Overview

This book presents an up-to-date and scholarly overview of the law of foreign investment, as well as a comprehensive and succinct analysis of the main principles and the standards of treatment available to foreign investors in international law. It is authoritative and multi-layered, offering an analysis of the most pressing issues, and an insightful assessment of recent trends in the case law on the interpretation of established and evolving principles, from both developed and developing country perspectives. A major feature of this book is that it deals with the emerging tension between the law of foreign investment and other competing principles of international law. It proposes a number of ways and means of achieving a balance between these principles and the desire and need to protect the legitimate rights and expectations of foreign investors on the one hand, and the need not to unduly restrict the right of host governments to implement their public policy, including the protection of the environment and human rights, and the promotion of social and economic justice within the host country, on the other.This is perhaps the first book of its type authored by a truly international lawyer with experience of teaching, research and advisory work in both the developed and developing world over the past 20 years. The wealth of experience that the author brings to the task allows him to develop unique insights into the interplay between the law, economics and politics of foreign investment, making this book essential reading for students, scholars, practitioners and diplomats interested in the contemporary law of foreign investment.

Full Product Details

Author:   Professor Surya P Subedi
Publisher:   Bloomsbury Publishing PLC
Imprint:   Hart Publishing
Dimensions:   Width: 17.10cm , Height: 1.20cm , Length: 24.40cm
Weight:   0.420kg
ISBN:  

9781841138794

ISBN 10:   1841138797
Pages:   244
Publication Date:   24 September 2008
Audience:   Professional and scholarly ,  Professional and scholarly ,  Professional & Vocational ,  Professional & Vocational
Replaced By:   9781849462457
Format:   Paperback
Publisher's Status:   Out of Print
Availability:   Out of stock  

Table of Contents

Introduction 1 Evolution of Foreign Investment Law Introduction The Early Years National Treatment versus International Minimum Standard The Era of Gunboat Diplomacy Diplomatic Protection and the Treatment of Aliens in International Law The Calvo Doctrine The Hull Formula Conclusion 2 International Efforts to Regulate Foreign Investment Introduction The Havana Charter of 1948 The UN Declaration on Permanent Sovereignty over Natural Resources Attempts to Develop the Law Through the New International Economic Order The 1974 Charter of Economic Rights and Duties of States The UN Draft Code of Conduct for Transnational Corporations An Appraisal of the Efforts Made in the UN The Role of the World Bank ICSID A 'Silent Revolution' in International Law? MIGA The 1992 Guidelines on the Treatment of Foreign Direct Investment The WTO Agreements and Foreign Investment The OECD Guidelines and the Multilateral Agreement on Investment The International Labour Organization's Guidelines Other Voluntary Schemes An Inconclusive End to the 20th Century in Foreign Investment Regulation The Efforts Made at the Dawn of the 21st Century The UN Commission and Council on Human Rights Anti-Corruption Conventions The Shift in Emphasis on the Need for an International Agreement Conclusions3 Protection of Foreign Investment in Customary International Law Introduction Protection Under International Law and Domestic Law The Fundamental Principles of Foreign Investment Protection The Objectives of the Principles Definition of Investor and Investment Fair and Equitable Treatment in Customary International Law Full Protection and Security Most-Favoured-Nation Treatment National Treatment Protection Against Expropriation in Customary International Law The Standards of Compensation in Customary International Law Access to International Arbitration Conclusion 4 Protection of Foreign Investment through Bilateral Investment Treaties Introduction The Origins of BITs The Content of BITs Significance of BITs BITs for the Promotion of Foreign Investment Greater Standard of Protection Under BITs BITs as Insurance Against Political Risks BITs as a Tool for Globalisation, Economic Liberalisation and Privatisation Mechanism to Expand International Standards and to Codify Lex Specialis Effect of BIT Provisions as Obligations Erga Omnes? Decentralisation of the Law of Foreign Investment Limiting the Freedom of Action of States Outlining the Conditions for Expropriation Deviations from the Hull Formula Exhaustion of Local Remedies InvestorState Settlement of Disputes Latin American Volte-Face Acceptance of a Wider Definition of Investment Like Circumstances Pre-Establishment Rights Definition of the Applicable Law Time Limitations of a Claim Contractual Character of BITs Protection Under Stabilisation Clauses in Investment or State Contracts Protection Under the Umbrella Clause Protection Under Regional Trade and Investment Treaties Protection Under Free Trade Agreements and Model BITs The Changing Character of BITs Conclusion5 Fleshing Out the Principles through Jurisprudence Introduction Fleshing out the Principles of Foreign Investment Law Standard Claims by Foreign Investors Definition of Expropriation The Right to Expropriate Direct and Indirect Expropriation Determination of the Nature and Amount of Compensation The Rights of Shareholders Exhaustion of Local Remedies Extension of the Frontiers of the Law of Foreign Investment The Trend in Creative Interpretation of the Law Controversy Raised by Inconsistency The Trend Towards Extensive Protection From International Minimum to Maximum Standard of Treatment Modification of Customary International Law Extension of BIT Protection to Contractual Undertakings Extension of the MFN Clause To Establish Jurisdiction Conclusion 6 Current Issues in the Law of Foreign Investment Introduction The Law at a Crossroads Absence of Guidelines on the Standard of Compensation The Impact of Cross-Fertilisation of Competing Principles Problems Posed by the Expansive or Creative Trend in Interpretation The Notion of 'Police Powers' of States and Regulatory Expropriation Legitimate Expectations of Foreign Investors and the Regulatory Powers of States Regulatory Measures to Protect the Environment Regulatory Measures to Protect Human Rights Regulatory Measures in Pursuance of Social and Economic Objectives Regulatory Powers and the Protection Under Investment or State Contracts Catch-All Interpretation of the Principle of Fair and Equitable Treatment The Extent of Protection Under the MFN Clause Public Disputes and Private Tribunals Difficulty in Application of Domestic Law by International Tribunals Multiplication of Proceedings and Investment Tribunals The Trend in Treaty-Shopping, Forum-Shopping and N

