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International investment arbitration in Laos: Large issues for a small state 老挝的国际投资仲裁:小国的大问题
Pub Date : 2017-12-07 DOI: 10.1163/22119000-12340069
Romesh Weeramantry, Mahdev Mohan
Laos is no stranger to international investment arbitration. Despite its status as one of Southeast Asia’s least developed countries, it has had an Investment Law for more than two decades and is also a party to several bilateral and Association of South East Asian Nations (ASEAN)-related investment agreements. More recently, two investment treaty claims have been made against it, one of which has given rise to an award challenge that went all the way to Singapore’s highest court. This article will examine the history, evolution and current iteration of Laos’ relationship with international investment law and focus on the two investment treaty claims instituted against Laos. The article concludes with an appraisal of Laos’ need to maintain its investment treaty programme, despite the difficulties that may have arisen as a result of it being a respondent in investment treaty arbitrations.
老挝对国际投资仲裁并不陌生。尽管它是东南亚最不发达国家之一,但它已经制定了20多年的《投资法》,并且还是几个双边和东南亚国家联盟(ASEAN)相关投资协定的缔约方。最近,有两起针对该公司的投资条约指控,其中一起引发了一场对裁决的挑战,并一直上诉到新加坡最高法院。本文将考察老挝与国际投资法关系的历史、演变和当前迭代,并重点关注针对老挝的两项投资条约索赔。文章最后评价了老挝维持其投资条约方案的必要性,尽管由于它是投资条约仲裁的答辩国而可能产生困难。
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引用次数: 0
International Investment Law and Practice in the Kingdom of Cambodia: An Evolving ‘Rule Taker’? 柬埔寨王国的国际投资法与实践:一个不断演变的“规则接受者”?
Pub Date : 2017-12-07 DOI: 10.1163/22119000-12340067
Romesh Weeramantry
Cambodia has undertaken several initiatives to attract foreign direct investment (FDI), which has been growing rapidly in recent years, particularly through participating in Association of South East Asian Nations (ASEAN) investment agreements and free trade agreements (FTAs). This article first outlines Cambodia’s arbitration law and practice, its Law on Investment, the court system, problems relating to corruption, and foreign direct investment (FDI) patterns. It then surveys trends in Cambodia’s comparatively belated signing of investment treaties, and their main contents (including recent treaties with India and Hungary, adopting very different models). The article then discusses the only investment arbitration instituted against Cambodia, which was successfully defended, followed by a comment on the future prospects for Cambodia’s investment treaty program.
柬埔寨采取了若干举措来吸引外国直接投资,特别是通过参加东南亚国家联盟(东盟)投资协定和自由贸易协定,近年来外国直接投资迅速增长。本文首先概述柬埔寨的仲裁法和惯例、投资法、法院系统、与腐败有关的问题和外国直接投资模式。然后,它调查了柬埔寨相对较晚签署的投资条约的趋势,以及它们的主要内容(包括最近与印度和匈牙利签署的条约,采用了非常不同的模式)。文章随后讨论了唯一针对柬埔寨的投资仲裁,该仲裁被成功辩护,随后对柬埔寨投资条约计划的未来前景进行了评论。
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引用次数: 2
Foreign Direct Investment in the Philippines and the Pitfalls of Economic Nationalism 菲律宾的外国直接投资和经济民族主义的陷阱
Pub Date : 2017-12-07 DOI: 10.1163/22119000-12340081
Anselmo Reyes
Recent trends in Philippine growth and foreign direct investment (FDI) reveal only modest achievements, when compared with other ASEAN countries, and little impact on income inequality. These outcomes are attributed to the policy of economic nationalism in the Philippines’ constitutional and legislative framework for FDI, whereby government reserves ‘strategic’ fields to Filipinos, while foreigners face hurdles in making investments. The account doubts whether foreign nationals can safeguard investments by recourse to Philippine BITs as those reinforce economic nationalism by requiring FDI to comply with Philippine law. Poulsen’s observation that developing countries entered into bilateral investment treaties (BITs) oblivious of the risks does not seem applicable to the Philippines, which has deftly used BITs to advance economic nationalism. Litigation before domestic courts is not an alternative for protecting investor rights, but international commercial arbitration may become so in due course. The account concludes with proposals for future policy.
