发展中经济体FDI流入与双边投资条约/国际投资条约关系的实证分析

A. Padmanabhan
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引用次数: 1

摘要

双边投资条约(BITs)或国际投资协定(IIAs) -通常被视为投资的入场券-是两国之间签署的协议,根据该协议,每个国家都约束自己为另一国的投资和投资者提供基于条约的保护。这种基于条约的保护包括不征收外国投资,除非有公共目的并附有补偿;国民待遇;最惠国待遇;以公平和公正的方式对待投资者和投资;允许利润自由汇出;并提供投资者-国家争端解决机制(也称为投资条约仲裁),根据该机制,如果外国投资者认为东道国违反了BIT或IIA,则无需征得其所在国的同意,即可直接向国际仲裁法庭提起诉讼,如解决投资争端国际公约(ICSID)。发展中国家,如印度和其他发展中国家,正非常迅速地签署大量双边投资协定/投资协定,以吸引更多的外国直接投资流入。签署这些条约的理由是,这些国家相信,这些条约将增加流入本国的外国投资。本文试图了解在印度、南美和亚洲国家等发展中国家签署双边投资协定/国际投资协定与外国投资流入之间是否存在正相关关系。这个假设要么被研究者证实,要么被研究者否定。为此目的,将从各国的贸易和商务部、外交部收集数据。此外,即使假设存在直接和积极的关系,也将研究发展中经济体在签署双边投资协定/国际投资协定时是否过于热情,因为大多数双边投资协定/国际投资协定纯粹是从外国投资者的角度构建的,因此给予东道国的政策空间受到限制。赋予他们广泛的权利,却不承认主权国家根据国家利益进行监管的权利,只给东道国留下有限的回旋余地。这需要进行详细讨论,以便了解投资条约义务对东道国造成的严重后果。鉴于国际投资争端解决中心的投资者-国家条约争端和仲裁越来越多,以及这些发展中国家在谈判其双边投资协定或国际投资协定时吸取教训并保持谨慎变得非常重要,考虑增加适当的保障措施,使它们能够在出现情况时偏离其条约义务,因此,避免像20世纪90年代著名的CMS诉阿根廷案那样,可能耗费数百万美元的旷日持久的诉讼。因此,本文的结论不仅是理解所提出的假设是否得到验证,而且还提供了规范性的论据,支持在进入谈判和发展中国家签署之前仔细评估双边投资协定对外国投资流入的影响,并根据上述领域的案例研究,充分保留其在双边投资协定中监管外国投资的权利。
本文章由计算机程序翻译,如有差异,请以英文原文为准。
Relationship Between FDI Inflows and Bilateral Investment Treaties/International Investment Treaties in Developing Economies: An Empirical Analysis
Bilateral Investment Treaties (BITs) or International Investment Agreements (IIAs) - often perceived as admission tickets to investments - are agreements signed between two countries under which each country binds itself to offer treaty based protection to investments and investors of the other country. This treaty based protection includes not expropriating foreign investment unless there is a public purpose and accompanied by compensation; national treatment; most favoured nation treatment; treating investors and investments in a fair and equitable manner; allowing free repatriation of profits; and providing an investor-state dispute settlement system (also known as investment treaty arbitration) under which foreign investors can directly bring a case at an international arbitral tribunal like the International Convention for the Settlement of Investment Disputes (ICSID) without the consent of their state if the investor feels that the host country violated the BIT or IIA. Large numbers of BITs/IIAs are being signed with great alacrity by developing countries, like India and other developing countries, in a bid to attract more FDI inflows. The rationale behind signing these treaties is that it is believed by these countries that they will result in increased foreign investment flows into the country. This paper attempts to see if there is a positive and direct correlation between signing BITs/IIAs and foreign investment inflows in developing countries like India, South American and Asian countries. This hypothesis would be either proved or disproved by the researcher. Data would be collected for this purpose from the Ministry of Trade and Commerce, Foreign Ministry of the respective countries. Further, even after assuming that there is a direct and positive relationship, it would also be studied whether it is prudent for developing economies to be overly-enthusiastic in signing BITs/IIAs given the restriction on policy space accorded to the host nations because majority of BITs/IIAs are structured purely from the perspective of foreign investors, granting them extensive rights without recognizing the right of sovereign states to regulate in the national interest leaving limited manoeuvrability to the host state. This warrants a detailed discussion in order to understand the serious consequences of the investment treaty obligations on host countries. This need has been augmented in light of the increasing number of investor-state treaty disputes and arbitrations at the ICSID and how it has become important for these developing countries to learn lessons and be cautious while negotiating their BITs or IIAs by considering adding adequate safeguards that will allow them to deviate from their treaty obligations in case a situation arises and thus, avoid potential protracted litigations that could cost millions as in the famous CMS v. Argentina case in the 1990s. Thus, the paper would conclude by not only understanding whether the hypothesis proposed was validated or not, but also provide prescriptive arguments in favour of carefully assessing the impact of BITs on foreign investment inflow before entering into negotiations and signing them by the developing countries and to also adequately reserve its right to regulate foreign investments in the BIT in view of its national interest in light of the preceding case studies in this area.
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