This study critically examines rulings of Investor State Dispute Settlement (ISDS) tribunals. Under the North American Free Trade Agreement’s (NAFTA) Chapter 11, ISDS provides foreign investors with the tools to launch a claim against signatory countries should they feel their investment was inhibited by local regulations. Empirically this study draws upon Windstream Energy LLC. v. the Government of Canada as a case study to analyze the competing responses exchanged during the tribunal’s hearings. The claim by Windstream Energy LLC against the Government of Ontario (GoO) serves as both a central and relevant example for examining the ramifications of ISDS, as it is one of Canada’s most recent defeats featuring the largest award outside a pre-tribunal ISDS settlement. Information was drawn from tribunal documents, referred to as a Memorial and Counter Memorial, which outline each party’s argument and supporting claims. Additionally, the tribunal publishes their final decision and justifications. A critical discourse analysis method, theoretically informed by the corporate crime literature and Gramsci’s theory of hegemony, helps in critically examining the economic, political, and cultural assumptions that influenced the tribunal’s decision and the state’s approach to foreign investment. Overall, dominant voices reinforced neoliberal beliefs about transnational market expectations and the role of the state under a globalized capitalist system. Justifications rooted in market logics prioritized the accumulation of foreign capital over the potential dangers of Windstream’s project. Ultimately, it is the inclusion of corporate safeguards, like ISDS, in free trade pacts that help to (re)produce neoliberal capitalist ideals and further reinforce status-quo economic relations.

Magister Legum - LLM / The main objective of this paper is to critically analyse the solutions that countries are currently implementing in response to the much-debated issue that the conventional investor-state dispute settlement (ISDS) regime limits a host-state's space to make regulations under public policy. Consequently, the paper makes recommendations on viable solutions that countries can implement as solutions to the ISDS problems. In order to conduct the study, this paper uses the solutions to ISDS problems that have been implemented by the Republic of South Africa (RSA) and Australia respectively. The paper also compares the solutions implemented by RSA and Australia with some internationally recognised solutions. Chapters two and three of the paper discuss the backgrounds and also analyse the solutions to ISDS that have been implemented by RSA and Australia respectively. Chapter four contains the main findings and arguments of the paper. It analyses the strengths and weaknesses of the ISDS solutions that have been implemented by RSA and Australia respectively. One of the main findings of the paper is that retaining the conventional ISDS regime is less beneficial to developing and least developed countries and more beneficial to developed countries, largely due to the differing levels of outward investments that are present in these categories of countries. The paper recommends, inter alia, that, unlike developed countries, developing countries and least-developed countries should abrogate the conventional ISDS regime and only retain it in particular circumstances as explained in chapter five. The paper recommends that ISDS should only be utilised where state-state arbitration would unnecessarily politicise an investment dispute. The paper also finds the use of domestic court as undesirable to investment disputes. The paper recommends mediation as a more balanced avenue for resolving investment disputes.

International investment agreements largely cover today’s transnational investments. These agreements confer certain substantive rights to foreign investors while simultaneously obliging host-states to act in a given manner so as to not interfere with the investments. Most international investment agreements further contain an arbitration clause which provides the investor with the means to enforce the substantive rights of the agreement by directly bringing a claim against the host-state before an arbitral tribunal. Consequently, privately contracted arbitrators have the authority to scrutinize and overrule essentially any sovereign act of the host-state that may affect the investment – judicial and legislative acts included. This practice affects not only the parties of the dispute; when the arbitral award claims superiority to the state’s electoral choices, it further constrains the exercise of sovereignty by the population of the host-state. As a result, the arbitrators who manage the disputes and the investors who initiate them have become central power-holders in the context of both international and domestic law. Meanwhile, the arbitrators and investors alike seem to be unaccountable to the states and individuals who are adversely affected by their power assertions. A commonly accepted feature of democracy is that those who govern and wield power should be accountable to those who are governed and subjected to this power. This thesis relates this notion to a Foucauldian understanding of power, domination and resistance. The primary aim of the thesis is to examine the interplay between the prominent subjects involved in investor-state arbitration and to what degree these subjects hold power in the form of transformative capacity. After this investigation into the relations of power, the thesis scrutinizes the subjugated subjects’ ability to exercise effective resistance through institutionalized accountability mechanisms. The thesis detects an accountability deficit in the regime and concludes that foreign investors and arbitrators hold a dominant position within the context of investor-state arbitration, while states and individuals find themselves in a state of domination. The international investment regime, as it currently stands, is thus found to suffer from a democracy deficit, while it concurrently seems to undermine domestic democratic institutions.