与其他东盟国家相比,菲律宾最近的增长趋势和外国直接投资(FDI)显示出的成就并不大,对收入不平等的影响也很小。这些结果归因于菲律宾对外国直接投资的宪法和立法框架中的经济民族主义政策,即政府将“战略”领域保留给菲律宾人,而外国人在进行投资时面临障碍。该账户怀疑外国国民能否通过菲律宾双边投资协定来保护投资,因为这些协定要求外国直接投资遵守菲律宾法律,从而强化了经济民族主义。保尔森关于发展中国家无视风险签订双边投资协定(BITs)的观点,似乎不适用于菲律宾,该国巧妙地利用双边投资协定来推进经济民族主义。在国内法院提起诉讼不是保护投资者权利的另一种选择,但国际商事仲裁可能在适当的时候成为这样的选择。报告最后提出了对未来政策的建议。
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引用次数: 1
International Investment Arbitration in Myanmar: Bounded Rationality, But Not as We Know It 缅甸的国际投资仲裁:有限理性,但并非我们所知
Pub Date : 2017-12-06 DOI: 10.1163/22119000-12340068
J. Bonnitcha
In 2011, following almost fifty years of one-party military rule, Myanmar began a process of transition toward democracy. Alongside this process, the Government of Myanmar is pursuing a variety of reforms in the hope of attracting new foreign investment. This article examines elements of the national and international legal environment governing foreign investment in Myanmar. The focus is on Myanmar’s current approach to investment treaties and Myanmar’s experience of investor-state arbitration under such treaties to date, although the article also reviews Myanmar’s national laws that are relevant to international investment arbitration, notably its laws on foreign investment and on arbitration. The article highlights Myanmar’s position to date as a ‘rule-taker’ in the investment treaty regime. It draws attention to important differences between Myanmar’s experience with investment treaties and the experiences of other developing countries, as well as possible points of similarity.
2011年,在经历了近50年的一党军事统治之后,缅甸开始了向民主过渡的进程。在这一进程的同时,缅甸政府正在进行各种改革,以期吸引新的外国投资。本文探讨了缅甸国内和国际法律环境的因素,这些因素制约着外国在缅甸的投资。虽然文章还回顾了缅甸与国际投资仲裁有关的国家法律,特别是外国投资法和仲裁法,但重点是缅甸目前对投资条约的态度以及缅甸迄今为止根据此类条约进行投资者与国家仲裁的经验。这篇文章强调了缅甸迄今为止在投资条约制度中作为“规则接受者”的地位。它提请注意缅甸在投资条约方面的经验与其他发展中国家的经验之间的重要差异,以及可能的相似之处。
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引用次数: 1
The Role of Arbitration in Shipping Law, edited by Miriam Goldby and Loukas Mistelis 《仲裁在航运法中的作用》,米里亚姆·戈德比和劳卡斯·米斯特利斯主编
Pub Date : 2017-12-06 DOI: 10.1163/22119000-12340084
Peter Macdonald Eggers
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引用次数: 1
Malaysia and Investor-State Dispute Settlement: Learning From Experience 马来西亚与投资者-国家争端解决:经验教训
Pub Date : 2017-12-06 DOI: 10.1163/22119000-12340065
Sufian Jusoh, Muhammad Faliq Abd Razak, Mohamad Azim Mazlan
Malaysia is an important destination for foreign direct investment and has signed more than 70 investment guarantee agreements. Most allow investor-state dispute settlement (ISDS) and Malaysia has been subject to three claims, including two fully argued cases: Philippe Gruslin and Malaysian Historical Salvor. Yet Malaysian companies have also utilised ISDS provisions: in MTD Equity Bhd v Chile, Telekom Malaysia v Ghana, and Ekran Berhad v China (the first-ever ISDS claim against China). These cases provide lessons for Malaysia in becoming better prepared to negotiate newer generations of investment treaties, and to defend further potential cases. Malaysia has not reacted negatively to investment treaties despite the cases filed against the country. In fact, in light of its evolving interests Malaysia has become more of a rule-maker in international investment law rather than a rule-taker. Malaysia thereby continues to liberalise its investment regime and provide better transparency – the best defence against claims.
