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International and foreign Investment Law Part I Introduction, history and sources

International and foreign Investment Law Part I Introduction, history and sources. Azar Aliyev LL.M. (University of Heidelberg). Overview. What is Investment Law about? Investment protection and treatment (material aspects ) Investor-State dispute settlement ( procedural aspects )

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International and foreign Investment Law Part I Introduction, history and sources

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  1. International and foreign Investment LawPart IIntroduction, history and sources Azar Aliyev LL.M. (University of Heidelberg)

  2. Overview • What is Investment Law about? • Investment protectionandtreatment (material aspects) • Investor-State disputesettlement (proceduralaspects) • History • Legal sources

  3. Materials Database http://italaw.com/ (free) Database http://invetsmentclaims.com (available in Campus) Website ofthe ICSID http://icsid.worldbank.org (free) Dolzer/Schreuer, Principlesof International Investment Law Schreuer, The ICSID Commentary Muchlinski/Ortino/Schreuer, Oxford Handbook of International Investment Law Griebel, Internationales Investitionsrecht

  4. I. Whatis Investment Law about? • (Foreign) Investment is not always sufficiently protected against expropriation or unfair treatment in the host State • Gaps in the legislation • Poor interpretation of the law • Political interests … • State sovereignty impede private persons to sue the State beyond its‘ borders

  5. I. Whatis Investment Law about? Investment Law providing • Standards of Protection • protection against expropriation • fair and equitable treatment • non-discrimination … • Dispute settlement instruments • competence of international arbitration courts • special enforcement instruments …

  6. Guarantees Investment contract

  7. II. Investment Protectionand Treatment • Expropriation (takingofproperty) • Fair andEquitable Treatment • Most favoured Nation • National Treatment • Full Security andProtection • Transfer of Funds • UmbrellaClause • StabilizationClause

  8. III. Investor-State disputesettlement Arbitration as the main dispute settlement tool • Is commercial arbitration a good basis • Public interests and state sovereignty • Costs • Transparency • Awareness of developing countries Mediation an alternative?

  9. IV. History Before World War II • Main idea – protection of foreign property rights • Contract origins (concessions in Latin America and Soviet Union) • Customary international law (Neer, Factory in Chozrow etc.)

  10. IV. History after World War II • Abs-ShawcrossDraft Convention on Investments Abroad 1959 • German-Pakistan BIT 1959 • ICSID-Convention 1965 • Multilatiralization attempts MAI, EU-Competence after Lisbon Treaty, Asia-Pacific regional trade and investment agreement since late 90-ies • Explosive raise of cases • Claims against developed countries

  11. V. Sourcesof Investment Law Customary international law Bi- and Multilateral Investment Treaties • more than 6000 (3000) BITs • Several multilateral Treaties (ICSID, NAFTA, Energy Charta Treaty, EurAsECetc.) • EU-competence after the Treaty of Lisbon National legislation • Special legislation in developing and transition countries • Other legal acts

  12. V. Sourcesof Investment Law State Contracts (e.g. Contractofthe Century Azerbaijan) ICSID Convention 1965 • Established a specialforum • Simplifiedrecognitionandenforcement • Activelyusedsince end 90-ies Decisionsofarbitraltribunals • Non-binding • High controversy Legal literature

  13. V. Sourcesof Investment Law • legal nature? • hierarchy? • Clashofthe legal cultures

  14. Thank you very much for your attention!

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