Download Free Justifying The Protection Of Legitimate Expectations In International Investment Law Book in PDF and EPUB Free Download. You can read online Justifying The Protection Of Legitimate Expectations In International Investment Law and write the review.

This article argues that legal certainty provides the most compelling justification for recognizing legitimate expectations in international investment law, and that the prohibition on arbitrary conduct provides the most persuasive reason for their protection. After considering other rationales for recognizing legitimate expectations, the article analyses the types of government action typically arising in investment cases through the lens of legal certainty, arguing that the strength of the claim for recognizing legitimate expectations depends on the government conduct at issue, with interference with legal rights or formal decisions generating the strongest claim for recognition, and changes to laws generating the weakest claim. The article discusses the prohibition on arbitrary conduct as the relevant touchstone for protecting legitimate expectations, demonstrates that this interpretation accords with recent treaty innovations, and explains how the expected degree of legal certainty correlates with the risk of arbitrariness in relation to different types of government conduct.
The book examines the conception of legitimate expectations in international investment law under the fair and equitable treatment. The author examines the purpose, content and elements of legitimate expectations. He also analyses the case law to identify and explain the protection granted to expectations of foreign investors under investment treaties. To this end, the book distinguishes the core elements of legitimate expectations, with particular attention being given both to the conduct of the host State and legitimacy of expectations, and provides a detailed analysis of these issues to consider whether good faith forms the basis for the protection of legitimate expectations. Combining a jurisprudential analysis of the case law arising in international tribunals with a dogmatic and scholar approach, this book offers a thought-provoking study of the protection of legitimate expectations, for students and practitioners alike. This book was prepared by the author in his personal capacity. The opinions expressed in the book are the author’s own and do not reflect the view of any other person or entity. Marcin Kałduński is Professor of International Law at the Nicolaus Copernicus University (Toruń, Poland) and Counsel at the General Counsel to the Republic of Poland. He teaches international law and acts as counsel in investment arbitration.
Examines the philosophical foundation of legitimate expectations to create a normative framework for use in investment treaty arbitration
'...This book [...] goes beyond stating what the law is and focuses on controversies occurring within this area of the law... an excellent introduction to this complex area of international law for newcomers to the subject' Kate Miles, Australian International Law Journal The updated edition of this acclaimed book offers a critical overview of the law of foreign investment, incorporating a thorough analysis of the principles and standards of treatment available to foreign investors in international law. It is authoritative and multi-layered, offering an analysis of the key issues and an insightful assessment of recent trends in the case law, from both developed and developing country perspectives. A major feature of the book is that it deals with the tension between the law of foreign investment and other competing principles of international law. In doing so, it proposes ways of achieving a balance between these principles and the need to protect the legitimate rights and expectations of foreign investors on the one hand, and the need not to restrict unduly the right of host governments to implement their public policy on the other, including the protection of the environment and human rights, and the promotion of social and economic justice within the host country. Many of the pioneering ideas that were advanced in the first edition of this book have been taken up by governments and international organisations in their attempts to reform the investor-State dispute settlement mechanism and strike a balance between different competing principles in developing international investment law. Accordingly, this fifth edition captures the essence of the ongoing multiple reform processes – either planned or envisaged – currently underway.
Transnational investment involves a variety of actors (States, public and private legal entities, and natural persons) whose relationships are governed by rules and legal instruments belonging to different legal systems. This book provides a systematic study of the sources of rights and obligations in the field of transnational investment, and their coordination and interaction. It focuses primarily on the network of over 3,000 Bilateral Investment Treaties, international investment contracts, customary international law, the main multilateral treaties, national legislation, international case law and general principles of law. The book, firmly based on State practice, arbitral awards and national decisions, is indispensable to fully appraise the nature and content of the claims of private investors as well as to identify the law applicable in investment arbitration.
