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.

Although ICSID is considered to be the leading international arbitration institution devoted to investor-State dispute settlement, the Transatlantic Trade and Investment Partnership (TTIP) agreement between the European Union and the United States included an investor-state dispute settlement (ISDS) mechanism, whereby individual foreign investors may bring claims against host state governments for breach of the TTIP’s investment protection standards. This ISDS system is comparable to what has been included in agreements such as the Comprehensive Economic and Trade Agreement (CETA) between the EU and Canada, the North American Free Trade Agreement (NAFTA 'Chapter 11'), and the Central American Free Trade Agreement (CAFTA-DR).

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.

New titles


1. Foreign investment disputes
Foreign investment disputes : cases, materials and commentary / R. Doak Bishop, James Crawford, W. Michael Reisman. - Second edition. - The Hague : Kluwer Law International, 2014. - V, 1276 pagina's. : illustraties 1e druk: 2005. - Met literatuuropgave. - 2014
Keywords: Foreign direct investment, International arbitration, E-books,

2. To Use a Cannon to Kill a Mosquito
To Use a Cannon to Kill a Mosquito : Why the Increase in Arbitrator Challenges in Investment Arbitration Does Not Warrant a Complete Overhaul of the System / Charles B. Rosenberg. - Huntington, New York : JurisNet. - Page 3-27 In: Investment Treaty Arbitration and International Law / Ian A. Laird, Borzu Sabahi, Frédéric G. Sourgens, Todd J. Weiler, editors, ISBN 9781937518691: vol. 8. - 2015
Keywords: Foreign direct investment, Investment arbitration, Convention on the Settlement of Investment Disputes between States and Nationals of Other States (Washington, D.C., 18 March 1965), Judges,

3. Arbitrator Challenges in Investment Arbitration
Arbitrator Challenges in Investment Arbitration : Is an Overhaul Needed? / Fernando A. Tupa. - Huntington, New York : JurisNet. - Page 29-66 In: Investment Treaty Arbitration and International Law / Ian A. Laird, Borzu Sabahi, Frédéric G. Sourgens, Todd J. Weiler, editors, ISBN 9781937518691: vol. 8. - 2015
Keywords: Foreign direct investment, Investment arbitration, Convention on the Settlement of Investment Disputes between States and Nationals of Other States (Washington, D.C., 18 March 1965), Judges,

4. Challenges to Arbitrators
Challenges to Arbitrators : Should the Challenge Process Be Overhauled? : panel discussion / authors: Charles Rosenberg, Fernando Tupa ; moderator: Matthew Slater ; commentators: Julie Bédard, Professor George K. Foster, Kate Brown de Vejar, Professor Alexander Bĕlohlávek, Amal Bouchenaki. - Huntington, New York : JurisNet. - Page 67-96 In: Investment Treaty Arbitration and International Law / Ian A. Laird, Borzu Sabahi, Frédéric G. Sourgens, Todd J. Weiler, editors, ISBN 9781937518691: vol. 8. - 2015
Keywords: Foreign direct investment, Investment arbitration, Convention on the Settlement of Investment Disputes between States and Nationals of Other States (Washington, D.C., 18 March 1965), Judges,

5. The Full Measure of Full Protection and Security
The Full Measure of Full Protection and Security / Margarita R. Sánchez and Robert A. DeRise. - Huntington, New York : JurisNet. - Page 99-123 In: Investment Treaty Arbitration and International Law / Ian A. Laird, Borzu Sabahi, Frédéric G. Sourgens, Todd J. Weiler, editors, ISBN 9781937518691: vol. 8. - 2015
Keywords: Investment arbitration, Bilateral investment treaties, Foreign direct investment, Legal concept, Intellectual property, Case-law,

Bibliography

Reference works

Books

Leading articles

Documents

Periodicals, serial publications

Bibliographies

New titles


1. Foreign investment disputes
Foreign investment disputes : cases, materials and commentary / R. Doak Bishop, James Crawford, W. Michael Reisman. - Second edition. - The Hague : Kluwer Law International, 2014. - V, 1276 pagina's. : illustraties 1e druk: 2005. - Met literatuuropgave. - 2014
Keywords: Foreign direct investment, International arbitration, E-books,

2. To Use a Cannon to Kill a Mosquito
To Use a Cannon to Kill a Mosquito : Why the Increase in Arbitrator Challenges in Investment Arbitration Does Not Warrant a Complete Overhaul of the System / Charles B. Rosenberg. - Huntington, New York : JurisNet. - Page 3-27 In: Investment Treaty Arbitration and International Law / Ian A. Laird, Borzu Sabahi, Frédéric G. Sourgens, Todd J. Weiler, editors, ISBN 9781937518691: vol. 8. - 2015
Keywords: Foreign direct investment, Investment arbitration, Convention on the Settlement of Investment Disputes between States and Nationals of Other States (Washington, D.C., 18 March 1965), Judges,

3. Arbitrator Challenges in Investment Arbitration
Arbitrator Challenges in Investment Arbitration : Is an Overhaul Needed? / Fernando A. Tupa. - Huntington, New York : JurisNet. - Page 29-66 In: Investment Treaty Arbitration and International Law / Ian A. Laird, Borzu Sabahi, Frédéric G. Sourgens, Todd J. Weiler, editors, ISBN 9781937518691: vol. 8. - 2015
Keywords: Foreign direct investment, Investment arbitration, Convention on the Settlement of Investment Disputes between States and Nationals of Other States (Washington, D.C., 18 March 1965), Judges,

