Multilateral Investment Treaties Research Articles

Act on Protection of Geographical Indications of Iran: in line or contradiction with international treaties

Iran is a country with an ancient civilization with many unique products and goods. To protect the rights of geographical indications owners, Iran has adopted an Act in this regard. This article aims to examine the strengths and weaknesses of the Iranian Act and the extent of its compliance or non-compliance with international treaties in this field. The results and achievements of this study, which are not limited to Iran and can be used for the international system as well as developing countries, indicate that the multiplicity of international treaties, lack of sanctions or insufficient sanctions, the manner of procedure and proceedings authorities, different interpretations of concepts contrary to public order and good morals, as well as ignoring the issue of labels and barcodes are some of the most important challenges and problems facing the effective protection of geographical indications. Obviously, Iran can protect geographical indications in a more effective way by providing some strategies. Including protection for geographical indications in bilateral or multilateral investment treaties, applying quality control on products bearing geographical indications and intensifying performance guarantees (or sanctions), building culture and increasing coordination between public and private sectors and investing to strengthen the value of geographical indications in the market are among the most important solutions that have been presented.

Foreign Investors of the World, Unite! The International Association for the Promotion and Protection of Private Foreign Investments (APPI) 1958–1968

Abstract This article studies lobbying efforts by the actors that investment treaties protect – namely, foreign investors. It uses a legal-historical approach to analyse the activities of the International Association for the Promotion and Protection of Private Foreign Investments (Association internationale pour la promotion et la protection des investissements privés en territoires étrangers or APPI), a transnational business interest association that lobbied for better protection of private foreign investment under international law. The article considers the role of this group in lobbying for three multilateral investment treaties (an investment code, investor-state arbitration and investment insurance) during the 1950s and 1960s, using unexplored archival sources. The article makes three substantive contributions to the literature. First, it shows that the key actors involved in APPI were a transnational advocacy network of businessmen and lawyers at multinational companies, mainly in the oil and banking sector. Second, it shows how these two types of actors (businessmen and lawyers) acted symbiotically. The businessmen provided access to policy-makers and introduced company lawyers into the policy-making cycle. The company lawyers provided expertise and specific legal texts with which civil servants could work. Third, it argues that, despite the group members’ common goal to improve foreign investment security, competing individual initiatives and institutional competition, next to state preferences, often impeded more effective lobbying.

Jurisdictional Competition: Domestic Courts or Arbitral Tribunals? Lessons from the CJEU Judgments on EU’s Economic Agreements with Non-EU States

Abstract Summary A judgement by a domestic court in an international economic dispute, where the parties have agreed on an International Dispute Settlement Mechanism (IDSM), may be legitimate from the perspective of domestic law. However, it might entail concerns from the perspective of third states and Public International Law (PIL). Such concerns might be aggravated by the broadening of delicate foreign relations elements and protections for investors woven into international economic agreements. In the absence of clear PIL rules for conflicts arising from overlapping jurisdictional claims, such jurisdictional issues are subject to the discretion of the domestic court. A tendency to adjudicate such claims is strongly demonstrated in the caselaw of the EU Court of Justice (CJEU). The CJEU’s jurisdictional attitude towards competing IDSMs is examined in the context of the recent CJEU caselaw on disputes under bilateral and multilateral investment treaties involving non-EU states and investors, where the parties have committed to arbitration. The analysis then focuses on CJEU judgments on disputed EU trade agreements with non-EU states controlling Disputed Territories (DTs), in particular, trade with Israeli controlled DTs, where the parties have agreed on an IDSM. These judgements present substantial competing jurisdictional issues, that were scarcely dealt with in the literature. Consequently, the CJEU’s jurisdictional policy provides an excellent basis on which normative conclusions can be drawn regarding the profound effect it may have on third states, foreign investors and on the development of rules for the resolution of international economic conflicts.

