LSN: Investment (Topic)最新文献

{"title":"Sovereignty, Human Rights and the Global Land Grab","authors":"Jubril Agbolade Shittu","doi":"10.2139/SSRN.2290092","DOIUrl":"https://doi.org/10.2139/SSRN.2290092","url":null,"abstract":"The phenomenon of land grab in recent years has drawn the attention of various interests including international organizations, government and civil society. This is because of the speed at which such large scale acquisition are taking place, the nature of most deals and more importantly the unjustness in which most land deals do not take into consideration the right of the local communities and also small holder farmers. The era of globalization has made it impossible for nations to exist without engaging in some trade or contractual agreement with other state or private investor. States in legitimate exercise of their sovereignty attract foreign investors, but with such right is the responsibility to respect the investor and protect their interests. States also exercise their sovereignty through membership of international organizations, establishment of sovereign wealth funds and direct/indirect support to investors. States pursue commitments at these levels, usually in terms of their national interest. Human rights concerns and their protection guaranteed by numerous international legal instruments are a partial cause of the current trend in global land rush. Before the advent of human rights protection most land acquisitions were based on agreements between parties concerned or were based on the use of force. However, the Charter of the United Nations has frowned against unlawful threat or the use of force against any sovereign state. While land grabs are condemned because of the impact they have on the local population and the environment, it does not change the fact that most land deals are legitimate. It is therefore argued that human rights capture important dimension of the values that are at stake when we discuss or modify the land rights and land use of women, men and children and their should be the focus of states and international organizations in addressing the issue of land grabs.","PeriodicalId":365224,"journal":{"name":"LSN: Investment (Topic)","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2013-07-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130789707","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":"MFN Principle and Investor's Nationality in Investor-State Arbitration - Alternating Jurisdictional Requirements of BIT's through MFN Principle","authors":"R. Daujotas","doi":"10.2139/ssrn.2319749","DOIUrl":"https://doi.org/10.2139/ssrn.2319749","url":null,"abstract":"This article is purposed to introduce an upcoming research starting in September, 2013 on a complex issue arising in the theory and practice of modern investor-state arbitration. To this end, readers are encouraged to treat this research summary as interactive and to contact the author with their comments so to facilitate fruitful discussion and critical input.","PeriodicalId":365224,"journal":{"name":"LSN: Investment (Topic)","volume":"24 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2013-07-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124152992","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 Use and Misuse of the Corruption Defence in International Investment Arbitration","authors":"Tamar Meshel","doi":"10.54648/joia2013018","DOIUrl":"https://doi.org/10.54648/joia2013018","url":null,"abstract":"This article argues that while a mutually beneficial relationship can be cultivated between international investment arbitration and anti-corruption policies, the recent emergence of a state-invoked 'corruption defence' as a complete defence to liability for alleged breach of investment protection obligations may hamper the sustainability and effectiveness of such a relationship. In the context of a corrupt host state, for instance, and particularly a corrupt developing host state, the growing use of this defence may arguably frustrate the objectives of both foreign investment protection and anti-corruption policies. This was the case, for instance, in the 2006 investment arbitration World Duty Free Co. Ltd. v. Republic of Kenya, in which the arbitral tribunal accepted the corruption defence invoked by Kenya as a complete defence to the investor's claims of alleged breach of investment protection obligations. In so doing, the tribunal arguably disregarded the potentially detrimental effects such a decision may have on Kenya's ability to fight corruption and attract further foreign investment, both of which are of crucial importance to its future development. This article argues, therefore, that investment arbitration tribunals ought to proceed with caution when permitting a corrupt host state, and particularly a developing one, to rely on the corruption defence, and ought to devise alternative remedies to the complete rejection of the claims where investor corruption is established.","PeriodicalId":365224,"journal":{"name":"LSN: Investment (Topic)","volume":"74 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2013-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121718184","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":"China and Foreign Direct Investment: Looking Ahead","authors":"L. Trakman","doi":"10.1163/9789004306738_007","DOIUrl":"https://doi.org/10.1163/9789004306738_007","url":null,"abstract":"Notwithstanding China’s endorsement of investor-state arbitration more than a decade ago, few investor claims have been initiated against it and none has concluded with an award. This does not necessarily mean that foreign investors will not make such claims in the future, but rather that proceeding against China, from an economic rationalist perspective, is likely to be contentious, costly and dilatory. However, these concerns are not peculiar to China. Economically and politically powerful states, not least of all the United States, are less frequently subject to investor-state arbitration than poorer states for much the same reason.What is increasingly likely is that China is preparing itself and its investors abroad for investor-state proceedings in the future. This is evident, for example, in China’s growing interest in the functioning of the International Center for the Settlement of Investment Disputes (‘ICSID’), in its inclusion of investor-state arbitration in its Model Bilateral Investment Agreement and in various regional and bilateral agreements it has concluded.China is overtaking the United States as the biggest recipient of foreign direct investment (‘FDI’) in the world. It is also one of largest sources of outward FDI, with its outward investors initiating large-scale claims against foreign governments, such as Ping An, China’s second largest insurer’s recent claim for USD 2.2 billion against the Belgian Government In light of