scholarly journals The Private Law Critique of International Investment Law

2018 ◽  
Author(s):  
Julian Arato
Keyword(s):  
International Investment ◽  
Private Law ◽  
International Investment Law ◽  
Investment Law

scholarly journals The Private Law Critique of International Investment Law

2019 ◽  
Vol 113 (1) ◽  
pp. 1-53 ◽  
Author(s):  
Julian Arato
Keyword(s):  
Intellectual Property ◽  
Dispute Settlement ◽  
International Investment ◽  
Private Law ◽  
Legal Institutions ◽  
International Investment Law ◽  
Investment Law ◽  
Investment Treaties ◽  
Do So

AbstractThis Article argues that investment treaties subtly constrain how nations organize their internal systems of private law, including laws of property, contracts, corporations, and intellectual property. Problematically, the treaties do so on a one-size-fits-all basis, disregarding the wide variation in values reflected in these domestic legal institutions. Investor-state dispute settlement exacerbates this tension, further distorting national private law arrangements. This hidden aspect of the system produces inefficiency, unfairness, and distributional inequities that have eluded the regime's critics and apologists alike.

International Investment Law as Transnational Law

2021 ◽  
pp. 290-314
Author(s):  
Nicolás M. Perrone
Keyword(s):  
Foreign Investment ◽  
International Investment ◽  
Private Law ◽  
Public And Private ◽  
Current Form ◽  
International Investment Law ◽  
Transnational Law ◽  
Legal Thinking ◽  
Investment Law ◽  
Domestic Law

This chapter examines the international investment regime through the lens of transnational law. It argues that this regime would not exist—or at least not in its current form—if it was not for the transnational ambition of some bankers, lawyers, and academics who dreamed of moving foreign investment relations beyond the traditional categories of public and private law and international and domestic law. The current normal in international investment law started with audacious treaty models, writings and awards. This chapter contrasts this approach with the important academic debates about this field, which have paradoxically focused on whether international investment law is public or private law or if international or domestic law should control foreign investment relations. To conclude, the chapter looks at the situation of local nonstate actors in foreign investor relations, examining whether they could also rely on audacious transnational legal thinking to protect their interests.

Diligentia quam in suis as a Technique for a Contextual Application of the Full Protection and Security Standard: Considering the Level of Development of Host States in International Investment Law

2020 ◽  
Vol 28 (4) ◽  
pp. 596-611
Author(s):  
Nitish Monebhurrun
Keyword(s):  
International Law ◽  
International Investment ◽  
Due Diligence ◽  
Foreign Investors ◽  
International Investment Law ◽  
Local Means ◽  
Security Standard ◽  
Maximum Protection ◽  
Investment Law ◽  
Full Protection

With international investment law as the background to this study, the present article examines how the full protection and security standard can be construed from the perspective of developing states hosting foreign investments. The research delves into classical public international law to argue that the diligentia quam in suis rule can be used as a means of interpretation to strike a balance between foreign investors’ and developing states’ interests when construing the full protection and security standard. The rule provides that any expected due diligence from the state party is necessarily of a subjective nature. This means that developing host states must deploy their best efforts to offer maximum protection to foreign investors not on an in abstracto basis but as per their local means and capacity. Accordingly, the standard is presented as an adaptable and flexible one which moulds its contours as per the level of development of the host state. Such flexibility does not imply condoning states’ abuse and negligence. The article explains how the diligentia quam in suis rule enables a conciliation between the full protection and security standard and the host state's level of development while rationalising the standard's application to developing nations.

Sign in / Sign up

Export Citation Format

Share Document