Pub Date : 2018-02-21DOI: 10.1163/22119000-12340087
S. Schill
Some constitutional moments, like the transformation of France’s Third Estate into a National Assembly on 17 June 1789, come with a big blast and are recognizable as such almost immediately by its contemporaries. Others are quieter, more subtle; they creep in rather than explode, but are no less fundamental in transforming socio-institutional arrangements. The work of the United Nations Commission on International Trade Law (UNCITRAL) on ‘InvestorState Dispute Settlement (ISDS) Reform’, which started for good in late 2017,1 may well be the beginning of such a constitutional moment in international economic governance. While Working Group III, tasked to address ISDS reform, is for now still focused on the first two of its three-step mandate – problem-analysis and assessing the desirability of reform – it will most certainly reach the final stage of its mandate and ‘develop any relevant solutions’.2 This is when a constitutional moment looms, in the argumentative showdown and decision on how to achieve systemic ISDS reform: whether through further institutionalization, for example by creating a permanent multilateral investment court, as supported by the European Union, or through more limited procedural reforms of investor-State arbitration, as championed by the United States.3 If consensus can be reached to create a permanent multilateral institution – in the form of
{"title":"Investor-State Dispute Settlement Reform at UNCITRAL: A Looming Constitutional Moment?","authors":"S. Schill","doi":"10.1163/22119000-12340087","DOIUrl":"https://doi.org/10.1163/22119000-12340087","url":null,"abstract":"Some constitutional moments, like the transformation of France’s Third Estate into a National Assembly on 17 June 1789, come with a big blast and are recognizable as such almost immediately by its contemporaries. Others are quieter, more subtle; they creep in rather than explode, but are no less fundamental in transforming socio-institutional arrangements. The work of the United Nations Commission on International Trade Law (UNCITRAL) on ‘InvestorState Dispute Settlement (ISDS) Reform’, which started for good in late 2017,1 may well be the beginning of such a constitutional moment in international economic governance. While Working Group III, tasked to address ISDS reform, is for now still focused on the first two of its three-step mandate – problem-analysis and assessing the desirability of reform – it will most certainly reach the final stage of its mandate and ‘develop any relevant solutions’.2 This is when a constitutional moment looms, in the argumentative showdown and decision on how to achieve systemic ISDS reform: whether through further institutionalization, for example by creating a permanent multilateral investment court, as supported by the European Union, or through more limited procedural reforms of investor-State arbitration, as championed by the United States.3 If consensus can be reached to create a permanent multilateral institution – in the form of","PeriodicalId":163787,"journal":{"name":"The journal of world investment and trade","volume":"7 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-02-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122535416","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2018-02-21DOI: 10.1163/22119000-12340070
Nicolás M. Perrone
This article examines an influential narrative of foreign investor rights and the international investment regime. It draws on twenty-five of the World Investment Reports (WIRs) issued by the United Nations Conference on Trade and Development (1991–2015). It argues that the justifications provided by these reports have contributed to shaping a global commodity conception of property. These WIRs describe foreign investor rights following a narrative of wealth maximisation by transnational corporations (TNCs), and focus on a TNC-assisted restructuring of host states and local communities. Since the mid-2000s, these reports have balanced this narrative because of the increasing consensus that international investment treaties unduly constrain regulatory space. Ultimately, however, this article shows that the recent WIRs promote an approach to public regulation that is not inconsistent with a global commodity conception of property.
{"title":"UNCTAD's World Investment Reports 1991-2015: 25 Years of Narratives Justifying and Balancing Foreign Investor Rights","authors":"Nicolás M. Perrone","doi":"10.1163/22119000-12340070","DOIUrl":"https://doi.org/10.1163/22119000-12340070","url":null,"abstract":"This article examines an influential narrative of foreign investor rights and the international investment regime. It draws on twenty-five of the World Investment Reports (WIRs) issued by the United Nations Conference on Trade and Development (1991–2015). It argues that the justifications provided by these reports have contributed to shaping a global commodity conception of property. These WIRs describe foreign investor rights following a narrative of wealth maximisation by transnational corporations (TNCs), and focus on a TNC-assisted restructuring of host states and local communities. Since the mid-2000s, these reports have balanced this narrative because of the increasing consensus that international investment treaties unduly constrain regulatory space. Ultimately, however, this article shows that the recent WIRs promote an approach to public regulation that is not inconsistent with a global commodity conception of property.","PeriodicalId":163787,"journal":{"name":"The journal of world investment and trade","volume":"66 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-02-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132102984","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2017-12-26DOI: 10.1163/22119000-12340048
E. Denters, T. Gazzini
A complex, fragmented and heterogeneous network of domestic and international legal instruments promotes and protects foreign investment in Africa. While bilateral treaties seem to be increasingly unpopular, regionalism is clearly on the rise in the continent. The article examines how regional treaties have contributed to upgrade the current regulation of foreign investment. From this perspective, Africa can be seen as a normative laboratory. Regional treaties, most prominently those concluded within the Economic Community of West African States (ECOWAS) and the Southern African Development Community (SADC), contain several important novelties meant to rebalance the rights and obligations of the various stakeholders as well as to safeguard host State policy space. The content of these treaties has been brought more in line with the evolution of international law, especially with regard to the protection of the environment, social and human rights, transparency, corruption, public scrutiny, economic development, and corporate responsibility.
