Some current legal questions raised by the management of natural resources in Central Africa (States members and zone ECCAS) / Quelques questions juridiques actuelles soulevées par la gestion des ressources naturelles en Afrique centrale (États membres et espace CEMAC)

2021 ◽  
Vol 2021 ◽  
pp. 204-268
Author(s):  
Par James Mouangue Kobila
Keyword(s):  
Natural Resources ◽  
Central Africa ◽  
International Investment ◽  
General Interest ◽  
International Investment Law ◽  
Ressources Naturelles ◽  
Corona Virus ◽  
Investment Law ◽  
Droit International ◽  
The Right

Based on the case study of ECCAS’s member states, this study raises a series of problems which can be linked to the highly theoretical problematic of the relationship between international investment law and the regional law, two autonomous normative systems which pursue different objectives on the basis of international law standard that binds different parties. This study proposes short, medium and long term legal solutions which can be used by states to restore their sovereignty over their natural resources, in particular by indicating to them how to cancel the excessive tax expenditure granted to investors in establishment conventions and how to overcome stabilisation clauses inserted in these same state’s contracts. These measures are particularly useful in protecting states from possible legal consequences of measures taken in the context of the fight against the pandemic of the new corona virus. Finally, this study contains many proposals relating to the reform of investment law applicable to Africa, such as regionalism which would facilitate the generalisation of the right to regulate in the general interest. À partir du cas des États membres de la CEMAC, cette étude soulève une série de problèmes que l›on peut rattacher à la problématique éminemment théorique des rapports de système entre le Droit international des investissements et le Droit communautaire, deux systèmes normatifs autonomes qui poursuivent des objectifs différents sur le fondement de normes internationales liant des parties distinctes. Elle permet d’offrir aux États des solutions juridiques utilisables à court, à moyen et à long terme pour restaurer leur souveraineté sur leurs ressources naturelles, notamment en leur indiquant comment revenir sur les dépenses fiscales excessives accordées aux investisseurs dans les conventions d’établissement et comment faire échec aux clauses de stabilisation insérées dans ces mêmes Contrats d’État. Ces mesures s’avèrent particulièrement utiles pour protéger les États des éventuelles conséquences juridiques des mesures prises dans le cadre de la lutte contre la pandémie du nouveau Corona virus. Cette étude renferme enfin de nombreuses propositions relatives à la réforme du Droit des investissements applicable en Afrique, parmi lesquelles celle du régionalisme qui faciliterait la généralisation du Droit de règlementer dans l’intérêt général.

scholarly journals Private Actors, Public Goods and Responsibility for the Right to Water in International Investment Law: An Analysis of Urbaser v. Argentina

2018 ◽  
pp. 1-24
Author(s):  
Edward Guntrip
Keyword(s):  
Water Supply ◽  
International Law ◽  
International Investment ◽  
Human Right ◽  
Public And Private ◽  
Foreign Investors ◽  
International Investment Law ◽  
Investment Law ◽  
The Right ◽  
Water Supply Services

International investment law balances public and private interests within the broader framework of international law. Consequently, when water supply services, which constitute a public good, are privatized and operated by foreign investors, questions arise regarding whether foreign investors could be held responsible for the right to water under international law. This article considers how the tribunal in Urbaser v. Argentina allocated responsibility for compliance with the right to water between the host State and the foreign investor when resolving a dispute over privatized water services. It highlights how the tribunal in Urbaser v. Argentina supports different understandings of public and private based on whether the human rights obligation is framed in terms of the duty to respect or protect. The article argues that the tribunal’s rationale overcomplicates the process of allocating responsibility for violations of the human right to water when water supply services have been privatized.

