The South African Investment Climate has been developing since the dawn of democracy. The government of South Africa has entered into different BITs immediately after the end of the apartheid government. This was done as a way of attracting FDIs into the country to develop the economy and to also form relationships within the international community. Since the first BIT which was entered into in the early 1990s the South African law governing FDIs has changed tremendously and this was seen by the termination of those BITs and the introduction of new legislation governing the FDIs. The termination of the BITs was done as a way of responding to the imbalance and unfairness that was found in such BITs towards the government of South Africa. The BITs were said to provide more rights and no obligations to foreign investors and as such, they were imbalanced. This research work will therefore provide an analysis of the rights and obligations of foreign investors under the new legislation in South Africa, making reference and comparison to the previous BITs as well as looking at the regional and continental level to make comparison with the South African law so as to see if there can be a balance of rights and obligations in international investment law. / Mini Dissertation (LLM (International Trade and Investment Law in Africa))--Univesrity of Pretoria, 2021. / National Research Fund (NRF) / Public Law / LLM (International Trade and Investment Law in Africa) / Unrestricted

Corruption is increasingly playing a critical role in international investment arbitration disputes. Investors have lost rights under BITs against a State due to corruptly securing its investment. Corruption has been raised by the investor as a sword, and by the State as a shield against investor’s claims. This has raised concerns about whether international investment arbitrations and institutions should be seized with corruption matters and if so, in what form and substance. This thesis argues that the contemporary international investment regulatory regime is inadequate to combat corruption in foreign investment transactions. The main challenge with the bulk of the international investment agreements which contain anti- corruption clauses is that these provisions are couched as general principles and prohibitions, merely encouraging the host States to enact and enforce anti-corruption laws. These instruments are of less functional value to investment arbitrators when faced with allegations of corruption. It further argues that the prevailing host State’s legal mechanisms are inherently inadequate to effectively regulate and combat corruption relating to foreign direct investments, and therefore there is a need for an international intervention through international investment agreements. The situation is exacerbated by the divergent approaches taken by investment arbitrators when dealing with corruption in investment transactions. This thesis recommends the adoption of an elaborate anti-corruption clause in international investment agreements. The main contribution of this thesis is to suggest a framework for combatting corruption in investment transactions. It provides a model anti-corruption treaty clause which attempts to promote accountability of both the foreign investor and the State. This model anti-corruption clause includes guiding factors that arbitrators in the investor-State arbitration may take into account when arbitrating disputes involving corruption, so that they can meaningfully contribute towards combatting corruption. / Thesis (LLD)--University of Pretoria, 2020. / Public Law / LLD / Unrestricted

Investment is globally considered as an expeditious and sustainable method of assuring economic growth and development. The case is no different for The Gambia who has constantly made it its priority to boost its economy and improve the standard of living of its citizens. However, recent economic downturns and global economic instabilities all indicate that The Gambia could be in need of more investment inflows, if her economy is to remain afloat. One idea that has constantly challenged the validity of investment is the sacrifice the environment is made to bear for its increase. Since 2016, this conflict has been exacerbated by the numerous environmental violations committed by investors and their investments in the country. There has been a collective outcry from the communities affected by these violations and The Gambian government seems to find some difficulty in attending to the complaints of these communities as well as pursuing its desire to increase investment inflows. This research therefore aims to discuss the need to balance investment and environmental protection. To achieve this, it specifically focuses on The Gambia’s investment and environmental regimes and examines the ways by which the government can address this conflict. The paper commences by looking into the evolution of both fields and picks out the global attempts that have been made to reconcile the two. It then analyzes the domestic and regional environmental protection regime of The Gambia and assesses its effectiveness in dealing with environmental violations committed by investors. The research further digs into the investment agreements signed by The Gambia and examines whether and how they address environmental and sustainable development considerations. In doing this, it also provides a general overview on how regional and international tribunals view environmental provisions particularly with respect to investment agreements. Finally, this research concludes by proposing recommendations on how The Gambian Government can better balance the two fields as opposed to being placed in a position of choosing one or the other. / Mini Dissertation (LLM (International Trade and Investment Law in Africa))--University of Pretoria, 2021. / Centre for Human Rights / LLM (International Trade and Investment Law in Africa) / Unrestricted

