The prioritisation of private funds in financing public infrastructures due to limited financial resources available through the public sector has raised concerns about the protection of human rights and environment considering that the main goal of corporations is to generate as much profit as possible. The presence of the World Bank Group in the mix is to strike a balance between these competing needs by introducing the concept of sustainable finance through technical assistance and the adoption of standards that are integrated with the concept to influence the behaviour of state and non-state actors in their investment practices, especially in the developing world. This study employs a legal doctrinal approach in providing a critical analysis on the authoritativeness of the instruments adopted by the World Bank Group based on the established doctrines to derive logical conclusions from primary and secondary sources. It enquires into the work of the World Bank Group to explain the potential acceptance of the concept of sustainable finance and its impacts in infrastructure development and international investment law. This study found that the interactions established in the arrangement of Public-Private Partnership (PPP) among all various actors in international law is the key to internalise the concept of sustainable finance since it could form a community of legal practice adhering to the same standards. Furthermore, the compatibility between the standards adopted by the World Bank Group and the provisions found in the traditional sources of international law on human rights and environment could improve state and non-state actors’ compliance with those existing norms.

In 2011, Korea ratified the Korea-US Free Trade Agreement (KORUS-FTA). This treaty remains controversial in Korean society, particularly because many Koreans claim that the indirect expropriation doctrine under investor-state arbitration in the investment chapter will allow global investors to challenge governmental regulation justified by the Korean constitution. Despite such criticism, the KORUS-FTA indirect expropriation doctrine and the Korean constitutional property doctrine share more than might be expected in practice. However, this substantive doctrinal convergence between national and global legal systems does not eliminate all risks of conflict between the nation-state and global investors; conflicts can occur whenever two actors interpret the same text differently. Once an investment dispute happens, independent investor-state arbitration reviews governmental action according to independent interpretative rules. Systems theory suggests that nation-states can turn such global challenges into opportunities by taking contextual control over global investment in relying on the global investment legal system of the global investment regime. The nation-state can convince global investors that the nation-state respects transnational investment mechanisms, whilst indirectly imbuing norm-making with minimum national interest without incurring serious damage to its reputation. To be specific, the nation-state can attract more foreign investors by accepting the indirect expropriation doctrine and the investor-state arbitration respected by global investors. Simultaneously, the nation-state can secure minimum control over global investment under legitimate regulatory power reflected in the same indirect expropriation clause. In addition, the nation-state can guide the investment tribunal to secure a balance between investment protection and the regulatory power of the host state by prescribing the proportionality principle. Contextual control can be a sub-optimal choice for the nation-state in the sense that it avoids a worst-case scenario by securing proportionality and predictability. In order to make this measure more effective, the current global investment legal system needs to secure more commensurate autonomy or autopoiesis by furthering simultaneous and balanced structural coupling with a greater variety of social powers. In this context, global constitutionalism provides national constitutional tools for the nation-state; specifically, democratic participation in national treaty-making procedures and autopoietic structuralisation of the investment arbitration mechanism can make the substantive contents and application of global investment law fairer and more acceptable, not only to global investors and strong states, but also to social movements and smaller countries. In the context of the KORUS-FTA, the Korean government needs to make the treaty terms of indirect expropriation clearer through democratic participation. At the same time, the Korea should pay attention to making arbitration process reflexive to more various social interests, whilst protecting its operation from inappropriate influences. Such measures can prevent KORUSFTA tribunals from making extremely unacceptable decisions to actors of the global investment regime, including the Korean government, although they could not guarantee ideal decisions that stratify all actors perfectly.

The concept of investment in international agreements on the protection of investments Resumé This thesis analyses the notion of investment in the context of international investment law. The thesis is composed of six chapters. The first chapter provides an overview of the international investment law, including its sources, specific features and goals. The second chapter provides an economic definition of the notion of investment. The author distinguishes between foreign direct investment and foreign portfolio investment and analyses their commonalities and differences. The third chapter deals with the basic types of definition of investment contained in international agreements on promotion and protection of foreign investments. These are the asset-based definition and enterprise-based definition. The fourth chapter examines the interaction between the economical and legal definition of investment. The fifth chapter explores the concept of investment in the context of the ICSID Convention. The authors analysed the negotiating history of the treaty as well as the case law of ICSID tribunals. The author indentified two basic approaches to the interpretation of the notion of investment. Whereas the subjective approach leaves the definition of the term investment to the sources of consent (notably...

