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. Investor-State Dispute Settlement under the Trans-Pacific Partnership Agreement
Investor-State Dispute Settlement under the Trans-Pacific Partnership Agreement / Leon E. Trakman. - Cheltenham ; Northampton, MA, USA : Edward Elgar. - Page 179-206 In: Trade Liberalisation and International Co-operation : a Legal Analysis of the Trans-Pacific Partnership Agreement / edited by Tania Voon, ISBN 9781782546771: (2013), Page 179-206. - 2013
Keywords: Asia and the Pacific, Australia, Co-operation and partnership agreements, International trade, Foreign direct investment, Regional trade agreements, International arbitration, International Centre for Settlement of Investment Disputes,

2. L'enrôlement de Madagascar dans la REDD+
L'enrôlement de Madagascar dans la REDD+ : domestiquer une opportunité internationale / Moïse Tsayem Demaze In: VertigO : la revue électronique en sciences de l'environnement = ISSN 1492-8442: vol. 14, issue 1. - 2014
Keywords: Malagasy Republic, Environmental protection, Climate change, Forests, Carbon capture and storage, Emissions, Foreign direct investment, Governance,

3. Rising Importance and Significance of International Commercial Arbitration
Rising Importance and Significance of International Commercial Arbitration / Harsh Pathak. - Frankfurt am Main : PL Academic Research. - Page 285-293 In: Studies of Business Law - Recent Developments and perspectives : Contributions to the International Conference "Perspectives of Business Law in the Third Milennium", November 2, 2012, Bucharest / Cătălin-Silviu Săraru (ed.), ISBN 9783631641286: (2013), Page 285-293. - 2013
Keywords: India, Arbitration, International commercial arbitration, Foreign direct investment, UNCITRAL Model Law on International Commercial Arbitration, Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York, 10 June 1958), International law and domestic law,

4. The Fund Industry confronted with Regulatory Challenge
The Fund Industry confronted with Regulatory Challenge / Eddy Wymeersch In: Droit bancaire et financier = Bank-en financieel recht = ISSN 1377-8013: vol. 77, issue 2 (mar-apr), page 79-87. - 2013
Keywords: Portfolio investment, Foreign direct investment, Securities, Finances,

5. The New Chinese Conflict-of-Law Rules for Legal Persons: is the Middle Way Feasible?
The New Chinese Conflict-of-Law Rules for Legal Persons: is the Middle Way Feasible? / Tao Du. - Tübingen : Mohr Siebeck. - Page 331-348 In: Private International Law in Mainland China, Taiwan and Europe / edited by Jürgen Basedow and Knut B. Pißler, ISBN 9783161533563: (2014), Page 331-348. - 2014
Keywords: China, Foreign direct investment, Foreign companies, Establishment, Company law, Private international law, Legal persons,

6. Comentarios sobre el derecho internacional de las inversiones extranjeras y la solución jurisdiccional administrada por el Centro Internacional de Arreglo de Diferencias Relativas a Inversiones (CIADI)
Comentarios sobre el derecho internacional de las inversiones extranjeras y la solución jurisdiccional administrada por el Centro Internacional de Arreglo de Diferencias Relativas a Inversiones (CIADI) / por Alejandro Turyn. - Buenos Aires : Abeledo Perrot In: Derecho internacional público / Dra. Hortensia Gutiérrez Posse, coordinadora: (2013) - 2013
Keywords: Convention on the Settlement of Investment Disputes between States and Nationals of Other States [Washington, D.C., 18 March 1965], International Centre for Settlement of Investment Disputes, Foreign direct investment, Bilateral investment treaties, International arbitration, Jurisdiction,

7. The FTA Paradigm for the Configuration of World Trade and Foreign Investment: The Case of Outward Processing Zones
The FTA Paradigm for the Configuration of World Trade and Foreign Investment: The Case of Outward Processing Zones / by Asif H. Qureshi In: Journal of World Trade = ISSN 2210-2795: vol. 48, issue 1, page 111-133. - 2014
Keywords: World Trade Organization, International trade, Foreign direct investment, Free trade agreements, Exportation and importation,

8. L'arbitrage dans les investissements internationaux
L'arbitrage dans les investissements internationaux / par Roland Ziadé In: La revue libanaise de l'arbitrage arabe et international: issue 61, page 42-49. - 2012
Keywords: International Centre for Settlement of Investment Disputes, International Chamber of Commerce, United Nations Commission on International Trade Law, Foreign direct investment, Investment arbitration,

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  • Llamzon, A.P., Corruption in International Investment Arbitration, Oxford, Oxford University Press, 2014.