archives@tulane.edu / International conventions do not set down rules on state immunity and leave it to national courts to decide the nature and scope of state immunity. The inevitable result of this state-centrist approach is the evolution of divergent views among states on the reach of state immunity. In the early years of international relations, the accepted view was that states enjoyed absolute sovereign immunity and that as a result no state, without its consent, was subject to the national jurisdiction of another state. Gradually many states, mainly through judicial decisions, moved towards a qualified doctrine of immunity enabling a degree of submission by one state to the jurisdiction of another. This restricted view of sovereign immunity was prompted by the changing nature of socio-economic and political circumstances, with states taking an increasingly felt presence in trading and commercial activities. It is generally the developed countries that were eager to embrace the restrictive view of state immunity, which enabled their nationals to press claims against errant foreign states. Naturally, the developing countries tended to favor the absolute doctrine of state immunity, in order to resist claims, however well founded, made against them. Today, most developing countries still insist on absolute state immunity. While not yet codified in an international convention, the doctrine of state immunity has found its way into customary international law. In identifying and interpreting international customary law of state immunity, national courts frequently refer to and follow judicial decisions of foreign jurisdictions. This practice enables states to learn from different legal techniques and criteria that are used in other jurisdictions to demarcate the scope of the doctrine of state immunity. An area where states have reached some common understanding is the enforcement of arbitral awards—imposing measures of constraint against state assets. While judicial enforcement of arbitral awards is the much preferred and most prevalent means of subjecting state assets to seizure or attachment, there are some notable non-judicial remedial measures which may aid the aggrieved investors in satisfying their claims against state parties to a dispute. These non-judicial means of relief rely on the willingness of the investors’ parent state to pursue their cause with the recalcitrant state. The parent state’s willingness is dictated by political considerations in contrast to non political nature of judicial proceedings. It is commonly agreed that an independent judicial process is much preferable to politically motivated non-judicial avenues of relief. As such, attention of judges, scholars and lawmakers must focus on refining judicial processes and building effective enforcement mechanisms. This calls for widely agreed principles of state immunity and a commonly shared enforcement mechanism. Having identified problems arising from a lack of universal agreement on state immunity and the diversity and, more dishearteningly, the inadequacy of forms of enforcement available to an aggrieved claimant, this thesis proposes that the international community must work towards the setting up of a central enforcement agency, a functional model of enforcement. This thesis suggests that the central mechanism of enforcement could be set up through reaching an international treaty or convention or modifying the existing mechanisms. / 1 / Zixin Meng

The minimalist state of the national treatment provision in the investment treaties has provided limited guidance for the tribunals for interpretation. As a result, there were inconsistencies in the interpretation of national treatment, in particular the question of likeness. This thesis aims to develop the doctrinal understanding of the determination of appropriate comparator guided by the underlying philosophies, historical evolution and relevant investment decisions. The methods applied in this thesis are doctrinal and comparative studies of international investment law and the compared jurisprudences. A major part of this thesis is dedicated to examine the comparison and relevance of the GATT/WTO, EU and international human rights law in the interpretation of discrimination based on nationality. The interpretative methods applied by the respective jurisprudences in determining likeness and related questions of legitimate regulatory measures are examined to see whether there are lessons that could be learnt in the interpretation of national treatment in investment law. The finding of this thesis confirms that there is potentially a range of insightful guidance from the jurisprudences under comparison which could provide a structured understanding of national treatment in international investment law. The observations put forth highlight the underlying philosophies and values of the national treatment principle in protecting the investors and addressing the host states’ regulatory needs. It reflects the contemporaneous development in international investment law and provides a positive response to public administrative principles benefited by way of international comparative administration law.

International investment law has been developing for centuries. During the development process of international investment law, legal norms and principles of international investment law are evolved and shaped as sui generis nature, and separate legal regime as a branch of international law. The contemporary international investment law, according to United Nations Conference on Trade and Development data, currently, 2283 BITs and 280 other investment agreements are in force in international investment system, and high numbers of disputes are pending in different international dispute settlement bodies. These international investment agreements are interpreted and applied by arbitrators at different investor-state dispute settlement institutions or in ad-hoc arbitrations. Different interpretations and paradoxical arbitration awards cause critics regarding consistency, coherence and uniformity issues of the international investment law regime. Given the characteristics of international investment law regime, this thesis aims to study the institutionalisation and constitutionalisation processes of the international investment law regime. Moreover, the thesis attempts to ascertain consistent means by examining the nature of the international investment law regime and its institutionalisation and constitutionalisation processes to solve the issues associated with uniformity consistency and coherence. This thesis can also provide guidance and some recommendations that would have a chance of being carried out regarding new trends and developments of the international investment regime. Therefore, the major concern of this research is to understand the suitability of institutionalisation and constitutionalisation to sustain more consistent, coherent and uniform international investment law regime. In the first part of the research project, the nature of international investment law and its interaction with other international law systems, definitions and the necessity of uniformity, coherence and consistency are scrutinized. The second part starts with the solutions in the literature and their overview, and then institutionalisation and constitutionalisation are discussed. In the last part of this research, the energy sector and the Energy Charter Treaty are examine as case study, trying to understand the current creation of a uniform, coherent and consistent international investment regime in the energy sector. This thesis illustrates the nature of the international investment law regime and concepts of institutionalisation and constitutionalisation in legal perspective, as well as analysing coherence, consistency and uniformity issues of the international investment law regime. This project shows institutionalisation and constitutionalisation are developing processes in international investment law regime and they are consistent with the current global trends and developments of the international investment law regime as a branch of international law. The thesis suggests, despite the presence of the uniformity, consistency and coherence issues in international investment law regime, the international investment regime is the compulsory element of world globalisation, and those issues may be solved via applying new approaches that are consistent with the international investment regime’s sui generis nature and its evolving process. This thesis shows institutionalisation and constitutionalisation are congruent with the sui generis nature of international investment regime and contemporary trends and developments.

