Taylor St John
- Published in print:
- 2018
- Published Online:
- April 2018
- ISBN:
- 9780198789918
- eISBN:
- 9780191831553
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/oso/9780198789918.003.0001
- Subject:
- Political Science, International Relations and Politics
This chapter sets out the puzzle: what explains the rise of investor–state arbitration? It defines the rise of investor–state arbitration as one process with two phases: the creation of the ICSID ...
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This chapter sets out the puzzle: what explains the rise of investor–state arbitration? It defines the rise of investor–state arbitration as one process with two phases: the creation of the ICSID Convention and eliciting state consent to ISDS. Conventional theoretical accounts, in which investor lobbying and then intergovernmental bargaining drive the rise of investor–state arbitration, are outlined. These accounts contrast with the book’s explanation, that international officials provided support to one institutional framework, ICSID, which led to its creation over other possibilities. The creation of ICSID kicked off a process of gradual institutional development that led to contemporary investor–state arbitration. The book’s sources include 30,000 pages of primary material and dozens of interviews, and the methods are based on counterfactual reasoning. Finally, the book’s four main findings are introduced.Less
This chapter sets out the puzzle: what explains the rise of investor–state arbitration? It defines the rise of investor–state arbitration as one process with two phases: the creation of the ICSID Convention and eliciting state consent to ISDS. Conventional theoretical accounts, in which investor lobbying and then intergovernmental bargaining drive the rise of investor–state arbitration, are outlined. These accounts contrast with the book’s explanation, that international officials provided support to one institutional framework, ICSID, which led to its creation over other possibilities. The creation of ICSID kicked off a process of gradual institutional development that led to contemporary investor–state arbitration. The book’s sources include 30,000 pages of primary material and dozens of interviews, and the methods are based on counterfactual reasoning. Finally, the book’s four main findings are introduced.
María José Luque Macías
- Published in print:
- 2016
- Published Online:
- April 2016
- ISBN:
- 9780198738428
- eISBN:
- 9780191801723
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198738428.003.0013
- Subject:
- Law, Public International Law, Environmental and Energy Law
Despite strong criticism against international investment agreements and investor–State dispute settlement, Latin American countries mostly uphold both legal means as effective methods for the ...
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Despite strong criticism against international investment agreements and investor–State dispute settlement, Latin American countries mostly uphold both legal means as effective methods for the protection of foreign investment. This chapter, however, primarily explores policy shifts in Latin America towards national laws and investment contracts, and regional initiatives aimed at the creation of a regional forum for the resolution of investment disputes (‘UNASUR Centre’) and an Observatory on Investment and Transnational Corporations (‘The Observatory’). Taking into account all available data, this contribution shows that Latin American countries, albeit to varying degrees, are also turning to the abovementioned instruments for dealing with the potential constraints that investment protection might also pose over State regulatory power. Additionally, the UNASUR Centre and the Observatory also serve this purpose, thereby bringing about a renewed interest for the potentiality of inter-State investment dispute settlement and South–South cooperation for the improvement of ISDS respectively.Less
Despite strong criticism against international investment agreements and investor–State dispute settlement, Latin American countries mostly uphold both legal means as effective methods for the protection of foreign investment. This chapter, however, primarily explores policy shifts in Latin America towards national laws and investment contracts, and regional initiatives aimed at the creation of a regional forum for the resolution of investment disputes (‘UNASUR Centre’) and an Observatory on Investment and Transnational Corporations (‘The Observatory’). Taking into account all available data, this contribution shows that Latin American countries, albeit to varying degrees, are also turning to the abovementioned instruments for dealing with the potential constraints that investment protection might also pose over State regulatory power. Additionally, the UNASUR Centre and the Observatory also serve this purpose, thereby bringing about a renewed interest for the potentiality of inter-State investment dispute settlement and South–South cooperation for the improvement of ISDS respectively.
Luke Nottage
- Published in print:
- 2016
- Published Online:
- January 2017
- ISBN:
- 9780198778257
- eISBN:
- 9780191823763
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198778257.003.0011
- Subject:
- Law, Public International Law
Bilateral investment treaties (BITs), and more recently investment chapters in free trade agreements (FTAs), are increasingly controversial—especially investor–state arbitration (ISA) options ...
