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International and foreign Investment Law Part II Scope of protection

International and foreign Investment Law Part II Scope of protection. Azar Aliyev LL.M. (University of Heidelberg). Overview. Investment Market Access Investor. I. Investment. Investment – an economical term Transfer of funds Risk Duration Profit Participation in the management.

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International and foreign Investment Law Part II Scope of protection

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  1. International and foreign Investment LawPart IIScope of protection Azar Aliyev LL.M. (University of Heidelberg)

  2. Overview • Investment • Market Access • Investor

  3. I. Investment • Investment – an economical term • Transfer of funds • Risk • Duration • Profit • Participation in the management

  4. I. Investment • Investment as a legal term • Investment - a legal term? • Process based definition (Encyclopedia of Public international Law (1985)) • Asset-based definition (used in almost all Treaties and Laws)

  5. I. Investment • Definition of Investment (UNCTAD classification) • Broad asset-based definition with a non-exhaustive list (Germany - Azerbaijan BIT) • Broad asset-based definition specifying characteristics and forms (US Model BIT, ) • Broad asset based definition with an exhaustive list (BIT Canada Peru)

  6. I. Investment • Limitations of Definition • In accordance with the law (EurAsEC IIA) Kardassopoulos v. Georgia Fraport v. Philippines • Territorial requirement (German Model BIT 2008) Fedax v. Venezuela SGS v. Philippines • Temporal requirement (ECT) Veteran Petroleum v. Russian Federation • Sector requirement • Approved project • Pre-investment expenditures

  7. I. Investment • Investment under the ICSID • No definition • Subjective test • Objective test • Salini test – contribution to the development • Controversial discussions

  8. II.Market access • Treaties are dealing mostly with ‘pos-entry’ treatment (ECT) • Investment promotion agencies (Germany Trade and Invest) • ‘In accordance with national legislation’ and protectionism • Russian Law on Foreign Investment in strategic Sectors • AWG Germany

  9. III.Investor • Definition of Investor • Nationality of private persons • Private persons • State owned companies • Sovereign wealth funds • States • International organizations • Non-profit organizations

  10. III.Investor • Nationality of private persons • Dual nationality No claims against own State (ICSID) Champion trading v. Egypt Effective nationality (US Model BIT) Olguin v. Paraguay • Nationality of companies • Incorporation (German Model BIT) TokiosTokéles v. Ukraine • Control or seat as additional criteria (MIGA) • ICSID Art. 25.2 (b) Vacuum Salt v. Ghana

  11. III.Investor • Denial of Benefits (ECT, US Model BIT) • Shareholder as Investor • ICSID Art.25(2) (b) • Minority shareholders CMS v. Argentina

  12. Thank you very much!

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