Liberalism can be generally characterized as a political ideology that assumes the rational, self-interested nature of human beings. However, two distinct strands of liberal theory have evolved from this shared construction of the human agent, namely state-oriented and market-oriented liberalism. It will be shown that state-oriented liberalism provides the theoretical core of liberal democratic states, whereas market-oriented liberalism provides the theoretical core for the globalized market economy. This thesis will uncover a profound tension through a discussion of the new constitutional effects of the investor-state regime. Furthermore, this thesis will show that the recent changes of the investor-state regime have failed to resolve the theoretical tension between liberal democracies and the investor-state regime. And finally, this thesis argues that the only way to resolve the tension between the two strands of liberalism is to incorporate liberal democratic principles into the investor-state regime. / Graduate / 0615 / 0616 / matt.stuckenberg@gmail.com

Doctor Legum - LLD / Currently most international investment disputes are settled through arbitration. The origin of this dispute settlement system can be associated with the recent proliferation of over 3000 Bilateral Investment Treaties. Through this system disputes are settled by autonomous and differently constituted tribunals which have powers to render final and binding awards. The dissatisfied party has very limited opportunity to challenge the rendered award as there are no higher bodies in the hierarchy where a dissatisfied party can lodge an appeal, save for limited procedural challenges which are allowed under the system. These differently constituted tribunals at times reach diametrically opposed decisions on similar facts and those decisions stand side by side and all are considered valid. These inconsistent decisions are leading to lack of consistency and uniformity which in turn affects the legitimacy of the system as a whole. The rules of these institutions do not allow the proceedings to be held in public despite the fact that at times these tribunals question the regulatory powers of the state and state measures on service provision to its citizens. Another issue under the current system is that due to lack of coordination, arbitrators play dual roles: as counsels and arbitrators. This practice compromises the cherished principle of the rule of law. In the effort to address these concerns, stakeholders have suggested a number of possible solutions. The suggested solutions include: invoking res judicata and lis pendens principles; adopting the doctrine of precedent; applying the ‘fork in the road’ principle; adopting the margin of appreciation standard in interpretation of BITs; creating an appellate structure at ICSID and creating a treaty to treaty appellate body. This research submits that, the suggested solutions singularly and cumulatively don not address the legitimacy issues adequately. The research therefore calls for the establishment of a Multilateral Agreement on Investment (MAI) in order to address the legitimacy issues cumulatively. It is submitted that establishing a Multilateral Investment Agreement (MAI) which provides for creating a standing international investment court with an appellate court is the only solution which addresses all the issues haunting the international investment dispute settlement system. In addition, the research suggests interim solutions which will help to increase the legitimacy of the current system pending the establishment of the MAI and the courts. The interim solutions include: establishment of the investor – state dispute adjudication Centre; effective utilisation of host state courts; mandatory publication of all awards; enhancing the effective use of member states interpretative statement; and forming a working commission to provide basic interpretation and the scope of the basic international investment law principles. These measures are only meant to improve the current system pending the establishment of the MAI and the courts. The research concludes that for the betterment of international investment law, the reform is inevitable and that the benefits would outweigh any demerits.

Foreign investment is mainly protected through national laws. However the wide-spreading network of bilateral investment treaties aims to ensure a certain standard of protection. These treaties demonstrate far-reaching implications at both treaty level and international level. The implications raise an important question as to whether bilateral investment treaties are coherent or not. Coherence can be viewed as an attempt to prettify the law and minimise the effect of politics which may leave the law incoherent. It is obvious that bilateral investment treaties need to be coherent for a number of reasons. Firstly, incoherent treaties may create problems in relation to the development policy of member countries. Secondly, coherence reassures that negotiators of such treaties would not encounter possible contradictions and inconsistencies amongst the countries’ agreement network as well as between the treaties and domestic laws. Thirdly, coherence is critical to treaty interpretation as it is necessary to avoid further complications which may arise from contradictory awards. The aim of this thesis is mainly to elucidate the meaning of coherence and use it to provide an understanding as to how coherent these treaties are. The coherence of bilateral investment treaties will be evaluated in a number of aspects: coherence between bilateral investment treaties and the fundamental principles of international investment law; coherence between bilateral investment treaties and their objectives of investment promotion and investment liberalisation; coherence within the bilateral investment treaties network; coherence between bilateral investment treaties and customary international law on foreign investment; coherence between bilateral investment treaties and free trade agreements; coherence between bilateral investment treaties’ obligations and non-investment obligations of states.

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