The webinar that has taken place on 9 October 2020 has evaluated a long lasting impact of pandemic on FDIs from state and investor perspectives. The most prominent academics, practitioners and the representatives of international organisations have discussed the COVID-19 crisis in relation to investment law. The webinar was comprised of three panels. The first panel focused on the state’s perspective and addressed the international law defences e.g. the necessity defence; force majeure etc. The experts in the second panel analysed the legal avenues available to foreign investors under IIAs and their legitimacy in the current crisis. The third panel discussed the response to pandemic from the perspectives of different countries and the perspective of international organisations, e.g. UNCTAD.
The link to a full webinar is here: https://mediaserveur.u-bourgogne.fr/permalink/v125f6a44beb0c13yizd/iframe/
The programme is available here: https://www.transnational-dispute-management.com/news/20201009.pdf
The Interaction Between International Investment Law and Special Economic Zones (SEZs)
The articles presented in this Special Issue tackle a variety of important and country-specific topics arising out of an interaction between SEZs and economic law. These topics are divided into the following sections: (2) a general regulatory framework of SEZs and its relationship with investment law, (3) China’s SEZs and the dispute settlement mechanisms, (4) India’s SEZs and its interaction with trade and labour policies, (5) Russia’s SEZs and their evolution and (6) Jamaica’s SEZs: the journey from Free Zones to modern SEZs.
- General Regulatory Framework of SEZs and its Relationship with Investment Law
- China’s SEZs and Dispute Settlement Mechanisms
- India’s SEZs and its Interaction with Trade and Labour Policies
- Russia’s SEZs and Their Evolution
- Jamaica’s SEZs: The Journey from Free Zones to Modern SEZs
The introductory chapter of the Special Issue, you can find here: https://www.transnational-dispute-management.com/article.asp?key=2754
All articles can be found here: https://www.transnational-dispute-management.com/journal-browse-issues-toc.asp?key=93
The decision on jurisdiction, liability and, quantum in Cavalum v. Spain, rendered on 31 August 2020, is yet another case arising out of changes to the renewable energy regime in Spain. In 2016, Cavalum (the claimant) initiated an investment claim against Spain under the Energy Charter Treaty (ECT), arguing that the value of its investments had been destroyed because of the State’s modification of the regulatory regime. The claimant alleged that Spain had violated the fair and equitable treatment (FET) standard under Article 10(1) ECT by: (1) frustrating its legitimate expectations; (2) altering the investment framework in a fundamental manner; (3) treating the investor non-transparently, inconsistently and, in bad faith. In this blog, I discuss the tribunal’s assessment of the legitimate expectations based on the stability of a regulatory framework with the focus on the role of an investor’s due diligence.
- Renewable energy ICSID case
- The legitimate expectations based on the stability of a regulatory framework
- Focus on an investor’s due diligence
The blog can be accessed here:
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 some renewable energy awards, I attempted to clarify 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.
See my article in the Netherlands International Law
- Legitimate Expectations in International Investment Law
- The Due Diligence of an Investor in FET Cases
- An Investor’s Due Diligence in Renewable Energy Disputes
- The Due Diligence of an Investor as a Balancing Mechanism
Due to the ongoing recent expansion of public interest issues worldwide, the state’s right to regulate has been recaptured as a prominent concept in international investment law. The fair and equitable treatment (FET) standard provision in the text of an international investment agreement (IIA) has become a detailed clause clarifying the specific obligations of a state towards an investor under the FET standard. However, striking the right balance between the interests of host states and investors in these new treaty formulations has proved to be challenging. This book greatly clarifies the field by offering the in-depth analysis of the application of the state’s right to regulate in relation to FET standard provisions in IIAs and to decisions by arbitral tribunals in FET cases.
Recognising that the role of tribunals is to balance the state’s public interests and the interests of the investor when interpreting and applying the FET standard, the author pursues such seminal issues and topics as the following:
- the legitimacy of the objective of the state’s measure;
- obligations and responsibilities of investors towards a host state;
- the nature and impact of a change to a national regulatory framework;
- special economic and sociopolitical circumstances in a host state; and
- due diligence and risk assessment as a condition for the protection of an investor’s legitimate expectations.
More information on the book is here: https://lrus.wolterskluwer.com/store/product/the-right-of-states-to-regulate-in-international-investment-law/
Traditionally, International Investment Agreements (IIAs) do not include obligations for investors concerning human rights, international labour standards and environmental protection standards owed to a host state. IIAs were designed to protect and promote foreign investors and their investments. However, with the inclusion of broader non-economic objectives, i.e. sustainable development objectives, in a new generation of IIAs, the content of investment treaties in terms of the rights and obligations of states and investors has been changing. There has been a shift towards recognizing the responsibility and accountability of investors, which is observable in a number of recent IIAs and in several decisions by investment tribunals. In my research I analyse the legal implications of the Corporate Social Responsibility (CSR) provisions found in a number of IIAs in terms of investor responsibility and accountability. Furthermore, I discuss the obligations of investors under human rights treaties and the role of the investor’s conduct in deciding on substantive investment protection guarantees, such as the fair and equitable treatment (FET) of investors. See my article in Utrecht Law Review, here: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3204456
I recently published this article in the Utrecht Law Review. The full article can be accessed here.
The privatisation of water through foreign investment has become a common occurrence throughout the world. In developing economies like Argentina, many people depend on their water supply from private companies, including foreign investors. Using Argentina as a case study, this article analyses of how the human right of access to water is applied and interpreted in international investment law. To this end, four Argentinian investment water disputes Azurix v. Argentina, AWG v. Argentina, Impregio v. Argentina and Urbaser v. Argentina concluded in the last 20 years are subjected to a comparative analysis. The evaluation of four tribunals’ decisions signals the reformative evolution that is taken place in international investment law. The most recent of the four cases (Urbaser v. Argentina) belongs to the body of recent jurisprudence, where the state’s right to regulate as well as investors’ responsibilities have been acknowledged by tribunals. Drawing on more recent policy developments in investment law, it is argued that Urbaser case is not an exception, but an indication of gradual transformation of investment regime to a more balanced system.