The Evolving International Investment Regime Expectations, Realities, Options
, by Alvarez, Jose E.; Sauvant, Karl P.; Ahmed, Kamil Gerard; Vizcaino, Gabriela P.Note: Supplemental materials are not guaranteed with Rental or Used book purchases.
- ISBN: 9780199793624 | 019979362X
- Cover: Hardcover
- Copyright: 4/19/2011
With the growth of the global economy over the past two decades, foreign direct investment (FDI) laws, at both the national and international levels, have undergone rapid development in order to strengthen the protection standards for foreign investors. In terms of international investment law, a network of international investment agreements has arisen as a way to address FDI growth. FDI backlash, reflective of more restrictive regulation, has also emerged. The Evolving International Investment Regime analyzes the existing challenges to the international investment regime, and addresses these challenges going forward. It also examines the dynamics of the international regime, as well as a broader view of the changing global economic reality both in the United States and in other countries. The content for the book is a compendium of articles by leading thinkers, originating from the International Investment Conference "What's New in International Investment Law and Policy?"
Jose E. Alvarez is the Herbert and Rose Rubin Professor of International Law at New York University Law School. At NYU he teaches courses on international law, foreign investment, and international organizations. He is also serving as special adviser to the Prosecutor of the International Criminal Court on a pro bono basis. Professor Alvarez was formerly the Hamilton Fish Professor of International Law and Diplomacy and the executive director of the Center on Global Legal Problems at Columbia Law School, a professor of law at the University of Michigan Law School, an associate professor at the George Washington University's National Law Center, and an adjunct professor at Georgetown Law Center. Prior to entering academia in 1989, Professor Alvarez was an attorney adviser with the Office of the Legal Adviser of the U.S. Department of State where he worked on cases before the Iran-U.S. Claims Tribunal, served on the negotiation teams for bilateral investment treaties and the Canada-U.S. Free Trade Agreement, and was legal adviser to the administration of justice program in Latin America coordinated by the Agency of International Development. Professor Alvarez has also been in private practice and was a judicial clerk to the late Hon. Thomas Gibbs Gee of the Fifth Circuit Court of Appeals. He served as President of the American Society of International Law from 2006-08. His recently concluded set of lectures at The Hague Academy of International Law, concerning the public international law governing international investment, are expected to be published in book form in late 2010. Prof. Alvarez's book, International Organizations as Law-Makers, was published in paperback in 2006. He was educated at Harvard College, Harvard Law School, and Oxford University.
Karl P. Sauvant is the Executive Director of the Columbia Program on International Investment, Lecturer in Law at Columbia Law School and Special Advisor to the UN Millennium Project. He is also Guest Professor at Nankai University, China.
Until July 2005, he was Director of UNCTAD's Division on Investment, Technology and Enterprise Development (DITE), the focal point in the UN system for matters related to foreign direct investment (FDI) and technology, as well as a major interface with the private sector. While at the UN, he created (in 1991) the prestigious annual United Nations publication the World Investment Report, of which he was the lead author until 2005, and (in 1992) the journal Transnational Corporations, serving as its editor. He provided intellectual leadership and guidance to a series of 25 monographs on key issues related to international investment agreements (which were published in 2004/05 in three volumes), and he edited (together with John Dunning) a 20-volume Library on Transnational Corporations (published by Routledge).
Dr. Sauvant joined the United Nations in 1973 and, as of 1975, has focused his work on matters related to FDI. Since 1988, he was responsible for the Organization's policy analysis work on FDI. In 2001, he became Director of DITE. His responsibilities included managing the Division; promoting international consensus-building in the areas of FDI, technology and enterprise development; providing intellectual leadership for policy-oriented research; and conceptualizing and supervising technical assistance activities in this field.
Apart from his work for the United Nations, he has published extensively on issues related to economic development, FDI and services. His name is associated with some 150 United Nations publications on FDI over the past three decades.
Dr. Sauvant received a Ph.D. degree from the University of Pennsylvania. He is a national of Germany.
