scholarly journals Possibilities of Limiting the Protection of Large-Scale Investments in Farmland

2020 ◽  
Vol 21 (6) ◽  
pp. 1198-1227
Author(s):  
Zoe Cometti
Keyword(s):  
Adverse Effects ◽  
Public Interest ◽  
Large Scale ◽  
Minority Groups ◽  
International Investment ◽  
International Investment Law ◽  
The Public ◽  
Investment Treaty ◽  
Treaty Reform ◽  
The Right

AbstractLarge-scale investments in farmland can generate adverse effects on food security, minority groups, and the environment. Consequently, this Article analyzes to what extent international investment law has the potential to prevent those effects, considering the current investment treaty reform towards a symmetrical mechanism promoting sustainable development. First this Article presents the current substantive standard on expropriation of large-scale investments in farmland and the regulatory space left for host states. This Article then frames a potential public interest clause that would have the effect of granting due protection to investors and the right to regulate to host states, while not undermining the public interest and also preventing the adverse effects of these investments.

scholarly journals The New Italian Model Bit Between Current and Future Trends

2021 ◽  
Vol 1 (1) ◽  
pp. 113-131
Author(s):  
Maria Chiara Malaguti
Keyword(s):  
International Investment ◽  
Future Trends ◽  
Investment Policies ◽  
International Investment Law ◽  
The Public ◽  
Investment Treaty ◽  
Investment Law ◽  
Italian Model ◽  
Corporate Social ◽  
New Generation

Abstract In 2021, the new Italian Model Bilateral Investment Treaty has been published. It replaced the 2003 Model bit and can be considered as a significant example of the “new generation of bit s”, which try to better balance investor rights with the public prerogatives of States. The Model Treaty also introduces significant innovations as to the conduct of arbitrators and the corporate social responsibility of investors and is also aimed at coordinating Italian and European foreign investment policies. This article offers a view of this new Model bit and tries to insert it in the broader context of the proposed reforms regarding international investment law and arbitration.

scholarly journals AUTONOMY TO SET THE LEVEL OF REGULATORY PROTECTION IN INTERNATIONAL INVESTMENT LAW

2021 ◽  
pp. 1-40
Author(s):  
Joshua Paine
Keyword(s):  
International Investment ◽  
State Autonomy ◽  
International Investment Law ◽  
Competing Interests ◽  
Investment Treaty ◽  
Fair And Equitable Treatment ◽  
Investment Law ◽  
Regulatory Protection ◽  
The Right ◽  
Equitable Treatment

Abstract This article argues that State autonomy in setting the level of protection for permissible regulatory aims can be better operationalised in the investment treaty regime. The article draws on comparative insights from WTO law, where it is established that WTO members have the right to determine the level of protection for permissible regulatory aims, although significant disciplines are placed on the means used to achieve those aims. It is then argued that investment treaties are, properly interpreted, consistent with the idea that States retain autonomy to determine the level of protection for permissible regulatory aims. Finally, the article proposes removing from the fair and equitable treatment and indirect expropriation standards proportionality balancing stricto sensu, as this undermines State autonomy in setting the level of protection. Overall, this article argues for a partial reorientation of investment law, in which non-discriminatory measures that pursue a permissible regulatory aim, including at a particular level, should not amount to a breach of a treaty where a State uses the means that involve the least possible restriction of the competing interests protected by relevant investment treaty obligations.

scholarly journals Procedural Transparency in the Settlement of Treaty-Based Investment Disputes in EVIPA and CPTPP

2020 ◽  
Vol 2 (1) ◽  
pp. 58-75
Author(s):  
Hai Yen Trinh ◽  
The Hoang Nguyen
Keyword(s):  
Public Interest ◽  
International Investment ◽  
Public Access ◽  
Viet Nam ◽  
International Investment Law ◽  
Investment Protection ◽  
Right To Information ◽  
The One ◽  
The Right ◽  
Privacy And Confidentiality

