scholarly journals COMPLAINTS WHICH FOREIGN INVESTORS MIGHT BRING AGAINST HOST STATES DUE TO COVID-19 RESPONSE, AND THE DEFENCE HOST STATES MIGHT USE AGAINST THE COMPLAINTS

2020 ◽  
Vol 5 (1) ◽  
pp. 1
Author(s):  
Nasser K A Al-Dosari Khalifa
Keyword(s):  
Qualitative Content Analysis ◽  
International Investment ◽  
Research Literature ◽  
Unique Contribution ◽  
Policy And Practice ◽  
Foreign Investors ◽  
Investment Treaty ◽  
Analysis Technique ◽  
Force Majeure ◽  
Security Standard

Purpose: This summative assignment sought to explore the possible complaints that foreign investors might raise against host states, as well as how host states might defend themselves from such complaints. Methodology: This being a summative assignment, the author relied on review of existing literature, reference to case law and reflective learning, as well as, critical thinking to provide a critical analysis to the question. Fundamentally, the author explored the international investment treaty standards that could be used by foreign investors to raise their complaints, as well as the treaty-specific exceptions that may inform the defences by host states in response to foreign investor claims. The researcher adopted a case study design through a qualitative content analysis technique towards analysis documented information in the form of case laws, existing research literature, constitutional reports, such as international investment arbitration reports and agreement. Findings: First and foremost, the author found out that foreign investors might complain about the violation of the full protection and security standard. However, states might invoke the doctrine of force majeure to defend against such claims. Also, the author found out that foreign investors might complain about unfair and inequitable treatment insofar as imposing Covid-19 measures are concerned. Nevertheless, host states might rely on the defence of distress to counter any complaints that may be brought about by foreign investors. Finally, the author explored the potential complaints insofar as direct and indirect expropriations are concerned, which hosts states may defend themselves against through the provisions of the defence of necessity as well as the defence of public health. Unique contribution to theory, policy and practice: The author recommends that host states and foreign investors need to strike a balance between the protection of investments and public 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.

International Investment Dispute Resolution in Vietnam: Opportunities and Challenges

2017 ◽  
Vol 18 (5-6) ◽  
pp. 918-941
Author(s):  
Manh Dzung Nguyen ◽  
Thi Thu Trang Nguyen
Keyword(s):  
Human Resources ◽  
Dispute Resolution ◽  
Legal System ◽  
Legal Framework ◽  
International Investment ◽  
Global Market ◽  
Foreign Investors ◽  
Investment Treaty ◽  
Challenges And Opportunities ◽  
The Government

Abstract Integration into the global market brings both challenges and opportunities for the Vietnamese legal system. As investment dispute prevention and settlement has not received much attention from the Vietnamese government, Vietnam experienced difficulties in dispute resolution when faced with investment claims. The reluctance to recognise and enforce foreign arbitral awards in Vietnam to protect local parties has resulted in a number of commercial disputes escalating into investment treaty claims. These experiences have, however, allowed Vietnam to identify defects in its legal framework, human resources and governance, and prompted the government to take measures to reduce the risk of being sued by foreign investors. Even though the effectiveness of these measures has not yet been proven, investment disputes have brought opportunities as well as challenges for Vietnam.

scholarly journals Potential Investor Claims and Possible State Defences During the Covid-19 Emergency

2021 ◽  
Vol 5 (2) ◽  
pp. 236
Author(s):  
Sefriani Sefriani ◽  
Seguito Monteiro
Keyword(s):  
Public Transportation ◽  
International Investment ◽  
Equal Treatment ◽  
National Treatment ◽  
Investment Treaty ◽  
International Solidarity ◽  
International Investment Agreements ◽  
Force Majeure ◽  
The Government ◽  
Investment Agreements

Since it was announced as a public health emergency of international concern in 2019, Covid-19 has caused enormous loss of property and life. The country's emergency policies in responding to the Covid outbreak are numerous, such as closing public transportation and prohibiting the export of medical devices. These policies have potentially harmed the interests of investors. This study has three purposes: investors' potential claims to challenge state measures addressed to Covid-19, the legal defences of states, and the possibility of an international investment dispute. This study shows that investors' potential claims may be delivered based on violations of the principles of fair and equal treatment, full protection and security, and national treatment and the most favoured nations. While a state can defend itself based on the principles of force majeure and state necessity, states can also defence through Non preclude measures or right to regulate clause in international investment agreements. In addition, it would also be better to build international solidarity and cooperation to mitigate and defeat the Covid-19 pandemic than sue the government before ISDS. States need collective action to avoid a surge of investor-state Arbitration. Governments’ policy to combat Covid-19 is to be considered as acting in necessity and therefore cannot be found in breach of their investment treaty obligations as long as that policy meet the necessity, proportionate, and non-discrimination requirements.

