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International investment law and the right to regulate Lone Wandahl Mouyal.

By: Publication details: Routledge 2016 New York,Description: xviii, 264 pagesISBN:
  • 9781138924970
DDC classification:
  • 346.092 MOU.I
Summary: Machine generated contents note: 1.Foreign investments and public policies 1.Introduction 2.Background and methodological considerations 3.Foreign investments, the context, the risks and the law 3.1.Foreign investment and social and economic growth 3.2.The concept of political risk 3.3.Conceptualizing the `right to regulate' 3.4.Increasing social welfare regulation enhances political risk 3.5.The need for addressing political risk 3.6.The general legal framework of protection of foreign investments 3.7.Insurances against political risk 3.8.Some remarks on investment protection under the WTO regime 3.9.Foreign investment in the era of globalization 4.The crisis of international investment law 4.1.The legitimacy crisis of international investment law 4.2.The sovereignty crisis of international investment law 4.3.The stability-flexibility dilemma 5.International law as an evolving system Contents note continued: 2.General international law, investment protection and the right to regulate 1.Aim 2.International investment law as a special branch of general investment law 2.1.The public private dichotomy 2.2.Types of foreign investment contracts 2.3.Internationalization of contracts 2.4.Treaty and contract jurisdiction and merits 3.Corporate actors with influence on the international investment law regime 4.The nature and scope of the right to regulate in general international law 4.1.International sovereignty and the right to regulate 4.2.The bindingness as the essence of international state sovereignty 4.3.Lifting treaty obligations on the basis of the principle of rebus sic stantibus 5.Respecting the sovereign equality of other states 5.1.The fundamental rules of state responsibility 5.2.Enforcing state responsibility through diplomatic protection Contents note continued: 6.Protection of aliens and their property in general international law 6.1.The Full Protection and Security (FPS) standard 6.2.The Fair and Equitable Treatment (FET) standard 6.3.Evolving international protection of property 6.4.Protection of aliens and their property 6.4.1.The standard of compensation 6.5.Preliminary conclusion 7.General international law as a legal paradigm with steering effect on the paradigm of international investment law 7.1.References to general international law in BITs 7.2.The use of general international law in investment arbitration 7.3.General international law as a tool for interpreting BITs 7.3.1.Approaches to treaty interpretation 7.3.2.Relevance of preambles 7.3.3.Interpreting silence 7.4.Adjudicating investment disputes towards a jurisprudence constants 7.5.Unification of international investment law 7.5.1.The principle of systematic integration Contents note continued: 7.5.2.External rules with gravitational pull 7.5.3.Examples of the presumption of harmonizing effects 7.5.4.Human rights exerting a `gravitational pull' on IIAs 7.5.5.Policy concerns exerting a `gravitational pull' on IIAs 7.6.State of the art: A theory of gravitational pull 8.Preliminary conclusions 3.The context of international investment law: From policy to legal norms 2.Regulatory chill 3.The NAFTA experience 3.1.Changes in North American investment policy following the NAFTA experience 4.Lack of a multilateral treaty enhancing the BIT regime 4.1.Fragmentation in negotiations 4.2.Areas of consensus on regulatory measures and law of expropriation 5.Notable trends in international investment policy 5.1.Increased governmental role in the economy 5.2.Sustainable development 5.3.Social responsible investments and green growth 5.4.Corporate Social Responsibility (CSR) Contents note continued: 5.5.Transparency 5.6.Enforcing social responsibility through quasi-judicial mechanisms and social reporting 6.Rebalancing imposing social responsibility on investors 7.Rebalancing policy objectives in preambles 4.Human rights in the international investment law regime: The duty to regulate 2.The human rights regime as another specialized branch of international law 3.Human rights altering the concept of sovereignty 4.A human rights discourse in international adjudication 5.Investment protection as the human right to protection of property 5.1.The human rights protection of property 5.2.The protection of property under the ECHR Protocol 1 article 1 5.2.1.Protected property 