Attempts at developing a theory of international investment law are complicated by the fact that this field of international law is based on numerous, largely bilateral treaties and is implemented by ...arbitral panels established on a case-by-case basis. This suggests a fragmented and chaotic state of the law, with different levels of protection depending on the sources and targets of foreign investment flows. This book, however, forwards the thesis that international investment law develops, despite its bilateral form, into a multilateral system of law that backs up the functioning of a global market economy based on converging principles of investment protection. In discussing the function of most-favored-nation clauses, the possibilities of treaty-shopping and the impact of investor-State arbitration with its intensive reliance on precedent and other genuinely multilateral approaches to treaty interpretation, it offers a conceptual framework for understanding the nature and functioning of international investment law as a genuinely multilateral system.
Contagious capitalism Gallagher, Mary Elizabeth
2008., 20110627, 2011, 2005, 2005-01-01, 20050101
eBook
One of the core assumptions of recent American foreign policy is that China's post-1978 policy of "reform and openness" will lead to political liberalization. This book challenges that assumption and ...the general relationship between economic liberalization and democratization. Moreover, it analyzes the effect of foreign direct investment (FDI) liberalization on Chinese labor politics.
What makes a country attractive to foreign investors? To what extent do conditions of governance and politics matter? This book provides the most systematic exploration to date of these crucial ...questions at the nexus of politics and economics. Using quantitative data and interviews with investment promotion agencies, investment location consultants, political risk insurers, and decision makers at multinational corporations, Nathan Jensen arrives at a surprising conclusion: Countries may be competing for international capital, but government fiscal policy--both taxation and spending--has little impact on multinationals' investment decisions.
Although government policy has a limited ability to determine patterns of foreign direct investment (FDI) inflows, political institutions are central to explaining why some countries are more successful in attracting international capital. First, democratic institutions lower political risks for multinational corporations. Indeed, they lead to massive amounts of foreign direct investment. Second, politically federal institutions, in contrast to fiscally federal institutions, lower political risks for multinationals and allow host countries to attract higher levels of FDI inflows. Third, the International Monetary Fund, often cited as a catalyst for promoting foreign investment, actually deters multinationals from investment in countries under IMF programs. Even after controlling for the factors that lead countries to seek IMF support, IMF agreements are associated with much lower levels of FDI inflows.
The International Law of Investment Claims considers the distinct principles governing the prosecution of a claim in investment treaty arbitration. The principles are codified as 54 'rules' of ...general application on the juridical foundations of investment treaty arbitration, the jurisdiction of the tribunal, the admissibility of claims and the laws applicable to different aspects of the investment dispute. The commentary to each proposed rule contains a critical analysis of the investment treaty jurisprudence and makes extensive reference to the decisions of other international courts and tribunals, as well as to the relevant experience of municipal legal orders. Solutions are elaborated in respect of the most intractable problems that have arisen in the cases, including: the effect of an exclusive jurisdiction clause in an investment agreement with the host state; reliance on the MFN clause in relation to jurisdictional provisions; and, the legitimate scope of derivative claims by shareholders.
This book addresses two of the most important trends in political economy during the last two decades - globalization and decentralization - in the context of the world's most rapidly growing ...economic power, China. The intent is to provide a better understanding of how local political and economic institutions shape the ability of Chinese state-owned firms to utilize foreign direct investment (FDI) to remake themselves in the transition from inefficient and technologically backward firms into powerful national champions. In a global economy, the author argues, local governments are increasingly the agents of industrial transformation at the level of the firm. Local institutions are durable over time, and they have important economic consequences. Through an analysis of five Chinese regions, the treatment seeks to specify the opportunities and constraints that alternative institutional structures create, how they change over time, and ultimately, how they prepare Chinese firms for the challenge of global competition.
From Communists to Foreign Capitalists explores the intersections of two momentous changes in the late twentieth century: the fall of Communism and the rise of globalization. Delving into the ...economic change that accompanied these shifts in central and Eastern Europe, Nina Bandelj presents a pioneering sociological treatment of the process of foreign direct investment (FDI). She demonstrates how both investors and hosts rely on social networks, institutions, politics, and cultural understandings to make decisions about investment, employing practical rather than rational economic strategies to deal with the true uncertainty that plagues the postsocialist environment.