马来西亚是外国直接投资的重要目的地,已签署70多项投资担保协议。大多数允许投资者-国家争端解决(ISDS),马来西亚已经受到三个索赔,包括两个充分争论的案件:Philippe Gruslin和Malaysian Historical Salvor。然而,马来西亚公司也利用了ISDS条款:在MTD股权有限公司诉智利,马来西亚电信诉加纳,以及Ekran Berhad诉中国(首次针对中国的ISDS索赔)。这些案例为马来西亚提供了经验教训,以便为谈判新一代的投资条约做好更充分的准备,并为进一步的潜在案件辩护。尽管有针对马来西亚的诉讼,但马来西亚并没有对投资条约做出负面反应。事实上,鉴于其不断变化的利益,马来西亚更像是国际投资法的规则制定者,而不是规则接受者。因此,马来西亚继续开放其投资制度,并提供更高的透明度——这是抵御索赔的最佳手段。
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引用次数: 2
The Termination of Indonesia’s BITs: Changing the Bathwater, But Keeping the Baby? 印尼双边投资协议的终止:换洗澡水,保留婴儿?
Pub Date : 2017-12-06 DOI: 10.1163/22119000-12340063
A. Crockett
In 2014, Indonesia began progressively to terminate the 67 bilateral investment treaties (BITs) it has signed since the late 1960s. It does not appear to be Indonesia’s intention, however, to completely abandon investor-State dispute settlement (ISDS) and it is likely that ISDS provisions will be included in a number of new regional treaties being negotiated by Indonesia, including the Regional Comprehensive Economic Partnership. Contrary to Poulsen’s theory of ‘bounded rationality’ it is suggested that Indonesia was not completely ignorant of the implications when it negotiated its first BITs in the 1960s, nor did it merely accept templates foisted upon it by the capital exporting countries of the West. Recent developments appear to confirm that, notwithstanding its decision to terminate its BITs, Indonesia still considers it important that foreign investors are assured of some minimum standards of protection, governed by international law and backed by access to neutral international dispute resolution.
2014年,印尼开始逐步终止自20世纪60年代末以来签署的67项双边投资条约(BITs)。然而,印度尼西亚似乎并不打算完全放弃投资者-国家争端解决机制,而且很可能将把投资者-国家争端解决机制的规定列入印度尼西亚正在谈判的一些新的区域条约,包括《区域全面经济伙伴关系》。与Poulsen的“有限理性”理论相反,这表明印度尼西亚在20世纪60年代谈判其第一个双边投资协定时并非完全不了解其含义,也不是仅仅接受西方资本输出国强加给它的模板。最近的事态发展似乎证实,尽管印度尼西亚决定终止双边投资协定,但它仍然认为确保外国投资者得到一些最低标准的保护是很重要的,这些保护受国际法管辖,并得到中立的国际争端解决办法的支持。
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引用次数: 4
Singapore and Its Free Trade Agreement with the European Union: Rationality ‘Unbound’? 新加坡及其与欧盟的自由贸易协定:理性“不受约束”?
Pub Date : 2017-12-06 DOI: 10.1163/22119000-12340064
Mahdev Mohan
Querying Poulsen’s view that some States negotiate investment treaties in ‘bounded’ rational ways, this article focuses on how the recently concluded European Union-Singapore Free Trade Agreement (EUSFTA) illustrates the evolution of Singapore’s treaty practice. Singapore has abandoned the ‘old’, and has joined the bandwagon of next-generation FTAs; yet, shrewdly, it is not fully convinced about the ‘new’ either. For example, the EUSFTA does not include a most-favoured nation clause, and does not commit to an appeals mechanism, unlike its Canadian and Vietnamese counterparts. Singapore’s caution appears to be motivated by a pragmatic desire to avoid the pitfalls that these provisions could bring with them, as Investor-State arbitration (ISA) jurisprudence demonstrates, and to study the implications of a recent decision by the EU’s highest court regarding the FTA. Indeed, that shows that the EU itself is now equally wary of the ISA regime removing disputes from the jurisdiction of national courts.