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Bilateral investment treaties (BITs), and more recently investment chapters in free trade agreements (FTAs), are increasingly controversial—especially investor–state arbitration (ISA) options provided for foreign investors. Against this backdrop, some arbitral tribunals are interpreting older treaties in ways more favourable to host states. Some countries are also renegotiating those treaties or negotiating new ones based on new templates, including features closer to those found in WTO dispute resolution. But others are eschewing ISA completely, leaving only inter-state arbitration to resolve disputes arising under investment treaties, which may re-politicize such disputes. This chapter explores such ‘limits of legalization’ in an Asia-Pacific context.Less
Bilateral investment treaties (BITs), and more recently investment chapters in free trade agreements (FTAs), are increasingly controversial—especially investor–state arbitration (ISA) options provided for foreign investors. Against this backdrop, some arbitral tribunals are interpreting older treaties in ways more favourable to host states. Some countries are also renegotiating those treaties or negotiating new ones based on new templates, including features closer to those found in WTO dispute resolution. But others are eschewing ISA completely, leaving only inter-state arbitration to resolve disputes arising under investment treaties, which may re-politicize such disputes. This chapter explores such ‘limits of legalization’ in an Asia-Pacific context.
Frank Hoffmeister
- Published in print:
- 2016
- Published Online:
- April 2016
- ISBN:
- 9780198738428
- eISBN:
- 9780191801723
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198738428.003.0016
- Subject:
- Law, Public International Law, Environmental and Energy Law
The final chapter of the contribution examines the EU's international investment policy by casting a glance on the EU–Canada Free Trade Agreement, the EU's approach to sustainable development, and ...
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The final chapter of the contribution examines the EU's international investment policy by casting a glance on the EU–Canada Free Trade Agreement, the EU's approach to sustainable development, and its relationship to international law. Alongside analysing said agreements and contextualizing them, the different ways of enforcement are presented, leading to the conclusion that the EU can contribute to the further development of international investment law in two ways: by emphasizing the ‘right to regulate’ and advocating reforms in investor–State-dispute settlement; a precondition being, of course, that first EU agreements to that effect will be ratified in the European Parliament.Less
The final chapter of the contribution examines the EU's international investment policy by casting a glance on the EU–Canada Free Trade Agreement, the EU's approach to sustainable development, and its relationship to international law. Alongside analysing said agreements and contextualizing them, the different ways of enforcement are presented, leading to the conclusion that the EU can contribute to the further development of international investment law in two ways: by emphasizing the ‘right to regulate’ and advocating reforms in investor–State-dispute settlement; a precondition being, of course, that first EU agreements to that effect will be ratified in the European Parliament.
Taylor St John
- Published in print:
- 2018
- Published Online:
- April 2018
- ISBN:
- 9780198789918
- eISBN:
- 9780191831553
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/oso/9780198789918.003.0010
- Subject:
- Political Science, International Relations and Politics
The conclusion identifies how the book’s findings relate to contemporary debates. The terms of today’s debate were set decades ago: all visions of investor–state arbitration’s future define ...
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The conclusion identifies how the book’s findings relate to contemporary debates. The terms of today’s debate were set decades ago: all visions of investor–state arbitration’s future define themselves in terms of the clash between public and private paradigms—a clash created by drafters over fifty years ago. In 1962, Broches thought there were insurmountable political obstacles to creating an investment court. He may still be right, and this chapter enumerates issues that governments must grapple with to create a “public” court system. Since governments are unlikely to make the compromises necessary for a “public” vision to be fully realized, a “private” system may, paradoxically, be the best way to serve public interests.Less
The conclusion identifies how the book’s findings relate to contemporary debates. The terms of today’s debate were set decades ago: all visions of investor–state arbitration’s future define themselves in terms of the clash between public and private paradigms—a clash created by drafters over fifty years ago. In 1962, Broches thought there were insurmountable political obstacles to creating an investment court. He may still be right, and this chapter enumerates issues that governments must grapple with to create a “public” court system. Since governments are unlikely to make the compromises necessary for a “public” vision to be fully realized, a “private” system may, paradoxically, be the best way to serve public interests.
Taylor St John
- Published in print:
- 2018
- Published Online:
- April 2018
- ISBN:
- 9780198789918
- eISBN:
- 9780191831553
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/oso/9780198789918.001.0001
- Subject:
- Political Science, International Relations and Politics
Today, investor–state arbitration embodies the worst fears of those concerned about runaway globalization—a far cry from its framers’ intentions. Why did governments create a special legal system in ...