5.2.2.Interference with property rights 5.2.3.The duty to pay compensation 5.2.4.A regulatory prerogative in the ECHR Contents note continued: 6.The duty to regulate and state obligations under the human rights regime 6.1.The `duty to regulate' to protect second and third generation rights 6.2.The `respect, protect, fulfil' framework 6.3.State obligations pursuant to the UN International Covenant on Civil and Political Rights (ICCPR) 6.3.1.Civil and political rights in an international investment law context 6.4.State obligations pursuant to the UN International Covenant on Economic, Social and Cultural Rights (ICESCR) 6.4.1.ICESCR article 2 6.4.2.ICESCR and obligations of immediate effect the duty to make certain policy prioritizations 6.4.3.Enforcement of economic, social and cultural rights 6.4.4.A duty to make certain policy prioritizations 6.4.5.Margin of discretion in judicial review 6.4.6.Economic, social and cultural rights in an international investment law context 7.Development in international investment law and investment arbitration Contents note continued: 8.Corporate investors as complementary duty bearers? 8.1.Corporate human rights violations 8.1.1.The extraterritorial dimension of human rights 8.2.Corporate human rights compliance 8.3.Corporate human rights promotion 8.4.Privatizing the duty to regulate a special case 9.Human rights in international investment law and investment arbitration 9.1.Human rights in BITs 9.2.Human rights in investment arbitration 9.2.1.Examples of human rights issues in the case-law of investment tribunals 9.2.2.Human rights in key investment relationships 10.Preliminary conclusion 5.The case-study of expropriation claims in international investment law and investment arbitration 2.Forum for arbitration ICSID as a preferred venue 3.Conceptual challenges to `expropriation' 4.Protected investment 5.Expropriation in international investment law 5.1.The legality of the expropriation Contents note continued: 5.2.The concept of indirect expropriation 6.The challenge of today: Regulatory measures and indirect expropriation 7.Distinguishing compensable from non-compensable regulation 7.1.The distinction addressed in BITs 7.1.1.As a rule of presumption 7.1.2.As a rule of interpretation 7.1.3.As an applicability rule 7.1.4.Preliminary conclusions 7.2.Indicative elements in practice 7.2.1.The police power doctrine in international investment law 7.2.2.The requirement of `permanence' 7.2.3.The requirement of `substantiality' 7.2.4.The issue of control 7.2.5.The requirement of a fair process 7.2.6.Preliminary conclusions on the indicative elements 7.3.The sole effect doctrine and implications for the regulatory space of manoeuvre 7.4.A balanced approach and the implications for the regulatory space of manoeuvre 8.The concept of legitimate expectations and the implications for the right to regulate Contents note continued: 8.1.Public private perspective: From vitiating circumstance to legitimate expectations 8.2.General expectations of investors in a long-term investment project 8.3.The expectations of the investor as a legal factor embraced in BIT practice 8.4.BIT mechanisms affecting the assessment of investors' expectations 8.4.1.Umbrella clauses and the impact on investors' legitimate expectations 8.4.2.Umbrella clauses may enhance imbalance 8.5.Specific commitments affecting the assessment of investors' expectations 8.5.1.Stabilization clauses and the regulatory space of manoeuvre 8.5.2.Stabilization clauses enhance legitimate expectations of the investor 8.5.3.The legal effect of stabilization clauses 8.5.4.Stabilization clauses and implications for human rights or social welfare regulation 8.6.Expectations of the host state 8.7.Preliminary conclusion Contents note continued: 9.Applying a `gravitational pull' theory for alleged expropriations of investments 9.1.The duty to compensate: The question of whether regulation amounts to regulatory expropriation 9.2.The standard of compensation: Determining the extent to which investors should be compensated 9.3.Illustrative case: Health regulation in PMI v Uruguay 9.3.1.Identification of the relevant factors exhorting gravitational pull 6.Collecting the pieces 2.Sovereignty revised? 3.From `contractual' thinking to `public policy' thinking 4.Reconciling the international investment law regime and the human rights regime 5.Unification human rights in arbitral practice 6.International investment law and the light to regulate quintessence of fragmentation 7.Recommendations to BIT negotiators 8.Recommendations to adjudicators.
