Thesis (Ph. D.)--University of Hong Kong, 2008. / Also available in print.

Thesis (Ph. D.)--University of California, San Diego, 1999. / Vita. Includes bibliographical references.

Thesis (M.U.D.)--University of Hong Kong, 1992. / Includes bibliographical references. Also available in print.

Thesis (M.U.D.)--University of Hong Kong, 1997. / Includes bibliographical references. Also available in print.

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.

Expropriation and investment protection Abstract This dissertation deals with the issue of protection of foreign investments, especially the issue of the expropriation of foreign investments. The basic terms related to investment protection and expropriation are defined. Legal expropriation and its conditions are described at first. In the case of illegal expropriation, the state is forced, besides compensation for expropriation, to cover the damage caused by the unlawful interference. The history of investment protection is briefly presented. The next chapter deals with the legal sources in which we can find conditions of expropriation and investment protection. Attention is paid to the legal regulation of expropriation in Czech law. The thesis also focuses on investment cases, where expropriation was the main issue. Finally, the disputes that are currently brought against Czech Republic by foreign investors are mentioned. The conclusion of the dissertation deals with the problems de lege ferenda and the expected development of the legal regulation. Key words: expropriation, investment protection, investment disputes

Foreign direct investment (“FDI”) is one of the significant sources of social and economic change in developing countries. It can be used in terms of transferring capital, technology and administrative skills to the host country. The Board of Investment of Pakistan (“BOI”) emphasizes that due to Pakistan’s cheap manpower and low production cost coupled with many other reasons, it is a perfect market and location for FDI. This study has examined several aspects of FDI in Pakistan’s context, such as the role it has played in the growth of Pakistan’s economy and may well play in the future. The factors which play motivational and decisive role in foreign investors’ decisions to invest or withdraw their capital such as economic attractions, deterring factors and legal protections afforded to FDI in Pakistan. Existence of deterring factors requires the host State to adopt special measures and offer added protection to foreign investors such as protection through bilateral investment treaties (“BITs”), investment agreements and domestic laws. Therefore, the main concern of this study is the legal protection afforded to FDI in Pakistan. The study has investigated three fundamental factors, directly related to protection of FDI in Pakistan their role and aftermaths; the BITs, the role of higher judiciary and legal protection under domestic statutes. To investigate the first factor, a number of BITs executed by Pakistan have been selected and examined in the light of old and new treaty arbitration cases against Pakistan. It has been revealed that successive Pakistani governments have used BITs as political publicity vehicle and executed this instrument in a haphazard manner, without meaningful negotiations and without understanding the full legal implications. An absolute lack of competency, skills and know-how to negotiate and draft BITs on the part of the Government of Pakistan (“GOP”) has been revealed. The investigation on the role of judiciary, has found a powerful judiciary the Supreme Court of Pakistan (“SCP”) which has emerged as an assertive organ of the State. In last about one decade the SCP has expended the scope of public interest litigation (“PIL”) for enforcement of fundamental rights under unique ‘suo moto’ jurisdiction and endlessly interfered directly in commercial and FDI matters. The current study differentiates judicial activism and judicial interference and argues that, there is a very thin line between these two, and that encroaching on the sphere of other State organs may possibly convert judicial activism into judicial interference. The study has also examined several domestic statutes related to FDI and has found weak legal protection afforded to FDI under domestic laws of Pakistan. It has revealed that all three factors have exposed Pakistan to costly international arbitration initiated by foreign investors, shattered their confidence which in turn affected inward flow of FDI. To enable GOP to attract the required FDI in the desired sectors this thesis recommends reforms to address these deterring factors and also adopting a pragmatic balanced approach insuring respect of sovereignty of Pakistan and protection of assets of foreign investors.