Multilateral Principles in a Bilateral World

Abstract Multilateralism in international investment law is a multifaceted concept with a complex and eventful history. Multilateralism is a paradigm for international investment relations and is also present in the caselaw of investment arbitral tribunals, regardless of whether they consider bilateral or multilateral investment treaties. Indeed, in most cases, they interpret treaty provisions as part of a multilateral system. Further, multilateralism is present every time States act in concert with other States or consider other States’ investors’ legitimate interests. It also emerges that, in some instances, multilateralism has become mandatory. For example, this is the case concerning sustainable development or climate change. In these areas, international law requires multilateralism. States are under an obligation to co-operate for purposes of achieving or promoting multilateral solutions. However, concerning the international investment law context, such a concept is not present. The general assumption is that States’ participation in multilateral practises is left to their discretion: it is voluntary or consensual. In this article, we question that assumption. In this article, we offer a brief review of multilateral experiences in international investment law in the 20th century and provide an analysis of multilateralism in a historical context. Then we turn our attention to the current state of affairs to appreciate it in light of the past. Further, we discuss the future, and in particular, mandatory multilateralism in international law with respect to sustainable development. Here we identify the principles, which might justify mandatory multilateral approaches. Finally, we consider whether the principles justifying mandatory multilateralism in international law are applicable in the context of international investment law as well. We attempt to answer this question in the affirmative and point out further areas of research.

Is There a Need To Negotiate a Multilateral Investment Treaty?

Is There a Need To Negotiate a Multilateral Investment Treaty?

The Relationship between Allegations of Economic Crimes in Foreign Investments and the Adjudicative Power of Investor–State Tribunals

Abstract The article falls within the broad areas of investment and financial law and, in particular, it focuses on various challenges that emerge from allegations of economic crime in investor–State arbitration. In particular, what is examined is how the adjudicative power and authority of investor–State tribunals is affected by alleged investors’ economic crimes. The two examples of economic crimes discussed are money laundering and corruption, due to their growing prominence in the field of investment arbitration. The existing legal framework regarding corruption and money laundering at international and multinational levels is analysed first, as arbitrators should base their decisions on it when they face an allegation of the two aforementioned economic crimes. Afterwards, the article identifies and evaluates three possible options for arbitrators: first, to deny jurisdiction over the particular dispute; second, to refer to relevant principles of international public policy; and, third, to apply the mandatory provisions of a law other than the one applicable in the particular dispute. After critically analysing each of the three options, the article concludes with some suggestions on how arbitrators should deal with alleged cases of economic crime, and, further, how bilateral and multilateral investment treaties could be adjusted so as to tackle this evolving problem.

EVOLUTION OF THE LEGAL CONCEPT OF "FOREIGN INVESTMENT" IN A NETWORK SOCIETY

The paper deals with the problems of definition of the concept "investment" in multilateral and bilateral investment treaties. The author shows how the approach to the definition of "investment" in international investment agreements has changed over time, how this concept differs in modern agreements from those enshrined in agreements concluded more than ten years ago. It is noted that today we can talk about the trend of a broad definition of the concept of investment in international treaties, that is, investments are understood as any kind of property values; further the author specifies what applies to them.International treaties on the protection and promotion of investment also include the right to engage in business activities. It turns out that investment disputes can arise from ordinary commercial activities, for example from a contract of sale. However, there are documents that do not include monetary claims arising from commercial contracts, such as the 2012 model bilateral investment Treaty of the South African development Community.Generally, investment protection agreements do not distinguish between direct and portfolio investments. Therefore, portfolio investments also enjoy the protection of these investment treaties. However, some of the international investment agreements that are currently being concluded specify that portfolio investments are excluded from their scope, such as the Model bilateral investment Treaty of the South African Development Community.In the literature there are three approaches to the qualification of foreign arbitral awards as a foreign investment. According to one of them, the award is an investment, because it is part of the entire activity of the investor. Some modern international investment agreements contain provisions according to which arbitration, judicial decisions are not investments.

Reconciling the Conflict between International Investment Arbitration and Protection of Human Rights: Way Out

