Foreign Direct Investment
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 arbitration, 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.
1. Theorie investitionsrechtlicher Meistbegünstigung
Keywords: Foreign direct investment, Most-favoured-nation clause, Bilateral investment treaties, National treatment, Theses,
- Douglas, Z., J. Pauwelyn, and J.E. Viñuales (eds.), The Foundations of International Investment Law : bringing Theory into Practice, Oxford, Oxford University Press, 2014.
- Grubenmann, B., Der Begriff der Investition in Schiedsgerichtsverfahren in der ICSID-Schiedsgerichtsbarkeit, Basel, Helbing Lichtenhahn, 2010.
- Hofmann, R. und C.J. Tams (Hrsg.), International Investment Law and General International Law: From Clinical Isolation to Systemic Integration?, Baden-Baden, Nomos, 2011.
- Kahn, P. et T.W. Wälde, Les aspects nouveaux du droit des investissements internationaux, La Haye, Académie de droit international de La Haye, 2007.
- Schreuer, C.H., The ICSID Convention: A Commentary: A Commentary on the Convention on the Settlement of Investment Disputes between States and Nationals of Other States, Cambridge, Cambridge University Press, 2009.
- Shan, W. (ed.), The Legal Protection of Foreign Investment: A Comparative Study, Oxford, Hart, 2012.
- Binder, C. (et al.) (eds.), International Investment Law for the 21st Century: Essays in Honour of Christoph Schreuer, New York, Oxford University Press, 2009.
- Bungenberg, M., J. Griebel and S. Hindelang, International Investment Law and EU Law, Heidelberg, Springer, 2011.
- Gaillard, E., La jurisprudence du CIRDI, Paris, Pedone, 2004.
- Gazzini, T., Interpretation of International Investment Treaties, Oxford, Hart Publishing, 2016.
- Kalicki, J.E. and Joubin-Bret, A. (eds.), Reshaping the Investor-State Dispute Settlement System: Journeys for the 21st Century, Leiden, Boston, Brill Nijhoff, 2015. [e-book]
- Lalani, S. and Polanco, R. (eds.), The Role of the State in Investor-State Arbitration, Leiden, Boston, Brill Nijhoff, 2015. [e-book]
- Manciaux, S., Investissements étrangers et arbitrage entre états et ressortissants d'autres états: trente années d'activité du CIRDI, Paris, Litec, 2004.
- Sauvant, K.P. and L.E. Sachs, The Effect of Treaties on Foreign Direct Investment, New York, NY, Oxford University Press, 2009.
- Shan,W. and Su, J. (eds.), China and International Investment Law : Twenty Years of ICSID Membership, Leiden, Boston, Brill Nijhoff, 2015.
- Sornarajah, M., The International Law on Foreign Investment, Cambridge, Cambridge University Press, 2010.
- Vandevelde, K.J., Bilateral Investment Treaties: History, Policy, and Interpretation, Oxford, Oxford University press, 2010.
- Wandahl Mouyal, L., International Investment Law and the Right to Regulate: a Human Rights Perspective, London, Routledge, 2016.
- Yen, T.H., The Interpretation of Investment Treaties, Leiden, Boston,Brill Nijhoff, 2014.
- Brower, C.N. and S.W. Schill, "Is Arbitration a Threat or a Boom to the Legitimacy of International Investment Law?", Chicago Journal of International Law, 9 (2009), No. 2, pp. 471-498.
- Chaisse, J., "The Shifting Tectonics of International Investment Law - Structure and Dynamics of Rules and Arbitration on Foreign Investment in the Asia-Pacific Region", 47 (2015) The George Washington International Law Review, No. 3, pp. 563-638.
- Dalhuisen, J.H. and Guzman, A.T., "Expropriatory and Non-Expropriatory Takings Under International Investment Law", Transnational Dispute Management, 10 (2013), No. 4, 19p.
- Ding, J., "Enforcement in International Investment and Trade Law: History, Assessment, and Proposed Solutions", Georgetown Journal of International Law, 47 (2016), No.3, pp. 1137-1165.
