Magister Legum - LLM / BITs signed prior to the 21st century are problematic. Some countries with BITs signed during this period have since reviewed those BITs and taken action to address the disadvantages the BITs held for the host nation or have either resorted to eradicating some of their BITs. In particular, developing countries that signed BITs with developed nations seem to be disproportionately disadvantaged in these agreements. This thesis highlights Kenya‟s current BIT situation and compares it in light of another developing country, South Africa, with regards to its BIT experience. Given that South Africa has undergone an extensive BIT review process and moves to change some of these BITs, this thesis compares and contrasts the Kenyan and South African experience. The study highlights the possible lessons that could be learnt from the South African BIT review experience and provides recommendations for the Kenyan government regarding its outdated BITs. The lessons and recommendations benefit not only Kenya but also other countries that are still to review their BITs as it adds to the literature on why it is important for countries with such BITs to revisit them and how best they can go about the review mechanism. In addition, the study is also significant in that it raises awareness of the use and effects of BITs, thereby enabling countries that enter into such agreements to make informed decisions.

This thesis analyses the conundrum at the intersection of (i) recognition, (ii) enforcement, and (iii) execution of investment treaty arbitral awards pursuant to the ICSID convention. Orienting between recognition, enforcement, and execution  has recently stirred quite some debate. This culminates in the question of, on the one hand, whether it is necessary to differentiate between “enforcement” and “execution” in light of the plea of  sovereign immunity, and how to do so, on the other hand. In this context, the concept of sovereign immunity in general and as a potential objection within the ICSID enforcement proceedings will be analysed in particular. This thesis does so by analysing scholarly work, the ICSID history and as a result of municipal case law vis-à-vis sovereign immunity and ICSID enforcement. A particular emphasis will be put on statutory interpretations, for example on ICSID enforcement regime and its terminology. In this light, a terminological analysis of language is instrumental given that the ICSID convention has three original languages.

As the investment treaty arbitration regime matures, consensus is emerging as to the need for public interest considerations to be taken into account in resolving disputes under international investment agreements (IIAs). However, the question of how such considerations should be reflected remains contentious. This thesis proposes that the remedies stage of the process can, and should, play a role in taking account of public interest considerations and so in easing the tension between host state regulatory sovereignty and investment protection that lies at the heart of the investment treaty regime. Thus, this thesis argues that, while, on the one hand, there is a need to introduce an element of reciprocity into the investment treaty arbitration process in order to ensure continuing state co-operation and to reflect the broader underlying purposes of IIAs, on the other, the primary object of the system remains the protection of foreign investors. These competing imperatives can lead to difficulties in taking account of public interest considerations at the merits stage of the arbitration process. Therefore, in order to reconcile these competing imperatives and to achieve an optimal balance between host state regulatory sovereignty and investment protection, this thesis proposes that public interest considerations should be recognised at the remedies stage where such considerations cannot be taken into account either sufficiently or at all at the merits stage and identifies a number of situations in which this approach would be appropriate. Potential doctrinal bases for implementation of this approach are also examined and the conclusion reached that, given the significant degree of discretion afforded to tribunals in applying the full reparation principle and the role that equity can permissibly play in quantifying damages, this approach can, save in the case of lawful expropriations, be implemented within the parameters of existing legal principles.

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.

The recent investment policy shift, by the South African government, including, termination of bilateral investment treaties with some developed countries, is illustrative of the continued discontent by most developing countries with the status quo in the realm of international investments agreements (IIAs) regime. Balancing governments' sovereign right to implement domestic policies, in order to achieve socio-economic goals, for overall sustainable development, and the corresponding duty to protect foreign investments within the host state seems perpetually elusive, within the current bilateral investment treaty (BIT) regime. The parallel rising of free trade agreements (FTAs) incorporating investment chapters to BITs and the withdrawal from international investment arbitration by some countries, is symptomatic of continued disgruntlement with the current investment regime. South Africa is amongst the front runners of this discontentment and has voiced its concerns with the system, by cancelling some of its BITs and substituting same with adopting a new domestic investment regime instead, the investment Act of 2015. This study analyses the government's policy shift, with a view to find the extent to which the current BIT regime constrained the government's policy space towards economic transformation. This is achieved by analysing the substance and objective of the policy reform as against the international standards. Consequently, after probing the global investment regime and more in particularly the country's economic and political architecture, the study found that although South Africa's investment policy shift was labelled 'drastic and regressive' by critics, the latter is rational when subjected to substantive approach to the rule of law. Author however, concludes that it is the implementation thereof that is disproportional, as the same objectives underpinning the policy reform can be achieved through a less contentious approach. Finally author suggests a renegotiation of a model BIT as a less onerous and proportionate tool, to achieve the balance sought, and recommends policy options for enhancing international investment regime to address the challenges identified. / tm2017 / Centre for Human Rights / LLM / Unrestricted