本文质疑Poulsen关于一些国家以“有限的”理性方式谈判投资条约的观点,重点关注最近缔结的欧盟-新加坡自由贸易协定(EUSFTA)如何说明新加坡条约实践的演变。新加坡抛弃了“旧的”,加入了新一代自由贸易协定的大潮;然而,精明的是,它也没有完全相信“新”。例如,与加拿大和越南的协定不同,欧盟自由贸易协定不包括最惠国条款,也不承诺诉诸上诉机制。新加坡的谨慎似乎是出于一种务实的愿望,即避免这些条款可能带来的陷阱,正如投资者-国家仲裁(ISA)的判例所表明的那样,并研究欧盟最高法院最近就自由贸易协定作出的决定的影响。事实上,这表明欧盟本身现在同样对ISA制度将争议从国家法院的管辖范围中移除持谨慎态度。
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引用次数: 0
International Investment Arbitration in Thailand: Limiting Contract-Based Claims While Maintaining Treaty-Based ISDS 泰国的国际投资仲裁:限制基于合同的索赔同时维持基于条约的ISDS
Pub Date : 2017-12-06 DOI: 10.1163/22119000-12340062
L. Nottage, Sakda Thanitcul
Thailand was initially cautious with its bilateral investment treaties (BITs), consistently eschewing investor-state dispute settlement (ISDS). From 1989 it began agreeing to ISDS, but only if both states were party to the Convention on the Settlement of Investment Disputes Between States and Nationals of Other States, which Thailand signed in 1965 but never ratified. From 1993, BITs increasingly provided for ad hoc arbitration. Major disputes emerged from the 1990s instead under contracts with foreign investors containing arbitration clauses. From 2004 concession contracts required Cabinet pre-approval. This limitation was extended to all public contracts from 2009, after the first treaty-based ISDS award against Thailand, although two further claims have been filed recently. A 2002 Model bit was revised in 2013 to incorporate more pro-host-state provisions, but Thailand had net foreign direct investment (FDI) outflows in 2011 and still concludes treaties with ISDS. These patterns suggest ‘more than bounded’ rationality.
泰国最初对双边投资条约(BITs)持谨慎态度,一直回避投资者-国家争端解决机制(ISDS)。从1989年起,泰国开始同意ISDS,但前提是两国都是《解决国家与他国国民之间投资争端公约》的缔约国,泰国于1965年签署了该公约,但从未批准该公约。从1993年起,双边投资协定越来越多地规定特设仲裁。从20世纪90年代开始,主要的争议出现在与外国投资者签订的包含仲裁条款的合同中。从2004年起,特许合同需要内阁事先批准。在针对泰国的第一个基于条约的ISDS裁决之后,这一限制从2009年开始扩展到所有公共合同,尽管最近又提出了两项索赔。泰国于2013年修订了2002年的示范协议,纳入了更多有利于东道国的条款,但2011年泰国的外国直接投资(FDI)净流出,仍与ISDS签订了条约。这些模式表明了“超越有限”的理性。
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引用次数: 2
Special Issue: International Investment Arbitration in Southeast Asia: An Introduction 特刊:东南亚国际投资仲裁:导论
Pub Date : 2017-12-06 DOI: 10.1163/22119000-12340061
L. Nottage, Sakda Thanitcul
The dynamic economies of the Association of Southeast Asian Nations (ASEAN) have individually concluded many standalone bilateral investment treaties (BITs) and a growing number of bilateral and regional free trade agreements (FTAs), supplemented by intra-ASEAN and ‘ASEAN+’ agreements. These aim to facilitate and protect burgeoning foreign direct investment (FDI) flows, outlined in Part 2, including large outflows recently from several states. Part 3 outlines treaty-making trends, including considerable consistency from many member states as well as some interesting innovations, against the backdrop of persistent problems of poor governance. Part 4 highlights nonetheless the relative paucity of investor-state dispute settlement (ISDS) claims against ASEAN member states, with only a few adverse awards, which helps explain why treaty-based ISDS has not been abandoned. Part 5 also notes several contributions from this ISDS case law to international investment law, and Southeast Asia’s potential to keep influencing its trajectory.
东南亚国家联盟(ASEAN)中充满活力的经济体各自缔结了许多独立的双边投资条约(BITs)和越来越多的双边和区域自由贸易协定(FTAs),并辅以东盟内部和“东盟+”协议。这些措施旨在促进和保护迅速增长的外国直接投资(FDI)流动,如第二部分所述,包括最近几个州的大量资金流出。第3部分概述了条约制定的趋势,包括许多成员国的相当一致性以及一些有趣的创新,背景是治理不善的持续问题。尽管如此,第4部分强调了针对东盟成员国的投资者-国家争端解决(ISDS)索赔相对较少,只有少数不利裁决,这有助于解释为什么基于条约的ISDS没有被放弃。第5部分还指出了ISDS判例法对国际投资法的若干贡献,以及东南亚继续影响其发展轨迹的潜力。
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引用次数: 0
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The journal of world investment and trade
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