Legitimate Expectations and the Rule of Law in International Investment Law

2019 ◽  
Author(s):  
Caroline Henckels
Keyword(s):  
Rule Of Law ◽  
International Investment ◽  
The Rule Of Law ◽  
International Investment Law ◽  
Legitimate Expectations ◽  
Investment Law

scholarly journals Fair and Equitable Treatment Between the International and National Rule of Law

2019 ◽  
Vol 20 (4) ◽  
pp. 513-552 ◽  
Author(s):  
Velimir Živković
Keyword(s):  
Decision Making ◽  
Rule Of Law ◽  
International Investment ◽  
The Rule Of Law ◽  
International Investment Law ◽  
Investment Protection ◽  
National Rule ◽  
Fair And Equitable Treatment ◽  
Investment Law ◽  
Equitable Treatment

Abstract Promoting the rule of law is a potentially strong legitimating narrative for international investment law. Illustrating the interlinkage, the ubiquitous ‘fair and equitable treatment’ (FET) standard embodies distinctly rule of law requirements. But these requirements remain open-textured and allow understanding their meaning in either more ‘international’ or ‘national’ way. An ‘international’ understanding – detached from the host State’s vision on how the rule of law should look like – should remain dominant. But I argue that decision-making under the FET standard should also involve a systematic engagement with how these requirements would be understood in the host State’s law and how they were complied with from that perspective. Whilst not determinative for establishing a breach, this assessment better respects the expectations of the parties, strengthens the persuasiveness of findings and helps enhance the national rule of law as a key contributor to the ultimate goal of investment protection – economic development.

Interactions between International Investment Law and Constitutional Law: Promoting the Dialogue. A European Perspective on Judicial Cooperation and Deference

2018 ◽  
Vol 21 (1) ◽  
pp. 467-574
Author(s):  
Inga Witte
Keyword(s):  
Rule Of Law ◽  
Constitutional Law ◽  
International Investment ◽  
Judicial Cooperation ◽  
Potential Conflict ◽  
The Rule Of Law ◽  
International Investment Law ◽  
Two Systems ◽  
Investment Law ◽  
The Relationship

There are manifold constellations of potential conflict between international investment law and constitutional law. The ordering paradigm for that interaction is an unresolved and underexplored question, which is currently coming up in a number of proceedings. As prominently evidenced by the recent Achmea judgment, we seem to be steering towards supremacy claims of one system over the other with each adjudicative body claiming the final say in the matter. This approach is in line with the classic ordering paradigm of hierarchy. However, this contribution shall argue that hierarchy is ill-suited to properly conceptualize the relationship between the two systems. Instead, it proposes to embrace the heterarchical reality, along with its call for judicial dialogue, as a normatively desirable paradigm. The relationship between international investment law and constitutional law need not be and should not be perceived as inherently antagonistic because their mutual endeavour is to promote the rule of law. Precisely this realization should guide the relationship between the two systems.

International Investment Law in the Context of Jus Post Bellum: Are Investment Treaties Likely to Facilitate or Hinder the Transition to Peace?

2015 ◽  
Vol 16 (4) ◽  
pp. 604-632 ◽  
Author(s):  
Jure Zrilič
Keyword(s):  
Rule Of Law ◽  
International Investment ◽  
The Rule Of Law ◽  
International Investment Law ◽  
Jus Post Bellum ◽  
Post Conflict ◽  
Investment Arbitration ◽  
Sustainable Peace ◽  
Investment Law ◽  
Investment Treaties

This article seeks to explore how international investment treaties interact with the transition from armed conflict to peace. While the protection of foreign investors in conflict and post-conflict environments is a necessary requirement for re-establishing the rule of law and attracting new capital that is needed for rebuilding the wrecked economy, the threat of excessive arbitration claims may also complicate the delicate process of creating a stable political order. The article compares traditional, government-to-government methods of settling post-conflict international claims with investor-state arbitration. Unlike investors, governments will usually base their decision about raising a conflict-related claim on a number of extra-legal considerations, such as conditions for sustainable peace. These considerations will often reflect in the amount and the method of payment of post-conflict compensation. The article looks at the investment arbitration practice and identifies certain interpretive tools that take better account of post-conflict realities and lead to more balanced awards.

scholarly journals Counterclaims and the Rule of Law in Investment Arbitration

AJIL Unbound ◽  
2019 ◽  
Vol 113 ◽  
pp. 33-37 ◽  
Author(s):  
Tomoko Ishikawa
Keyword(s):  
Rule Of Law ◽  
International Investment ◽  
Access To Justice ◽  
Foreign Investors ◽  
The Rule Of Law ◽  
International Investment Law ◽  
Rule By Law ◽  
Investment Arbitration ◽  
The Law ◽  
Broad Interpretation

While the rule of law was originally developed with reference to domestic constitutional orders, it is also widely embraced by international lawyers. This essay argues that the admission of counterclaims in certain circumstances helps investment arbitration advance the rule of law on several counts. The rule of law is defined here to include not only formal elements such as rule-by-law and formal legality, but also “thicker” elements attached to certain substantive values, including fundamental human rights. The UN's work on the rule of law clearly adopts a broad interpretation of this concept. This essay examines the potential for counterclaims to bridge the gap between the lack of effective mechanisms to hold foreign investors accountable for their conduct and the extensive protection of foreign investors in international investment law. By doing so, counterclaims in investment arbitration may promote the thicker elements of the rule of law such as accountability to the law, access to justice, and fairness in the application of the law.

scholarly journals Fair and Equitable Treatment and Investor’s Due Diligence Under International Investment Law

2020 ◽  
Vol 67 (2) ◽  
pp. 233-255
Author(s):  
Yulia Levashova
Keyword(s):  
International Investment ◽  
Due Diligence ◽  
International Investment Law ◽  
Host State ◽  
Fair And Equitable Treatment ◽  
Political Background ◽  
Legitimate Expectations ◽  
Investment Law ◽  
The Stability ◽  
Equitable Treatment

Abstract The investor’s due diligence has become a significant factor in determining whether the legitimate expectations of an investor give rise to protection under the FET standard. This is especially relevant when an investor’s claim for the protection of its legitimate expectations is based on the stability of a regulatory framework. The investor’s due diligence in the context of the FET standard goes beyond the risk-based business due diligence performed by a foreign investor for its own benefit. It has implications for a state’s right to regulate in the public interest and a broader notion of business responsibilities. Investors are expected to conduct proper due diligence before investing in a host state by demonstrating their reasonable efforts to collect information about the rules and regulations that are pertinent to the proposed investment. In some cases, due diligence extends to an investor’s duty to assess the possible risks related to the broader economic situation and socio-political background of a host state. Focusing on the recent renewable energy awards, this article analyses and clarifies the role of due diligence in the context of the FET standard, as well as its potential application for asserting responsible business conduct in the broader framework of international investment law.

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