As the field of investment treaty arbitration has exponentially grown in the last years, the definition and the framework of key elements in the field, such as legitimate expectations, have been largely discussed by scholars and arbitrators. As jurisprudence has gone on to tackle such issue, it has been the appearance of concepts, such as due diligence, which have shaped and re-defined the standing of legitimate expectations in the field of investment treaty arbitration.

Over the last decade, investment treaty arbitration has been confronted with relatively extensive and fundamental criticisms. The problem with the system in fact boils down to a misconception by tribunals of the nature of investment treaty arbitration. Many scholars and tribunals have perceived and treated investment treaty arbitration as a reciprocal arrangement with a private function. This is so mainly because of the way they formulate the establishment of investment treaty arbitration. To put it simply, it has been though that investment treaty arbitration, similar to international commercial arbitration, is founded upon a reciprocal contract made through a merger of intentions of the host State and the foreign investor. This perception would necessarily lead to the application of the principle of party autonomy as the main governing principle over the process of arbitration; a principle that is well tailored to adjudications with private function. Contrary to this, a careful examination of the nature of investment treaty arbitration reveals not only the public dimensions of the system, but also the unilaterality of the framework on which the system stands. These two characteristics require a shift in paradigm; otherwise, the system will expose to more and more legitimacy crises. The present research, therefore, tends to make a clear distinction between the two systems of international commercial and investment treaty arbitration, and explore the implications of this paradigm-shifting for the process of investment treaty arbitration, in particular, the way tribunals interpret the instrument of consent and the autonomy of tribunals in the course of the arbitration.

No description available.

The aim of the present thesis is to introduce the topic of foreign direct investment (FDI) from the multiscience (multidiscipline) perspective. FDI is a phenomena that cuts across many fields of human activity. It is of major significance for the national economies and an important factor for the global economic growth. Although these characteristics of FDI are widely known today, it was not always the case in the past. Since the sixties, it has been a focus of deeper studies and an object of interest especially for the international organizations that supervise the global economy. As each socio-economic phenomena, the issue of FDI has its historical background and this thesis seeks to comprehend this subject and further tracks the emergence of the business climate and economical processes that show the characteristics of later defined FDI. The historical formation of FDI is related to qualitative and quantitative development of the phenomena, and to its temporal and geopolitical context. The thesis presents the most relevant factors and causes of the present state of FDI, and monitors the crucial moments of the elements contributing to the evolution of the international investment environment. A more detailed study is devoted to Central European countries, since their specific development after...

VI Abstract International investment activity plays in the capitalistic globalized world, which is aimed at sustainable economic growth, an important role. Effort of the states to ensure the most favourable investment conditions for foreign investors strikes in some spheres on legitimate regulatory state measures, which are adopted with reference to the international law principle of state sovereignty. Expropriation or nationalisation together with the seizure represented in the past the most compelling taking of foreign investor property rights and their identification didn't make pronounced troubles. It's clear that confiscatory or nationalizing states measure doesn't increase its investment attractivity and so states are nowadays in the sphere of takings into foreign investor property interests much more careful and more inventive. The task of submitted work is among other things to characterize these takings referred to by notion indirect expropriation and to differentiate them from legitimate state measures regarding the general social aims and social interests, which don't require any compensation in contrast to indirect expropriation. By reason that the right to expropriate is seen to be part of customary international law, there was especially a developed states effort to regulate the conditions of...