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Includes bibliographical references (pages 234-246) and index.

Machine generated contents note: 1.Foreign investments and public policies
1.Introduction
2.Background and methodological considerations
3.Foreign investments, the context, the risks and the law
3.1.Foreign investment and social and economic growth
3.2.The concept of political risk
3.3.Conceptualizing the `right to regulate'
3.4.Increasing social welfare regulation enhances political risk
3.5.The need for addressing political risk
3.6.The general legal framework of protection of foreign investments
3.7.Insurances against political risk
3.8.Some remarks on investment protection under the WTO regime
3.9.Foreign investment in the era of globalization
4.The crisis of international investment law
4.1.The legitimacy crisis of international investment law
4.2.The sovereignty crisis of international investment law
4.3.The stability-flexibility dilemma
5.International law as an evolving system
Contents note continued: 2.General international law, investment protection and the right to regulate
1.Aim
2.International investment law as a special branch of general investment law
2.1.The public
private dichotomy
2.2.Types of foreign investment contracts
2.3.Internationalization of contracts
2.4.Treaty and contract
jurisdiction and merits
3.Corporate actors with influence on the international investment law regime
4.The nature and scope of the right to regulate in general international law
4.1.International sovereignty and the right to regulate
4.2.The bindingness as the essence of international state sovereignty
4.3.Lifting treaty obligations on the basis of the principle of rebus sic stantibus
5.Respecting the sovereign equality of other states
5.1.The fundamental rules of state responsibility
5.2.Enforcing state responsibility through diplomatic protection
Contents note continued: 6.Protection of aliens and their property in general international law
6.1.The Full Protection and Security (FPS) standard
6.2.The Fair and Equitable Treatment (FET) standard
6.3.Evolving international protection of property
6.4.Protection of aliens and their property
6.4.1.The standard of compensation
6.5.Preliminary conclusion
7.General international law as a legal paradigm with steering effect on the paradigm of international investment law
7.1.References to general international law in BITs
7.2.The use of general international law in investment arbitration
7.3.General international law as a tool for interpreting BITs
7.3.1.Approaches to treaty interpretation
7.3.2.Relevance of preambles
7.3.3.Interpreting silence
7.4.Adjudicating investment disputes towards a jurisprudence constants
7.5.Unification of international investment law
7.5.1.The principle of systematic integration
Contents note continued: 7.5.2.External rules with gravitational pull
7.5.3.Examples of the presumption of harmonizing effects
7.5.4.Human rights exerting a `gravitational pull' on IIAs
7.5.5.Policy concerns exerting a `gravitational pull' on IIAs
7.6.State of the art: A theory of gravitational pull
8.Preliminary conclusions
3.The context of international investment law: From policy to legal norms
2.Regulatory chill
3.The NAFTA experience
3.1.Changes in North American investment policy following the NAFTA experience
4.Lack of a multilateral treaty enhancing the BIT regime
4.1.Fragmentation in negotiations
4.2.Areas of consensus on regulatory measures and law of expropriation
5.Notable trends in international investment policy
5.1.Increased governmental role in the economy
5.2.Sustainable development
5.3.Social responsible investments and green growth
5.4.Corporate Social Responsibility (CSR)
Contents note continued: 5.5.Transparency
5.6.Enforcing social responsibility through quasi-judicial mechanisms and social reporting
6.Rebalancing
imposing social responsibility on investors
7.Rebalancing
policy objectives in preambles
4.Human rights in the international investment law regime: The duty to regulate
2.The human rights regime as another specialized branch of international law
3.Human rights altering the concept of sovereignty
4.A human rights discourse in international adjudication
5.Investment protection as the human right to protection of property
5.1.The human rights protection of property
5.2.The protection of property under the ECHR Protocol 1 article 1
5.2.1.Protected property
5.2.2.Interference with property rights
5.2.3.The duty to pay compensation
5.2.4.A regulatory prerogative in the ECHR
Contents note continued: 6.The duty to regulate and state obligations under the human rights regime
6.1.The `duty to regulate' to protect second and third generation rights
6.2.The `respect, protect, fulfil' framework
6.3.State obligations pursuant to the UN International Covenant on Civil and Political Rights (ICCPR)
6.3.1.Civil and political rights in an international investment law context
6.4.State obligations pursuant to the UN International Covenant on Economic, Social and Cultural Rights (ICESCR)
6.4.1.ICESCR article 2
6.4.2.ICESCR and obligations of immediate effect
the duty to make certain policy prioritizations
6.4.3.Enforcement of economic, social and cultural rights
6.4.4.A duty to make certain policy prioritizations
6.4.5.Margin of discretion in judicial review
6.4.6.Economic, social and cultural rights in an international investment law context
7.Development in international investment law and investment arbitration
Contents note continued: 8.Corporate investors as complementary duty bearers?