Human rights matters are increasingly becoming interwoven with Arbitration. The fact that, so far, international human rights norms are, as a matter of international law, not directly applicable on a horizontal level -- that is, in the relation between foreign investors and other private parties -- makes it not straightforward to bring claims based on the breach by the foreign investor of human rights obligations before a treaty-based arbitral tribunal. Instead, such obligations exist mainly on the domestic legal level. Also, traditionally, international investment treaties are silent on issues of human rights. Although states have recently effectively included references to human rights norms in their bilateral investment treaties (BITs) and other multilateral treaties (MITs), such as the recently negotiated Draft Pan-African Investment Code (PAIC), the vast majority of contemporary BITs do not mention human rights. There is a global increase in the use of International arbitration as a dispute resolution mechanism especially in international investment disputes and the debates on: (I) obligations of foreign investors to respect human rights of host states, and (II) whether the state can sufficiently maintain policy space alongside Investment treaty obligations with International Investors and the feasibility of enforceability of an award arising from investor-state dispute. The overlap between arbitration and human right matters in Investment arbitration brings to fore the inseparability of these two seemingly distinct areas. The nagging question has been the impact of Investment treaties on the ability of the state to enforce policies which safeguard human rights and the extent of the jurisdiction of an arbitral tribunal in Human right matters arising from International Investment agreements. This is essential because most international arbitration agreements are based on Bilateral or Multilateral investment treaties. The relationship between human rights and international investment law manifests itself in different contexts and directions. Two general and broad approaches concerning human rights law exist from the perspective of investment protection: human rights can be used to support or enlarge claims of investors or they can be used to strengthen the state’s defence of its actions which are taken to respect, protect and fulfil human rights. Similarly, investment law can be viewed in two different ways from the perspective of human rights: it can be seen as creating restrictions on the state’s ability to respect, protect and fulfil the rights of occupants of the state; it may also be perceived as a breach of individual rights of investors under international investment law. This work will discuss the application of arbitration in International Investment disputes, in particular relation to emergence of Human right matters in arbitration of Investor-state disputes. It will consider the circumstances under which human rights concerns can be raised before an arbitral tribunal set up under a BIT, when and how this can be done, the limited jurisdiction of tribunals over human rights matters, and the challenge of finding a balance where there is an overlap between Human rights and arbitration.

The Role of Travaux in Interpreting BIT Provisions: Are Tribunals Over-Prepared to Resort to Preparatory Works?

Abstract While multilateral investment treaties have formed the centrepiece of much academic discourse, an uncharacteristic literary silence has eclipsed the issue of interpretation of bilateral investment treaties under the scheme of the Vienna Convention on the Law of Treaties (VCLT). This article travels this untraversed territory by revisiting the basics of the principles encapsulated in the hierarchical set-up of Articles 31 and 32 VCLT, and juxtaposing this foundational set-up against its frequent oversights by investment tribunals. These oversights are exemplified by the divergent interpretative analyses afforded to umbrella and most-favoured-nation clauses, and emanate from a premature resort to the travaux préparatoires of investment treaties under Article 32 VCLT. Ultimately, the article argues that a proper application of the VCLT would go a long way in eliminating the contradictions tainting the understanding of the aforesaid clauses.

Legal Framework for International Investment Arbitration in Nigeria - A Critique

Why is the state of investment climate in Nigeria a serious concern for the world? The answer seems readily available. Nigeria is the largest trading partner in sub-Saharan Africa, mainly due to the high level of petroleum exports from Nigeria. Secondly, investors from all over the world also see Nigeria as a potential investment breeding economy. The reasons are not far-fetched – Nigeria is Africa’s most populous country; the continent’s second largest oil reserves; potential largest economy in Africa; and the recipient of major share of foreign capital in Africa. For Nigeria, the concern raised above are fundamentally important and demands attention. The reason is very clear. Meaningful and long-lasting economic growth and development in Nigeria is contingent upon securing substantial amounts of foreign investments. Foreign investments permit the transfer of technology; facilitates improvements in productivity and access to world market; contributes to improvement of infrastructures; and helps to develop indigenous industries. Foreign investments survive and thrive where reliable dispute resolution mechanism is an integral part of the entire investment climate; to balance the tension between the varying degrees of interests that exist between the host states and the foreign investors. interest in this research is stimulated by the curiosity to examine the mechanisms for resolving the conflicting and competing interests of the host state and foreign investors. The objective of the study is to suggest ways to improve the legal frameworks for resolution of investor-state dispute in order to attract more foreign investments to Nigeria. The focus of this paper is to analyse international investment arbitration as a mechanism for settlement of investment disputes within the context of Nigerian Law. The fact that the efficacy and primacy of the international regimes are achieved when they are strengthened by national legislation further justifies this research. The paper will analyse the jurisprudence questions relating to investment arbitration under Nigerian law. The analysis will cover some of the issues such as: “How and when did investment arbitration evolve in Nigeria? What is its scope within the ambit of Nigerian laws? Is the legal framework really efficient and effective for maximum protection of foreign investment? To what extent do investment treaties promote investment arbitration in Nigeria? Is the legal regime for international investment arbitration adequate to facilitate business development and foreign investment?” The paper also suggests answers to these questions, including the way forward. The first part of the paper contains a general overview of investment climate, investment law and investment arbitration in Nigeria. The purpose is to ascertain how the international community perceives Nigeria’s investment climate and how Nigerian laws support this perception. In this context, the paper attempts an examination of the meaning, origin and jurisprudence behind investment arbitration in Nigeria. The second part of the paper will discuss how the jurisprudence behind investment arbitration has been translated to statutory laws and judicial decisions in Nigeria. This will be achieved by reviewing and analysing the Nigerian investment laws and cases. The third part of the paper will focus on the international law perspective of investment arbitration. This will probe how the Bilateral Investment Treaties (BITs), Multilateral Investment Treaties (MITs) and International Petroleum Agreements (IPAs) incorporated and promoted the Nigerian jurisprudence and perception of international arbitration in their various provisions. The paper will review some critiques of the legal framework; some significant concerns and challenges in this sector and conclude by proposing ways of resolving the challenges to enhance economic development in Nigeria.