In a context of neoliberal globalization, have the processes of elaboration and implementation of foreign investors’ responsibilities by intergovernmental organizations reached the realm of legality? By relying on an analytical framework and a methodology that combine international law with international relations, the present interdisciplinary dissertation provides a twofold answer to this question. At a macro-level, it demonstrates that the normative integration of foreign investors’ responsibilities in international investment law is fragmented and consistent with the interests of the most powerful actors. At a micro-level, it relies on the interactional theory of international law to assess the normative character of several international instruments elaborated and implemented by intergovernmental organizations. By shedding light on the sense of obligation that each instrument generates, the analysis shows that such a codification process is marked by relations of power between international actors and has resulted in several social norms, with relatively few legal norms. / Graduate

La protection internationale des investissements étrangers dans la Communauté Économique des Etats de l’Afrique de l’Ouest (CEDEAO) suppose d’établir la compétence de celle-ci à assurer une sécurisation des biens des opérateurs économiques ressortissants d’Etats tiers dans son espace. Ainsi, il a été démontré que, par le biais de ses instruments de réalisation de l’intégration régionale, cette organisation communautaire pourrait être amenée à assurer une sécurisation des investissements étrangers. Mais, quoique fusse grande la volonté de la CEDEAO d’assumer une telle fonction, l’analyse démontre qu’elle présente certaines insuffisances qui sont intrinsèquement liées à la différence de nature entre le droit communautaire et le droit conventionnel des investissements. Face à ce constat, il urgeait de trouver d’autres instruments supplétifs, voire complémentaires dans la protection communautaire des investissements étrangers. Ces dits instruments ont été localisés dans le droit international général, tant à travers ses règles substantielles que ses mécanismes procéduraux. Cependant, si la protection que procure le droit de la CEDEAO sur les biens des investisseurs étrangers a été jugée inefficace, celle du droit international, en revanche, semble excessive au point d’être préjudiciable aux Etats hôtes, si tant qu’elle nécessite un nivellement. À l’examen, l’observateur pourrait avoir la sensation qu’il existe un bras de fer entre le droit international et le droit communautaire dans la sécurisation des biens des opérateurs économiques étrangers. Cet observateur constatera ensuite que le droit de la protection des étrangers entre dans une nouvelle ère. En effet, longtemps limitée dans le cadre bilatéral entre Etat d’origine et Etat d’accueil de l’investissement, la problématique de la sécurisation des investissements étrangers a acquis une telle acuité dans la vie économique des entités étatiques qu’elle tend à devenir une affaire de communauté. Il se rendra, enfin, surtout compte que, si le droit conventionnel des investissements a pour visée la protection des étrangers, il peut, à certains égards, constituer un stimulant à la bonne gouvernance. / The international protection of foreign Investments within the Economic Community of West African States (ECOWAS) requires establishing the competence of the latter to ensure the security of the property of economic operators who are nationals of third States in its area. Thus, it has been shown that through its instruments for achieving regional integration, this community organization could be led to ensure the security of foreign investments. But, although ECOWAS’s willingness to assume such a function is great, the analysis shows that it has certain shortcomings which are intrinsically linked to the difference in nature between Community law and the Conventional law of investment. In this view, it was urgent to find other supplementary and even complementary instruments in the community protection of foreign investments within the community. These instruments have been localized in General International Law both through its substantive rules as in its procedural mechanics. However, while the protection afforded by ECOWAS law to the properties of foreign investors has been found to be ineffective, that of the international law, on the other hand, seems excessive to the point of being detrimental to host States, as long as it requires leveling. On examination, the observer might have the feeling that there is a tug of war between International law and Community law in securing the assets of foreign economic operators. This observer will then note that the law of the protection of foreigners enters a new era. Indeed, for a long time limited in the bilateral framework between the State of origin and the host States of the investment, the issue of securing foreign investments has acquired such acuity in the economic life of the State entities that it is tends to become a community affair. Finally, i twill be appreciated that, while the purpose of conventional investment law is the protection of foreigners, it may, in some respects, be a stimulus to good governance.