8.1.Corporate human rights violations
8.1.1.The extraterritorial dimension of human rights
8.2.Corporate human rights compliance
8.3.Corporate human rights promotion
8.4.Privatizing the duty to regulate
a special case
9.Human rights in international investment law and investment arbitration
9.1.Human rights in BITs
9.2.Human rights in investment arbitration
9.2.1.Examples of human rights issues in the case-law of investment tribunals
9.2.2.Human rights in key investment relationships
10.Preliminary conclusion
5.The case-study of expropriation claims in international investment law and investment arbitration
2.Forum for arbitration
ICSID as a preferred venue
3.Conceptual challenges to `expropriation'
4.Protected investment
5.Expropriation in international investment law
5.1.The legality of the expropriation
Contents note continued: 5.2.The concept of indirect expropriation
6.The challenge of today: Regulatory measures and indirect expropriation
7.Distinguishing compensable from non-compensable regulation
7.1.The distinction addressed in BITs
7.1.1.As a rule of presumption
7.1.2.As a rule of interpretation
7.1.3.As an applicability rule
7.1.4.Preliminary conclusions
7.2.Indicative elements in practice
7.2.1.The police power doctrine in international investment law
7.2.2.The requirement of `permanence'
7.2.3.The requirement of `substantiality'
7.2.4.The issue of control
7.2.5.The requirement of a fair process
7.2.6.Preliminary conclusions on the indicative elements
7.3.The sole effect doctrine and implications for the regulatory space of manoeuvre
7.4.A balanced approach and the implications for the regulatory space of manoeuvre
8.The concept of legitimate expectations and the implications for the right to regulate
Contents note continued: 8.1.Public
private perspective: From vitiating circumstance to legitimate expectations
8.2.General expectations of investors in a long-term investment project
8.3.The expectations of the investor as a legal factor embraced in BIT practice
8.4.BIT mechanisms affecting the assessment of investors' expectations
8.4.1.Umbrella clauses and the impact on investors' legitimate expectations
8.4.2.Umbrella clauses may enhance imbalance
8.5.Specific commitments affecting the assessment of investors' expectations
8.5.1.Stabilization clauses and the regulatory space of manoeuvre
8.5.2.Stabilization clauses enhance legitimate expectations of the investor
8.5.3.The legal effect of stabilization clauses
8.5.4.Stabilization clauses and implications for human rights or social welfare regulation
8.6.Expectations of the host state
8.7.Preliminary conclusion
Contents note continued: 9.Applying a `gravitational pull' theory for alleged expropriations of investments
9.1.The duty to compensate: The question of whether regulation amounts to regulatory expropriation
9.2.The standard of compensation: Determining the extent to which investors should be compensated
9.3.Illustrative case: Health regulation in PMI v Uruguay
9.3.1.Identification of the relevant factors exhorting gravitational pull
6.Collecting the pieces
2.Sovereignty revised?
3.From `contractual' thinking to `public policy' thinking
4.Reconciling the international investment law regime and the human rights regime
5.Unification
human rights in arbitral practice
6.International investment law and the light to regulate
quintessence of fragmentation
7.Recommendations to BIT negotiators
8.Recommendations to adjudicators.

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