{"title":"The Role of African Regional Organizations in the Promotion and Protection of Foreign Investment","authors":"E. Denters, T. Gazzini","doi":"10.1163/22119000-12340048","DOIUrl":"https://doi.org/10.1163/22119000-12340048","url":null,"abstract":"A complex, fragmented and heterogeneous network of domestic and international legal instruments promotes and protects foreign investment in Africa. While bilateral treaties seem to be increasingly unpopular, regionalism is clearly on the rise in the continent. The article examines how regional treaties have contributed to upgrade the current regulation of foreign investment. From this perspective, Africa can be seen as a normative laboratory. Regional treaties, most prominently those concluded within the Economic Community of West African States (ECOWAS) and the Southern African Development Community (SADC), contain several important novelties meant to rebalance the rights and obligations of the various stakeholders as well as to safeguard host State policy space. The content of these treaties has been brought more in line with the evolution of international law, especially with regard to the protection of the environment, social and human rights, transparency, corruption, public scrutiny, economic development, and corporate responsibility.","PeriodicalId":163787,"journal":{"name":"The journal of world investment and trade","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-12-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130644049","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2017-12-26DOI: 10.1163/22119000-12340052
S. Schill
{"title":"Editorial: The New (African) Regionalism in International Investment Law","authors":"S. Schill","doi":"10.1163/22119000-12340052","DOIUrl":"https://doi.org/10.1163/22119000-12340052","url":null,"abstract":"","PeriodicalId":163787,"journal":{"name":"The journal of world investment and trade","volume":"36 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-12-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124986817","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2017-12-26DOI: 10.1163/22119000-12340045
Makane Moïse Mbengue
{"title":"Special Issue: Africa and the Reform of the International Investment Regime - An Introduction","authors":"Makane Moïse Mbengue","doi":"10.1163/22119000-12340045","DOIUrl":"https://doi.org/10.1163/22119000-12340045","url":null,"abstract":"","PeriodicalId":163787,"journal":{"name":"The journal of world investment and trade","volume":"39 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-12-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125490930","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2017-12-26DOI: 10.1163/22119000-12340046
Laura Páez
This article addresses the issue of international investment regulation with a bearing on Africa. It reviews the bilateral investment treaties (BITs) which have been signed by African countries and characterizes intra-African BITs. It also discusses regional investment regulation in the continent and its elements for harmonizing the cluttered ‘spaghetti-bowl’ of investment regimes. Based on the findings and the existing regional integration agenda on investment, the article discusses the viability of an African Continental Investment Area as an alternative to the existing investment regime, in favour of more harmonized development that builds on existing institutions and processes.
{"title":"Bilateral Investment Treaties and Regional Investment Regulation in Africa: Towards a Continental Investment Area?","authors":"Laura Páez","doi":"10.1163/22119000-12340046","DOIUrl":"https://doi.org/10.1163/22119000-12340046","url":null,"abstract":"This article addresses the issue of international investment regulation with a bearing on Africa. It reviews the bilateral investment treaties (BITs) which have been signed by African countries and characterizes intra-African BITs. It also discusses regional investment regulation in the continent and its elements for harmonizing the cluttered ‘spaghetti-bowl’ of investment regimes. Based on the findings and the existing regional integration agenda on investment, the article discusses the viability of an African Continental Investment Area as an alternative to the existing investment regime, in favour of more harmonized development that builds on existing institutions and processes.","PeriodicalId":163787,"journal":{"name":"The journal of world investment and trade","volume":"28 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-12-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114931534","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2017-12-26DOI: 10.1163/22119000-12340050
E. Brabandere
This article seeks to test whether African investment treaties present a specific approach – i.e. distinct from the North-American and Western Hemisphere – to fair and equitable treatment (FET) and (full) protection and security (FPS). The first main argument is that the concepts of FET and FPS are not substantially impacted by the mere fact of being included in investment agreements to which African States are party. The second main argument is that the understanding, interpretation and definitions of these concepts within Africa is not fundamentally different than in other regions. Thirdly, notwithstanding the similarity in the wording of these standards of treatment in African investment treaties, there may still be room for taking into account the specific circumstances of the States in which the investment is made, including the level of development of the host State.