More
Today, investor–state arbitration embodies the worst fears of those concerned about runaway globalization—a far cry from its framers’ intentions. Why did governments create a special legal system in which foreign investors can bring cases directly against states? This book takes readers through the key decisions that created investor–state arbitration, drawing on internal documents from several governments and extensive interviews to illustrate the politics behind this new legal system. The corporations and law firms that dominate investor–state arbitration today were not present at its creation. In fact, there was almost no lobbying from investors. Nor did powerful states have a strong preference for it. Nor was it created because there was evidence that it facilitates investment—there was no such evidence. International officials with peacebuilding and development aims drove the rise of investor–state arbitration. This book puts forward a new historical institutionalist explanation to illuminate how the actions of these officials kicked off a process of gradual institutional development. While these officials anticipated many developments, including an enormous caseload from investment treaties, over time this institutional framework they created has been put to new purposes by different actors. Institutions do not determine the purposes to which they may be put, and this book’s analysis illustrates how unintended consequences emerge and why institutions persist regardless.Less
Today, investor–state arbitration embodies the worst fears of those concerned about runaway globalization—a far cry from its framers’ intentions. Why did governments create a special legal system in which foreign investors can bring cases directly against states? This book takes readers through the key decisions that created investor–state arbitration, drawing on internal documents from several governments and extensive interviews to illustrate the politics behind this new legal system. The corporations and law firms that dominate investor–state arbitration today were not present at its creation. In fact, there was almost no lobbying from investors. Nor did powerful states have a strong preference for it. Nor was it created because there was evidence that it facilitates investment—there was no such evidence. International officials with peacebuilding and development aims drove the rise of investor–state arbitration. This book puts forward a new historical institutionalist explanation to illuminate how the actions of these officials kicked off a process of gradual institutional development. While these officials anticipated many developments, including an enormous caseload from investment treaties, over time this institutional framework they created has been put to new purposes by different actors. Institutions do not determine the purposes to which they may be put, and this book’s analysis illustrates how unintended consequences emerge and why institutions persist regardless.
Julien Chaisse (ed.)
- Published in print:
- 2019
- Published Online:
- April 2019
- ISBN:
- 9780198827450
- eISBN:
- 9780191866319
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/oso/9780198827450.001.0001
- Subject:
- Law, Public International Law, Company and Commercial Law
The phenomenal story of China’s ‘unprecedented disposition to engage the international legal order’ has been primarily told and examined by political scientists and economists. Since China adopted ...
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The phenomenal story of China’s ‘unprecedented disposition to engage the international legal order’ has been primarily told and examined by political scientists and economists. Since China adopted its ‘open door’ policy in 1978, which altered its development strategy from self-sufficiency to active participation in the world market and aimed at attracting foreign investment to fuel its economic development, the underlying policy for mobilizing inward foreign direct investment (IFDI) remains unchanged to date. With the 1997 launch of the ‘Going Global’ policy, an outward focus regarding foreign investment has been added, to circumvent trade barriers and improve the competitiveness of Chinese firms, typically its state-owned enterprises (SOEs). In order to accommodate inward and outward FDI, China’s participation in the international investment regime has underpinned its efforts to join multi-lateral investment-related legal instruments and conclude international investment agreements (IIAs). China began by selectively concluding bilateral investment treaties (BITs) with developed countries (major capital exporting states to China at that time), signing its first BIT with Sweden in 1982. Despite being a latecomer, over time China’s experience and practice with the international investment regime have allowed it to evolve towards liberalizing its IIAs regime and balancing the duties and benefits associated with IIAs. The book spans a broad spectrum of China’s contemporary international investment law and policy: domestic foreign investment law and reforms, tax policy, bilateral investment treaties, free trade agreements, G20 initiatives, the ‘One Belt One Road’ initiative, international dispute resolution, and inter-regime coordination.Less
The phenomenal story of China’s ‘unprecedented disposition to engage the international legal order’ has been primarily told and examined by political scientists and economists. Since China adopted its ‘open door’ policy in 1978, which altered its development strategy from self-sufficiency to active participation in the world market and aimed at attracting foreign investment to fuel its economic development, the underlying policy for mobilizing inward foreign direct investment (IFDI) remains unchanged to date. With the 1997 launch of the ‘Going Global’ policy, an outward focus regarding foreign investment has been added, to circumvent trade barriers and improve the competitiveness of Chinese firms, typically its state-owned enterprises (SOEs). In order to accommodate inward and outward FDI, China’s participation in the international investment regime has underpinned its efforts to join multi-lateral investment-related legal instruments and conclude international investment agreements (IIAs). China began by selectively concluding bilateral investment treaties (BITs) with developed countries (major capital exporting states to China at that time), signing its first BIT with Sweden in 1982. Despite being a latecomer, over time China’s experience and practice with the international investment regime have allowed it to evolve towards liberalizing its IIAs regime and balancing the duties and benefits associated with IIAs. The book spans a broad spectrum of China’s contemporary international investment law and policy: domestic foreign investment law and reforms, tax policy, bilateral investment treaties, free trade agreements, G20 initiatives, the ‘One Belt One Road’ initiative, international dispute resolution, and inter-regime coordination.
