Foreign Direct Investment

Introduction

Foreign Direct Investment - Research Guide International Law

Foreign Direct Investment (FDI) is a category of investment that reflects the objective of establishing a lasting interest by a resident enterprise in one economy in an enterprise that is resident in an economy other than that of the direct investor. The lasting interest implies the existence of a long-term relationship between the direct investor and the direct investment enterprise and a significant degree of influence on the management of the enterprise. The direct or indirect ownership of 10% or more of the voting power of an enterprise resident in one economy by an investor resident in another economy is evidence of such a relationship.

The International Centre for Settlement of Investment Disputes (ICSID) is an autonomous international institution established under the Convention on the Settlement of Investment Disputes between States and Nationals of Other States. The primary purpose of ICSID is to provide facilities for conciliation and arbitration of international investment disputes. The ICSID Convention is a multilateral treaty formulated by the Executive Directors of the International Bank for Reconstruction and Development (the World Bank). It was opened for signature on March 18, 1965 and entered into force on October 14, 1966. Today, ICSID is considered to be the leading international arbitration institution devoted to investor-State dispute settlement.

This Research Guide is intended as a starting point for research in the field of Foreign Direct Investment (FDI). It provides the basic legal materials available in the Peace Palace Library, both in print and electronic format. Handbooks, leading articles, bibliographies, periodicals, serial publications and documents of interest are presented in the Selective Bibliography section. Links to the PPL Catalogue are inserted. The Library’s classification index code 9i. Capital, Exchange, Credit, Banking, Money, Currency, etc. and subject heading (keyword) Foreign Direct Investment are instrumental for searching through the Catalogue. Special attention is given to our subscriptions on databases, e-journals, e-books and other electronic resources. Finally, this Research Guide features links to relevant websites and other online resources of particular interest.

Bibliography

Reference works

Books

Leading articles

Documents

Periodicals, serial publications

Bibliographies

New titles


1. The Interaction of Remedies between National Judicial Systems and "ICSID": an Optimization Problem
The Interaction of Remedies between National Judicial Systems and "ICSID": an Optimization Problem / Anne van Aken. - London : British Institute of International and Comparative Law. - Page 291-324 In: The Future of ICSID and the Place of Investment Treaties in International Law / edited by N. Jansen Calamita, David Earnest and Markus Burgstaller, ISBN 9781905221509: (2013), Page 291-324. - 2013
Keywords: Foreign direct investment, International Centre for Settlement of Investment Disputes, Most-favoured-nation clause, Legal remedies, Arbitral awards,

2. Investor-State Dispute Settlement: Some Concerns
Investor-State Dispute Settlement: Some Concerns / Stephen Bouwhuis. - London : British Institute of International and Comparative Law. - Page 325-338 In: The Future of ICSID and the Place of Investment Treaties in International Law / edited by N. Jansen Calamita, David Earnest and Markus Burgstaller, ISBN 9781905221509: (2013), Page 325-338. - 2013
Keywords: Foreign direct investment, International Centre for Settlement of Investment Disputes, Bilateral investment treaties, International arbitral awards,

3. The Future of ICSID
The Future of ICSID / Meg Kinnear. - London : British Institute of International and Comparative Law. - Page 339-356 In: The Future of ICSID and the Place of Investment Treaties in International Law / edited by N. Jansen Calamita, David Earnest and Markus Burgstaller, ISBN 9781905221509: (2013), Page 339-356. - 2013
Keywords: Foreign direct investment, International Centre for Settlement of Investment Disputes, Convention on the Settlement of Investment Disputes between States and Nationals of Other States [Washington, D.C., 18 March 1965],

4. The Lehman Brothers Financial Products and the Right to Compensation of European Investors
The Lehman Brothers Financial Products and the Right to Compensation of European Investors / Elisa Alexandridou. - Alphen aan den Rijn : Kluwer Law International. - Page 203-218 In: Financial Services, Financial Crisis and General European Contract Law : Failure and Challenges of Contracting / edited by Stefan Grundmann, Yeşim M. Atamer, ISBN 9789041135261: (2011), Page 203-218. - 2011
Keywords: United States of America, European Union, Member states, Supreme court, Economic crisis, Banks, Insolvency, Financial services, Foreign direct investment, Cases,

5. The Protection of Investors' Legitimate Expectations and the Fair and Equitable Treatment Standard under NAFTA Article 1105
The Protection of Investors' Legitimate Expectations and the Fair and Equitable Treatment Standard under NAFTA Article 1105 / Patrick Dumberry In: Journal of International Arbitration = ISSN 0255-8106: vol. 31, issue 1, page 47-74. - 2014
Keywords: North American Free Trade Agreement, Foreign direct investment, Bilateral investment treaties, National treatment, International arbitration, Cases,

6. Sovereign Debt Restructuring under the Investor-State Dispute Regime
Sovereign Debt Restructuring under the Investor-State Dispute Regime / Youngjin Jung, Sangwook Daniel Han In: Journal of International Arbitration = ISSN 0255-8106: vol. 31, issue 1, page 75-96. - 2014
Keywords: International Centre for Settlement of Investment Disputes, Foreign direct investment, Economic crisis, Arbitration clause, Government debts, International commercial arbitration,

