Foreign Investor Misconduct in International Investment Law 3030548546, 9783030548544

Table of contents :
Preface/Acknowledgments
Contents
Abbreviations
Chapter 1: Introduction
Chapter 2: Theoretical Background in Connection with the Study of Foreign Investor Misconduct in International Investment Law
2.1 Introduction
2.2 The Emergence of Modern International Investment Law
2.2.1 The Foundation of Modern International Investment Law and Its Distinguishable Features
2.2.1.1 Historical Roots
2.2.1.2 Comparison to FCN Treaties
2.2.1.3 Distinguishable Features of Current IIAs
2.2.2 The Process of Intellectual Elaboration on Current International Investment Law
2.2.3 The Processes of Creating Legally Binding Norms of International Investment Law
2.3 The Practice of International Investment Law
2.3.1 Case Law: Its Value and an Appropriate Mechanism to Refer to Earlier Decisions
2.3.2 Applicable Law in Treaty-Based Investment Arbitration
2.3.2.1 Specification of Treaty-Based International Investment Arbitration in View of the Choice of Law
2.3.2.2 Application of International and National Law in Conjunction with the Applicable IIA
2.4 Systemic Approach to the Practice of International Investment Law
2.5 Ways to Implement Changes Into Current International Investment Law
2.5.1 Development of International Investment Law
2.5.2 Transformation of International Investment Law
2.6 Interim Conclusion
Chapter 3: The Explicit and Implicit (Inherent) Potential of International Investment Law to Address Foreign Investor Miscondu...
3.1 Introduction
3.2 `Legal Consequences of Individuals´ Misconduct´: Meaning and Scope of the Notion
3.2.1 An Understanding of the Term `Legal Consequences´
3.2.2 Notion of `Individuals´ Misconduct´
3.3 Individuals´ Misconduct from the Perspective of General International Law
3.3.1 The Placement of Individuals Within General International Law
3.3.2 Existence of Direct Obligations by Individuals
3.3.3 Legal Consequences for Non-Fulfilment of Requirements Determined by Individuals´ Conduct
3.3.4 Abusive and Fraudulent Actions by Individuals in Acquiring a Legal Status, Procedural or Material Rights
3.3.4.1 Good Faith in International Law
3.3.4.2 Distinction Between Satisfaction of a Criterion Not in Good Faith and an Abuse in the Realisation of Claimed Rights
3.3.4.3 Application of the Good Faith Principle to Individuals
3.3.5 Case Law Examples
3.4 Negative Legal Consequences of Foreign Investor Misconduct Under International Investment Law
3.4.1 Position of Foreign Investors as Intended by the Drafters of IIAs
3.4.2 Examination of the Legal Provisions of International Investment Law
3.4.2.1 Material Provisions
3.4.2.2 Procedural Provisions
3.5 Specific Requirements Set for International Investment Protection
3.5.1 Overview of Requirements on the Application of International Investment Protection
3.5.2 Requirements on Investment
3.5.2.1 Broad Asset-Based Definition
3.5.2.2 Specific Elaboration on the Definition of `Investment´
3.5.2.2.1 Own or Control
3.5.2.2.2 Invest
3.5.2.2.3 Contribution to Development
3.5.2.2.4 The Requirement of Legality
3.5.2.2.5 Legal and Factual Connection to a Foreign National or Entity
3.5.3 Requirements on Foreign Investors
3.5.3.1 General Considerations on the Notion of `Investors´
3.5.3.2 Nationality Requirements
3.5.3.2.1 Nationality of Individual Investors
3.5.3.2.2 Nationality of Legal Entities
3.5.3.3 Requirement of a Link to Foreign Investment
3.5.3.4 Beyond Formal Requirements on Foreign Investors
3.5.4 Requirements on the Procedural Capacity of Foreign Investors
3.5.4.1 The Requirement and Scope of the Party´s Consent to Arbitration
3.5.4.2 The Significance of the Procedural Rules
3.6 Further Mechanisms to Restrict the Application of IIAs Based on Investors´ Conduct
3.6.1 Denial of Benefits Clause
3.6.2 Application of Good Faith: The Issue of Admissibility
3.7 Interim Conclusion
Chapter 4: Categorisation and Illustration of Experience: Case Law on Foreign Investor Misconduct in International Investment ...