- Hayek, I.E. and Gilles, A., "Multifaceted Settlement of International Investments Disputes: Thoughts about the Variety of Instuments Claiming Their Applicability to the Investment Dispute", ICSID Review : Foreign Investment Law Journal, 29 (2014), No. 3, pp.567-594.
- Kononov, O., "International Investment Laws: Is it Time to Change the Traditional BIT System?", Czech Yearbook of International Law, 2 (2011), pp. 123-139.
- Manciaux, S., "The Representation of States Before ICSID Tribunals", Journal of International Dispute Settlement, 2 (2011), No. 1, pp. 87-96.
- Quick, R., "Why TTIP Should Have an Investment Chapter Including ISDS", Journal of world trade: law, economics, public policy, 49 (2015), No. 2, pp. 199–209.
- Reismann, W.M. and A. Vinnik, "What Constitutes an Investment and Who Decides?", Contemporary Issues in International Arbitration and Mediation: the Fordham Papers, (2010), pp. 50-70.
- Robert-Cuende, S., "Crise ou renouveau du droit des investissements internationaux? Réflexions sur l'objet des mécanismes de protection des investisseurs étranger", Revue générale de droit international public, 120 (2016), No.3, pp. 545-578.
- Schill, S.W., The European Commission’s Proposal of an “Investment Court System” for TTIP: Stepping Stone or Stumbling Block for Multilateralizing International Investment Law? 20 ASIL Insights No. 9 (22 April 2016)
- Sornarajah, M., "The Past, Present and Future of the International Law on Foreign Investment", in: Wenhua Shan and Jinyuan Su (eds.), China and International Investment Law : Twenty Years of ICSID Membership (2015), 23-55.
- Trakman, L.E. and Musayelyan, D., "The Repudiation of Investor-State Arbitration and Subsequent Treaty Practice: The Resurgence of Qualified Investor-State Arbitration", ICSID review: foreign investment law journal, 31 (2016), No. 1, pp. 194-218.
- ICSID Convention, Rules and Regulations
- Paparinskis, M. (ed.), Basic Documents on International Investment Protection, Oxford, Hart Publishing, 2012.
Periodicals, serial publications
- Arbitraje: Revista de arbitraje comercial y de inversiones
- ICSID Reports
- ICSID Review: Foreign Investment Law Journal
- Kost, I.L. and M. Statius Muller, "Selected Bibliography on International Investment Law", Austrian Review of International and European Law, 13 (2008), pp. 469-497.
- Statius Muller, M. and H. Thyssen, "Selected Bibliography on International Investment Law", New Aspects of International Investment Law, Leiden, Nĳhoff, 2007, pp. 853-987.
1. Theorie investitionsrechtlicher Meistbegünstigung
Keywords: Foreign direct investment, Most-favoured-nation clause, Bilateral investment treaties, National treatment, Theses,
Collins, D., An Introduction to International Investment Law, Cambridge, Cambridge University Press, 2017.View this title in our link resolver Plinklet
This insightful and accessible introduction provides students and practitioners with a comprehensive overview of the increasingly important discipline of international investment law. Focusing primarily on the legal principles contained in the growing body of international investment agreements, this book covers the core concepts of the discipline with attention given to their relation to each other and to the manner in which they have been developed through arbitration case law. The context of each legal principle is explored along with a consideration of some of the major debates and emerging criticisms. Avoiding extensive case extracts, this book adopts an engaging and succinct narrative style which allows readers to advance their understanding of the topic while examining the legal principles with academic rigour and discerning commentary.
