Thesis (SJD) -- Bond University, 2008. / "A thesis submitted in fulfillment of the requirements for the degree of Doctor of Legal Science"-- t.p. Bibliography: leaves 261-274.

No description available.

A state contract is a common mode of entry for foreign direct investment, especially in developing states. It can form the legal basis of the investment relationship between a foreign investor and a host government. But, like any other contract, it cannot stand itself covering all aspects of the legal relationship. The contract thus must belong to a specific legal system or a body of rules or principles which is usually called “applicable law “or “governing law”.Historically, a “concession contract” in the natural resources sector was the predominant form of a state contract and it used to be governed by the domestic law of each host state. However, since the 1950s, international investment arbitrations have abandoned the tradition and advanced a theory subjecting state contracts in the foreign investment sector to an external legal system, ie public international law. One of the bases of the theory of internationalisation was the principle of party autonomy that allows parties to a state contract to select any law of whatever country they like. Then, the 1965 Washington Convention on the Settlement of Investment Disputes between States and Nationals of Other States (ICSID Convention)1 formally adopted the principle of party autonomy in Article 42 (1) as the primary choice of law rule in disputes arising out a foreign investment contract concluded between a state and a national of another state.The object of this thesis is to prove that the fundamental problems of party autonomy in foreign investment contracts involving considerations of public and private law issues remain unsettled. It explores the main controversies and confusions in the theory of internationalising state contracts, looking at its historical context. It examines the extent of the application of party autonomy in state contracts such as natural resource exploitation contracts and construction of a plant and infrastructure contracts which reflect important economic development policies of developing countries.In considering past and current problems in the field of international investment law, the thesis argues that arbitral tribunals resolving disputes between a state and a foreign private individual should abandon the party autonomy approach because contractual freedom to choose the law of the contract would disregard the objectives which host states normally pursue through economic regulations such as development, environment and human rights concerns of foreign investment. It suggests a consensus-based approach similar to the rule adopted in the Hague Convention on the Law Applicable to Certain Rights in Respect of Securities (Hague Securities Convention)2 and which would produce the desired effect. It recommends that the choice of law provisions found in Article 42 of ICSID Convention would need to be either modified or repealed. In doing so, this thesis attempts to contribute to the positive development of international investment law balancing state authority and private property rights.

Inaug.-Diss.--Tübingen, 1971. / Vita. eContent provider-neutral record in process. Description based on print version record. Bibliography: p. vii-xxii.

No description available.

A state contract is a common mode of entry for foreign direct investment, especially in developing states. It can form the legal basis of the investment relationship between a foreign investor and a host government. But, like any other contract, it cannot stand itself covering all aspects of the legal relationship. The contract thus must belong to a specific legal system or a body of rules or principles which is usually called “applicable law “or “governing law”.Historically, a “concession contract” in the natural resources sector was the predominant form of a state contract and it used to be governed by the domestic law of each host state. However, since the 1950s, international investment arbitrations have abandoned the tradition and advanced a theory subjecting state contracts in the foreign investment sector to an external legal system, ie public international law. One of the bases of the theory of internationalisation was the principle of party autonomy that allows parties to a state contract to select any law of whatever country they like. Then, the 1965 Washington Convention on the Settlement of Investment Disputes between States and Nationals of Other States (ICSID Convention)1 formally adopted the principle of party autonomy in Article 42 (1) as the primary choice of law rule in disputes arising out a foreign investment contract concluded between a state and a national of another state.The object of this thesis is to prove that the fundamental problems of party autonomy in foreign investment contracts involving considerations of public and private law issues remain unsettled. It explores the main controversies and confusions in the theory of internationalising state contracts, looking at its historical context. It examines the extent of the application of party autonomy in state contracts such as natural resource exploitation contracts and construction of a plant and infrastructure contracts which reflect important economic development policies of developing countries.In considering past and current problems in the field of international investment law, the thesis argues that arbitral tribunals resolving disputes between a state and a foreign private individual should abandon the party autonomy approach because contractual freedom to choose the law of the contract would disregard the objectives which host states normally pursue through economic regulations such as development, environment and human rights concerns of foreign investment. It suggests a consensus-based approach similar to the rule adopted in the Hague Convention on the Law Applicable to Certain Rights in Respect of Securities (Hague Securities Convention)2 and which would produce the desired effect. It recommends that the choice of law provisions found in Article 42 of ICSID Convention would need to be either modified or repealed. In doing so, this thesis attempts to contribute to the positive development of international investment law balancing state authority and private property rights.

This thesis analyses how and to what extent the contractual and treaty instruments interact in protecting upstream energy contracts against political interference by the host state. The study considers whether the interaction between the upstream contracts and international investment treaties provide effective protection for the upstream investors and whether the interaction between them prevents the host state from exercising its regulatory rights. By examining both jurisdictional and substantive aspects of the interaction between these two instruments, the study found that political risks in the upstream industry are not effectively mitigated and managed. The study therefore calls for a higher degree of interaction between these two instruments. This can be achieved by drafting the relevant upstream contracts and investment treaties in a more interactive manner so that they would together provide maximum protection for the upstream investors.

The aim of this examination was to identify those evolving trends that are common to multilateral agreements some of which have been entered into by African developing countries, bearing in mind the debates and position of African developing countries. The study also aimed at examining the effects of these regulations on African countries especially with key provisions and the kinds of rights and obligations they confer on investors as well as the host country. As there is a need to create a balance between the interest of the host nation and the investor, the study also aimed at identifying if those evolving common trends can be used to establish a guideline for a standard bilateral investment treaty or on the other hand whether they can be used as a template for a multilateral agreement on investment.

This Dissertation lays the groundwork for a private law theory of international investment law (IIL). This project intervenes in a polarized debate on the nature of the global investment regime. With few exceptions, the scholarship has tended to divide sharply according to stylized visions of IIL as either a system of private, commercial law, or a system of public law. The “commercial law school” tends to be associated with a thick, capital-centric vision of IIL – one that emphasizes insulating private interests from foreign state action. Scholars and practitioners in this vein tend to be apologists for the system, or advocates of only minimal structural reforms. By contrast, the “public law school,” tends to be associated with a thin vision of IIL, highly deferential to national sovereignty, where private interests take a back seat to bona fide national regulatory policy. Its adherents tend to style themselves as critics and reformers, decrying how the status quo seems to have sacrificed national regulatory autonomy at the altar of global capital. While the commercial lawyers have been far too dismissive of the threat posed by IIL to domestic public values, the public lawyers risk losing sight of the values states seek to achieve through IIL in the first place – the promotion of sorely needed foreign direct investment (FDI) and the protection of FDI providers. The debate thus far has proceeded mostly in caricature, and something important has been lost: the possibility of a nuanced system of international private law, sensitive to both the sovereign state’s public values and the private rights and interests of foreign investors whose protection is central to the object and purpose of the regime. These Chapters seek to fill that lacuna.

To be fair and equitable are aims inherent in most legal systems, whether domestic or international, but are usually tacitly stated. With respect to foreign direct investment (FDI) they constitute a standard of treatment which lacks a clear definition. Nevertheless, the recurrence of this standard in conventional instruments makes it one of the focal points of this branch of international law. / The main goal of this thesis is to explore and understand the standard of fair and equitable treatment. To understand its definition, it is first necessary to undertake a theoretical analysis of the notion. Secondly, having assessed the general meaning to fair and equitable treatment, an attempt is made to assess the difficulties which have arisen from its incorporation in Chapter 11 of the North American Free Trade Agreement (NAFTA). Finally, the thesis tries to assess where the concept stands in international law and whether or not it has passed into the corpus of customary international law.