7. Who Decides Arbitrability Where a Precondition to Arbitration Has Not Been Satisfied?
Who Decides Arbitrability Where a Precondition to Arbitration Has Not Been Satisfied? : a Comment on the U.S. Supreme Court's Decision to Hear the Appeal in BG Group v. Argentina / Solomon Ebere, Blerina Xheraj In: Journal of International Arbitration = ISSN 0255-8106: vol. 31, issue 1, page 101-110. - 2014
Keywords: United States of America, Bilateral investment treaties, Foreign direct investment, Amicus curiae, Arbitration court, International commercial arbitration,

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  • Treves, T., F. Seatzu and S. Trevisanut (eds.) Foreign Investment, International Law and Common Concerns, London, Routledge, 2014.

    Treves, T., F. Seatzu and S. Trevisanut (eds.) Foreign Investment, International Law and Common Concerns, London, Routledge, 2014.

    This book explores from an international law perspective the complex relationship between foreign investments and common concerns, i.e. values that do not coincide, or do not necessarily coincide, with the interests of the investor and of the host state. It pays particular attention to the role of the main international development banks in reconciling the needs of foreign investors with the protection of common concerns, such as the environment, human rights and labour rights. Among its collection of essays, the volume asks how much “regulatory space” investment law leaves; whether international investment law is an effective means of balancing contrasting interests, and whether investment arbitration currently constitutes a mechanism of global governance.
    In collecting the outlooks of various experts in human rights, environmental and international economic law, this book breaks new ground in exploring how attention to its legal aspects may help in navigating the relationship between foreign investment and common concerns. In doing so, the book provides valuable insights into the substantive issues and institutional aspects of international investment law.

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  • Miles, K., The Origins of International Investment Law, Cambridge, Cambridge University Press, 2013.

    Miles, K., The Origins of International Investment Law, Cambridge, Cambridge University Press, 2013.

    International investment law is a complex and dynamic field. Yet, the implications of its history are under-explored. Kate Miles examines the historical evolution of international investment law, assessing its origins in the commercial and political expansionism of dominant states during the seventeenth to early twentieth centuries and the continued resonance of those origins within modern foreign investment protection law. In particular, the exploration of the activities of the Dutch East India Company, Grotius’ treatises, and pre–World War II international investment disputes provides insight into current controversies surrounding the interplay of public and private interests, the systemic design of investor-state arbitration, the substantive focus of principles, and the treatment of environmental issues within international investment law. In adopting such an approach, this book provides a fresh conceptual framework through which contemporary issues can be examined and creates new understandings of those controversies.

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  • Harten, G. van, Sovereign Choices and Sovereign Constraints: Judicial Restraint in Investment Treaty Arbitration, Oxford, Oxford University Press, 2013.

    Harten, G. van, Sovereign Choices and Sovereign Constraints: Judicial Restraint in Investment Treaty Arbitration, Oxford, Oxford University Press, 2013.

    Investment arbitrators rely on sovereignty for their legal status just as investor-state disputes usually stem from disagreements about the role of the state in society. As a result, investment arbitration is a vehicle for the exercise of sovereign authority and a site for contesting sovereign choices. This book investigates and evaluates the decision-making record and policy trajectory of international investment arbitration, from theoretical, doctrinal, and empirical perspectives. The book argues that the unique characteristics of investment treaty arbitration make the experience of domestic judicial review more pertinent to international investment arbitration than to any other contexts for international adjudication. However, it argues that mediating devices in some form should be incorporated into the process in order to solve the tension between the extensive scope and potency of international investment arbitration as an important site of global governance, and the challenges of the review function in reviewing decisions which have strong claims to having comprehensive regulatory expertise, inclusive decision-making, electoral or other public accountability, or greater proximity to the underlying facts and context.

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  • Schefer, K.N., International Investment Law: Text, Cases and Materials, Cheltenham, Edward Elgar, 2013.

    Schefer, K.N., International Investment Law : Text, Cases and Materials, Cheltenham, Edward Elgar, 2013.

    This detailed yet concise textbook is a complete introduction to the law of international investment protection. With chapters on the sources of investment law, expropriation, treaty-based principles of protection, dispute settlement, and investment insurance, the text offers instructors a tool to use in its entirety or selectively, on its own or combined with other materials. Written principally for law students, the book contains numerous excerpts from many of the most influential arbitration decisions. This case-book style allows the readers to become familiar with reading opinions, whilst at the same time, the explanations accompanying the case materials eases the task of grasping the core reasoning contained in the decisions. It also makes the book suitable for non-legal readers interested in the processes and implications of mandatory state protection of alien property.

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  • Weiler, T., The Interpretation of International Investment Law, Leiden, Martinus Nijhoff Publishers, 2013.

    Weiler, T., The Interpretation of International Investment Law, Leiden, Martinus Nijhoff Publishers, 2013.

