جستجوی مقالات مرتبط با کلیدواژه "investment treaties" در نشریات گروه "فقه و حقوق"

In any legal system, it is not possible to foresee legal rules for every imaginable situation or matter. No legislature can claim that it has predicted codified laws for all legal issues, and that under no circumstances the judge will face non liquet on the ground of brevity, deficiency or silence of law in order to decide disputes. This matter has been acknowledged in article 42 (2) of the International Centre for Settlement of Investment Disputes (ICSID Convention), according to which, ‘‘The Tribunal may not bring in a finding of non liquet on the ground of silence or obscurity of the law’’. Hence, the arbitrator has to issues an award. He, on the pretext of the silence of or obscurity of law in the matter, or its brevity, cannot refrain from doing so. Since the establishment of the ICSID under the Convention on the settlement of investment disputes between states and nationals of other states and other investment treaty arbitrations, different methods have been used to fill gaps, ambiguity and brevity of the laws, the most obvious of which is analogical reasoning. Although the Court, in most cases, has been silent about resorting to analogy in its methodologies; it is suggested that analogy plays an important role in the arbitration of ICSID and other investments treaties, as a means of filling gaps, determining the meaning of the provisions of the treaties, eliminating the ambiguity and brevity of the concepts, rules and the principles of international investment law, as well as identifying the legal rule governing each cases. This article, while using the descriptive-analytical method, is focused on analyzing the role analogy as a basic method of legal reasoning in the judicial award of investment disputes tribunals.

BITs and practice of investment arbitration tribunals have taken steps to reinforce human rights in international investment law, although it will be gradual and requires cooperation with contracting parties and efforts at the international level. This paper adopts a descriptive- analytical method and tries to provide solutions to overcome the obstacles that hinder human rights development by pointing to these challenges in the international investment law system.Research findings indicate that international investment law has paid attention to human rights in the way of promoting international investment flow. Despite development and promotion of human rights and human rights obligations in the international investment law in the last few decades, this issue has always been facing challenges and obstacles. The challenges have political and jurisdiction nature, and require different decisions in the same cases. It seems that solutions such as the codification of a multilateral international treaty on foreign investment, and awards rendered in accordance with the human rights obligations and arbitral practice could address the mentioned challenges.

Sustainable development has become the epicenter of collective international policy-making. As such, foreign direct investment, as the empowering engine for SD, has attracted much attention. It is believed that sustainable development cannot be achieved without foreign investment. Traditional international investment agreements have been criticized for protecting foreign investors who deviate from the requirements of sustainable development. This has led to changes in these treaties, which are the subject of the present article. It seems that in the light of the plurality of references to sustainable development in new investment agreements, a balance has been created between the goals of sustainable development and the protection of foreign investors.

A number of different elements can affect the calculation of compensation arising out of the breach of Investment Treaty standards. A series of these elements addresses conditions and circumstances of the Host State. This article examines the economic crisis of the government, level of economic and political development of the investor Host State, and obligations other than those of Investment Treaties, as well as the influence of these factors on the calculation of damages quantum phase of Investment Claims.
If the government’s economic crisis prompts the Host State to take certain measures breaching Investment Treaties' obligations, necessity defense could be raised as one of the circumstances precluding wrongfulness of the act of the State. Many Investment Treaties include provisions on non-precluded measures, which raise a debate as to the interaction of these measures and the circumstances precluding wrongfulness in Customary International Law. Investment Arbitration Tribunals have not yet reached a clear solution to reconcile these different sets of provisions.
Furthermore, attention has been paid to the effect of various factors such as general economic situation of the Host State as well as non-Investment Treaty obligations of the Host State on the calculation of compensation in recent years. It seems that in the future perspective of the subject matter of this article, some developments may come through due to possible future cases.

Although Investment Treaties are considered as an effective tool to protect foreign investors, they can also limit the host state’s regulatory powers. That is why states, may refrain from pursuing their legitimate public policies, especially in the interests of security environment public order, public morality and public health by anticipating the possibility of initiation of arbitration proceedings brought by investors before arbitral tribunals,  Based on this background, states seek to protect their essential interests by incorporating Exception Clauses in modern Investment Treaties. The main aim of this article is to examine the characterization of the legal nature of Exception Clauses, as a limiting factor in the scope of the substantive obligations of BITs and the relevant effects of such a description in Investment Arbitration. In this regard, the authors initially try to study the general framework of such Clauses by anylizing the rules of Treaties Interpretation, Judicial Procedure and International Arbitration. Then they will demonstrate that Exception Clauses are characterized as a treaty-internal limitation on the scope of substantive obligations despite the disagreement about the nature of them. Such a characterization of its legal nature will raise important effects in arbitration proceeding.