scholarly journals The Security of International Investments: a Synthesis of Impacts on Public Policies and Domestic Law of Host States

2021 ◽  
Author(s):  
◽  
Livia Costanza
Keyword(s):  
Public Policies ◽  
Legal Framework ◽  
International Investment ◽  
Public And Private ◽  
Foreign Investors ◽  
International Investment Law ◽  
Investment Treaty ◽  
Investment Law ◽  
Investment Treaties ◽  
Domestic Law

<p>The subject of this dissertation is the relationship between the protection of foreign investors' investments under international investment law and the domestic law of host states. Two questions arise in this connection. First, is the promotion and protection of investments comprised in investment agreements compatible with states' domestic law? Second, public policies of host states may appear to be in contradiction with an increased international security of investments. When such a conflict is challenged by foreign investors, what are the consequences for both parties? In general, investments are transactions that are private in nature, whose aim is to generate a positive rate of return. Investments can have pervasive consequences on countries' welfare, including, for example, the consequences on sustainable development; the use and protection of natural resources; and employment, to name a few. It is the role of the governments to balance these sometimes conflicting public and private interests. As of today, it seems that the regime established according to investment treaties does not strike an appropriate balance between the various interests concerned. After a brief look at the legal framework protecting foreign investments, the conflict areas between investment treaty provisions and domestic public policies of host states are explored through an empirical analysis of some case studies and recent arbitrations. Finally, this dissertation holds that, at a substantive level, investment law is a part of international law. Thus it must be consistent with its norms and it has to be interpreted in accordance with customary rules of treaty interpretation. The dissertation concludes by suggesting the creation of a state-investor relationship and advocates, in part, the establishment of development objectives in investment treaties as well as the inclusion of rights and obligations for all parties involved.</p>

System-Building in Investment Treaty Arbitration and Lawmaking

2011 ◽  
Vol 12 (5) ◽  
pp. 1083-1110 ◽  
Author(s):  
Stephan W. Schill
Keyword(s):  
Free Trade ◽  
Dispute Settlement ◽  
State Level ◽  
Trade Agreement ◽  
International Investment ◽  
Foreign Investors ◽  
Investment Protection ◽  
The North ◽  
Investment Treaty ◽  
Investment Treaty Arbitration

Since the late 1990s investment treaty arbitration has developed into one of the most vibrant fields of international dispute settlement with now almost 400 known cases. It involves claims by foreign investors against host States for breach of obligations assumed under one of the more than 2700 bilateral investment treaties (BITs), under the numerous investment chapters in bilateral or regional free trade agreements, including the North American Free Trade Agreement, or under sectoral treaties such as the Energy Charter Treaty. All of these instruments offer comprehensive protection to foreign investors by setting down principles of substantive investment protection, including national and most-favored-nation treatment, fair and equitable treatment, full protection and security, protection against expropriation without compensation, and free capital transfer. They also allow investors to enforce these standards in arbitral proceedings directly against the host State, most commonly under the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (ICSID Convention). Investment treaty arbitration thereby not only empowers foreign investors under international law, but also introduces investment treaty tribunals as novel actors into the arena of international investment law. Although arbitration has been a classic form of dispute settlement on the State-to-State level, including for the settlement of investment-related disputes, modern investment treaty tribunals have wider jurisdiction and are more removed from State control than any of their predecessors.

DENIAL OF JUSTICE DISGUISED? INVESTMENT ARBITRATION AND THE PROTECTION OF FOREIGN INVESTORS FROM JUDICIAL MISCONDUCT

2012 ◽  
Vol 61 (1) ◽  
pp. 223-246 ◽  
Author(s):  
Mavluda Sattorova
Keyword(s):  
Dispute Settlement ◽  
Effective Means ◽  
International Investment ◽  
State Courts ◽  
Foreign Investors ◽  
International Investment Law ◽  
Host State ◽  
Legal Standards ◽  
National Courts ◽  
Investment Treaty