THE “UNEXPECTED” DEVELOPMENT-FRIENDLY DEFINITION OF INVESTMENT IN THE 2013 RESOLUTION OF THE INSTITUT DE DROIT INTERNATIONAL

2014 ◽  
Vol 23 (1) ◽  
pp. 69-90
Author(s):  
Pia Acconci
Keyword(s):  
Sustainable Development ◽  
International Investment ◽  
Public Interests ◽  
International Investment Law ◽  
Investment Treaty ◽  
Private And Public ◽  
Investment Law ◽  
Droit International ◽  
Definition Of

The importance of the widespread reliance upon direct arbitration, particularly arbitration under the International Centre for Settlement of Investment Disputes (ICSID), and of the practice of “arbitration without privity” is at the root of the search for a definition of investment, as underlined by the 2013 Resolution of the Institut de droit international (IDI). The Resolution refers to a development-friendly definition of investment. This article aims to explain to what extent a definition based upon references to sustainable development would constitute an acceptable specification, albeit a partial one, of the term “development” used in the IDI Resolution, in light of the need of a reconciliation between private and public interests within current international investment law. The article also deals with the issue of whether the ICSID Convention provides for an autonomous definition of investment that cannot be overridden by the terms of a given international investment treaty, and if so, which criteria should be taken into consideration for the purposes of determining whether an investment exists within the meaning of Article 25(1) of the ICSID Convention.

scholarly journals Green Shoots in a Barren World: Recent Developments in International Investment Law

2020 ◽  
Vol 67 (3) ◽  
pp. 453-471
Author(s):  
Jason Rudall
Keyword(s):  
Human Rights ◽  
Dispute Settlement ◽  
International Investment ◽  
International Investment Law ◽  
Business And Human Rights ◽  
Good Investment ◽  
Investment Law ◽  
Multiple Challenges ◽  
The Right ◽  
Law Making

AbstractThis article begins from the observation that there have been a number of developments in international investment law-making and the jurisprudence of investor-state dispute settlement tribunals involving the protection of the environment and human rights. As for law-making, this article explores the evolving substance of international investment agreements as well as regulatory developments in the area of business and human rights that are of relevance to the international investment law framework. The article then turns to consider the emergence of human rights and environmental issues in the recent jurisprudence of investment tribunals and appraises how such issues have been dealt with—both in procedural and substantive terms—by arbitral tribunals. Finally, it questions whether investment tribunals are appropriate venues for the adjudication of non-investment matters like environmental and human rights issues, and highlights best practices that could be adopted by future tribunals. Overall, the article concludes that the piecemeal approach adopted to date provides a step in the right direction but is ultimately inadequate given the multiple challenges that our planet currently faces. Rather, a more ambitious agenda that is concerned with promoting good investment, as opposed to mitigating bad practices, should be pursued.

scholarly journals International investment law in support of the right to development?

2020 ◽  
pp. 1-21
Author(s):  
Ole Kristian Fauchald
Keyword(s):  
Foreign Direct Investment ◽  
Low Income ◽  
Direct Investment ◽  
International Investment ◽  
Policy Space ◽  
International Investment Law ◽  
Right To Development ◽  
Investment Law ◽  
The Right ◽  
National Investment

Abstract There is a long-standing claim and ambition in international investment law that treaties and customary law contribute to economic development in countries hosting investment. However, this claim remains controversial and has been hotly debated among academics. The article explores how international investment law, understood as international investment agreements (IIAs) and their associated dispute settlement mechanisms, can support the right to development. It does so by analysing how rules regarding protection and flow of foreign direct investment have and can contribute to realizing the right to development and help achieve sustainable development goals. It finds that IIAs have had limited effects for promotion of investment into or restricting the policy space for least developed and low-income countries. It argues that potential effects of IIAs cannot be properly understood without taking into account other means of protecting and promoting foreign direct investment, i.e., national investment legislation and contracts. So far, national investment legislation is likely to have had more significant impact on flows of foreign direct investment and policy space of host countries than IIAs. Reforms of IIAs to increase synergies with the right to development will, therefore, have to be based on knowledge about and assessments of the dynamics between IIAs, domestic investment legislation, and investment contracts.

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