Reviews

This book presents a highly useful overview of the development and content of international investment law. The author traces the development of this field of law in a very readable style...this is a work that brings together and provides the reader with a complete view of the development of this field. International Business Law Review - Chronicle Sept-Dec 2008

...this book stands out from many of the others currently addressing the topic of international investment law it goes beyond stating what the law is and focuses on controversies occurring within this area of the law...International Investment Law: Reconciling Policy and Principle does make a valuable contribution to the discourse on the implications of foreign investment protection rules for domestic policy space and on their interaction with principles from other areas of international law, such as human rights law or international environmental law. It will also serve as an excellent introduction to this complex area of international law for newcomers to the subject, whether legal scholars, policy-makers, or students.Kate MilesAustralian International Law Journal2009a timely book. In a modest 244 pages, the author brings together a host of important substantive and procedural issues which beset the effective and balanced functioning of international law on foreign investment. Without denying the positive role of international law in advancing the protection of foreign investment, the author offers a vision of how the promotion of investment can be reconciled with competing policies. The extensive coverage of the book explains its dispensation with details of investment cases, which can be found elsewhere. With its focus, critical approach, brevity, and incisive argument, the book will provide an excellent source of reference for advanced students, academics, and practitioners.Mavluda SattorovaEuropean Journal of International LawVol 20, No 3 August 2009This book presents a highly useful overview of the development and content of international investment law. The author traces the development of this field of law in a very readable style...this is a work that brings together and provides the reader with a complete view of the development of this field.International Business Law Review ChronicleSept-Dec 2008In a modest 244 pages, the author brings together a host of important substantive and procedural issues which beset the effective and balanced functioning of international law on foreign investmentWith its focus, critical approach, brevity and incisive argument, the book will provide an excellent source of reference for advanced students, academics and practitioners.Mevluda SattorovaUniversity of BirminghamInternational and European Law Book Reviews OnlineJune 09International Investment Law: Reconciling Policy and Principle identifies and thoroughly describes the areas within the law requiring reconciliation. The book provides a comprehensive introduction to this subject, making it a worthwhile read for students. The analysis of treaties and jurisprudence is likely to be a useful resource for practitioners, and scholars familiar with this topic can benefit from the book's clear organization, insightful questions, and thoughtful discourse.Subedi should be commended for making principled arguments in favour of a balanced approach to foreign investment law.Brett MurrayJournal of International Law and PoliticsVolume 42, Number 1Subedi has succeeded in presenting a very up-to-date and concise account of not only the investment arbitral jurisprudence, but also developments in practice and initiatives by NGOs Subedi has achieved his aim to present a balanced analysis.Kyla TienhaaraBanking and Finance Law ReviewVolume 25, Issue 2The book could be the best introductory manual to international protection to investment law for the student knowledgeable in general international law. It is a great tool for those who want to do a deeper study and understand the current issues regarding some disciplines in this area of knowledge. I recommend the book; I believe that it is easy to read, it is complete, and it raises relevant topics for the reader's analysis.Diego Bernal CorredorAsian Journal of International LawVolume 1, Issue 1, January 2011

Author Information

Surya P Subedi, OBE, DPhil, FRSA, is Professor of International Law, University of Leeds, and a Barrister at Tanfield Chambers in London. He is on the roster of Panellists of the WTO Dispute Settlement Body and has worked as a Consultant on international legal matters to Mishcon de Reya Solicitors in London.

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