LSN: Investment (Topic)最新文献

{"title":"Brazil in the Shadow of Mega-Regional Trade and Investment Standards: Beyond the Grand Debate, Pragmatic Responses","authors":"David M. Trubek, F. Morosini, Michelle Ratton Sanchez Badin","doi":"10.2139/SSRN.2923821","DOIUrl":"https://doi.org/10.2139/SSRN.2923821","url":null,"abstract":"This paper addresses the impact of TPP-like policies on third countries, looking at the case of Brazil, one of the most important emerging economies. We argue that TPP-like agreements are a way to bypass resistance to neoliberal ordering in the WTO through the institution of alternative fora. We investigate whether this type of agreement -- or bilateral agreements with TPP-type standards -- could represent a threat to Brazil's state-led development mode and conclude they could significantly affect industrial policy, the role of state-owned enterprises, and foreign investment regulation while possibly also constraining Brazil's policy space in areas such as intellectual property and the digital economy. We review a series of pragmatic moves by Brazil as it seeks to carve out a new role in global economic space in a period of rapid change. This evolving approach, we contend, could allow Brazil to engage in the 21st century economy while preserving the core of its state-led development model.","PeriodicalId":365224,"journal":{"name":"LSN: Investment (Topic)","volume":"11 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-02-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123059560","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Land Rights at the Time of Global Production: Multi-Spatiality and ‘Legal Chokeholds’","authors":"Tomaso Ferrando","doi":"10.2139/ssrn.2862597","DOIUrl":"https://doi.org/10.2139/ssrn.2862597","url":null,"abstract":"This Article utilizes the case of two sugar cane investments in Cambodia to reflect on the interactions between the multi-territoriality of supply chain capitalism and the multiplication of local spaces of intervention. With a combination of legal institutionalism, critical geography and critical value chains analysis, the Article assumes value chains as the exemplification of the global system of production and looks at the theoretical implications and redistributive possibilities that derive from delocalization, outsourcing and the establishment of transnational chains of production that cut across boundaries and jurisdictions. The notion of 'legal chokeholds' is introduced to identify those spaces and mechanisms of intervention that become visible when scholars engage with the multi-territorial character of production and map its legal complexity. The violations and potential redefinition of value throughout the chain are thus presented as output of non-linear interactions between legal and non-legal elements that operate at a distance, often unaware of each other.","PeriodicalId":365224,"journal":{"name":"LSN: Investment (Topic)","volume":"526 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-02-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116199255","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Scope Limitation or Affirmative Defence? The Purpose and Role of Investment Treaty Exception Clauses","authors":"Caroline Henckels","doi":"10.2139/ssrn.2801950","DOIUrl":"https://doi.org/10.2139/ssrn.2801950","url":null,"abstract":"Despite their increasing popularity in recently concluded investment treaties and investment chapters in comprehensive economic agreements, the structural status of exception clauses is not well understood. Inconsistent interpretations of exception clauses by investment tribunals and annulment committees has created uncertainty about the nature of states’ treaty commitments to foreign investors and manner in which exceptions to those commitments should be dealt with in investor-state dispute settlement. This chapter addresses two related questions: (1) whether exceptions ought to be understood as limiting the scope of the substantive investment obligations such that those obligations do not apply to measures that come within the exception, or whether exceptions are affirmative defences that operate to justify what would otherwise be prohibited by the treaty; and (2) the related question of the relationship between security and public order exceptions and the defence of necessity at customary international law—in particular, whether such clauses are lex specialis manifestations of the defence between the treaty parties. The paper reaches two general conclusions as to the status of exception clauses, subject always to the text of the provision being interpreted: that exceptions should be understood as limiting the scope of the treaty obligations, rather than operating as affirmative defences, and that as such, that security exceptions are conceptually distinct from the customary defence of necessity. These conclusions have practical implications for the allocation of the burden of proof, and raise questions about the coherence between international investment law and WTO law.","PeriodicalId":365224,"journal":{"name":"LSN: Investment (Topic)","volume":"54 4","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-10-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114037819","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Investing Near the National Security Black Hole","authors":"Ji Li","doi":"10.2139/SSRN.2811968","DOIUrl":"https://doi.org/10.2139/SSRN.2811968","url":null,"abstract":"Multinational corporations dominate the global economy. Their aggressive business expansion has led to occasional conflicts with some sovereign governments’ core interests. The most irreconcilable one is probably between foreign direct investments by multinationals and the need of sovereign states to safeguard their national security. This article empirically explores the tension in its most manifested case, i.e. the reactions of China-based multinationals to the highly confidential national security review system of the United States, also known as the Committee on Foreign Investment in the United States (CFIUS) review. I find that, contrary to conventional wisdom, most Chinese investors know little about CFIUS and are content to remain ignorant. The majority of those who have some knowledge about it consider the process politicized and non-transparent. A minority