The treatment of foreign investors and of their investments on the territory of a host State is often subject to a bilateral investment treaty (BIT) signed by the national State of the investors and ...the host State. These BITs usually contain a clause in which the two States offer fair and equitable treatment (FET) to the foreign investors on their territory. Moreover, this clause has become a norm of customary law, implying that investors may rely on it even outside the context of the BIT. Foreign investors whose rights under this clause have not been respected may bring the State in front of an international tribunal. This book analyses not only the conventional and customary framework se the FET clause but also its scope and all its applications in the existing case law. This book tackles the standard of fair and equitable treatment by applying four conceptual frames: the legal basis of FET, its nature as a standard, its content and finally the implications of its breach. The first two chapters explore the two classical sources of international law as possible sources for FET. The main sources of FET lie in a rich conventional framework, mainly bilateral and regional. Yet the high number of BITs does not appear to offer a uniform model of FET clauses, quite the opposite; the book offers a classification of the FET clauses found in more than 400 BITs. Having concluded that the conventional framework is essential to FET, the book turns to the examination of the possible customary character of FET and argues that the view equating FET with the International Minimum Standard is erroneous and it limits the scope of FET. Alternatively, it suggests that the FET standard is an independent standard of customary nature. Then the book looks at the nature of FET, that of being a standard and retains three direct consequences for its meaning: its flexibility, the absence of a fixed content and its evolutionary character. With these three characteristics in mind, it proceeds to the third conceptual framework, the content of FET. Although no fixed content may be given to it, it identifies and develops each one of those situations in which the FET standard has already been applied. Finally, the last conceptual framework aims at discussing the final act of a FET claim, i.e. the amount of compensation awarded. It argues that FETis a standard which balances the interests and behaviours of both the States and the investors, at the stage of compensation. Available in OSO: http://www.oxfordscholarship.com/oso/public/content/law/9780199235063/toc.html
The book offers a systematic analysis of the interaction between international investment law, investment arbitration, and human rights, such as the role of national and international courts, ...investor-state arbitral tribunals and alternative jurisdictions, the risks of legal and jurisdictional fragmentation, the human rights dimensions of investment law and arbitration, and the relationships of substantive and procedural ‘principles of justice’ to international investment law. Part I summarizes the main conclusions of the twenty-four book chapters and places them into the broader context of ‘principles of justice’, ‘global administrative law’, and of ‘multilevel constitutionalism’ that may be relevant for judicial ‘administration of justice’ in international economic law and investor-state arbitration. Part II includes contributions clarifying the ‘constitutional dimensions’ of transnational investment disputes and investor-state arbitration, as reflected in the increasing number of arbitral awards and amicus curiae submissions addressing human rights concerns. Part III addresses the need for ‘principle-oriented ordering’ and ‘normative congruence’ of diverse national, regional and worldwide legal regimes, focusing on the pertinent dispute settlement practices and legal interpretation methods of regional economic courts and human rights courts. Part IV includes twelve case studies on potential human rights dimensions of specific ‘protection standards’, applicable law, procedural law issues, and specific fundamental rights. These case-studies discuss not only the still limited examples of human rights discourse in investor-state arbitral awards; they also probe the potential legal relevance of investor-state arbitration for the judicial recognition, interpretation, and ‘balancing’ of ‘primary rules’ in the light of ‘principles of justice’, as defined by national and international law.
In order to understand international economic regulations, it is essential to understand the variation in competing corporations' interests. Political science theories have neglected the role of ...individual firms as causal actors. Theories of institutions have neglected to examine the creation of business law. Economic theories have neglected to apply concepts of asset specificity to social regulations in competitive industries. This book aims to fill these voids with a company-based explanation. Its theoretical findings open a 'black box' in the literature on international political economy and elucidate a source of regulatory differences and similarities. Counter-intuitive case studies reveal how business and governments actually interact. They also contribute to both sides of current debates over corporate social responsibility. They examine diverse topics including offshore finance, flags-of-convenience, CFC production, capital requirements, the importation and sale of 'dolphin-lethal' tuna, and the advertising of infant formulae. By exploring powerful corporations' investment profiles and regulatory strategies, this book explains why globalization sometimes results in a 'race to the bottom', sometimes in higher common regulations, and sometimes in regulations that differ between countries. Uniquely, it then explains which regulatory outcome is likely to occur under specified conditions. The explanation incorporates economics, political science, studies of regulatory capture, and examinations of transaction costs, firms' regulatory strategies, and the roles international institutions.
As China continues to be heralded as a rising economic power, the need for an understanding of its institutional effects—such as investment-related policies, regulations, and laws—on foreign direct ...investment increases as well. Institutions and Investments employs interdisciplinary perspectives from economics, business, law, and political science to shed light on the interaction between institutional changes and investment patterns and to form a clear picture of investment behavior as China's legal and regulatory infrastructure has developed over the reform years. Organized into three main parts, the book first discusses the evolution and nature of China's FDI regulatory framework. Part 2 examines the various modes and variant patterns of FDI in China in the reform years. Part 3's central task is to demonstrate a systematic link between institutional changes in China's FDI regulatory framework and the changing patterns of FDI. In conclusion, Jun Fu finds that China has made substantial progress from a command economy to a market system, but that it still has a long way to go before it truly attains a transparent and rule-based system. This book adds new dimensions to the scholarship on China as a growing economic power and will be of particular interest to international economists, political scientists, and business scholars studying China.
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