4.1 Introduction
4.2 Pioneering Cases: Setting the Trend of According Foreign Investor Misconduct Legal Significance
4.2.1 Timeframe of the Pioneering Cases
4.2.2 Selection of the Pioneering Case Law on Foreign Investor Misconduct
4.2.2.1 Salini v. Morocco (31 July 2001): Insertion of the Notion of `Illegality´ into the Field of International Investment L...
4.2.2.2 Tokios Tokelès v. Ukraine (29 April 2004): Ownership and Control by Nationals of the Host State and Domestic Origin of...
4.2.2.3 Inceysa v. El Salvador (2 August 2006): Foreign Investor Misconduct as a Matter of ratione voluntatis
4.2.2.4 World Duty Free Company Limited v. The Republic of Kenya (4 October 2006): Corruption in International Investment Law
4.2.2.5 Fraport v. Philippines (16 August 2007): Clarification on the Illegality Requirement, the Element of Time
4.2.2.6 Plama Consortium v. Bulgaria (8 February 2005 Decision on Jurisdiction; 27 August 2008 Award on Merits): Suggestion on...
4.2.2.7 Phoenix Action v. The Czech Republic (15 April 2009): Good Faith as a Requirement for a Protected Investment
4.2.2.8 Cementownia v. Republic of Turkey (17 September 2009): Initiation of International Arbitration in Bad Faith
4.2.2.9 Mobil Corporation v. Bolivarian Republic of Venezuela (10 June 2010): Abuse of Process and Nationality Planning
4.2.2.10 Gustav F W Hamester v. Ghana (18 June 2010): Further Limitation on the Scope of Illegality Requirements
4.2.2.11 Mr. Saba Fakes v. Republic of Turkey (14 July 2010): Alternative Standpoint on the Role of the Principle of Good Fait...
4.2.3 General Observations on the Pioneering Cases
4.2.4 Categorisation of Foreign Investor Misconduct as Alleged in the Pioneering Cases
4.2.4.1 Violation of Host State Law
4.2.4.1.1 General Characteristic of the Category
4.2.4.1.2 Trends Set in the Category by the Pioneering Cases
4.2.4.2 Abuse of the System of International Investment Law
4.2.4.2.1 General Characteristics of the Category
4.2.4.2.2 Scope of Actions Forming the Category of Abuse of the System
4.2.4.2.3 A Precise Look at Nationality Planning
4.2.4.2.4 The Range of Negative Legal Consequences of Abuse
4.2.4.3 Non-satisfaction of Further Requirements Imposed on Foreign Investment
4.2.4.3.1 General Characteristics of the Category
4.2.4.3.2 Achievements in the Category by the Pioneering Cases
4.3 Subsequent Development in the Categories of Case Law Addressing Foreign Investors Misconduct
4.3.1 Violation of Host State Law
4.3.1.1 General Overview of Subsequent Developments
4.3.1.2 Specific Issues
4.3.1.2.1 Possible Justification of Illegality: The Principle of Estoppel
4.3.1.2.2 The Specific Case of Corruption
4.3.1.2.3 Illegality in the Course of Investment Activities
4.3.2 Abuse of the System of International Investment Law
4.3.2.1 General Overview of Developments
4.3.2.2 Specific Issues
4.3.2.2.1 Developments in Case Law on Nationality Planning
4.3.2.2.2 Abuse of Process Between the Principle of Good Faith and Jurisdictional Objection ratione temporis
4.3.2.2.3 Further Developments in View of Jurisdiction v. Admissibility as a Consequence of Abuse
4.3.3 Requirements on Investment
4.3.4 Concluding Observations
4.4 Outstanding Categories: Cases Which Stretch and Challenge the Potential of the System of International Investment Law
4.4.1 Direct Positive Obligations on Foreign Investors
4.4.2 Operation of Foreign Investment and Human Rights
4.4.3 Operation of Foreign Investment and Environmental Protection
4.5 Interim Conclusion
Chapter 5: Analysis of Some Key Events to Date: Their Meaning and Significance
5.1 Introduction
5.2 Analysis of the Experience of International Investment Law in Dealing with Foreign Investor Misconduct
5.2.1 Outcomes of the Landmark Cases Dealing with Foreign Investor Misconduct
5.2.1.1 Possible Outcomes of Investment Cases
5.2.1.2 Systemic Vision of the Diverse Outcomes and Their Significance
5.2.1.2.1 Rejection of a Tribunal´s Jurisdiction