China’s rise in the FDI and the consequence this may have on its engagement with investment claims, this paper has three primary purposes. The first purpose is to explore China’s history and practice in concluding bilateral investment agreements (‘BITs’) with foreign countries. The second purpose is to examine China’s limited experience with investor-state arbitration under such BITs. The third purpose is to identify how China is likely to develop its dispute resolution regime through strategic investment alliances with other states without sacrificing its distinctive national interests including those of its investors abroad. Particular emphasis will be given to China’s dilemma, in seeking to liberalize investment treaties to protect growing outbound investments, while also trying to protect its national interest from arbitration claims by inbound investors.","PeriodicalId":365224,"journal":{"name":"LSN: Investment (Topic)","volume":"59 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2013-04-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130929943","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":"Are Government Bonds Net Wealth? No","authors":"Hak Choi","doi":"10.2139/ssrn.2235600","DOIUrl":"https://doi.org/10.2139/ssrn.2235600","url":null,"abstract":"This paper disproves Ricardian equivalence, and shows that governments bonds are bad investment. The situation in Europe verifies the accusation made by this paper.","PeriodicalId":365224,"journal":{"name":"LSN: Investment (Topic)","volume":"49 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2013-03-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116599952","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":"Foreign Investments in the Offshore Energy Industry: Investment Protection v. Energy Security v. Protection of the Marine Environment","authors":"S. Trevisanut","doi":"10.4324/9780203596265-26","DOIUrl":"https://doi.org/10.4324/9780203596265-26","url":null,"abstract":"The present paper wants to identify and discuss the legal challenges posed by the offshore energy industry in the light of the relevant international legal framework, which is fragmented among the different fields of international law mentioned above, and among different sectors of activities (e.g., oil and gas industry; renewable energy). It aims at assessing the inadequacy of such a legal framework in order to deal with the protection of three common concerns, which are threatened by the existing situation: the protection of marine environment; the energy security; and the protection of foreign investments in offshore energy projects.In order to gauge how these three common concerns find a balance and consider if one of them should prevail, the analysis falls into three main steps. The first part gives a brief and not exhaustive overview of the relevant legal framework. The second part critically discusses the main challenges posed by the offshore energy industry in light of recent technological and normative developments. The third part presents some concluding remarks, which suggest ‘an integrated, interdisciplinary and intersectorial approach’ to the offshore energy sector in order to find a balance between the protection of foreign investments, the protection of the marine environment and energy security.","PeriodicalId":365224,"journal":{"name":"LSN: Investment (Topic)","volume":"7 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2013-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123990337","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":"FDI in Indian Retail Sector: Groundwork for Effective Implementation","authors":"Rohan Deshpande","doi":"10.2139/SSRN.2257227","DOIUrl":"https://doi.org/10.2139/SSRN.2257227","url":null,"abstract":"After being subject to incessant political discussion, debate and protest since it was introduced, the policy of Foreign Direct Investment (FDI) in Indian retail is now no more a myth or a distant dream. The ruling party recently passed the trial by fire in both Houses of Parliament, and a policy that is largely hailed as reformative in nature received the assent of the ruling class. Industry body Federation of Indian Chambers of Commerce and Industry (FICCI) recently said that the size of India's retail industry is expected to more than double to $1.3 trillion by 2020, led by an estimated 25 percent average annual growth in organised retail if overseas investment is permitted in the sector. Currently, the organised retail sector holds a paltry 7-8% share, while a large chunk of all retailing activities are traditional/unorganized. This stunted growth of organised retail will witness a makeover following the opening up of the retail sector to FDI. Thus, it is no question of primacy that it will usher in a new era of economic reforms that will provide the adequate boost to countermand the slump and refurbish international belief in the growth story of India Inc., but, only if it is implemented soundly. In this stride, a self-assessment test of our economic, political and regulatory framework to meet the requirements for effective enactment without drawbacks is sure to reveal some grey areas. The findings of this study will identify such key issues and lacunae that need to be tackled with before the influx of foreign direct investment. These include the issue of major global retailers exercising monopolistic practices by way of large-scale procurement at rates that will be subversive to the interests of suppliers and farmers, predatory pricing and cartelization to destroy businesses of the unorganized retailers, the need for stringent local sourcing norms which cannot be flouted or over-ruled on a case to case basis, the role of politics in State specific enactment of the FDI in retail policy, etc. One of the major issues raised by the anti-FDI lobbyists was that the Indian retail sector, particularly the organized retail sector being under-developed and in a nascent stage, this domestic retail sector should be allowed to grow and consolidate first, before opening up the sector to foreign investors. Since this demand cannot be met with anymore, the need for strong governmental action in extending parallel developmental support to the MSME and unorganized retail sector will also be discussed at length. Finally, solutions and recommendations for effective implementation will be put forth for consideration. Only the governmental action in ensuring that proper frameworks are in place before the advent of FDI in retail will define whether it becomes a game changer or a failure. More than ever, now is the need for lasting reforms to take root in the Indian economy, and ensuring the efficacy of the FDI in retail regime will go a long way in achieving this","PeriodicalId":365224,"journal":{"name":"LSN: Investment (Topic)","volume":"12 