{"title":"Fair and Equitable Treatment and (Full) Protection and Security in African Investment Treaties Between Generality and Contextual Specificity","authors":"E. Brabandere","doi":"10.1163/22119000-12340050","DOIUrl":"https://doi.org/10.1163/22119000-12340050","url":null,"abstract":"This article seeks to test whether African investment treaties present a specific approach – i.e. distinct from the North-American and Western Hemisphere – to fair and equitable treatment (FET) and (full) protection and security (FPS). The first main argument is that the concepts of FET and FPS are not substantially impacted by the mere fact of being included in investment agreements to which African States are party. The second main argument is that the understanding, interpretation and definitions of these concepts within Africa is not fundamentally different than in other regions. Thirdly, notwithstanding the similarity in the wording of these standards of treatment in African investment treaties, there may still be room for taking into account the specific circumstances of the States in which the investment is made, including the level of development of the host State.","PeriodicalId":163787,"journal":{"name":"The journal of world investment and trade","volume":"69 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-12-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123675130","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2017-12-26DOI: 10.1163/22119000-12340049
R. Baruti
A rethink of the purpose of investment treaties is progressively leading to a paradigm shift. Whereas the traditional model of investment treaties has emphasised the protection of investments, we are witnessing a change in focus to the facilitation of investments. Simultaneously, there is a deliberate and conscious effort to restrict the scope of coverage of the standards of protection typically offered under such treaties. These developments in the international investment regime are discernible in the regional investment instruments concluded by the Common Market for Eastern and Southern Africa (COMESA), the East African Community (EAC) and the Southern African Development Community (SADC). A corresponding move is also beginning to emerge at the national and bilateral levels. Cumulatively, these changes in investment instruments signal a developing trend in future investment agreements negotiated and concluded by COMESA, EAC and SADC Member States.
{"title":"Investment Facilitation in Regional Economic Integration in Africa: The Cases of COMESA, EAC and SADC","authors":"R. Baruti","doi":"10.1163/22119000-12340049","DOIUrl":"https://doi.org/10.1163/22119000-12340049","url":null,"abstract":"A rethink of the purpose of investment treaties is progressively leading to a paradigm shift. Whereas the traditional model of investment treaties has emphasised the protection of investments, we are witnessing a change in focus to the facilitation of investments. Simultaneously, there is a deliberate and conscious effort to restrict the scope of coverage of the standards of protection typically offered under such treaties. These developments in the international investment regime are discernible in the regional investment instruments concluded by the Common Market for Eastern and Southern Africa (COMESA), the East African Community (EAC) and the Southern African Development Community (SADC). A corresponding move is also beginning to emerge at the national and bilateral levels. Cumulatively, these changes in investment instruments signal a developing trend in future investment agreements negotiated and concluded by COMESA, EAC and SADC Member States.","PeriodicalId":163787,"journal":{"name":"The journal of world investment and trade","volume":"18 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-12-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129186401","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2017-12-26DOI: 10.1163/22119000-12340047
Makane Moïse Mbengue, Stefanie Schacherer
The Pan-African Investment Code (PAIC) is the first continent-wide African model investment treaty elaborated under the auspices of the African Union. The PAIC has been drafted from the perspective of developing and least-developed countries with a view to promote sustainable development. The PAIC contains a number of Africa-specific and innovative features, which presumably makes it today a unique legal instrument. Written in a time where the international investment community is still debating the future of international investment law, this article seeks to present and contextualize this first African model investment treaty. The article highlights the most innovative features of the PAIC, such as the reformulation of traditional investment treaty provisions and the introduction of direct obligations for investors.
{"title":"The ‘Africanization’ of International Investment Law: The Pan-African Investment Code and the Reform of the International Investment Regime","authors":"Makane Moïse Mbengue, Stefanie Schacherer","doi":"10.1163/22119000-12340047","DOIUrl":"https://doi.org/10.1163/22119000-12340047","url":null,"abstract":"The Pan-African Investment Code (PAIC) is the first continent-wide African model investment treaty elaborated under the auspices of the African Union. The PAIC has been drafted from the perspective of developing and least-developed countries with a view to promote sustainable development. The PAIC contains a number of Africa-specific and innovative features, which presumably makes it today a unique legal instrument. Written in a time where the international investment community is still debating the future of international investment law, this article seeks to present and contextualize this first African model investment treaty. The article highlights the most innovative features of the PAIC, such as the reformulation of traditional investment treaty provisions and the introduction of direct obligations for investors.","PeriodicalId":163787,"journal":{"name":"The journal of world investment and trade","volume":"7 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-12-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124537971","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2017-12-07DOI: 10.1163/22119000-12340082
T. Leary
{"title":"Non-Disputing Parties and Human Rights in Investor-State Arbitration: Bernhard von Pezold and Others v Republic of Zimbabwe, ICSID Case No ARB/10/15, Final Award, 28 July 2015","authors":"T. Leary","doi":"10.1163/22119000-12340082","DOIUrl":"https://doi.org/10.1163/22119000-12340082","url":null,"abstract":"","PeriodicalId":163787,"journal":{"name":"The journal of world investment and trade","volume":"26 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-12-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131985420","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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