جستجوی مقالات مرتبط با کلیدواژه « Bilateral Investment Treaties (BITS) » در نشریات گروه « فقه و حقوق »

The first step of all matters about the relationships between investment treaties and intellectual property rights starts from the concept of investment. Clarifying this matter that to what extent intellectual property rights constitute the concept of investment in investment treaties is the beginning point of all relevant matters. Although protection for investment and investors existed in other forms, the creation of investment treaties expanded the meaning of investment in international investment law. Investment treaties by evolution in the concept of investment and introducing intellectual property as investment extended the treaty protections to intellectual property rights. By considering intellectual property rights as a kind of investment, host State has to observe treaty standards for intellectual properties of foreign investors. In this article, the evolution which occurred in investment’sconcept is reviewdand then the innovations created by investment treaties in this regard are clarified.

The International Center for Settlement of Investment Disputes (ICSID) is a leading arbitration forum in the field of investor-state dispute settlements. Therefore, its arbitral practice in various fields of international investment law carries amplitude endowment. Despite the fact that the term “investment” appears at the heart of both the name of the Centre as well as in the title of the Convention on the Settlement of Investment Disputes between States and Nationals of Other States, no definition of this term is seen in the text of the treaty. Absence of such definition has led to huge interpretative differences in the ICSID practice. Applying different objective and subjective interpretative approaches regarding the concept of investment included in Article 25(1) of the ICSID Convention by arbitral tribunals and diverse views toward this concept through the prism of Convention and that of instruments containing consent to ICSID Jurisdiction, including bilateral and multilateral investment treaties have led to such inconsistency in the ICSID practice. After about 50 years since the conclusion of the Convention, there is neither a single definition of this concept nor a consensus on the criteria to identify it. The current condition of inconsistency may adversely affect the international investment arbitration system and the very existence of the Convention. Thus, providing a solution has always been a concern formost of the savants and practitioners in the field of international investment law. It’s very difficult to make structural reforms in the Convention in order to solve the problem, however establishing a “jurisprudence constante”could be an option. In practice, the absence of a substantive definition of the term “investment” in the Convention has resulted into expansion of jurisdiction in ICSID arbitration.

Given the substantial role of oil and gas industry, particularly the contribution of upstream development projects in Iran economy, the need for attracting and promoting foreign investments on its upstream projects besides insuring adequate protection of the capital flowed specially through Buy-Back formula, is indisputably vital. On that account, the article attempts to outline the relevant prevailing rules and regulations in order to assess Iran’s legal position in promoting and protecting foreign investments attracted in upstream sector of its oil and gas industry. The Article strives to mark and analyze such rules and regulations and attempts to shed light on the legal system governing this highly strategic industry. In doing so, it will duly examine the upstream Exploration and Development Service Contract (“Buy-Back”), with particular emphasis on to the rules and regulations applicable to Iran’s Third Generation of the Buy-Back contract, Fifth Five Year Development Plan of the country (2011) as well as the reformed Petroleum Act of2011.