[PDF] Regulatory Freedom And Indirect Expropriation In Investment Arbitration eBook

Author : Aniruddha Rajput
Publisher : Kluwer Law International B.V.
Page : 250 pages
File Size : 28,52 MB
Release : 2018-12-20
Category : Law
ISBN : 9403506253

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Many investment arbitration cases involve a challenge to a regulatory measure of a host state on the basis of indirect expropriation. The practice of arbitral tribunals is diverse and unsettled. In recent years States have been trying to clarify the relationship between regulatory freedom (also known as 'police powers') and indirect expropriation by revising provisions on indirect expropriation in their investment treaties. This book provides the first focused analysis of indirect expropriation and regulatory freedom, drawing on a broad range of the jurisprudence of investment tribunals. The nature of regulatory freedom in international law has been explained on the bases of jurisprudence of international courts and tribunals such as the International Court of Justice (ICJ), Permanent Court of International Justice (PCIJ), dispute resolution bodies of the World Trade Organisation (WTO), European Court of Human Rights. While showing how cases involving standoff between regulatory freedom and indirect expropriation can be resolved in practice, the book goes on to present a conceptual framework for interpreting the nuances of this relationship. The book provides a detailed responses to the following complex questions: • To what extent do states retain regulatory freedom after entering into investment treaties? • What is the scope of regulatory freedom in general public international law? • What are the elements of regulatory freedom and standard of review? • How to draw a dividing line between regulatory freedom and indirect expropriation? • Whether the sole effects doctrine or the police powers is the appropriate method for distinguishing between regulatory freedom and indirect expropriation? While addressing these questions, the author analyses different theoretical approaches that reflect upon the relationship between regulatory freedom and indirect expropriation and how far they assist in understanding these potentially overlapping concepts; their relationship with each other; and the method for distinguishing between them. Given the dense network of around three thousand bilateral investment treaties (BITs) that impose an obligation to protect foreign investments in a State, this book will help practitioners identify, through analysis of cases from diverse fields, how a situation may be categorized either as regulatory freedom or as indirect expropriation. The analysis will also be of value to government officials and lawyers involved in negotiating and re-negotiating investment treaties, and to arbitrators who have to decide these issues. Scholars will welcome the book's keen insight into the contentious relationship between a customary international law norm and a treaty norm.

Author : Caroline Henckels
Publisher : Cambridge University Press
Page : 265 pages
File Size : 46,16 MB
Release : 2015-10-15
Category : Law
ISBN : 1316432300

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In this study, Caroline Henckels examines how investment tribunals have balanced the competing interests of host states and foreign investors in determining state liability in disputes concerning the exercise of public power. Analyzing the concepts of proportionality and deference in investment tribunals' decision-making in comparative perspective, the book proposes a new methodology for investment tribunals to adopt in regulatory disputes, which combines proportionality analysis with an institutionally sensitive approach to the standard of review. Henckels argues that adopting a modified form of proportionality analysis would provide a means for tribunals to decide cases in a more consistent and coherent manner leading to greater certainty for both states and investors, and that affording due deference to host states in the determination of liability would address the concern that the decisions of investment tribunals unjustifiably impact on the regulatory autonomy of states.

Author : Santiago Montt
Publisher : Bloomsbury Publishing
Page : 460 pages
File Size : 26,7 MB
Release : 2009-11-30
Category : Law
ISBN : 1847315488

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Today there are more than 2,500 bilateral investment treaties (BITs) around the world. Most of these investment protection treaties offer foreign investors a direct cause of action to claim damages against host-states before international arbitral tribunals. This procedure, together with the requirement of compensation in indirect expropriations and the fair and equitable treatment standard, have transformed the way we think about state liability in international law. We live in the BIT generation, a world where BITs define the scope and conditions according to which states are economically accountable for the consequences of regulatory change and administrative action. Investment arbitration in the BIT generation carries new functions which pose unprecedented normative challenges, such as the arbitral bodies established to resolve investor/state disputes defining the relationship between property rights and the public interest. They also review state action for arbitrariness, and define the proper tests under which that review should proceed. State Liability in Investment Treaty Arbitration is an interdisciplinary work, aimed at academics and practitioners, which focuses on five key dimensions of BIT arbitration. First, it analyses the past practice of state responsibility for injuries to aliens, placing the BIT generation in historical perspective. Second, it develops a descriptive law-and-economics model that explains the proliferation of BITs, and why they are all worded so similarly. Third, it addresses the legitimacy deficits of this new form of dispute settlement, weighing its potential advantages and democratic shortfalls. Fourth, it gives a comparative overview of the universal tension between property rights and the public interest, and the problems and challenges associated with liability grounded in illegal and arbitrary state action. Finally, it presents a detailed legal study of the current state of BIT jurisprudence regarding indirect expropriations and the fair and equitable treatment clause. This title is included in Bloomsbury Professional's International Arbitration online service.