Foreword | p. xiii |
Preface | p. xv |
Acknowledgments | p. xxi |
Editors and Contributors | p. xxiii |
Introduction: International Investment Law in Transition | p. xxxi |
The Context: Foreign Investment and the Changing Global Economic Reality | p. xliii |
Introduction | p. xliii |
Current and Future Trends in Foreign Investment | p. xliv |
Economic Drivers of FDI | p. xlvii |
The Decline of the "Superpower" | p. xlix |
Looking Toward the Future | p. l |
Concluding Remarks | p. lii |
Stakeholder Expectations in the International Investment Regime | |
What Do Developing Countries Expect from the International Investment Regime? | p. 3 |
Introduction | p. 3 |
The International Investment Regime and the New Realities of Developing Countries: The Fallen Paradigm | p. 5 |
The Multiple Functions of a Rule-Oriented International Investment Regime for Developing Countries | p. 10 |
External Dimension | p. 10 |
Domestic Dimension | p. 12 |
"Lock-In" Effect of Domestic Reform | p. 13 |
Promotion of Greater Transparency and the Rule of Law | p. 13 |
Greater Coherence in Policy Implementation among National Agencies | p. 15 |
Is the International Investment Regime Fulfilling Its Functions? | p. 16 |
Conclusions and Way Forward | p. 19 |
Civil Society Perspectives: What Do Key Stakeholders Expect from the International Investment Regime? | p. 22 |
Introduction | p. 22 |
"Civil Society" for Present Purposes | p. 22 |
Two Major Directions in Civil Society Views | p. 23 |
The View Against the International Investment Law Regime | p. 23 |
The View for Reform of the International Investment Law Regime | p. 25 |
Make It a Proper Public International Law Regime | p. 25 |
The Purpose Must Change: Focus on Sustainable Development, Especially but not Only for Developing Countries | p. 27 |
The Content Must be Fixed | p. 27 |
The Arbitration Process Must be Revamped | p. 28 |
Conclusions | p. 29 |
Regulating Multinationals: Foreign Investment, Development, and the Balance of Corporate and Home Country Rights and Responsibilities in a Globalizing World | p. 30 |
Introduction | p. 30 |
Principal Actors and Interests | p. 32 |
The Current Regime of IIAs | p. 34 |
Mitigating the One-Sided Nature of IIAs | p. 37 |
UNCTAD and "Flexibility for Development" | p. 37 |
Introduction of Investor Responsibilities | p. 39 |
Putting Investor Obligations into Operation in IIAs | p. 43 |
Adapting Existing Provisions | p. 54 |
Extending IIAs to Home Country Responsibilities | p. 56 |
Conclusion | p. 58 |
On the Perceived Inconsistency in Investor-State Jurisprudence | p. 60 |
Introduction | p. 60 |
Variations in Facts | p. 60 |
Variation in Treaty Terms | p. 63 |
Overstated Conflicts | p. 64 |
A Place for Precedent? | p. 66 |
Conclusion | p. 69 |
Reforming the FDI Regime: Avenues to Consider | |
Considering Recalibration of International Investment Agreements: Empirical Insights | p. 73 |
Introduction | p. 73 |
The Impact of Procedural Rights: Integrity of the Dispute Resolution Process | p. 76 |
Adding Empiricism: Statistical Analysis to Assess Integrity of Procedural Investment Rights and Arbitration Outcomes | p. 78 |
The Empirical Research Questions | p. 78 |
Methodology | p. 78 |
Development Status and Winning Investment Treaty Cases | p. 78 |
Development Status and Amounts Awarded in Investment Treaty Arbitration | p. 79 |
Results of the Empirical Analyses | p. 80 |
Winning/Losing Investment Treaty Arbitration and Development Status | p. 81 |
OECD Status and Winning Treaty Cases | p. 81 |
World Bank Status and Winning Treaty Cases | p. 81 |
Amounts Awarded in Investment Treaty Arbitration and Development Status | p. 82 |
OECD Status and Amounts Awarded | p. 82 |
World Bank Status and Amounts Awarded | p. 83 |
Interpretation | p. 84 |
Overall Preliminary Results | p. 84 |
Potential Limitations | p. 85 |
Interpreting Development Status | p. 87 |
The Impact of OECD Status on the Outcome | p. 87 |
The Impact of World Bank Status on the Outcome | p. 87 |
Synthesis of Research Results and the Implications for Investment Agreements | p. 89 |
Conclusion | p. 92 |
All Clear on the Investment Front: A Plea for a Restatement | p. 95 |
Introductory Remarks | p. 95 |
Trade and Investment: Hand in Hand | p. 96 |
Some Groundwork that was Never Done (A Plea for a Restatement) | p. 101 |
Concluding Remarks | p. 103 |
Legal Developments in U.S. National Security Reviews of Foreign Direct Investment (2006-2008) | p. 104 |
Introduction | p. 104 |
U.S. Foreign Direct Investment Policy | p. 104 |
Concerns with the U.S. Investment Review Process | p. 107 |
Reforms to the U.S. Investment Review Process | p. 110 |
National Security | p. 116 |
Conclusion | p. 119 |
Challenges and Prospects Facing the International Centre for Settlement of Investment Disputes | p. 120 |
Introduction | p. 120 |
Overview | p. 120 |
Challenges in Regard to the Independence and Governance of ICSID | p. 121 |
Challenges in Regard to ICSID's Growing Caseload | p. 122 |
Challenges from the Institutional Perspective | p. 123 |
Challenges in Regard to a Growing Jurisprudence | p. 123 |
Concluding Remarks | p. 124 |
The Changing Political Economy of Foreign Investment: Finding a Balance Between Hard and Soft Forms of Regulation | p. 125 |