This research addresses the need to foster human rights in the international investment law (IIL) regime through public participation in Kenya. It highlights the asymmetrical nature of IIL and the need to balance competing foreign investor rights and public interest concerns, particularly human rights in host states. It buttresses the vital role that IIL can play in the socio-economic growth of developing countries, more so, its role in the sustainable development agenda. This research spotlights the increasing human rights concerns in the proliferated foreign direct investments in the natural resources and infrastructure development sectors in Kenya while proposing innovative solutions to this problem through avenues for effective public participation as provided for in the existing international, and domestic legal, and policy frameworks. Lastly, this research analyzes the deficiencies of investor-state arbitration in IIL in providing access to remedy to victims of business-related human rights claims against foreign investors and proposes alternative participatory and more efficient judicial and non-judicial grievance mechanisms that can potentially enhance access to justice and ultimately human rights protection in the IIL regime in Kenya. / Mini Dissertation (LLM)--University of Pretorai, 2021. / Centre for Human Rights / LLM / Unrestricted

Doctor Legum - LLD / The existing traditional international investment law regime which is largely based on the conventional European and North American Model Bilateral Investment Treaties (BITs) has come under intense criticism. The argument is that this regime, among other things, prioritises the protection of foreign investors and investments while sidelining significant public interest issues of the host countries. The inability to adequately accommodate public interest issues in the international investment law has unduly constrained the host countries’ sovereign right to regulate investments in public interests and pursue their public policy objectives.

No / The quest for environmental protection alongside economic development has been one of the prominent themes of political and legal discourse for several decades. This article examines the extent to which the principle of sustainable development (introduced under the Rio Declaration 1992) as a conceptual framework for balancing these competing goals has been integrated within the international investment law regime. It does this by examining decisions of investment tribunals on disputes relating to the legitimacy of government measures on environmental grounds. The analysis evidenced a lack of clear principles and mechanisms for balanced consideration of all competing interests; with the outcome being generally the subordination of environmental concerns to the protection of investors’ economic interests under international investment law. This supports criticism that although sustainable development has become one of society’s most sought-after goals, progress towards achieving this has been frustratingly slow. Against this background, the article goes on to determine whether the outcomes from the hugely anticipated Rio+20 Conference provided a framework or mechanisms that could promote sustainability integration in investment arbitrations. The article fi nds that while the outcome document from the main Rio+20 Conference did not provide such a framework, the Declaration from the Judge’s Conference, which was organised by UNEP and held simultaneously in Rio, provided some principles and mechanisms that, if fl eshed out, could contribute towards better integration of sustainability in the investment regime.

The concept of investments in international agreements on investment protection The concept of an investment is one of the fundamental constructs in the international investment law, as it is crucial for determination of bilateral or multilateral investment protection treaties' scope of protection regarding particular economic activity of investors in the host state territory. The purpose of this thesis is to provide examples of possible solutions of the dichotomy in the apprehension of the investment concept and its interpretation in practice, in particular with regards to the decisions of arbitral tribunals. A historical analysis of understanding of the investment concept is provided together with its current and historical interpretations in bilateral and multilateral investment protection treaties; with an emphasis that at present, there is no uniform legal definition of the concept of an investment. An absence of such definition does not limit the flow of foreign investments or the conclusion of bilateral or multilateral investment protection treaties, which contain broad definitions of this concept. At the same time, it is possible to trace a tendency to determine objective elements common to all investments, while the primary inspiration is drawn from the economic science and its concept of...

DEFINITION OF INVESTMENT IN INTERNATIONAL PROMOTION AND PROTECTION AGREEMENTS Abstract Definition of the investment is of particular importance in terms of scope of the rights and obligations arising out of the investment protection treaties. This is the case especially when we are in the presence of dispute between the foreign investor and the host state where definition forms the basis of the tribunal's jurisdiction. The object of this thesis is in spite of the absence of globally accepted legal definition of "foreign investment" to attempt to summarize most of the historical and current concepts of this notion and to provide by means of the various legal sources, case law as well as the doctrinal points of view the comprehensive approach to its content in the modern international investment law. However this absence of the general legal definition of the international investment was not considered as the obstacle for its use. Instead it represents the advantage in terms of potentially wide field of its application and the flexibility resulting from its openness. Bilateral investment treaties representing the mainstream of the regulation of international investments covers quite a wide field of economic activities to which the investment tribunals in the course of their function attempted to draw some...