Is Provisional Application on the Rise in International Investment Agreements? The European Union’s Recent Treaty Practice and the Curious Case of Von Pezold

As the Vienna Convention on the Law of Treaties (vclt) approaches its 50th birthday, the peculiar phenomenon of provisional application appears to be on the rise. Although previously confined, in the sphere of international investment agreements (iias), to the context of the Energy Charter Treaty, provisional application is increasingly seen in European Union multilateral investment treaties. Furthermore, the recent decision of Von Pezold has explored the open-ended nature of Article 25(1)(b) vclt, and the potential range of iias to which provisional application is possible. Subject to textual interpretation authorized by Articles 31 and 32 vclt, found in Kardassopoulos, Petrobart and the Yukos Oil tribunals, provisional application is a legal regime that can very easily lead towards unintended results. This article suggests the solutions of more careful syntax and grammar, and limiting clauses and changes in legal processes, to further mature provisional application jurisprudence.

A Model Multilateral Treaty for the Encouragement of Investment in Climate Change Mitigation and Adaptation

The Paris Agreement sets out to limit global warming to below 2°C, yet the pathway to reach that goal is unclear. This specifically applies to the mobilization of investment for climate change mitigation and adaptation. One way to mobilize foreign investments is to create a favourable investment climate with the help of multilateral investment treaties. In this article, a model treaty is proposed to considerably increase climate-friendly investments while maintaining regulatory flexibility for signatory states. Building on Design Thinking principles, key challenges for the success of such a treaty are identified and provisions are crafted incorporating feedback from twenty-five experts from finance, policy, and legal domains. The proposal addresses four key challenges: (1) define climate change mitigation and adaptation investments; (2) decrease the barrier of limited access to capital due to perceived and actual risks; (3) combat insufficient investor trust in long-term contracts; and (4) retain states’ ability to regulate. The treaty proposal addresses these challenges by proposing, inter alia, a definition for mitigation and adaptation investments that establishes a link to the Nationally Determined Contributions under the Paris Agreement, an innovative financing mechanism, a conversion of host country subsidies to investment grants, and a performance verification using latest distributed ledger technology.

The New Developments in International Investment Law: A need for Multilateral Investment Treaty?

This work contributes to the global discussion on the desirability of the multilateral investment treaty to ensure coherence in the way foreign investment is protected across the globe. The paper argues that whereas the international community is not ready yet to adopt multilateral rules on investment liberalisation, the time is ripe for multilateral rules on the standards of protection backed up by a multilateral court with a two-tier system. Most importantly, this contribution provides a template for the content of the standards of protection, having observed the new approaches to the traditional standards of protection typically enshrined in the bilateral investment treaties.
 

Consent to Investor-State Arbitration in the Second Largest International Investment Protection Agreement: The Correct Interpretive Approach to Article 17 of the OIC Investment Agreement