4. Challenges to Arbitrators
Challenges to Arbitrators : Should the Challenge Process Be Overhauled? : panel discussion / authors: Charles Rosenberg, Fernando Tupa ; moderator: Matthew Slater ; commentators: Julie Bédard, Professor George K. Foster, Kate Brown de Vejar, Professor Alexander Bĕlohlávek, Amal Bouchenaki. - Huntington, New York : JurisNet. - Page 67-96 In: Investment Treaty Arbitration and International Law / Ian A. Laird, Borzu Sabahi, Frédéric G. Sourgens, Todd J. Weiler, editors, ISBN 9781937518691: vol. 8. - 2015
Keywords: Foreign direct investment, Investment arbitration, Convention on the Settlement of Investment Disputes between States and Nationals of Other States (Washington, D.C., 18 March 1965), Judges,

5. The Full Measure of Full Protection and Security
The Full Measure of Full Protection and Security / Margarita R. Sánchez and Robert A. DeRise. - Huntington, New York : JurisNet. - Page 99-123 In: Investment Treaty Arbitration and International Law / Ian A. Laird, Borzu Sabahi, Frédéric G. Sourgens, Todd J. Weiler, editors, ISBN 9781937518691: vol. 8. - 2015
Keywords: Investment arbitration, Bilateral investment treaties, Foreign direct investment, Legal concept, Intellectual property, Case-law,

Librarian's choice

  • Dumberry,P., The Formation and Identification of Rules of Customary International Law in International Investment Law, Cambridge, United Kingdom, Cambridge University Press, 2016.

    9781107138520

    Rules of customary international law provide basic legal protections to foreign investors doing business abroad. These rules remain of fundamental importance today despite the growing number of investment treaties containing substantive investment protection. In this book, Patrick Dumberry provides a comprehensive analysis of the phenomenon of custom in the field of international investment law. He analyses two fundamental questions: how customary rules are created in this field and how they can be identified. The book examines the types of manifestation of State practice which should be considered as relevant evidence for the formation of customary rules, and to what extent they are different from those existing under general international law. The book also analyses the concept of States' opinio juris in investment arbitration. Offering guidance to actors called upon to apply customary rules in concrete cases, this book will be of significant importance to those involved in investment arbitration.

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  • Lim, C.L. (ed.), Alternative Visions of the International Law on Foreign Investment : Essays in Honour of Muthucumaraswamy Sornarajah, Cambridge, Cambridge University Press, 2016.

    Lim, C.L. (ed.), Alternative Visions of the International Law on Foreign Investment : Essays in Honour of Muthucumaraswamy Sornarajah, Cambridge, Cambridge University Press, 2016.

    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.

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  • Hindelang, S. and Krajewski, M.(eds.), Shifting Paradigms in International Investment Law : More Balanced, Less Isolated, Increasingly Diversified, Oxford, Oxford University Press, 2016

    Hindelang, S. and Krajewski, M.(eds.), Shifting Paradigms in International Investment Law : More Balanced, Less Isolated, Increasingly Diversified, Oxford, Oxford University Press, 2016

    International investment law is in transition. Whereas the prevailing mindset has always been the protection of the economic interests of individual investors, new developments in international investment law have brought about a paradigm shift. There is now more than ever before an interest in a more inclusive, transparent, and public regime. Shifting Paradigms in International Investment Law addresses these changes against the background of the UNCTAD framework to reform investment treaties. The book analyses how the investment treaty regime has changed and how it ought to be changing to reconcile private property interests and the state's duty to regulate in the public interest. In doing so, the volume tracks attempts in international investment law to recalibrate itself towards a more balanced, less isolated, and increasingly diversified regime. The individual chapters of this edited volume address the contents of investment agreements, the system of dispute settlement, the interrelation of investment agreements with other areas of public international law, constitutional questions, and new regional perspectives from Europe, South Africa, the Pacific Rim Region, and Latin America.

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  • Desierto, D.A., Public Policy in International Economic Law: the ICESCR in Trade, Finance and Investment, Oxford, Oxford University Press, 2015.

    Desierto, D.A., Public Policy in International Economic Law: the ICESCR in Trade, Finance and Investment, Oxford, Oxford University Press, 2015.

    States rejected inequality when they chose to ratify the International Covenant on Economic, Social, and Cultural Rights (ICESCR), but to date the ICESCR has not yet figured prominently in the policy calculus behind States’ international economic decisions. This book responds to the modern challenge of operationalizing the ICESCR in State decision-making in international trade, finance, and investment systems. Differentiating between public policy mechanisms and institutional mandates within international trade, finance, and investment, this book shows legal and policy gateways for States to feasibly translate their fundamental duties to respect, protect, and fulfill economic, social, and cultural rights into their trade, finance, and investment commitments, agreements, and contracts. (...) This book explicates the argument that States’ ICESCR commitments operate as the normative foundation of their trade, finance, and investment decisions.

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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.

    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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Database

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