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2013-01-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125545239","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":"What Opportunities Do the New EU International Investment Agreements Offer for Developing Countries?","authors":"Axel Berger","doi":"10.2139/ssrn.2182551","DOIUrl":"https://doi.org/10.2139/ssrn.2182551","url":null,"abstract":"The issue of how foreign direct investment (FDI) can contribute to sustainable development processes is becoming increasingly important for many developing countries. For a long time now the issue from a development policy point of view has no longer been around how to increase the quantity of investment inflows. The quality of FDI and the contribution they make to environment-friendly and inclusive growth processes is just as important. This is accompanied by a desire on the part of many developing countries to more strongly regulate their investment inflows in order to increase their positive effects on development. This shift in focus is not just a consequence of the disillusionment that many developing countries have experienced given the minor economic benefits stemming from the liberalization of their investment regimes in the 1980s and 1990s. It is also a result of the economic success of emerging countries which frequently do not implement these recommendations for liberalization one-on-one. Furthermore, the coherence of investment agreements also has to play a greater role in light of new systemic risks such as global finance and climate risks and increased interlinking between different areas of policy. Against this backdrop, the role and substance of international investment agreements (IIA) have been subject to intense discussion in recent times. IIAs were traditionally negotiated as tools to protect from western companies’ FDI in politically unstable developing countries. This one-sided focus for IIAs is no longer appropriate today: the global investment regime is in a period of change which calls the traditional North-South logic behind IIAs into question. It is no longer just North American, European and Japanese companies that invest abroad but also their Chinese, Brazilian and Indian competitors. The need for better consideration of public and private interests in IIAs is also growing in industrialized countries as a result of the increase in reciprocal investment flows. Against this background the European Union (EU) has implemented a far-reaching institutional reform of its Common Commercial Policy as a result of the Lisbon Treaty: negotiating European IIAs now falls under the overall competency of the EU and no longer just the Member States. This merging of trade and investment policy making at EU level provides new starting points for future IIAs to be drafted in a more development-friendly manner. Development policy actors should pay greater attention to this policy area in order to increase the potential for FDI to promote sustainable development processes. The formal options for pressing for greater coherence between investment and development policy have increased as a result of Lisbon. In order to use this room to manoeuvre more effectively developing countries need additional support to increase their negotiating capacities.","PeriodicalId":365224,"journal":{"name":"LSN: Investment (Topic)","volume":"9 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2012-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"117095732","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 International Law Commission and the Development of International Investment Law","authors":"J. Harrison","doi":"10.2139/SSRN.2177291","DOIUrl":"https://doi.org/10.2139/SSRN.2177291","url":null,"abstract":"International investment law has received increasing attention due to the proliferation of investment treaties and the number of arbitral awards made thereunder. At the end of 2011, there were 450 known investment cases that have been settled or are pending. Yet, there are many core questions that remain to be authoritatively answered. Although they are faced with similar problems, arbitral tribunals often adopt diverging solutions to investment disputes. This paper considers the nature of the divergences in investment treaty jurisprudence and the role that could potentially be played by the International Law Commission (ILC) in contributing to the coherent development of international investment law. The paper argues that some areas of international investment law are more appropriate for attention by the ILC than others. It draws a distinction between those aspects of international investment that only have a basis in treaty law and those aspects of international investment law that are underpinned by common standards stemming from customary international law or general principles of law. The paper argues that we cannot necessarily expect the convergence of jurisprudence in the context of treaty provisions that have been specifically negotiated by the parties, as these provisions must be interpreted on a case-by-case basis. This means that topics like the MFN clause are less suitable for codification, as the meaning of these provisions will often depend on the particular context of the treaty and the precise intentions of the parties. In contrast, there is a stronger case for the codification of international investment law where common standards exist. The paper therefore considers the formation and development of customary international law in relation to investment protection. It argues that whilst investment treaty tribunals have struggled with the identification of customary international law in this area, the ILC could play a central role in clarifying the state of the relevant rules and principles, in furtherance of its core mandate of promoting the progressive development and codification of international law.","PeriodicalId":365224,"journal":{"name":"LSN: Investment (Topic)","volume":"155 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2012-11-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126754056","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":"Regulating Shadow Banking","authors":"S. Schwarcz","doi":"10.2139/ssrn.1993185","DOIUrl":"https://doi.org/10.2139/ssrn.1993185","url":null,"abstract":"Although shadow banking is said to be huge, estimated at over $60 trillion, it is not well defined. This short and accessible paper attempts to define shadow banking by identifying its overall scope and its basic characteristics. Based on the definition derived, the paper also conceptually examines how shadow banking can be regulated to try to maximize its efficiencies while minimizing its risks.","PeriodicalId":365224,"journal":{"name":"LSN: Investment (Topic)","volume":"6 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2012-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122446904","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}