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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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.

This thesis contributes to academic debate about the question: how much substantive protection should investment treaties (IITs) provide to foreign investment? Chapters 5 and 6 argue that arbitral tribunals have interpreted fair and equitable treatment and indirect expropriation provisions of existing IITs in several different ways. Each of these interpretations is sketched as a model level of protection that could be explicitly adopted by states in the future, either through inclusion in new IITs, or through amendment to existing IITs. In this way, the thesis defines a range of prospective options available to states concerning the level of protection to provide to foreign investment through IITs. The thesis evaluates the relative desirability of these different levels of protection. The thesis argues that different levels of protection should be evaluated according to their likely consequences. The thesis develops a framework for inferring and understanding the likely consequences of adopting different levels of protection. The framework proposes that the consequences of a given level of protection can be understood in terms of its likely effect on: economic efficiency; the distribution of economic costs and benefits; flows of foreign direct investment into host states; the realisation of human rights and environmental conservation in host states; and respect for the rule of law in host states. Within this framework, the thesis provides an assessment and synthesis of existing empirical evidence and explanatory theory so far as they relate to the consequences of IIT protections. It also specifies the normative criteria by which these consequences should be evaluated. Through the application of this framework, the thesis concludes that lower levels of protection of foreign investment are, in general, likely to be more desirable than higher levels of protection.

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...

Le refinancement d’entreprises en difficulté est entouré d’une grande part de mystification. Aux yeux du grand public, il s’agit avant tout d’un moyen efficace de faire fortune pour les investisseurs s’y aventurant. Cette activité, connue également sous le nom de capital-retournement, est pourtant le domaine d’exercice exclusif de hauts techniciens de la finance et du droit. Le vaste droit de l’ingénierie financière encadre le refinancement d’entreprises en difficulté. Plongeant son lecteur au coeur de la haute finance d’entreprise, cette thèse démystifie le capital-retournement tout en voulant améliorer sa pratique. Pour cela, l’aspect juridique de la levée des fonds et de leur investissement fait l’objet d’une profonde analyse. À partir de celle-ci et de l’inspiration du droit étranger, de nouveaux outils dédiés à l’optimisation du refinancement d’entreprises en difficulté sont proposés. Cette thèse démontre le rôle prépondérant du droit de l’ingénierie financière dans le sauvetage d’emplois en France. / The refinancing of companies in difficulty is surrounded by a great deal of mystery. In the eyes of the general public, it is above all an effective way to make a fortune for investors venturing into it. This activity, also known as capital-turnaround, is the exclusive field of practice for senior finance and law technicians. The vast financial engineering law supervises the refinancing of companies in difficulty. Plunging its reader at the heart of high corporate finance, this thesis demystifies capital-turnaround while wanting to improve its practice. For that, the legal aspect of the raising of the funds and their investment is the subject of a deep analysis. From this and the inspiration of foreign law, new tools dedicated to the optimization of the refinancing of companies in difficulty are proposed. This thesis demonstrates the preponderant role of the financial engineering law in the rescue of French jobs.