AbstractImportant characteristics of commercial arbitration include privacy and confidentiality; nonetheless, in investor-state arbitration, most of the investment treaties or arbitral rules referred therein often seek to enhance transparency and public participation by introducing three new features to investment arbitration’s proceedings: public access to documents related to the arbitration, public access to hearings; and amicus curiae submission. Those provisions generally contain exceptions to maintain a balance between the public interest on the one hand, and the interest of the disputing parties on the other hand in the fair and efficient resolution of the dispute. The two treaties Viet Nam has recently concluded, the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP) and the EU-Viet Nam Investment Protection Agreement (EVIPA), have stipulated the procedural transparency requirements, which are in line with a new trend of development in international investment law. Although Viet Nam currently maintains confidentiality with regard to investor-state arbitration, the fact that Viet Nam has made international commitments on transparency promises benefits such as increasing public interest protection, improving governance and ensuring the right to information.

scholarly journals Trumping the Environment? An Empirical Perspective on the Legitimacy of Investment Treaty Arbitration

2017 ◽  
Vol 18 (1) ◽  
pp. 14-61 ◽  
Author(s):  
Daniel Behn ◽  
Malcolm Langford
Keyword(s):  
Public Interest ◽  
Mixed Method ◽  
International Investment ◽  
Anecdotal Evidence ◽  
Foreign Investors ◽  
The Public ◽  
Investment Treaty ◽  
Environmental Component ◽  
Empirical Perspective ◽  
Investment Treaty Arbitration

Disputes involving an environmental component continue to be at the forefront of ongoing legitimacy debates in investment treaty arbitration. Critics of the international investment regime contend that arbitration favors the property rights of foreign investors over the need of host states to environmentally regulate and legislate in the public interest. While there is some doctrinal and anecdotal evidence to this effect, we ask whether investment treaty arbitration as a whole is as problematic for domestic environmental protection as has been perceived. With mixed method techniques, we analyze environmental cases in the context of five specific legitimacy concerns. Overall, we find that critiques of the system require nuance and clarification of the normative benchmarks for legitimacy assessments. In a number of important areas, the critiques do have purchase but in the aggregate, the most problematic cases are often successfully defended by respondent states.

Mitigating the Risks Entailed in Shareholders’ Claims for Reflective Loss: Suggestions for Investment Treaty Reform

2018 ◽  
pp. 693-721
Author(s):  
Panagiotis A. Kyriakou
Keyword(s):  
International Law ◽  
International Investment ◽  
International Investment Law ◽  
Investment Treaty ◽  
Systemic Risks ◽  
Investment Law ◽  
Investment Treaties ◽  
Treaty Reform ◽  
New Generation

Abstract This contribution identifies the systemic risks posed by the permissibility of shareholders’ claims for reflective loss in international investment law. It revisits existing investment treaty mechanisms under which shareholder recourse can be limited, and evaluates their effectiveness in the particular context of reflective loss. Drawing on ‘traditional’ and ‘new generation’ treaty language, as well as on domestic and general international law, the article then proposes new treaty language with the aim of eliminating the risks of reflective loss claims from investment treaties.

Tanggung Jawab Hukum Penilai Publik terhadap Laporan Penilaian Kegiatan Pengadaan Tanah bagi Pembangunan untuk Kepentingan Umum (Studi Atas Kantor Jasa Penilai Publik Toto Suharto)

2020 ◽  
Vol 2 (1) ◽  
Author(s):  
Gagah Yaumiyya Riyoprakoso ◽  
AM Hasan Ali ◽  
Fitriyani Zein
Keyword(s):  
Future Development ◽  
Public Interest ◽  
Legal Responsibility ◽  
Legal Research ◽  
The Public ◽  
The Government ◽  
Conducting Research ◽  
The Right ◽  
The Relationship ◽  
Systematic Explanation

This study is based on the legal responsibility of the assessment of public appraisal reports they make in land procurement activities for development in the public interest. Public assessment is obliged to always be accountable for their assessment. The type of research found in this thesis is a type of normative legal research with the right-hand of the statue approach and case approach. Normative legal research is a study that provides systematic explanation of rules governing a certain legal category, analyzing the relationship between regulations explaining areas of difficulty and possibly predicting future development. . After conducting research, researchers found that one of the causes that made the dispute was a lack of communication conducted between the Government and the landlord. In deliberation which should be the place where the parties find the meeting point between the parties on the magnitude of the damages that will be given, in the field is often used only for the delivery of the assessment of the compensation that has been done.