reported to have abandoned contemplated investments in the United States due to concerns with CFIUS. Variations in the perception and the reactions of the China-based multinationals generally turn on their government ownership, sectoral sensitivity, and investment size. In addition, the recent landmark decision in Ralls v. CFIUS has a profound impact on the investors’ perception of the system, but has not altered their filing behavior. The findings make several important theoretical and policy contributions.","PeriodicalId":365224,"journal":{"name":"LSN: Investment (Topic)","volume":"50 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-08-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130411191","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"International Investment Law and Community Interests","authors":"S. Schill, Vladislav Djanic","doi":"10.2139/ssrn.2799500","DOIUrl":"https://doi.org/10.2139/ssrn.2799500","url":null,"abstract":"In contemporary discourse, international investment law and investor-state dispute settlement (ISDS) are often perceived as threats to community interests in one-sidedly protecting foreign investors and undermining public policies that are to the benefit of the local population and the international community. The chapter promotes a different perspective. First, it argues that international investment law properly construed can be conceptualized as protecting community interests, because it is part of the legal infrastructure necessary for the functioning of the global economy under a rule of law framework. Aimed at supporting economic growth, this helps further economic and noneconomic community interests, including sustainable development. Second, the chapter argues that international investment law and ISDS do not turn a blind eye to the conflicts that can arise between economic and noneconomic community interests, such as environmental protection or human rights. Instead, international investment law and ISDS have numerous mechanisms at their disposal for alleviating tensions with noneconomic community interests.","PeriodicalId":365224,"journal":{"name":"LSN: Investment (Topic)","volume":"32 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-06-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122465246","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Capital-Flow Management Measures and International Investment Law – Never the Twain Shall Meet?","authors":"Prabhash Ranjan","doi":"10.4337/9781785368882.00020","DOIUrl":"https://doi.org/10.4337/9781785368882.00020","url":null,"abstract":"The focus of this chapter is on monetary transfer provision (MTP). MTPs in BITs regulate the transfer of funds related to investment in and out of the host country. The chapter starts by introducing Capital Flow Management (CFMs) and the different ways by which international law regulates the freedom of States to impose them (section II). It then analyses the relationship between the different approaches adopted under the IMF Articles on the one hand, and BITs on the other; this involves an inquiry into questions of norm conflict as well as systemic treaty interpretation (section III). Having discussed rules specifically addressing CFM measures, the chapter moves on to discuss alternative options for host countries to respond on the basis of generally available defences (section IV). The chapter finally concludes by observing that the method to resolve the conflict is through the legislative route where countries enter into Type II MTPs that recognise the right of countries to impose CFM measures (section V).","PeriodicalId":365224,"journal":{"name":"LSN: Investment (Topic)","volume":"2 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-05-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122329400","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Endangered Element of Icsid Arbitral Practice: Investment Treaty Arbitration, Foreign Direct Investment, and the Promise of Economic Development in Host States","authors":"Felix O. Okpe","doi":"10.2139/ssrn.2769641","DOIUrl":"https://doi.org/10.2139/ssrn.2769641","url":null,"abstract":"The omission to define the term “investment” in the ICSID Convention is one of the most critical decisions that has led to inconsistent jurisprudence and the resulting debate regarding the propriety of the ICSID Convention and investment treaty arbitration. The legislative history and the circumstances leading to the birth of the ICSID Convention strongly suggest that its main objective is the protection and promotion of economic development in the host State. Most of the propositions aimed at giving a meaning to the term “investment” in ICSID arbitral practice have focused more on whether the scope of the meaning of “investment” should extend to any plausible “economic activity or asset.” The focus of this approach is flawed. It has relegated the element of “contribution to economic development” of the host State to the back seat of investment treaty arbitration. This article challenges this relegation as historic to the ICSID Convention. The article argues that from the standpoint of the host State, the ICSID Convention is meaningless if the analysis of the relationship between FDI and investment treaty arbitration excludes considerations of economic development in view of the omission in the ICSID Convention. The article hinges this argument on the implication of international development as the main foundation of the ICSID Convention. The article acknowledges the difficulty that may be associated with the determination of an “investment” that contributes to economic development, but contends that relegating the element of “contribution to economic development” to the back seat of investment arbitration is contrary to the main objective of the ICSID Convention in host States.","PeriodicalId":365224,"journal":{"name":"LSN: Investment (Topic)","volume":"19 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-04-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122845406","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Role of Law in Global Value Chains: A Research Manifesto","authors":"G. Baars, Jennifer Bair, Liam Campling, Dan Danielsen, D. Davis, Klaas Hendrik Eller, Dezso Farkas, Tomaso Ferrando, Jason Jackson, David Hansen-Miller, Elizabeth Havice, Claire Mummé, Jesse