The Organization of the Islamic Conference (OIC) Investment Agreement is the second largest multilateral investment treaty worldwide. Attentions were attracted to this deeply dormant Agreement when the tribunal in Hesham Talaat M. Al-Warraq v. Republic of Indonesia rendered its Award on Jurisdiction in 2012, interpreting the critical Article 17 of the Agreement, holding that it contains binding state consent to investor-state arbitration. The jurisdictional question before the tribunal, which may be at issue in the pending cases or which may very well arise in subsequent cases brought under this Agreement, was twofold: (1) whether investor-state arbitration is contemplated in the OIC Investment Agreement; and (2) whether the consent to arbitration contained in Article 17 is binding. In its jurisdictional analysis, in addition to references to Article 31 of the Vienna Convention on the Law of Treaties (VCLT), the tribunal resorted to the principles of contemporaneity and evolutionary interpretation to conclude that Article 17 of the OIC Investment Agreement contained binding state consent to investor-state arbitration. This article considers the viability of the reliance on the principles of contemporaneity and evolutionary interpretation in this context. It argues that the tribunal’s jurisdictional analysis in this regard lacks adequate precision: none of these principles, it seems, could successfully be employed to show the existence of a binding consent to investor-state arbitration in the OIC Investment Agreement. Nonetheless, relying on a proper textual and contextual analysis, the article concludes that Article 17 of the OIC Investment Agreement does seem to contain a binding consent to investor-state arbitration. This conclusion is in line with the ultimate outcome reached by the Al-Warraq tribunal. Nevertheless, the textual and contextual interpretive approach proposed by this article finds fault with the interpretive exercise by the Al-Warraq tribunal to the extent that the issue of existence of binding consent to arbitration under Article 17 of the OIC Investment Agreement is concerned.

The Most Feasible Way Towards a Multilateral Investment Treaty

The Most Feasible Way Towards a Multilateral Investment Treaty

State Succession to Multilateral Investment Treaties and the ICSID Convention

State Succession to Multilateral Investment Treaties and the ICSID Convention

La Doctrina de Prescripción en el Derecho Internacional Público y la necesidad de nuevos paradigmas transnacionales

International customary law presents an (apparently) irresoluble conflict on a central issue as the existence in International law of an equivalent of the national laws on equivalent to national laws on prescription. For instance, only 132 over approximately 3000 bilateral and multilateral investment treaties include a statute of limitations. Theoretically, the balance would allow to indefinitely present outdated complaints or, alternatively, to introduce them on a random basis in ad hoc prescription periods. Therefore, lacks of uniformity and standard regulations have determined uncertainty and insecurity: the very same problems that the statute of limitations’ doctrine aims to eradicate. The author states public International law fragmentation on the prescription period’s doctrine lays on: (i) massive enclosure of domestic legislation on statute of limitations into public International law disregarding International law politics and aspirations; and (ii) industrialised States’ economic agendas, ruling out developing countries and transitional economies. In order to develop the present proposal a descriptive and prescriptive methodology is applied.

Move Away from BITs Framework: A Need for Multilateral Investment Treaty?

The objective of this paper is to critically evaluate the desirability of multilateral treaty that will take into account the needs of developed and developing countries alike as developed nations seek to protect their investment abroad while developing nations want to attract investment, be able to regulate and most importantly they want to limit access to international arbitration. In achieving this objective, the paper will give a snapshot of recent developments indicating a shift away from BITs framework, international investment arbitration and what was considered customary international law of investment. Following from these highlights, the paper will then consider the need of multilateral investment treaty against the current developments. Further, the paper will then discuss how such a multilateral treaty should look like in order to get a buy-in from both the developed and developing nations.

A arbitragem no direito da União Europeia

ABSTRACT: The article deals with arbitration in the European Union (EU) Law and, in addition, some practical aspects concerning the exercise of arbitration within the territorial space of member states. It is particularly emphasized treaty arbitration vis-à-vis the recent and important attribution to the EU of exclusive competence to negotiate and enter into any treaty arbitration between member states or with any third state country, preventing the member states to, without prior permission by the EU, to enter into any bilateral or multilateral investment treaty. Also, the article deals with dispute resolution in the area of energy.

The Trans-Pacific Partnership Tobacco Carve-Out Precedent

The Trans-Pacific Partnership (TPP) text includes an article allowing the parties’ ability to deny the possibility of challenges to their tobacco control measures under the Investor-State Dispute Settlement (ISDS) provisions. Several TPP parties as well as public health advocates had sought this “tobacco carve-out” to prevent transnational tobacco companies (TTCs) from using the TPP to challenge tobacco control laws, particularly cigarette plain packaging requirements, as they have done using bilateral investment treaties (BITs). TTCs had lobbied the negotiators not to include the tobacco carve-out in the TPP. Regardless if the TPP is ultimately ratified by the parties, the TPP tobacco carve-out will likely be precedent for the insertion of language protecting tobacco control measures in future bilateral and multilateral international trade and investment treaties. Moreover, the TPP tobacco carve-out is another in a growing list of legal and policy defeats for TTCs. This article summarises the state-TTC conflict that influenced and resulted in the TPP tobacco carve-out.