Author : Meg Kinnear
Publisher : Kluwer Law International B.V.
Page : 778 pages
File Size : 48,64 MB
Release : 2015-12-22
Category : Law
ISBN : 9041161414

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This volume celebrates the first fifty years of the International Centre for Settlement of Investment Disputes (ICSID) by presenting the landmark cases that have been decided under its auspices. These cases have addressed every aspect of investment disputes: jurisdictional thresholds; the substantive obligations found in investment treaties, contracts, and legislation; questions of general international law; and a number of novel procedural issues. Each chapter, written by an expert on the chapter’s particular focus, looks at an international investment law topic through the lens of one or more of these leading cases, analyzing what the case held, how it has been applied, and its overall significance to the development of international investment law. These topics include: - applicable law; - res judicata in investor-State arbitration; - notion of investment; - investor nationality; - consent to arbitration; - substantive standards of treatment; - consequences of corruption in investor-State arbitration; - State defenses - counter-claims; - assessment of damages and cost considerations; - ICSID Arbitration Rule 41(5) objections; - mass claims, consolidation and parallel proceedings; - provisional measures; - arbitrator challenges; - transparency and amicus curiae; and - annulment. Because the law of international investment continues to grow in importance in an ever globalizing world, this book is more than a fitting way to mark the past fifty years and to welcome the next fifty years of development. It will prove both educational for practitioners new to the field and informative for seasoned investment lawyers. Moreover, the book itself is a landmark that will be of great value to professionals, scholars and students interested in international investment law.

Author : Christopher S. Gibson
Publisher :
Page : 0 pages
File Size : 32,97 MB
Release : 2009
Category :
ISBN :

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This article covers a timely set of issues concerning the relationship between intellectual property rights (“IPRs”) associated with foreign investments, state-authorized compulsory licenses, trade law (in particular, the TRIPS Agreement), and claims for indirect expropriation that might be brought in investment arbitration. I focus, as a case study, on compulsory licenses and claims of indirect expropriation. Compulsory licenses bear an inherently contentious character. This government authorized license often presents a clash between significant opposing interests - on one side, the legitimate expectations of patent based foreign investors founded on the international investment agreement (“IIA”) and a patent regime that, for well established reasons, provides relatively strong protection during the patent's term, and on the other side, the strength of the public interest in exceptional cases, such as a public health crisis. The circumstances that may be commonly associated with the issuance of a compulsory license, in which an investor's existing IP rights and investment position are severely impacted, provide the seeds for a dispute and strong incentive for the investor to seek recourse through available means of dispute settlement. In this context, the compulsory license in relation to IP based investments and claims of indirect expropriation illustrates two levels of complexity for international investment law. First, the tension between investor's rights and government action in the area of compulsory licensing is but a specialized example of a broader recurrent public policy issue in international investment law. The broader question concerns the appropriate balance between the rights and responsibilities of investors and those of governments. The investor is entitled to have its legitimate expectations with regard to the operation and return on its investment respected by the host state. However, the host state must be able to pursue legitimate regulatory goals without risk of 'regulatory chill.' The investment dispute context for a compulsory license brings these countervailing interests to a head, as these issues coalesce around questions of how much leeway governments should have to take actions that may interfere with IPRs and IP-based investments, whether these actions contravene the standards of protection established for foreign investors under national patent laws and IIAs, and whether such measures are otherwise defensible as consistent with non-investment law treaty provisions, such as Article 31 of the TRIPS Agreement. The reference to the TRIPS Agreement raises the second point of complexity: the compulsory license provides a case in point to show the interplay between two different treaty-based regimes. A compulsory license-based claim for indirect expropriation against a host state under an IIA may implicate several strands of public law that can be complimentary or competing, integrated or overlapping. International investment law as channeled through the IIA confronts intellectual property law as established through national law or the TRIPS Agreement. The compulsory license brings this confluence of competing legal regimes into stark focus. If a foreign investor believes that a host state has improperly authorized a compulsory license with respect to its patent-based investment, it may face not only a choice of forum in which to vindicate its rights, but also choice of law issues in making out a claim of indirect expropriation. Because investment agreements such as bilateral investment agreements (BIT) stand side-by-side with the WTO multilateral trading system, these respective regimes may afford different levels of protection and different remedies to the foreign investor in a dispute where the investor's home State and the host State are both members of the WTO, or where the IIA itself makes reference to the TRIPS Agreement. While there has been ample scholarly examination in the areas of investment arbitration and international trade law and related public health issues, much less has been written about intellectual property issues arising under BITs, and even less so in relation to intellectual property (including compulsory licenses) in the context of investor-State arbitration. For this reason I believe my article offers an interesting case study, and makes an important scholarly contribution that would be of interest both to academics and to the broader international dispute settlement community.