5.2.1.2.2 Admissibility of Claims
5.2.1.2.3 Elimination of Substantive Protection
5.2.1.2.4 Reduction of Damages
5.2.1.2.5 Comparative View on the Possible Responses to Foreign Investor Misconduct
5.2.2 Appreciation of the Possible Outcomes in View of the Rule of Law and Efficiency
5.2.2.1 The Rule of Law in Outcomes Generated by Foreign Investor Misconduct
5.2.2.1.1 Legal Clarity
5.2.2.1.2 Consistency
5.2.2.1.3 Legitimacy
5.2.2.2 Efficiency and Effectiveness of International Investment Law Responses to Foreign Investor Misconduct
5.2.3 Applicable Law in Dealing with Foreign Investor Misconduct: Stories of Success and Failure
5.2.3.1 Application of International Law
5.2.3.1.1 International Investment Agreements
5.2.3.1.2 Stand-Alone Rules of International Law
5.2.3.1.3 General Principle of Good Faith
5.2.3.2 National Law
5.3 The Role of Involved Actors
5.3.1 Contracting States
5.3.2 Respondent States
5.3.3 Arbitral Tribunals
5.3.4 Foreign Investors
5.4 Discovered Process in the Gradual Development of the Approaches to Foreign Investor Misconduct
5.4.1 The Process of Clarifying and Pushing the Limits of Legal Constructions
5.4.2 The Process of Exhaustion of the Inserted Explicit and Inherent Potential
5.4.3 Gradual Demise of Issues Which Were Fully Settled
5.4.4 Transformation of the General Principle of Good Faith into the Specific Doctrines
5.4.5 Transformation Within the Original Balance Between the Parties
5.5 Responses to Foreign Investor Misconduct in Light of the Crisis in the Field: Crisis Management of International Investmen...
5.6 Interim Conclusion
Chapter 6: Unlocking the Transformation of International Investment Law
6.1 Introduction
6.2 Goals for the Transformation
6.2.1 Subsequent Illegality of Foreign Investors´ Operation
6.2.2 Non-Compliance with Well-Established Standards of International Law: Harm to the Environment, Infringement of Human Righ...
6.2.3 More Balanced Outcome of Substantiated Foreign Investor Misconduct
6.3 Steps to Be Taken in Implementation
6.3.1 Changes Within the System of International Investment Law
6.3.1.1 Modification of Wording
6.3.1.2 Umbrella Clause to Lift Foreign Investors´ Obligation to Comply with National Law at the International Level
6.3.1.3 Direct Treaty Obligations on Foreign Investors
6.3.2 Stand-Alone Sources of International Law
6.3.3 `Soft Law´ Mechanisms
6.3.4 Concluding Observations
6.4 A Look Into the Current Practice: Transformation Towards More Responsible Investments
6.4.1 Aspects of International Law Reform in Connection with the Approach to Foreign Investor Misconduct
6.4.1.1 The Procedural Component
6.4.1.2 The Component of Sustainability
6.4.2 State Practice in Reforming International Investment Law
6.4.2.1 Policy Considerations
6.4.2.1.1 Draft Pan-African Investment Code
6.4.2.1.2 The Initiative of the Indian Government
6.4.2.1.3 The EU Reform of International Investment Law
6.4.2.1.4 Other Draft Models
6.4.2.1.5 Concluding Remarks
6.4.2.2 Overview of Recently Concluded IIAs
6.4.2.2.1 Modification in Wording
Preambles
Definitions
6.4.2.2.2 Imposition of Direct Obligations
6.4.2.2.3 Interplay with Soft-Law
6.4.3 Possible Fragmentation of International Investment Law
6.5 Interim Conclusion
Chapter 7: Conclusion
Chapter 8: Main Thesis Elaborated and Suggested in This Study
References
Table of Cases
Permanent Court of International Justice
International Court of Justice
International Arbitral Awards
Procedural Documents and Dissenting/Separate Opinions
Investment Arbitration Awards
Table of Legislation
International Conventions
Procedural Rules
Bilateral Investment Agreements (Listed in Chronological Order)
Historical Treaties and Historical Drafts Conventions
Historical Documents
Model Bilateral Investment Treaties
UN Documents
ILC Documents
Documents of International Organisations
Treatises
Journal Articles and Contributions in Collective Works
Miscellaneous