Freedom of Expression versus Privacy and the Right to Reputation

2017 ◽  
Author(s):  
Dirk Voorhoof
Keyword(s):  
Public Interest ◽  
Freedom Of Expression ◽  
Media Freedom ◽  
Investigative Journalism ◽  
The Public ◽  
The Right Of Privacy ◽  
The One ◽  
Grand Chamber ◽  
The Right ◽  
The Impact

The normative perspective of this chapter is how to guarantee respect for the fundamental values of freedom of expression and journalistic reporting on matters of public interest in cases where a (public) person claims protection of his or her right to reputation. First it explains why there is an increasing number and expanding potential of conflicts between the right to freedom of expression and media freedom (Article 10 ECHR), on the one hand, and the right of privacy and the right to protection of reputation (Article 8 ECHR), on the other. In addressing and analysing the European Court’s balancing approach in this domain, the characteristics and the impact of the seminal 2012 Grand Chamber judgment in Axel Springer AG v. Germany (no. 1) are identified and explained. On the basis of the analysis of the Court’s subsequent jurisprudence in defamation cases it evaluates whether this case law preserves the public watchdog-function of media, investigative journalism and NGOs reporting on matters of public interest, but tarnishing the reputation of public figures.

Investor-State dispute settlement (ISDS) cases and India: affronting regulatory autonomy or indicting capricious state behaviour?

2021 ◽  
Vol ahead-of-print (ahead-of-print) ◽  
Author(s):  
Prabhash Ranjan
Keyword(s):  
Public Interest ◽  
Dispute Settlement ◽  
Due Process ◽  
International Investment ◽  
Public Power ◽  
Foreign Investors ◽  
Content Type ◽  
International Investment Law ◽  
Global Context ◽  
State Behaviour

Purpose The dominant narrative in the investor-State dispute settlement (ISDS) system is that it enables powerful corporations to encroach upon the regulatory power of developing countries aimed at pursuing compelling public interest objectives. The example of Phillip Morris, the tobacco giant, suing Uruguay’s public health measures is cited as the most significant example to prove this thesis. The other side of the story that States abuse their public power to undermine the protected rights of foreign investors does not get much attention. Design/methodology/approach This paper reviews all the ISDS cases that India has lost to ascertain the reason why these claims were brought against India in the first place. The approach of the paper is to study these ISDS cases to find out whether these cases arose due to abuse of the State’s public power or affronted India’s regulatory autonomy. Findings Against this global context, this paper studies the ISDS claims brought against India, one of the highest respondent-State in ISDS, to show that they arose due to India’s capricious behaviour. Analysis of these cases reveals that India acted in bad faith and abused its public power by either amending laws retroactively or by scrapping licences without following due process or going back on specific and written assurances that induced investors to invest. In none of these cases, the foreign investors challenged India’s regulatory measures aimed at advancing the genuine public interest. The absence of a “Phillip Morris moment” in India’s ISDS story is a stark reminder that one should give due weight to the equally compelling narrative that ISDS claims are also a result of abuse of public power by States. Originality/value The originality value of this paper arises from the fact that this is the first comprehensive study of ISDS cases brought against India and provides full documentation within the larger global context of rising ISDS cases. The paper contributes to the debate on international investment law by showing that in the case of India most of the ISDS cases brought were due to India abusing its public power and was not an affront on India’s regulatory autonomy.

Micula v Romania between International Investment Law and European Law – The UK Supreme Court Judgement – the Final or the NEXT PIece of the Puzzle?

De Jure ◽  
2021 ◽  
Vol 12 (1) ◽  
Author(s):  
Steliyana Zlateva ◽  
◽  
◽  
Keyword(s):  
Supreme Court ◽  
International Investment ◽  
European Law ◽  
Eu Law ◽  
International Investment Law ◽  
Investment Treaty ◽  
Investment Law ◽  
Uk Supreme Court ◽  
The Uk ◽  
The Eu

The Judgement of the United Kingdom’s Supreme Court in the long Micula v. Romania investment treaty dispute confirmed that the arbitral awards of the International Centre for Settlement of Investment Disputes (ICSID), rendered by tribunals established under intra-EU BITs, could be enforced in the UK. The Micula case concerns the interplay between the obligations under the ICSID Convention and EU law. In particular, it addresses the question of whether the award obtained by the Micula brothers against Romania constitutes state aid prohibited by EU law, as well as the enforcement obligations under the ICSID Convention in view of the EU duty of sincere cooperation.

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