    Llamzon, A.P., Corruption in International Investment Arbitration, Oxford, Oxford University Press, 2014.

    This is the first comprehensive study of corruption in international investment arbitration. The book considers the limited effectiveness of efforts to combat transnational corruption in international law and the emergence of international investment arbitration as a singular means for effective control of corruption within the international legal order. The case law on corruption by investment tribunals is studied exhaustively, jurisprudential trends are identified, and reforms aimed at enhancing the effectiveness and fairness of investment arbitration as a mechanism to combat corruption are proposed. Divided into three parts, part I focus on the phenomenon of corruption in foreign investment and attempts at its control through international law. Part II analyses the available case law in international investment arbitration dealing with corruption. Llamzon identifies nine distinct trends emerging from the case law and provides a table summarizing the key areas of corruption decision-making and each relevant tribunal’s approach, which is an invaluable tool for practitioners engaging in ‘live’ issues of corruption within arbitral proceedings. Part III reflects on the implications of these trends for both the ‘supply’ and ‘demand’ sides of corruption in international law, and proposes a integrative framework of decision for corruption issues in international investment arbitration.

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  • Giorgetti, Ch. (ed.), Litigation International Investment Disputes : a Practitioner's Guide, Leiden, Boston, Brill Nijhoff, 2014.

    Giorgetti, Ch. (ed.), Litigation International Investment Disputes : a Practitioner's Guide, Leiden, Boston, Brill Nijhoff, 2014.

    Each year a growing number of complex and distinctive cases are filed in diverse forums which specialize in international investment arbitration. Until now, however, no single manual has guided practitioners through the many complexities involved in international investment arbitration proceedings – from whether and how to initiate arbitral proceedings to the enforcement of the award and available post-award remedies. Litigating International Investment Disputes: A Practitioner’s Guide fills this lacuna by serving as a comprehensive resource for those who are new to international investment arbitration, as well as for the seasoned practitioners.

    The diverse group of contributors are highly experienced experts and practitioners, who have acted as counsel and arbitrators, and served in institutions which routinely administer international investment arbitration proceedings.

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  • Bonnitcha, J., Substantive Protection under Investment Treaties : a Legal and Economic Analysis, Cambridge, Cambridge University Press, 2014.

    Bonnitcha, J., Substantive Protection under Investment Treaties : a Legal and Economic Analysis, Cambridge, Cambridge University Press, 2014.

    Substantive Protection under Investment Treaties provides the first systematic analysis of the consequences of the substantive protections that investment treaties provide to foreign investors. It proposes a new framework for identifying and evaluating the costs and benefits of differing levels of investment treaty protection, and uses this framework to evaluate the levels of protection for foreign investors implied by different interpretations of the fair and equitable treatment and indirect expropriation provisions of investment treaties. The author examines the arguments and assumptions of both supporters and critics of investment treaties, seeks to test whether they are coherent and borne out by evidence, and concludes that the ‘economic’ justifications for investment treaty protections are much weaker than is generally assumed. As such, the ‘economic’ objectives of investment treaties are not necessarily in tension with other ‘non-economic’ objectives. These findings have important implications for the drafting and interpretation of investment treaties.

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  • Douglas, Z., J. Pauwelyn and J.E. Viñuales (eds.), Foundations of International Investment Law: Bringing Theory into Practice, Oxford, Oxford University Press, 2014. Showcase item

    Douglas, Z., J. Pauwelyn and J.E. Viñuales (eds.), Foundations of International Investment Law: Bringing Theory into Practice, Oxford, Oxford University Press, 2014.

    International investment law is one of the fastest growing areas of international law. It has led to the signing of thousands of agreements, mostly in the form of investment contracts and bilateral investment treaties. Also, in the last two decades, there has been an exponential growth in the number of disputes being resolved by investment arbitration tribunals. Yet the legal principles at the basis of international investment law and arbitration remain in a state of flux. Perhaps the best illustration of this phenomenon is the wide disagreement among investment tribunals on some of the core concepts underpinning the regime, such as investment, property, regulatory powers, scope of jurisdiction, applicable law, or the interactions with other areas of international law. The purpose of this book is to revisit these conceptual foundations in order to shed light on the practice of international investment law. It is an attempt to bridge the growing gap between the theory and the practice of this thriving area of international law.

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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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