enthusiastic about the prospects of industrialization; however, the consensus was that this objective required regional cooperation to reshape international trade and foreign investment laws among themselves and, especially, vis-à-vis the United States. This article explores this regional momentum focusing on the 1948 Economic Agreement of Bogotá, one of the most important international economic law-making efforts in the Western Hemisphere. In Bogotá, many Latin American governments insisted that states, not markets or foreign investors, should plan the region’s economic future. The United States and the US business elite disagreed.

Entre La Espada y La Pared: Obstacles to U.S. Investment in Cuba

Investing in Cuba poses several obstacles to U.S. investors. Cuba’s new Law of Foreign Investment and new Constitution do not provide remedies or protections against the state’s takings of private property or imprisonment without charge. On the U.S. side, Title III of the Helms-Burton Act has made U.S. investors the most vulnerable to claims worth billions in damages under the Act.

Critical analysis of the new Chinese foreign investment law in the prism of China-EU CAI and China-US bit negotiations

The Chinese foreign direct investment legal system prior to 2019 evolved constantly, although it failed to satisfactorily address the main issues for foreign direct investments. The new Chinese Foreign Investment Law of 2019 and its Implementing Rule made a landmark improvement to the legal system. This new reform went hand in hand with the China-EU Comprehensive Agreement on Investment (CAI) and China-US BIT and their negotiations. It played a preparative role for the progress made in these two influential investment agreements. It offered unprecedent solutions in areas such as the pre-establishment national treatment, prohibition of forced technology transfer and the enhanced foreign investment protection. Nonetheless, further reforms on SOEs are still needed. The ratification of the China-EU CAI and the reanimation of the China-US BIT, albeit unlikely to happen anytime soon, would still provide long-desired clarity to the dispute resolution mechanism, national security review system and forced technology transfer issue.

Reassessing Saudi Arabia’s foreign investment laws: from protectionism to liberalization

PurposeThis paper aims to examine the extent to which these reforms address the limitations of Saudi Arabia’s previous investment framework. Long viewed as a hostile environment in which to do business, the Saudi Government has enacted a broad sweep of measures aimed at restoring investor confidence in central aspects of the country’s evolving private law framework.Design/methodology/approachThis paper offers a timely assessment of the raft of foreign investment reforms, both legislative and regulatory, that have been introduced in Saudi Arabia over the last decade.FindingsThe paper will proceed by outlining the perceived failings of the old investment regime before going on to reforms.Originality/valueIt will consider the remaining obstacles to the flow of foreign investment in Saudi Arabia in the context of the dual forces that have historically defined the Kingdom’s ambivalent investment law regime.

Meeting the Looming December 31, 2024 Deadline for Corporate Reorganizations of Sino-Foreign Joint Ventures Under China's 2020 Foreign Investment Law

Meeting the Looming December 31, 2024 Deadline for Corporate Reorganizations of Sino-Foreign Joint Ventures Under China's 2020 Foreign Investment Law

International Investment Protection and Constitutional Law

Journal Article International Investment Protection and Constitutional Law Get access Stephan W Schill and Christian J Tams, International Investment Protection and Constitutional Law ( Edward Elgar 2022), ISBN 978 839100420 (hardcover), £125.00. Gloria M Alvarez Gloria M Alvarez Search for other works by this author on: Oxford Academic Google Scholar ICSID Review - Foreign Investment Law Journal, siad019, https://doi.org/10.1093/icsidreview/siad019 Published: 22 June 2023 Article history Received: 10 May 2023 Editorial decision: 18 May 2023 Accepted: 20 May 2023 Corrected and typeset: 22 June 2023 Published: 22 June 2023

‘Maduro Board’ of the Central Bank of Venezuela v ‘Guaidó Board’ of the Central Bank of Venezuela

Journal Article ‘Maduro Board’ of the Central Bank of Venezuela v ‘Guaidó Board’ of the Central Bank of Venezuela Get access Laura Rees-Evans, Laura Rees-Evans https://orcid.org/0000-0001-9167-004X Search for other works by this author on: Oxford Academic Google Scholar Rhys Carvosso Rhys Carvosso https://orcid.org/0000-0003-3834-5824 Search for other works by this author on: Oxford Academic Google Scholar ICSID Review - Foreign Investment Law Journal, siad004, https://doi.org/10.1093/icsidreview/siad004 Published: 13 June 2023 Article history Received: 15 August 2022 Revision received: 01 February 2023 Editorial decision: 13 February 2023 Accepted: 17 February 2023 Corrected and typeset: 13 June 2023 Published: 13 June 2023

The Umbrella Clause Revisited

Journal Article The Umbrella Clause Revisited Get access Zachary Douglas, KC Zachary Douglas, KC Search for other works by this author on: Oxford Academic Google Scholar ICSID Review - Foreign Investment Law Journal, siad013, https://doi.org/10.1093/icsidreview/siad013 Published: 30 May 2023 Article history Received: 26 January 2023 Editorial decision: 07 April 2023 Accepted: 14 April 2023 Corrected and typeset: 30 May 2023 Published: 30 May 2023

