scholarly journals On Foreign Investor ‘Privilege’ and the Limits of the Law: A Reply to Ivar Alvik

2020 ◽  
Vol 31 (1) ◽  
pp. 313-319
Author(s):  
Jürgen Kurtz
Keyword(s):  
Political Economy ◽  
International Investment ◽  
The Political ◽  
Definitive Answer ◽  
State Action ◽  
Investment Treaty ◽  
Legal Principle ◽  
Internal Problem ◽  
The Law ◽  
Domestic Companies

Abstract International investment treaties are structurally characterized by inherent asymmetry in the (non-relative) legal protections extended to foreign investors vis-à-vis domestic companies and nationals. For many lawyers, ‘foreign privilege’ is deeply problematic as it violates a foundational legal principle – namely, equality before the law. Yet law and law alone cannot always offer a definitive answer of this sort. At the very least, legal hypotheses should be rigorously tested against insights from other disciplines that can offer sharp analytical light on the complex contours of a given phenomenon. In this reply, I explore the political economy of host state policy as it is formed against three categories of foreign direct investment (FDI). Conceptually (and empirically), this political economy matrix reveals sharply varying levels of risk of hostile state action against distinct forms of FDI. To be sure, this analysis alone does not justify the traditional and expansive model of bilateral investment treaty protections. Yet, at least for some categories, this political economy case reveals an internal problem that is difficult (if not impossible) for the state itself to resolve, and, thus, it may well be rational for such a state to leverage international norms to extend qualified extra-domestic priority to foreign actors.

The Political Economy of a Bilateral Investment Treaty

1998 ◽  
Vol 92 (4) ◽  
pp. 621-641 ◽  
Author(s):  
Kenneth J. Vandevelde
Keyword(s):  
Political Economy ◽  
International Law ◽  
International Investment ◽  
The Political ◽  
Bilateral Investment Treaties ◽  
Bilateral Investment Treaty ◽  
Investment Treaty ◽  
Investment Treaties

One of the more remarkable developments in international law in the mid-1990s is not what it appears to be. The massive and sudden proliferation of bilateral investment treaties (BITs), now constituting a network of more than thirteen hundred agreements involving some 160 states, appears to reflect die triumph of liberal economics in the sphere of international investment. In fact, however, it constitutes only a momentary convergence of nationalist interests. If the BITs are to construct the liberal international investment regime they seem to promise, then they must be modified in important and substantial ways.

Developmentalism

2020 ◽  
Author(s):  
Graham Harrison
Keyword(s):  
Political Economy ◽  
Poverty Reduction ◽  
Nation Building ◽  
The Political ◽  
Capitalist Development ◽  
State Action ◽  
Material Life ◽  
Authoritarian State ◽  
Norms And Values ◽  
Political Norms

When we talk about development, we are talking about capitalist development. Taking a historical-comparativ e approach, Harrison understands development as a transformation which involves a deep and integrated political economy of change: a shift from a state of ‘capital-ascendance’ to ‘capital-dominance’. It is only through a transformation towards capital dominance that mass poverty reduction and the construction of a commonwealth are possible. However, capitalist development is extremely difficult and requires a highly exacting political endeavour. The politics of development is conceptualized as developmentalism: a strategy and ideology in which governments exercise heavy directive power, endure instability and crisis, and secure a rudimentary legitimacy for their efforts. The political exertions required to generate and sustain a developmentalist strategy are too great to be met by the simple desire to develop. Harrison argues that developmentalism requires a conflation of successful capitalist transformation with some form of existential insecurity of the state itself. Developmentalism flourishes when capitalist transformation connects to profound questions of sovereignty, statehood, nation-building, and elite survival. Authoritarian state action is intrinsic to developmentalism, which the book addresses by adapting a realist approach to politics in which political norms and values are generated within the agonies of suffering and benefit generated by an ascending capital. Taking case studies from the last 250 years, Developmentalism shows the deep contextualization of capitalist transformation as well as the massive improvements in material life that it has generated.

scholarly journals Resenha: The Political Economy of the Investment Treaty Regime

2020 ◽  
Vol 9 (17) ◽  
pp. 562-568
Author(s):  
Lucas Silva Amorim
Keyword(s):  
Political Economy ◽  
The Political ◽  
Investment Treaty

A resenha aborda o livro The Political Economy of the Investment Treaty Regime, escrito em coautoria por Jonathan Bonnitcha , Lauge N. Skovgaard Poulsen e Michael Waibel. Os autores exploram as principais características do Regime dos Tratados de Investimento, arcabouço jurídico formado por tratados de investimento, regras procedimentais e decisões de tribunais arbitrais. Um renovado movimento de crítica e reformas reforça a relevância do estudo do tema.

The International Investment Arbitrator’s Duty to Apply the Law

2018 ◽  
Vol 17 (1) ◽  
pp. 160-177
Author(s):  
Joshua Karton
Keyword(s):  
Dispute Settlement ◽  
International Investment ◽  
Settlement System ◽  
Choice Of Law ◽  
Primary Constraint ◽  
Investment Treaty ◽  
The Law ◽  
Investment Treaties ◽  
Dispute Settlement System ◽  
Governing Law

Abstract This article explores the sources, nature, and implications of an arbitrator’s duty to decide according to the governing law in investor-state arbitrations. It advances a contractarian conception of arbitral authority in investor-state arbitration, whereby the agreement of the states parties to the investment treaty is the source of both the arbitrator’s power to make decisions and the primary constraint on that power: the duty to apply the law. It argues that the choice of law provisions in investment treaties have a constitutional character for arbitral tribunals, such that a failure to apply the chosen law constitutes an excess of the tribunal’s powers which, if manifest, justifies annulment or non-enforcement of the award. The article concludes by considering the implications of this contractarian theory of arbitral powers and duties for arbitrators, disputing parties, and states seeking to reassert control over the investor-state dispute settlement system.

Legal Aid and Investment Treaty Disputes: Lessons Learned from the Advisory Centre on WTO Law and Investment Experiences

2018 ◽  
pp. 628-666
Author(s):  
Robert W. Schwieder
Keyword(s):  
Dispute Settlement ◽  
International Investment ◽  
Lessons Learned ◽  
The Political ◽  
Legal Aid ◽  
International Investment Law ◽  
Investment Treaty ◽  
Investment Law ◽  
Insight Into

Abstract This article evaluates the opportunities for and challenges to the establishment of an Advisory Center on International Investment Law (ACIIL), a legal aid facility based on the design of the successful Advisory Centre on WTO Law (ACWL) but focused on investor-State dispute settlement (ISDS). Drawing primarily on personal interviews conducted with high-placed sources familiar with the historical attempts at establishing investment advisory centers and/or the ACWL’s origins and operations, it identifies seven ‘lessons learned’ from those experiences. It concludes that, though the ACIIL’s time has come, that center’s future negotiators should be careful to heed the lessons learned by both the ACWL’s founders as well as those diplomats who have previously undertaken ACIIL-like initiatives, which provide invaluable insight into the political, financial, and logistical challenges they will need to overcome.

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