Prior to the rise of international investment treaties and institutionalization of investor–state arbitration, the protection of foreign investors from mistreatment in the host state courts was the preserve of customary international law, which prohibited a denial of justice and provided for diplomatic protection as a principal means of dispute settlement. In contrast, contemporary international investment law offers a whole array of legal standards that can be invoked in seeking redress for the acts of national courts before international arbitral tribunals. In addition to relying on the customary prohibition of denial of justice, investors can challenge judicial conduct under the treaty standards on expropriation, fair and equitable treatment and, in some cases, the obligation to ensure effective means of asserting claims. Although the multiplicity of standards available to aggrieved investors can be regarded as an inalienable part of an effective regime for the protection of foreign investment, it also gives rise to a number of fundamental problems relating to the application of procedural mechanisms designed to control the review of the conduct of national judiciary by international courts and tribunals. Focusing on arbitral cases in which claims of a denial of justice were brought under the rubric of ‘a judicial expropriation’ and ‘a failure to provide effective means of asserting claims’, this article seeks to ascertain when investor claims relating to the administration of justice in the host state courts become amenable to arbitral scrutiny. It argues that, by providing a variety of standards under which the acts of judiciary can be challenged, investment treaty law allows investors to circumvent procedural barriers and thus muddles the boundaries demarcating the scope of international review of national judicial conduct.

scholarly journals INDONESIA’S NEW MODEL OF BILATERAL INVESTMENT TREATY: COMPARISON WITH BRAZIL

2019 ◽  
Vol 3 (2) ◽  
pp. 235-254
Author(s):  
Resha Roshana Putri
Keyword(s):  
Dispute Settlement ◽  
International Investment ◽  
Foreign Investors ◽  
Bilateral Investment Treaty ◽  
Healthy Environment ◽  
The Past ◽  
Investment Treaty ◽  
The People ◽  
The Right ◽  
Investment Facilitation

AbstractIn the past few years, there has been a surge in lawsuits against the mechanism for resolving international investment disputes through the Investors State Dispute Settlement (ISDS) forum proposed by foreign investors who are host states, including Indonesia. Most of the claims are caused by the policies of the host country which are intended to protect the basic rights of the people such as the right to health, the right to a healthy environment, taxes, as well as the minimum standard of wages for workers. This policy provides a loss for foreign investors and is considered a violation of the Bilateral Investment Treaty (BIT). BIT is often recognized to be detrimental to Indonesia, because it can disrupt the sovereignty of the country, especially when dealing with international disputes with foreign investors. This study uses a comparative juridical approach, comparing the BIT model in Indonesia with Brazil, namely Cooperation and Investment Facilitation Agreement (CIFA). Brazil was chosen because it succeeds to reform its investment regime, specifically on its BITs. The results obtained were that Indonesia had to change several provisions in its BITs, which has been regulated CIFA provisions in Brazil, which is not member of the ICSID Convention.Keywords: BIT, CIFA, Investor State Dispute Settlement. AbstrakBeberapa tahun terakhir, ada lonjakan tuntutan hukum terhadap mekanisme penyelesaian sengketa investasi internasional melalui Investor State Dispute Settlement (ISDS) forum yang diusulkan oleh investor asing yang menjadi host states, termasuk Indonesia. Sebagian besar klaim disebabkan oleh kebijakan negara tuan rumah yang dimaksudkan untuk melindungi hak-hak dasar masyarakatnya seperti hak atas kesehatan, hak atas lingkungan yang sehat, pajak, juga standar minimum upah pekerja. Kebijakan ini memberikan kerugian bagi investor asing dan dianggap sebagai pelanggaran Bilateral Investment Treaty (BIT). BIT seringkali dianggap merugikan bagi Indonesia, karena dapat mengganggu kedaulatan negara, khususnya ketika berhadapan dengan sengketa internasional dengan investor asing. Penelitian ini menggunakan pendekatan yuridis normatif dengan metode perbandingan, yaitu dengan membandingkan model BIT di Indonesia dengan Brazilia, yaitu Cooperation and Investment Facilitation Agreement (CIFA). Brazil dipilih karena merupakan negara yang berhasil melakukan reformasi terhadap rezim investasinya, khususnya pada BIT. Hasil yang diperoleh adalah bahwa Indonesia harus merubah beberapa ketentuan dalam BITs nya, seperti yang terkadung dalam CIFA di Brazil, yang bukan merupakan negara anggota dari Konvensi ICSID. Kata Kunci: BIT, CIFA, Penyelesaian Sengketa Investor-Negara

scholarly journals Insights into Grade 2 teachers’ enactment of formative assessment in mathematics in selected priority schools in Gauteng