Original scientific article Evolution and Prospects of the Foreign Investment Law of the People’s Republic of China

On January 1, 2020, the Foreign Investment Law of the People’s Republic of China came into force. It is the first comprehensive body of law governing the main aspects of foreign investment in the Chinese economy. The new legal regime for foreign investment has been formed taking into account the changes and real needs of the economy, both international and domestic. With its adoption, a unified legal regime for foreign investment was established, and the legal gaps that existed in the previous legislation were filled. First of all, the state unified the organizational legal forms of companies with foreign investments. Innovation was also shown in the management scheme at the pre-investment stage, at this stage a so-called negative list is created for foreign investment. It includes sectors of the economy in which foreign investment is prohibited or restricted. In other economic areas, foreign investments are allowed without restrictions. Unlike the previous period, the Law of the People’s Republic of China on Foreign Investment establishes the principle of national treatment for foreign-invested companies. By this, they are equalized in rights and obligations with legal entities using exclusively Chinese capital; the legal statuses of foreign and Chinese investors are also declared identical. These features are designed to more actively support foreign investment and protect the rights and legitimate interests of foreign investors, but taking into account the interests of Chinese investors. In addition to the Law, there is a “Regulation on the Application of the Foreign Investment Law of the People’s Republic of China”. It clarifies key concepts and basic regimes under the provisions of the Law of the People’s Republic of China on Foreign Investment, strengthens incentive measures and ways to protect the rights of investors, as well as the corresponding legal responsibility. In the future, it is necessary to more clearly define the legal issues that are not set out in the Law of the People’s Republic of China on Foreign Investment, including clarifying some legal concepts, adjusting procedures more clearly, and improving the security inspection system.

International Organizations, Technical Assistance, and Domestic Investment Laws

AbstractCan supranational actors influence domestic policy? In this article, we study how international organizations have sought to shape the contents of domestic laws aimed at protecting foreign investment. Traditionally, the influence of international organizations on public policy has been assumed to run through loan conditionalities. We build on a recent strand of literature indicating that international organizations can also influence public policy through technical assistance. Empirically, we present a cross-sectional mapping of the protection that states offer foreign investors in domestic investment laws, and a mapping of the advisory activities of the three main organizations offering technical assistance on foreign investment laws: the United Nations Conference on Trade and Development, the Organization for Economic Co-operation and Development, and the World Bank. We find that there are significant variations in protection offered under domestic investment laws, and variation in international organizations’ technical assistance over time and across organizations. To explore technical assistance as a causal mechanism for influence on public policy more closely in this field, we conduct a case study of the development of domestic investment legislation in Bosnia and Herzegovina.

The Effect of the Consortium Agreements on the Competence of the International Centre for Settlement of Investment Disputes (ICSID): Analytical Study of the Saudi Foreign Investment System and the Washington Agreement of 1965

This study determines the extent of the impact of the consortium agreements between commercial companies on the jurisdiction of the International Centre for Settlement of Investment Disputes (ICSID). For the settlement of foreign investment disputes, if the issue arises from the same dispute between foreign investors from several countries, who are linked to each other by a nodal group on the one hand, and with the Kingdom of Saudi Arabia as the host country for investment on the other hand. This study has shown that in some cases, consortium agreements have an indirect role in the emergence of several simultaneous judicial or arbitration procedures for the procedures of the center for settling foreign investment disputes in the Kingdom of Saudi Arabia, considering that the Kingdom of Saudi Arabia is a member of the Washington Agreement of 1965. In this study, we rely on the comparative analytical approach by studying the special nature of the consortium agreements that arise from the alliance of several companies or projects from different countries. These parties bring together an independent legal entity with an independent legal personality to explain that the consortium is considered one of the indirect reasons for the emergence of Simultaneous arbitration procedures for the ICSID. We also rely on the comparative approach between the Saudi Foreign Investment Law of 2000 and the Washington Agreement of 1965 to determine the extent of the impact of these agreements on attracting foreign investors in the Kingdom of Saudi Arabia. Additionally, we try to identify the legal means to prevent the occurrence of this phenomenon or control it if it occurs.
 
 Received: 16 November 2022 / Accepted: 27 December 2022 / Published: 5 January 2023

Symposium on Decoding Maldives’ Foreign Investment and Arbitration Law Regime

Symposium on Decoding Maldives’ Foreign Investment and Arbitration Law Regime

ESG and investment arbitration: a future with cleaner foreign investment?

Abstract The importance of mitigating climate change, upholding good social policies and good governance have led to the rise and use of environmental, social and governance (ESG) factors in the world of finance and investment. Banks, funds and other financial institutions have increasingly sought to measure whether the investments they make promote ESG. This will invariably permeate the world of foreign investment law, as States and claimants become increasingly aware of ESG and ESG-related concerns. This article seeks to consider how the ESG movement has impacted international investment law and arbitration, and how is it likely to do so going forward.