Introduction | p. 125 |
Sovereignty at Bay in the Digital Economy | p. 127 |
Regulating Foreign Investment | p. 131 |
Restrictions on FDI in Strategic Industries | p. 132 |
The Case of Extraterritoriality: How Might Home/Host Differences be Reconciled? | p. 135 |
Cross-Border Competition Issues | p. 136 |
Responsibility for Human Rights Violations | p. 138 |
Social Responsibility and Multinational Enterprises | p. 140 |
The Business Case for Social Responsibility | p. 140 |
Self-Regulation and Regulation | p. 142 |
Conclusions: Toward a New System of Multilateral Governance | p. 148 |
Multilateral Approaches to Investment: The Way Forward | p. 153 |
Introduction | p. 153 |
Lessons from the MAI | p. 157 |
What Was Achieved? | p. 158 |
What Went Wrong? | p. 158 |
What Remains? | p. 160 |
Considerations for a New Multilateral Approach | p. 160 |
Codification of International Investment Law | p. 161 |
Traditional Core Elements | p. 162 |
Entry and Establishment | p. 162 |
National Treatment/Most Favored Nation (MFN) | p. 162 |
Investment Protection | p. 163 |
Right to Regulate | p. 164 |
New Disciplines and Other Innovative Features | p. 164 |
Investor-State Dispute Settlement | p. 164 |
Procedural Approaches Toward Codification | p. 165 |
Creation of a Permanent Adjudicatory Body for Investment Disputes | p. 166 |
Advisory Facilities for Treaty Negotiations and Dispute Settlement | p. 170 |
Conclusions | p. 172 |
The Future of International Investment Law: A Balance Between the Protection of Investors and the States' Capacity to Regulate | p. 174 |
Introduction | p. 174 |
Is There a Crisis in the System of International Investment Arbitration? | p. 175 |
A Unilateral Act-a Law-of a State Has Been Found to Contain the State's Consent in Writing: The Pyramids Case (SPP v. Egypt) | p. 176 |
A Bilateral Treaty on the Protection of Investments Has Been Found to Contain the State's Consent in Writing: The AAPL v. Sri Lanka Case and the AMT v. Congo Case | p. 178 |
The Possible Backlash to the Success of Investment Arbitration | p. 181 |
The Respective Roles of the Different Actors of the International Investment Arbitration System | p. 186 |
The Role of Arbitrators | p. 186 |
The Role of NGOs | p. 187 |
The Necessity of a Balancing of Interests | p. 189 |
International Investment Rulemaking at the Beginning of the Twenty-First Century: Stocktaking and Options for the Way Forward | p. 193 |
Introduction | p. 193 |
Stocktaking of the Existing IIA Universe | p. 194 |
The Global IIA Network Continues to Grow | p. 194 |
The Increasing Complexity of the IIA Universe | p. 194 |
Investment Arbitration on the Rise | p. 196 |
The Stronger Role of Developing Countries | p. 196 |
The Evolving Policy Environment for Foreign Investment | p. 197 |
Challenges for Future International Investment Rulemaking | p. 198 |
Systemic Challenges | p. 199 |
Atomized Structure of the IIA Universe | p. 199 |
Coherence and Consistency | p. 199 |
Looking Beyond IIA-Related Matters | p. 200 |
Implications of Rising Investment Arbitration | p. 200 |
Challenges of Strengthening the Development Dimension | p. 201 |
Challenges of Capacity | p. 202 |
Challenges Resulting from a Changing Policy Environment for FDI | p. 203 |
Options for the Way Forward | p. 204 |
The Case for Renewed Multilateral Efforts | p. 204 |
Options for Multilateral IIA-Related Instruments | p. 205 |
Guidelines for Addressing the Development Dimension in IIAs | p. 206 |
A Set of Multilaterally Agreed Voluntary Principles on Investment | p. 207 |
A Model Agreement | p. 208 |
A Multilateral Framework for Investment | p. 208 |
The Need for a Multilateral Forum on IIA Matters | p. 208 |
Conclusion | p. 209 |
Report of the Rapporteur | |
Improving the International Investment Law and Policy System Report of the Rapporteur | p. 213 |
Second Columbia International Investment Conference: What's Next in International Investment Law and Policy? | |
Introduction | p. 213 |
Challenges to the "Legitimacy" of Investor-State Arbitration | p. 215 |
Investment Arbitration and Globalization | p. 216 |
A Crisis in Investment Arbitration? | p. 217 |
Challenges to the Legitimacy of Investment Arbitration | p. 218 |
Capture of the System by the North? | p. 218 |
Rejection of the System by the North? | p. 219 |
Transparency | p. 220 |
Divergent Decisions | p. 220 |
An Appellate Body? | p. 221 |
Specialized Demands on the Investment Arbitration Regime | p. 223 |
The Way Forward | p. 225 |
Goals | p. 225 |
Balancing Investors' Rights with Responsibilities | p. 229 |
Investments Are Not All Alike; Host Countries Are Not All Alike-Developing a More Nuanced Approach to Regulation of Investment | p. 231 |
Capacity Building | p. 233 |
Resource Centers for Disputants | p. 233 |
Education and Research | p. 235 |
An Evolving Regime with Revolving Actors | p. 236 |
Applicable Law | p. 238 |
Adding Sustainable Development Principles to Investment-Related Obligations | p. 238 |
Tribunal Development of Legal Principles | p. 239 |
Developing Soft-Law Instruments | p. 240 |
Adding New Perspectives | p. 242 |
Multilateralism | p. 242 |
Conclusion | p. 244 |
Index | p. 247 |
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