Auslandsinvestitionen unterliegen heutzutage vielfach dem Schutz eines internationalen Investitionsschutzabkommens. Der in diesen Abkommen regelmäßig verankerte Schutz von Investitionen vor entschädigungsloser Enteignung kann mit staatlichen Maßnahmen zum Zwecke des Klimaschutzes in Konflikt...

This paper considers legal implications that are likely to emerge from the implementation of a TRIPS Waiver decision. Assuming that a Waiver is adopted in the form presented in the May 2021 proposal by South Africa and India et al, we review the interaction between the Waiver and other...

The problems arising from the fragmentation of international law are increasingly being acknowledged, and solutions are being explored to overcome them. Due to the ‘special nature’ of human rights treaties, which are irreducible to exchanges of undertakings between States, merely to state...

This article assesses the arguments and challenges that are likely to arise should investors file an investor–State dispute settlement (ISDS) claim over measures taken in response to a waiver of obligations relating to intellectual property rights (IPRs) under the World Trade Organization’s...

The World Bank Group estimates that, by 2030, up to two-thirds of the world's extreme poor will live in countries characterized by fragility, conflict, and violence (FCV). The Bank's FCV strategy emphasizes the critical role the private sector plays in providing jobs and income in fragile and...

Domestic screening of inbound foreign investment, often on the grounds of national security, has intensified in recent years. More countries are introducing such regimes, while others are expanding their sectoral scope or creating opportunities for retrospective screening. These developments...

The reform option on the Standing Multilateral Mechanism (SMM) currently under discussion at UNCITRAL's Working Group III (WGIII) has raised a number of important, systemic concerns for the procedural reforms of investor-State dispute settlement. This paper first seeks to situate the discussions...

Tinashe Kondo’s book, Law and investment in Africa, narrates the efforts of a country to regain the trust [and the love] of foreign investors after several decades of argument and hostility. Encapsulated in the 'Zimbabwe is open for business' slogan, these efforts show 'how a country can move...

The UK has made major contributions to the development of investor-state dispute settlement from 1920-2020. This essay shows that the UK contributed in three ways (1) law-making, both before and after the launch of its investment treaty programme in the early 1970s; (2) dispute settlement –...

As with the proliferation of investor-state treaty arbitration, international investment law has been increasingly caught in a “legitimacy” crisis, with concerns looming large over resultant disruptive effects on human rights. Amid existing scholarship seeking to recalibrate the balance...

Significant changes to Australia’s foreign investment screening policy came into effect in 2021, modifying the Foreign Acquisitions and Takeovers Act 1975 (Cth). These changes establish a framework for national security reviews of proposed foreign investments in Australia, including the...

This article focuses on fragmentation within international investment law. The problem of fragmentation acquires real significance when investor-State tribunals exceed the scope of their jurisdiction, when they reach conflicting outcomes on the merits of similar disputes, or when the relevant...

The importance of Foreign Direct Investment in our international economic system cannot be overstated. Nevertheless, due to a perceived absence of arbitrator autonomy and a growing quantity of conflicting and contradictory investment resolutions, the current investment arbitral system's...

Article 38(1)(c) of the Statute of the International Court of Justice is a much lauded and equally derided source of international law. This ‘rabbit in a judicial hat’ has long had an uncertain pedigree, although new works seek to classify it with more precision. The use of General...

Over the last few years, the right to regulate has evolved from a rather inconspicuous, mistrusted concept to a necessary component of international investment agreements. This brief study offers a complementary account of the right to regulate compared to the author’s treatment of the topic a...

Climate Protection and International Investment Law have an ambiguous relationship. Whereas some scholars highlight that investment Law could help in protecting green investments many commentators depict investment protection as an obstacle to States’ climate mitigation policies. This article...

The law of taxation is usually one of the hardest fields of law, whether for law students or even practitioners. That fact does not change much when combining taxation with arbitration, but it actually becomes harder and more intricate, the first and main question that always come to mind is...

The draft text for an Investment Facilitation for Development Agreement does not define the term "investment." If negotiators wish to define said term, they should take guidance from the WTO rule book. It characterizes trade-related investment as a business or professional establishment by a WTO...

This chapter considers the impact of the case law in investment arbitration proceedings on general international law. The chapter identifies apparent discrepancies between the practices of inter-State courts and tribunals established under general international law, on the one hand, and...

This paper seeks to evaluate the current state of provisional measures in investment treaty arbitration, primarily governed under the International Centre for Settlement of Investment Disputes (ICSID). Five elements are evaluated: (1) the binding character of provisional measures, (2) the...

It is often claimed that investment treaties will dissuade host countries from phasing out foreignowned CO2-intensive production. This paper uses a very simple economic framework to examine how such a problem might be alleviated through treaty reform, including increased carve-outs from...

Der zwischen Deutschland und Pakistan 1959 geschlossene Investitionsschutzvertrag gilt gemeinhin als Meilenstein in der Entwicklung des völkerrechtlichen Investitionsschutzes. Als erster bilateral investment treaty (BIT) ist er in das kollektive Gedächtnis eingegangen. In unserem vorliegenden...

Significant amounts of private capital have flowed out of several of the more heavily indebted developing countries. This outflow, often called "capital flight ," largely escapes taxation by the borrowing-country government, and has generated concern about the prospects for future servicing of...

Berserk resentment of the existing framework regulating the international investment protection system and the operating of investment tribunals have direct to a prevalent perception that there is an immediate need for reform. This is especially pronounced having to do with Investor-State...

The use of arbitration in investor-state dispute settlement (ISDS) enables foreign investors to sue host states for alleged breaches of international investment law. But the practise has grown increasingly controversial over the past decade, with respondent states refusing to pay damages, or...

Does Crimea now constitute a part of Russia or Ukraine? Although most states and commentators have sided with Ukraine, no international court or tribunal has yet to declare whether Crimea today constitutes Russian or Ukrainian territory under international law. This may be about to change....

Disputed maritime areas are often sources of valuable natural resources, but they are also often sources of conflict. It is thus important for investors investing in such areas to know the array of investment protection mechanisms available to them. This article examines four such mechanisms...

The non-existence of the stare decisis doctrine in international investment law creates a potential for development of contrasting awards articulating opposing results for fundamentally same issues. Despite the non-existence of the stare decisis doctrine, tribunals do frequently rely on previous...

Investment treaties are often understood as the paramount protections for the foreign investors across jurisdictions. An investment treaty can be understood as an international regulatory mechanism between two or more sovereign states to promote, govern and protect investments. In the context of...

The momentum for the reforms to resolve the challenges of the investor-state dispute settlement system today is essential. The investor-state dispute settlement system clauses in International Investment Agreement show the importance of the above mechanism. However, with the increase in...