Alternative Visions of the International Law on Foreign Investment: Essays in Honour of Muthucumaraswamy Sornarajah

Description

This book is about the forces that are reshaping the international law on foreign investment today. It begins by explaining the liberal origins of contemporary investment treaties before addressing a current backlash against these treaties and the device of investment arbitration. The book describes a long-standing legal-intellectual resistance to a neo-liberal global economic agenda, and how tribunals have interpreted various treaty standards instead. It introduces our reader to the changes now taking place in the design of a range of familiar treaty clauses, and it describes how some of these changes are now driven not only by developing and emerging economies but also by the capital-exporting nations. Finally, it explores the life, career and writings of Muthucumaraswamy Sornarajah, a scholar whose work has been dedicated to the realisation of many of these changes, and his views about the hold global capital has over legal practice. Cover Half-title page Frontispiece Title page Copyright page Contents Figures Tables Contributors Preface Acknowledgements List of Treaties, National Legislation, Cases and Awards Part I 1 The worm’s view of history and the twailing machine Introduction Muthucumaraswamy Sornarajah Overview of Sornarajah’s works Essays for Muthucumaraswamy Sornarajah 2 The liberal vision of the international law on foreign investment Introduction US postwar FCN treaties as a reflection of liberal principles Defining liberalism Fashioning a liberal investment regime The emergence of neoliberalism Assessing the liberal vision today Liberalism and its critics Conclusion 3 Caveat investors – where do things stand now? Introduction The new wave of discontent against ISA Arguments for and against ISA Investment agreements of states dissatisfied with ISA Why ISA has retained its resilience Conclusion Part II 4 Reforming the system of international investment dispute settlement Introduction Professor Sornarajah’s contribution Flaws in the official reform model European Commission’s adoption of the official reform model Conclusion 5 The paranoid style of investment lawyers and arbitrators: investment law norm entrepreneurs and their critics Introduction Irreversible? When things fall apart Crisis? What crisis? Conclusion 6 The COMESA Common Investment Area: substantive standards and procedural problems in dispute settlement Introduction Current issues in investor-state dispute settlement Investor-state dispute settlement procedures under the CCIA Agreement Substantive rights of action under the CCIA Agreement Concluding remarks 7 Lessons from the negotiations of the United Nations Code of Conduct on Transnational Corporations and related instruments Part III 8 India and investment protection Introduction Foreign investment and India Legal framework for foreign investment Protection under international law Protection under municipal law Recent developments Conclusion 9 China–US BIT negotiation and the emerging Chinese BIT 4.0 Introduction The background: why a BIT 4.0 now? The issues: what has to be addressed? The features: a model BIT with “Chinese Characteristics” Conclusions Part IV 10 Regulating foreign investment: Methanex revisited Introduction The Case: Methanex v. United States of America Academic reaction to the decision The legacy of Methanex Beyond Methanex: treaty safeguards Conclusions 11 The new frontier: economic rights of foreign investors versus government policy space for economic development Introduction Sustainable development, economic development, and income equity FDI and economic development: from assumptions to policy action Economic development and policy tools Tracking the development of international law in respect to the economic development tools and economic rights of transboundary investors Mapping the development tools and the trends Additional factors in investment treaties Conclusion 12 Giving arbitrators carte blanche – fair and equitable treatment in investment treaties Introduction The fair and equitable treatment standard in treaties, their interpretation, and state reaction Fair and equitable treatment standard explicitly linked to customary international law Looking for new approaches Concluding remarks Part V 13 Is the umbrella clause not just another treaty clause? Introduction The origin and definition of the umbrella clause Sornarajah’s scepticism Observing the language of the umbrella clause El Paso: the myth of the ‘internationalised’ contract lurks still Distinguishing commercial from investment commitments Acta jure imperii Overlap with fair and equitable treatment and other substantive treaty standards Problems with the contractual forum selection clause The doctrine of privity of contract The problem with elevating or internationalising the contractual terms under an umbrella clause Conclusion 14 Internationalisation and State contracts: are State contracts the future or the past? Introduction State contracts as treaties Stabilisation clauses as tools of internationalisation Investment protection and immutable contracts Conclusion Part VI 15 State capitalism and sovereign wealth funds: finding a “soft” location in international economic law Introduction Hard and soft law in international [economic] law State capitalism under “hard” international economic law: WTO regulation of state enterprises The Santiago Principles and their discontents: the developing soft law framework for SWFs Concluding remarks: an “inclusive soft law approach” Part VII 16 The many-headed hydra and laws that rage of gain, a chapter in conclusion The privatisation of international state responsibility Neo-conservatism Need and greed Sociology and legal doctrine Power and justice The many-headed hydra Privateers bearing letters of marque To spurn the rage of gain Index Author Index