Salah Ovadia, D. Quentin, Brishen Rogers, J. Salminen, Á. Santos, B. Selwyn, Marlese von Broembsen, L. White","doi":"10.1093/LRIL/LRW003","DOIUrl":"https://doi.org/10.1093/LRIL/LRW003","url":null,"abstract":"Most scholars attribute the development and ubiquity of global value chains to economic forces, treating law as an exogenous factor, if at all. By contrast, we assert the centrality of legal regimes and private ordering mechanisms to the creation, structure, geography, distributive effects and governance of Global Value Chains (GVCs), and thereby seek to establish the study of law and GVCs as rich and important terrain for research in its own right. \u0000 \u0000Across a growing number of sectors and industries, value production is not just transnational in scope; it is organised and coordinated via global networks that link activities across as well as within firms and nations. These networks are increasingly referred to as ‘Global Value Chains’, or GVCs. The asserted causes of this phenomenon are multiple, and scholars debate which deserves designation as primary.1 We begin from the premise that GVCs are not only the product of shifting economic conditions. They also arise as firms engage dynamically with multiple, overlapping and often conflicting local, national, regional and transnational legal regimes, soft-law normative orders and private ordering mechanisms (hereinafter collectively described as ‘law’).2 \u0000 \u0000This article seeks to establish the importance for both scholars and policymakers of investigating some of the complex ways in which the law shapes and is shaped by GVCs. The research agenda articulated here emerged from a series of ongoing conversations among a group of legal scholars, sociologists and political economists that first met in June 2014 under the auspices of the IGLP at Harvard University. For the most part, legal scholarship has only summarily or incidentally analysed GVCs, and similarly, GVCs scholars outside law have not made law a focal point of their theoretical or empirical analyses. We believe that placing law at the centre of the analysis of what have historically been treated as primarily ‘economic structures’ will not only enrich our understanding of the shape, nature and dynamic character of GVCs, but will also help to illuminate the complex inter-relationship between law and global political economy more broadly. \u0000 \u0000We begin with a broad description of the question at the heart of our collective inquiry: how does law shape the structure and organisation of production globally and how is law impacted through this process? To make this meta-question more concrete, we articulate three thematic starting points for exploration of the relationship between law and GVCs: law and the geography of GVCs; law and the production and distribution of value and power in GVCs; and law and the coordination of GVCs (the latter being a process referred to in the GVC literature as ‘governance’). We focus our research inquiry into the role of law in global structures of production on GVCs both because of their ubiquity in modern capitalism and the rich variety of extant scholarship (largely outside the field of law) exploring GVCs in a vari","PeriodicalId":365224,"journal":{"name":"LSN: Investment (Topic)","volume":"44 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-02-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130205211","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Good Governance Obligations in International Economic Law: A Comparative Analysis of Trade and Investment","authors":"A. Mitchell, Elizabeth Sheargold, Tania Voon","doi":"10.1163/22119000-01701001","DOIUrl":"https://doi.org/10.1163/22119000-01701001","url":null,"abstract":"International trade and international investment agreements typically contain provisions requiring the parties to comply with good governance principles, such as procedural fairness and transparency. These provisions are increasingly the subject of disputes before international tribunals. The scope of these obligations is often unclear, as treaty provisions usually employ broad standards rather than specific rules. For example, the requirement to accord investors ‘fair and equitable treatment’ is common in international investment agreements, while WTO agreements demand the ‘reasonable and impartial administration of measures’. This paper compares approaches in international investment and trade law to three aspects of good governance: procedural fairness, transparency, and reasonable administration of measures. Despite textual differences, the standards adopted by these two regimes are remarkably similar. Consequently, decisions from these two branches of international economic law may provide states, tribunals, market participants and scholars with valuable insights into the conduct required by good governance obligations.","PeriodicalId":365224,"journal":{"name":"LSN: Investment (Topic)","volume":"38 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-12-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115948781","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Diplomats Want Treaties: Diplomatic Agendas and Perks in the Investment Regime","authors":"Lauge N. Skovgaard Poulsen, E. Aisbett","doi":"10.1093/JNLIDS/IDV037","DOIUrl":"https://doi.org/10.1093/JNLIDS/IDV037","url":null,"abstract":"Literature on the investment treaty regime has shown little interest in diplomatic interests and agendas as drivers of treaty negotiations. This contrasts with other work on international economic relations, such as the negotiation of preferential trade agreements. Our paper fills this gap through a multi-method approach. In line with other areas of economic diplomacy we show that strategic foreign policy considerations have driven some investment treaty negotiations. Secondly, we show that some diplomats have been successful in promoting investment treaties to further their own individual interests. Rooted in public choice theory, this second causal mechanism is often overlooked in literature on economic diplomacy.","PeriodicalId":365224,"journal":{"name":"LSN: Investment (Topic)","volume":"7 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-12-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122620681","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}