The book considers the ways in which the international investment law regime intersects with the human rights regime, and the potential for clashes between the two legal orders. Within the human rights regime states may be obligated to regulate, including a duty to adopt regulation aiming at improving social standards and conditions of living for their population. Yet, states are increasingly confronted with the consequences of such regulation in investment disputes, where investors seek to challenge regulatory interferences for example in expropriation claims. Regulatory measures may for instance interfere with the investment by imposing conditions on investors or negatively affecting the value of the investment. As a consequence, investors increasingly seek to challenge regulatory measures in international investment arbitration on the basis of a bilateral investment treaty. This book sets out the nature and the scope of the right to regulate in current international investment law. The book examines bilateral investment treaties and ICSID arbitrations looking at the indicative parameters that are granted weight in practice in expropriation claims delimiting compensable from non-compensable regulation. The book places the potential clash between the right to regulate and international investment law within a theoretical framework which describes the stability-flexibility dilemma currently inherent within international law. Lone Wandahl Mouyal goes on to set out methods which could be employed by both BIT-negotiators and adjudicators of investment disputes, allowing states to exercise their right to regulate while at the same time providing investors with legal certainty. The book serves as a valuable tool, an added perspective, for academics as well as for practitioners dealing with aspects of international investment law.
In the last decade, international investment law has developed into one of the core areas of international law. The reason for this development is twofold. The number of cases has increased rapidly. The International Centre for Settlement of Investment Disputes has over a hundred pending cases and there are more before ad hoc tribunals, mostly operating under the United Nations' Commission on International Trade Law Rules. In addition, investment law has addressed a number of novel issues while also coming up with some innovative solutions. This book brings together the papers delivered at the Young Scholars Conference in International Economic Law, which was held at the University of Vienna Law School in June 2007. Under the general topic of "Current Issues and Developments in International Investment Law," the speakers addressed core issues like the definition of investment, legitimate expectations of investors, and the meaning and importance of references to domestic law included in many Bilateral Investment Treaties. Also discussed were topics like the role of investment law in the context of the European Union and its relation to cultural matters, human rights, and other non-investment issues. As international investment law is becoming more and more significant, a book such as this, dedicated to the latest developments in the field, will be of utmost importance to anyone interested in this area of law.
Dieses Werk beschäftigt sich mit den sogenannten "absoluten" Schutzstandards im internationalen Investitionsschutzrecht: dem Fair and Equitable Treatment (FET) und dem Full Protection and Security (FPS) Standard. Es bearbeitet die Frage, ob außergewöhnliche Umstände im Gaststaat einen Einfluss auf die Auslegung dieser Standards haben. Zu diesem Zweck untersucht die Autorin die normativen Grundlagen beider Standards, einschließlich des jeweiligen Wortlauts, Systematik und Zweck, bevor die bestehende Schiedsgerichtspraxis analysiert wird. .
Foreign direct investment in the natural resource industries is fostered through the signing of concession agreements between the host State and the investor. However, such concessions are susceptible to alteration by the host State, meaning that many investors now require the insertion of stabilization clauses. These are provisions that require the host State to agree that they will not take any administrative or legislative action that would adversely affect the rights of the investor. Arguing that it is necessary to have some form of flexibility in concession agreements while still offering protection of the legitimate expectations of the investor, Resource Nationalism in International Investment Law proposes the insertion of renegotiation clauses in order to foster flexible relationships between the investor and the host State. Such clauses bind the parties to renegotiate the terms of the contract, in good faith, when prevailing circumstances change. However these clauses can also prove problematic for both State and investor due to their rigidity. Using Zambia as a case study, it highlights the limitations of the efficient breach theory to emphasise the need for contractual flexibility.
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. Multiple IIAs concluded by the OECD Member States, as well by Russia and China between the developing countries, and the prominent investment law cases on the FET standard are examined in detail. The analysis pays particular attention to how investment jurisprudence in FET cases has been reflected in such new IIAs as the Comprehensive Economic and Trade Agreement between the European Union (EU) and Canada (CETA), the EU-Vietnam FTA and the EU-Singapore FTA. These case studies demonstrate the evolution of the IIAs’ FET standard provisions and how they balance the application of the FET standard and the state’s right to regulate. Suggestions are provided for drafting formulations of the FET standard that can contribute to achieving such a balance. In the clear light it sheds on the legal conditions under which states may regulate in the public interest and its contribution to the reforms that are currently taking place in the field of international investment law, this book constitutes an exemplary framework to evaluate investment decisions on the FET standard and the right to regulate. It is sure to prove extremely useful for practitioners who work on investment cases, policymakers involved in negotiating and drafting of IIAs, policy advisors of governmental and non-governmental organisations and academics in international investment law.