Author : Valentina Vadi
Publisher : Edward Elgar Publishing
Page : 459 pages
File Size : 27,50 MB
Release : 2018-04-27
Category : Law
ISBN : 1785368583

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International investment law is one of the most dynamic fields of international law, and yet it has been criticised for failing to strike a fair balance between private and public interests. In this valuable contribution to the current debate, Valentina Vadi examines the merits and pitfalls of arbitral tribunals’ use of the concepts of proportionality and reasonableness to review the compatibility of a state’s regulatory actions with its obligations under international investment law.

Author : Eric De Brabandere
Publisher :
Page : 18 pages
File Size : 29,88 MB
Release : 2016
Category :
ISBN :

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This chapter investigates how States, through the definitions of the FET standard and the prohibition of indirect expropriation have sought to assert or reassert control over investment law. Indeed, there are clear differences in the formulation of the FET standard and the prohibition of indirect expropriation. 'Western Hemisphere'-BITs used in European States tend to include FET as a stand-alone standard of treatment, while North-American investment treaties, as exemplified inter alia in the NAFTA and the US Model BIT 2012, tend to equate FET with the customary norm on the minimum standard of treatment. Similarly, distinctions in the formulation of what constitutes a prohibited indirect expropriation are widespread, and here again the contrast between the practice of North-American treaties and those based on the 'Western Hemisphere'-BITs show that the former tend to more precisely define what constitutes a prohibited indirect expropriation and which regulatory measures cannot amount to an expropriation, while the latter more generally contain a generic definition of the term. These differences highlight one important issue: States generally have full discretion in how to formulate these provisions in their treaty. And while 'tradition' has in the past influenced the choice of one model or formulation over the other, increasingly policy-related arguments now define the precise formulation of FET and the prohibition of indirect expropriation, provided of course that all States parties to the treaty agree on the terminology. Whether or not States have, in doing so, in fact reasserted control or simply asserted control is left aside, and is being discussed elsewhere in this volume. Indeed, the use of the term 'reasserting' implies that somehow States had 'lost' control, on the one hand, and that they had control before on the other. These assumptions may well not be as straightforward as assumed. As said, however, I leave such questions aside in the context of this chapter, instead I will focus on the recent treaty practice of States in showing how States have - to use a more neutral term - reacted against the application and interpretation of FET and indirect expropriation by arbitral tribunals in the abundant case-law that exists in that respect.

Author : Catharine Titi
Publisher : Bloomsbury Publishing
Page : 378 pages
File Size : 13,94 MB
Release : 2014-12-01
Category : Law
ISBN : 1782253963

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Since the inception of the international investment law system, investment promotion and protection have been the raison d'être of investment treaties and states have confined their policy space in order to attract foreign investment and protect their investors abroad. Languishing in relative obscurity until recently, the right to regulate has gradually come to the spotlight as a key component of negotiations on new generation investment agreements around the globe. States and regional organisations, including, notably, the European Union and the United States, have started to examine ways in which to safeguard their regulatory power and guide - and delimit - the interpretive power of arbitral tribunals, by reserving their right to pursue specific public policy objectives. The monograph explores the status quo of the right to regulate, in order to offer an appraisal and a reference tool for treatymakers, thus contributing to a better understanding of the concept and the broader discourse on how to enhance the investment law system's legitimacy.

Author : Yves Derains
Publisher : Kluwer Law International B.V.
Page : 362 pages
File Size : 42,46 MB
Release : 2018-10-17
Category : Law
ISBN : 9041184015

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Today thousands of investors act globally in markets providing services, technology or capital in countries all around the world. This activity can be peacefully accomplished when both the investor and the host State know that the disputes will be resolved under the aegis of the investor-State arbitration regime, wherein an investor is provided with a direct right of action against a State, most commonly stemming from a bilateral or multilateral investment treaty. This book approaches the substantive and sometimes difficult concepts of investor-State arbitration in a clear and concise explanatory fashion. In the course of acquainting the reader with the basic legal concepts and policies of the regime, the authors address such issues as the following: • consent to jurisdiction; • State responsibility; • possible conflict of interests; • mechanisms for reviewing an award; • damages and costs; and • enforcement. The book examines a number of arbitration procedures arising from various perspectives with differing underlying assumptions while highlighting important cases. Given that investor-State arbitration is now under the public watch and facing many challenges, this remarkably clear and concise overview of the regime will prove to be of great value to in-house counsel and other practitioners, as well as to government policymakers and students.x`