The study critically reviews the application of the Sharia investment screening process, from both Sharia and practical perspectives. In practice, there appears to be inconsistencies in the Sharia investment screening criteria among Islamic investment institutions, especially in terms of the tolerance level, as well as the changing of the Sharia rules. This certainly affects the confidence in the Sharia screening criteria standards, which might adversely affect the Islamic mutual funds industry. The non-income generating aspects, such as social and environmental concerns, are not incorporated in the contemporary Islamic investment screening process. This seems to be rather paradoxical, since it contradicts the Sharia-embedded ethical values of fairness, justice and equity. The thesis contends that external audits regarding the implementation of Sharia rules should be adopted to ensure the compliance of the investment with Sharia guidelines. Furthermore, it is desirable for Sharia boards to adopt corporate governance practice and take proactive roles, especially in Muslim countries, in order to influence companies to adopt Sharia-compliant investment practices. The tolerance levels of conventional finance activities of companies in Muslim countries should be re-evaluated and lowered in the Islamic investment screening criteria. This is partly due to the popularity and wide availability of Islamic banking and alternative Sharia instruments to interest-based finance, coupled with the fact that Muslim shareholders form the majority and hence, can vote to influence companies to adopt Sharia-compliant financing modes. In addition, the study provides empirical evidence that the Sharia screening process does not seem to have an adverse impact on either the absolute or the risk-adjusted performance of Islamic equity mutual funds in Saudi Arabia, compared to their conventional counterpart equity mutual funds and also compared to their market benchmarks. This is regardless of the geographical investment focus subgroup examined and the market benchmark used (whether Islamic or conventional). Furthermore, the systematic risk analysis shows that in most cases Islamic equity mutual funds in Saudi Arabia tend to be significantly less exposed to market risk compared to their conventional counterpart equity mutual funds, and compared to their conventional market benchmarks. Thus, the assumption that Sharia investment constraints lead to inferior performance and riskier investment portfolios because of the relatively limited investment universe seems to be rejected. This implies that Muslim investors in Saudi Arabia can choose Islamic investments that are consistent with their beliefs without being forced to either sacrifice performance or expose themselves to higher risk. The investment style analysis also shows that the Sharia screening process does not seem to influence Islamic equity mutual funds in Saudi Arabia towards small or growth companies compared to their conventional counterparts of similar geographical investment focus. Moreover, the study provides empirical evidence that the performance difference between Islamic and conventional socially responsible indices is insignificant despite applying different sets of screening criteria. However, Islamic indices tend to be associated with relatively lower systematic risk compared to their conventional socially responsible counterparts. Therefore, Islamic investment portfolios can be marketed to socially responsible investors who share similar beliefs in terms of excluding certain industries such as tobacco, alcohol, pornography, defense, etc., in spite of no financial filters being used by conventional socially responsible investors. This finding is especially appealing in Muslim countries where there are usually no mutual funds categorized as socially responsible, but rather Islamic. Moreover, the study also provides empirical evidence that incorporating conventional sustainability criteria into the traditional Sharia screening process does not lead to inferior performance or higher exposure to systematic risk. The results indicate that regardless of the restriction used - whether Islamic, socially responsible or Islamic socially responsible - restricted investment portfolios do not seem to be associated with inferior performance or higher exposure to risk. This finding opens the door for Sharia scholars and Muslim investors to reconsider broader social and environmental aspects as part of the Sharia investment screening process. With regards to investment style, Islamic and Islamic socially responsible indices seem to be skewed towards growth cap as compared to their conventional and conventional socially responsible indices, while Islamic socially responsible also leans towards a large cap. This implies that despite the performance similarity between, Islamic, conventional and conventional socially responsible indices, the returns driver of each type of investment tends to be different.

Magister Legum - LLM / Foreign Direct Investment (FDI) began as a worldwide phenomenon in the 19th and early 20th centuries. Even then, it formed only a small portion of foreign investments for decades, as a greater percentage took the form of portfolio investments. This was the case for example in 1914, when 90% of all foreign investment flows took the form of portfolio investment. Over time, however, there was a steady shift in the composition of foreign investments. In fact, about a quarter of foreign investment flows took the form of FDI in the 1920s. The drop in portfolio investments came about as a result of the collapse of the world monetary system in the 1930s, provoked by World War 1 and the Great Depression. There was, however, a general drop in the two types of investment during the interwar years. Unlike portfolio investment, FDI proved amazingly resilient and gradually recovered in the late 1930s. FDI again improved with the end of the Second World War, and became even more prominent after the 1960s in developing countries. This was not the case, however, which was yet to have its share of FDI flow. The main focus of this study is to investigate why Cameroon lags behind other developing countries in Sub-Saharan Africa (SSA) in terms of attracting FDI in spite of its membership of, and participation in, bilateral, regional and multilateral trade and investment treaties, and its attractive investment policies. The above argument applies explicitly to FDI because Regional Integration Agreements (RIAs) are said to boost FDI inflows from non-member countries. It is universally acknowledged that a well-designed policy framework for investment, capable of attracting FDI, would be productive and successful. Thus, for Cameroon to be competitive in attracting FDI, it is obliged to review its investment policies which continue to face the challenges of a changing global economy.

The main ambit of this research is to seek to find a link between bilateral investment treaties and foreign direct investment. This offers a contribution on the ongoing debate on the effect of bilateral investment treaties on foreign direct investment. In order to analyze this debatable role of bilateral investment treaties on foreign direct investment a case study of the recently signed Bilateral Investment and Promotion and Protection Act between Zimbabwe and South Africa (BIPPA) is carried out with a special focus on Zimbabwe. The argument is BIPPA contains many rights which investors can use against the host. These clear outlined rules increase investor confident which will result in flows of investments to the host nation. The rules have a disciplinary effect upon the host. This is further qualified by the notion that BIPPA will have more effect on the Zimbabwean side were the government have to convince investors that their property will be protected. Domestic policies will be highlighted as being in conflict with investors rights. BIPPA can thus be used as shield to these domestic policies thereby encouraging foreign direct investment. These treaties however have their own cost effects which will be categorized as reputational, sovereignty and arbitration. Other issues such as the effect of bilateral investment treaties on development will also be deliberated on. / Dissertation (LLM)--University of Pretoria, 2010. / Centre for Human Rights / unrestricted