    In ‘The Interpretation of International Investment Law: Equality, Discrimination and Minimum Standards of Treatment in Historical Context’, author Todd Weiler demonstrates how historiographical analysis should be adopted in the interpretation of international investment law obligations. Weiler subjects some of the most commonly held beliefs about the nature and development of international investment law to a critical re-appraisal, based upon meticulously assembled historical record. In the process, the book provides readers with a fresh perspective on some of the oldest obligations in international law.

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  • Drabek, Z. and P.C. Mavroidis, Regulation of Foreign Investment: Challenges to International Harmonization, Singapore, World Scientific, 2013.

    Drabek, Z. and P.C. Mavroidis, Regulation of Foreign Investment: Challenges to International Harmonization, Singapore, World Scientific, 2013.

    The main aim of this book is to assess the importance of international rules for foreign direct investment and the major challenges to international harmonization of those rules. Particular attention is paid to the most controversial and contentious issues with the view of appraising the prospects for establishing global rules. The book is divided into three parts; the first part includes papers assessing the role of national and international legislation with further distinction being made between bilateral, regional and multilateral legal frameworks. The second part addresses regulatory issues of technology transfer, labor, environment, subsidies and investment incentives, national security, public services and sovereign wealth funds. The final part looks at the experience of some international fora in addressing these issues and at some theoretical and conceptual problems of rule harmonization. The papers have been written by legal and economic scholars from leading universities.

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  • Kjos, H.E., Applicable Law in Investor-State Arbitration: the Interplay between National and International Law, Oxford, Oxford University Press, 2013.

    Kjos, H.E., Applicable Law in Investor-State Arbitration: the Interplay between National and International Law, Oxford, Oxford University Press, 2013.

    This book examines the law, national and/or international, that arbitral tribunals apply on the merits to settle disputes between foreign investors and host states. In light of the freedom that the disputing parties and the arbitrators have when designating the applicable law, and because of the hybrid nature of legal relationship between investors and states, there is significant interplay between the national and the international legal order in investor-state arbitration.

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  • Salacuse, J.W., The Three Laws of International Investment: National, Contractual, and International Frameworks for Foreign Capital, Oxford, Oxford University Press, 2013.

    Salacuse, J.W., The Three Laws of International Investment: National, Contractual, and International Frameworks for Foreign Capital, Oxford, Oxford University Press, 2013.

    International investments are governed by three different legal frameworks: 1) national laws of both the host country and the investor’s home country; 2) contracts, whether between the investor and the host country or among investors and their associates; and 3) international law, consisting of applicable treaties, customs, and general principles of law. Together, these three frameworks profoundly influence the organization, operation, and protection of foreign investments. Investors, government officials, and their legal counsel must therefore understand the complex interaction among these frameworks and how best to employ them to advance their interests. This book examines the content of each of these three legal frameworks for international investment and explores how they influence the foreign investment process and the nature of investment transactions, projects, and enterprises.

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  • Arès, M. et É. Boulanger (dir.), L'investissement et la nouvelle économie: trajectoires nationales, réseaux mondiaux et normes internationales, Bruxelles, Bruylant, 2013.

    Arès, M. et É. Boulanger (dir.), L'investissement et la nouvelle économie: trajectoires nationales, réseaux mondiaux et normes internationales, Bruxelles, Bruylant, 2013.

    Avec la transnationalisation des entreprises et l’organisation de la production en réseaux mondiaux, les investissements directs sont l’une des facettes les plus visibles de la mondialisation. S’il n’existe pas de modèle uniforme de mondialisation, il n’existe pas non plus de modèle uniforme d’arbitrage des politiques et des règles de l’investissement. L’échec de l’AMI et la mise à l’écart de l’investissement des négociations commerciales multilatérales ont montré à quel point le thème était sensible, pour beaucoup de pays, en développement ou développés. Mêmes les États les plus favorables à la protection de l’investissement sont, aujourd’hui, devenus plus réservés quant à son étendue. D’un autre côté, les traités et accords bilatéraux prolifèrent, y compris d’ailleurs entre pays en développement, indiquant la nécessité d’avoir des règles générales non seulement pour réduire l’arbitraire et augmenter la transparence sur les marchés, mais aussi pour établir des obligations communes s’adressant aux États comme aux entreprises. Entre protection de l’investissement et défense d’autonomie, entre liberté économique et régulation des marchés, entre droits et devoirs économiques des entreprises, les États sont, donc, ici également, à la recherche de compromis.

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  • Schutter, O. de, J. Swinnen and J. Wouters (eds.), Foreign Direct Investment and Human Development: the Law and Economics of International Investment Agreements, London, Routledge, 2013.

    Schutter, O. de, J. Swinnen and J. Wouters (eds.), Foreign Direct Investment and Human Development: the Law and Economics of International Investment Agreements, London, Routledge, 2013.

    This book presents original research that examines the growth of international investment agreements as a means to attract foreign direct investment (FDI) and considers how this affects the ability of capital-importing countries to pursue their development goals. The hope of countries signing such treaties is that foreign capital will accelerate transfers of technologies, create employment, and benefit the local economy through various types of linkages. But do international investment agreements in fact succeed in attracting foreign direct investment? And if so, are the sovereignty costs involved worth paying? In particular, are these costs such that they risk undermining the very purpose of attracting investors, which is to promote human development in the host country?

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