Kinnear, M.N., G.R. Fischer, J. Mínguez Almeida, L.F. Torres Arias and M. Uran Bidegain (eds.), Building International Investment Law: the First 50 Years of ICSID, Alphen aan den Rijn, Kluwer Law International, 2016.View this title in our link resolver Plinklet
The International Centre for Settlement of Investment Disputes (ICSID) is the premier international investment arbitration facility in the world. This volume celebrates the first 50 years of ICSID by presenting the landmark cases that have been decided under its auspices. These cases have addressed every aspect of investment disputes: jurisdictional thresholds; the substantive obligations found in investment treaties, contracts, and legislation; questions of general international law; and a number of novel procedural issues. Each chapter, written by a knowledgeable expert on the chapter’s particular focus, looks at an international investment law topic through the lens of one or more of these leading cases, analysing what the case held, how it has been applied, and its overall significance to the development of international investment law.
Dumberry,P., The Formation and Identification of Rules of Customary International Law in International Investment Law, Cambridge, United Kingdom, Cambridge University Press, 2016.View this title in our link resolver Plinklet
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.
Lim, C.L. (ed.), Alternative Visions of the International Law on Foreign Investment : Essays in Honour of Muthucumaraswamy Sornarajah, Cambridge, Cambridge University Press, 2016.View this title in our link resolver Plinklet
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.
Hindelang, S. and Krajewski, M.(eds.), Shifting Paradigms in International Investment Law : More Balanced, Less Isolated, Increasingly Diversified, Oxford, Oxford University Press, 2016View this title in our link resolver Plinklet
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.
Llamzon, A.P., Corruption in International Investment Arbitration, Oxford, Oxford University Press, 2014.View this title in our link resolver Plinklet
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.
Giorgetti, Ch. (ed.), Litigation International Investment Disputes : a Practitioner's Guide, Leiden, Boston, Brill Nijhoff, 2014.View this title in our link resolver Plinklet
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.
Bonnitcha, J., Substantive Protection under Investment Treaties : a Legal and Economic Analysis, Cambridge, Cambridge University Press, 2014.View this title in our link resolver Plinklet
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.
Douglas, Z., J. Pauwelyn and J.E. Viñuales (eds.), Foundations of International Investment Law: Bringing Theory into Practice, Oxford, Oxford University Press, 2014.View this title in our link resolver Plinklet
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.
Treves, T., F. Seatzu and S. Trevisanut (eds.) Foreign Investment, International Law and Common Concerns, London, Routledge, 2014.View this title in our link resolver Plinklet
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.
Miles, K., The Origins of International Investment Law, Cambridge, Cambridge University Press, 2013.View this title in our link resolver Plinklet
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.
- Chronological Listing International Investment Arbitral Awards
- Digest of International Investment Jurisprudence
- EISL Regulation on Foreign Investment
- International Centre for the Settlement of Investment Disputes (ICSID), Database of Bilateral Investment Treaties
- Investment Arbitration Reporter (IA Reporter)
- Oxford Reports on International Law Investment Claims
- Investor-State LawGuide
- Max Planck Encyclopedia of Public International Law, Investment
Investment Protection: ISDS or ICS?
In the 1990s, European member states have concluded about 200 bilateral investment treaties (BITs) with Eastern European countries. For example, the Netherlands has BITs with Poland, the Baltic States, Slovakia and Czech Republic. Now most of these Eastern European countries are member states of the European Union themselves, the European Commission wants to put an end to the intra-EU bilateral investment treaties (BITs): agreements concluded between EU member states. If these agreements are terminated, there is a risk that European investors will not be strongly and adequately protected under the provisions currently included in the single market.Read more
P.R.I.M.E. Finance : Open for business!
On 16 January 2012, the P.R.I.M.E. Finance Foundation has started its activities with an opening conference followed by seminars on Dispute Resolution in the Financial Markets in the Peace Palace in The Hague. The Foundation oversees the activities of its Panel of Recognized International Market Experts in Finance (P.R.I.M.E. Finance), chosen for their relevant experience in financial market practice or […]Read more
- International Centre for Settlement of Investment Disputes
- International Investment Law Centre Cologne
- Investment Treaty Arbitration
- Foreign Trade Information System about Investment, National Legislation
- ISDS in the TTIP: the Devil is in the Details by E. Fabry and G. Garbasso (Jacques Delors Institute Policy Paper 122, 16 January 2016)