2020 ◽  
Vol 40 (Supplement 2) ◽  
pp. S1-S10
Author(s):  
Poomoney Govender
Keyword(s):  
Formative Assessment ◽  
Teacher Development ◽  
Qualitative Content Analysis ◽  
Mathematics Learning ◽  
Training Programme ◽  
Assessment Practices ◽  
Unique Contribution ◽  
Structured Interviews ◽  
Policy And Practice ◽  
Service Training

This article reports on Grade 2 teachers’ perceptions of formative assessment in explaining the phenomenon of the underutilisation of formative assessment practices in mathematics teaching. A qualitative and interpretative case study investigated two Grade 2 teachers’ enactment of formative assessment in priority schools in Gauteng. Data were collected through semi-structured interviews and observations of lessons. The basic principles of qualitative content analysis were applied during data analysis and guided by the formative assessment theoretical framework proposed by Black and Wiliam (2009). The study revealed that teachers’ enactment of formative assessment was limited by their vague understanding of formative assessment and the tensions between formative assessment and curriculum compliance. The study’s central claim is that teachers may know about formative assessment, but if they do not understand how children learn and engage in mathematics learning, then they are unlikely to enact it correctly. While teachers who attended the in-service training programme were able to use some of the strategies as singular tools, they were still unable to implement the combined strategies that constitute the formative assessment pedagogy. Hence, the formative assessment practices of teachers bore limited possible returns on investment to improve learning outcomes in mathematics. The unique contribution of this study is its potential to inform teacher development, policy and practice as it yielded important insights while reinforcing and amplifying existing knowledge.

scholarly journals The Security of International Investments: a Synthesis of Impacts on Public Policies and Domestic Law of Host States

2021 ◽  
Author(s):  
◽  
Livia Costanza
Keyword(s):  
Public Policies ◽  
Legal Framework ◽  
International Investment ◽  
Public And Private ◽  
Foreign Investors ◽  
International Investment Law ◽  
Investment Treaty ◽  
Investment Law ◽  
Investment Treaties ◽  
Domestic Law

<p>The subject of this dissertation is the relationship between the protection of foreign investors' investments under international investment law and the domestic law of host states. Two questions arise in this connection. First, is the promotion and protection of investments comprised in investment agreements compatible with states' domestic law? Second, public policies of host states may appear to be in contradiction with an increased international security of investments. When such a conflict is challenged by foreign investors, what are the consequences for both parties? In general, investments are transactions that are private in nature, whose aim is to generate a positive rate of return. Investments can have pervasive consequences on countries' welfare, including, for example, the consequences on sustainable development; the use and protection of natural resources; and employment, to name a few. It is the role of the governments to balance these sometimes conflicting public and private interests. As of today, it seems that the regime established according to investment treaties does not strike an appropriate balance between the various interests concerned. After a brief look at the legal framework protecting foreign investments, the conflict areas between investment treaty provisions and domestic public policies of host states are explored through an empirical analysis of some case studies and recent arbitrations. Finally, this dissertation holds that, at a substantive level, investment law is a part of international law. Thus it must be consistent with its norms and it has to be interpreted in accordance with customary rules of treaty interpretation. The dissertation concludes by suggesting the creation of a state-investor relationship and advocates, in part, the establishment of development objectives in investment treaties as well as the inclusion of rights and obligations for all parties involved.</p>

SOI - Save Our Investments! International Investment Law and International Humanitarian Law

2013 ◽  
pp. 578-594 ◽  
Author(s):  
Heather L. Bray
Keyword(s):  
Armed Conflict ◽  
International Investment ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
Foreign Investors ◽  
International Investment Law ◽  
Clear Point ◽  
Security Standard ◽  
Investment Law ◽  
Point Of Intersection

This article reviews the interaction between international humanitarian law (IHL) and international investment law (IIL). Specifically, this article analyses the point of intersection between IHL and IIL through the application of the full protection and security standard in times of armed conflict. From this comparative exercise, the author concludes that while IHL and IIL share important similarities, the clear absence of an individual complaints procedure for victims of IHL provides a clear point of departure. Unlike IHL, IIL provides foreign investors with the ability to submit a claim directly to an international forum for harm suffered during an armed conflict. This difference has enabled the international community to respond to the unique distress signal of one particular group of victims in times of armed conflict – foreign investors.

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