Transnational companies are pursuing expanding trade and makeing profit.this issue leads  this companies to ignores the social dimension of their measures. Therefore, the governments have tried to regulat and guarantee corporate social responsibility through the hard  law and soft standards contained in investment treatis. In this study, the Status of social responsibility in the investment treatis of Canada, Brazil, the European Union and finally Iran has been examined and evaluated, and it seems that the approach of Brazil and the European Union in guaranteeing social responsibility according to Accurate explanation of examples and reference to international legal documents has been more successful. In the post TCOPA investment treatis.In Iran the  trend towards formulating social responsibility can be detected . Though  these restrictions have not been effective in balancing the interests of foreign investors with the public interest, and have been faced challenges such as the traditional nature of investment treaties, the soft nature of rules and ambiguity in explaining the concept of social responsibility, lack of international character. Therefore, the arbitration tribunal should also support to grow and strengthen this responsibility by giving a balanced interpretation of the rights of the investor and the host country and the classic rules of investment. Rivison of the content of  the  investment treatis, and giving  more attention to the  rules of social responsibility than protecting a foreign investor, is another solution that should be considered.

Indirect interference of the host State with the investor's right to property has made it very difficult to decide whether the usual restrictions resulting from government intervention are considered expropriation or not. On the one hand, the exceptions to the right of the State to exercise public interest are expanding and on the other hand, the investor seeks economic benefits and stability. The question is what is the most achievable criterion for establishing a balance between the right of the State and the interests of the investor? The present study, after reviewing and analyzing existing theories and justifying the need to amend investment treaties and then review the domestic legal systems, concluded that, in the perspective of international investment, this is slow but decisively rotating towards a new generation of treaties, with emphasis on the right of States to regulate as an inherent right in the State sovereignty, it also creates an attractive space for investment. Therefore, recognizing the right of regulation as a starting point in any treaty can be a framework for creating bilateral or multilateral investment treaties that has not been very successful so far.

Most-Favoured-Nation –MFN– Clause has been always regarded as one of the cornerstones of international investment treaties safeguarding foreign investors from being discriminated in comparison to their other nationals rivals. Traditionally, MFN Clause has been used to avoid discrimination in substantive rights. After Maffezini Case Award, enforcing MFN clause to procedural rights specially to dispute settlement clauses has moved this standard to an advance level of practice in international investment law. In many cases, investors succeeded to prove jurisdiction in arbitrations in which defendant state has never consented, also to leap-frog prerequisites needed to be fulfilled before referring the case to an international arbitration. Regarding the fact that MFN Clause, without any exemption, is enshrined through all Iranian bilateral investment treaties without any explicit limitation about application of the mentioned clause to dispute settlement provisions, the subject is critically of highest importance from the perspective of national interests and also the State policy about foreign investments. Present article, after giving a summary of the latest updates about the issue and also reviewing relevant jurisprudence, intends to scrutinize possibility of Iranian BITs MFN Clauses being cited about dispute settlement provisions, and to provide solutions for covering relevant risks.

At first, it was assumed that the Margin of Appreciation Doctrine exists only in the human rights treaties and particularly in the European Convention on Human Rights, while the Margin of Appreciation Doctrine is considered as a right for States in many non-human rights treaties due to specific conditions and rules that govern some international treaties such as the existence of optional obligations or ambiguity, insertion of non-precluded measures clauses and existence of positive obligations. Therefore, in international treaties, the granting of this right to States would enable them to choose and adopt the best decision, according to the circumstances and necessities related to the public interest. Accordingly, the traditional views which believed in the conflict of the margin of appreciation doctrine with adherence to international obligations have been adjusted. There are concerns about the abuse of freedom of action, and powers granted to the States, that leads to an opposition with authorities granted under the framework of the margin of appreciation doctrine to States. Of course, these concerns were obviated somewhat with regard to the fact that, international judicial courts have relied on review standards to supervise on State powers.

The doctrine of ‘corporate veil’ is one of most controversial issues in international arbitration. Arbitral tribunals have taken different views as to whether the corporate veil should be lifted in investment arbitration. In ICSID arbitration, this doctrine has been discussed in the context of ‘nationality’ by considering ‘foreign control’ and ‘treaty shopping’, and there are conflicting awards in this regard. The problem arises when tribunals face the question of lifting corporate veil by applying the criterion of ‘nationality’. Treaty shopping itself has been subject to controversy and different interpretations. The controversy is posed when tribunals assess the relevance of place of registration as a criterion for determination of corporate nationality. By evaluating ICSID arbitration awards, this article argues that the doctrine of corporate veil has been recognized in the majority of cases. It concludes that at least, in ICSID arbitration, this doctrine may not be perceived as a strict exception.

Investment arbitration usually has its legal basis in the bilateral investment treaty (BIT), regional or multilateral treaties or in an investment contract. Some treaties cover only disputes relating to obligations under these kinds of agreements, i.e. only for claims of treaty violations. Some others create an international law obligation, according to which the host state shall observe any binding obligation with respect to investments. These and other similar provisions are commonly called “umbrella clause”. Although other formulations have also been used,Clauses of this kind have been put into treaties to provide additional protection to investor and are directed for covering investment agreements that host countries frequently conclude with foreign investors. In most of the investment treaties, the umbrella clauses are not always with the same wording, so arbitral tribunals have given different interpretations and reached conflicting conclusions. This study gives an overview of the origin and significance of the wording of this Clause in BITs, then looks at the effect, scope, and conditions of application of the Clause as interpreted by ICSID arbitral tribunals and tries to analyze ICSID arbitral jurisprudence on the basis of restrictive or extensive interpretation of the Clause.