伴隨著全球化潮流的來臨，國際直接投資金額大幅成長，相對的，投資爭端案件亦持續增加，國際投資人於是迫切期待一個有效而公平之國際投資爭端解決機制。台灣經過多年經濟發展，已成為全球重要對外投資國家，惟根據調查，台灣廠商發生投資爭端，並不擅於利用國際仲裁維護其本身權益。據此，本論文乃針對國際投資協定有關投資人與地主國爭端解決法制加以研析，並希望能對我政府對外談判及廠商對外投資提供具體實用之對策，惟國際間對於投資人與地主國爭端解決機制研究面向相當廣泛，本文研究主軸則以世界銀行於1965年成立之國際解決投資爭端中心(ICSID)之管轄權為中心。 本論文先自投資人與地主國爭端解決機制之發展背景介紹起，並論述1966年生效的ICSID公約主要條款與其他國際投資協定的關係，其後則進一步從ICSID管轄權角度切入，對ICSID對人(ratione personae)及對物(ratione materiae)管轄權相關法律問題逐一說明，並輔以個案加以研析之。 經過上述分析後，本文繼而對現行投資人與地主國投資爭端解決機制提出評論，在制度面方面，本文對ICSID未來運作提出放寬對物管轄範圍、檢討投資未予定義之作法、雙重國籍認定及外國控制的程度與形式等四項改革建議。此外，本文亦針對ICSID管轄權與BITs最惠國待遇條款問題、BITs不同的爭端解決機制所引發程序衝突問題，以及仲裁判斷衝突(conflicting award)問題，說明ICSID公約與BIT所產生之一些法律問題。在未來展望方面，則分析在多邊投資架構是否為解決現階段投資人與地主國爭端解決機制之新契機，以及WTO納入投資人與地主國爭端解決條款之可能性分析，本文末並對我國政府與廠商現階段利用ICSID機制提出建議。 / While the inexorable trend towards globalization has caused international direct investment to grow dramatically, it has also led to a steady increase in the number of investment disputes. International investors therefore eagerly look forward to the institution of an effective and impartial international investment dispute resolution mechanism. Although Taiwan, through its many years of economic development, has become a major source of foreign investment, surveys show that Taiwan firms are not good at using international arbitration to protect their rights and interests in investment disputes. This study accordingly analyzes the investor-State dispute settlement provisions in international investment agreements(IIAs) in an effort to provide concrete, practical strategies for the government of Taiwan in international negotiations and for Taiwanese firms in their foreign investment. Since there is already extensive research literature addressing investor-State dispute settlement mechanisms, this study focuses on the jurisdiction of the International Center for Settlement of Investment Dispute(ICSID) under the aegis of the World Bank in 1965. This study first introduces investor-State dispute settlement mechanisms and their development. Next, the study discusses the main provisions of the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (ICSID Convention) came into force on 1966 and its relationship to other IIAs. The study then explains the various legal issues connected with ICSID’s jurisdiction ratione personae and ratione materiae, and finally, analyzes specific cases. The results of the aforementioned analysis are employed to critique existing investor-State investment dispute settlement mechanisms. This study makes four system-related recommendations, namely that the ICSID convention should: 1) liberalize the scope of ICSID’s subject-matter jurisdiction; 2) review undefined investment methods; 3) recognize dual nationalities; and 4) reform the degree and circumstances of foreign control. This study further discusses legal problems related to the ICSID Convention and bilateral investment treaties (BITs), including conflicting awards, procedural conflicts stemming from different dispute settlement forum in BITs, and problems involving ICSID's jurisdiction and most-favored nation(MFN) provisions in BITs. As for future prospects, the study analyzes whether the current multilateral investment framework can resolve the problems of the current investor-State dispute settlement mechanism, and examines the possibility of incorporating investor-State dispute settlement mechanism in the WTO. This study concludes with recommendations concerning how the government and companies of Taiwan can use the ICSID mechanism at the current stage.

När en investerare vill investera utomlands finns många risker som måste beräknas, analyseras och hanteras. Utöver olika ekonomiska risker finns politiska risker. En investerare kan, för att hantera dessa politiska risker, välja att investera i en stat med vilken Sverige har ett bilateralt investeringsskyddsavtal. Dessa avtal reglerar både materiellt investeringsskydd, det vill säga hur en investerare ska behandlas, och processuellt skydd, det vill säga möjligheten för en investerare att väcka talan mot staten investeraren investerar i genom ett internationellt skiljeförfarande. Sverige har idag 66 stycken bilaterala investeringsskyddsavtal i kraft, varav tolv stycken är slutna med länder inom EU. Antalet bilaterala investeringsskyddsavtal slutna mellan EU-länder, intra-EU BIT, ökade avsevärt i och med att unionen utvidgades år 2004 och 2007. Sedan dess har avtalens förenlighet med EU-rätten diskuterats i litteraturen, i skiljedomstolar och nyligen även i EU- domstolen i det så kallade Achmea-målet. I uppsatsen kartläggs och analyseras argumenten i diskussionen om relationen mellan intra-EU BIT och EU-rätten. Vidare analyseras vilken del av investeringsskyddet som intra-EU BIT-förespråkare anser vara mest betydelsefull. Från resonemanget och analysen i uppsatsen dras slutsatsen att det är ISDS-systemet, tvistelösningssystemet där en investerare kan väcka talan mot en stat, som kan anses utgöra den mest betydelsefulla delen av investeringsskyddet i intra-EU BIT:en. Därefter analyseras huruvida ett investeringsskydd innehållande ett ISDS-förfarande kan vara förenligt med principen om ömsesidigt erkännande och förtroende. I uppsatsen konstateras att ISDS-förfarandet inte kan vara förenligt denna princip och att problematiken inte kan lösas genom en juridisk debatt utan måste diskuteras på en politiskt hög nivå. / When investing abroad, an investor is faced with many risks that need to be thoroughly analysed in order to be mitigated. Risks are not only financial, but also political. An investor may, to mitigate these risks, choose to invest in states with which Sweden has a bilateral investment treaty, a so called BIT. BIT do not only regulate treatment of the investor and the investment, which is the material investment protection; but also the jurisdictional possibility of the investor to raise charges against the state of in which the investment has taken place in case of violation of investment rights, procedural investment protection. Today, Sweden has 66 BITs in force, out of which twelve are concluded with EU member states, so called intra-EU BIT. The number of intra-EU BITs grew significantly as a result of the enlargement of the union in the year of 2004 and 2007. Since then, the agreements’ compatibility with the EU legislation has been a subject of discussion within literature, investment arbitrations and recently in the European Court of Justice in the Achmea case. This thesis aims to establish and analyse the context of the discussions flourishing the relationship between the intra-EU BITs and the EU legislation. Additionally, the author intends to identify which argumentation regarding investment protection, that by intra-EU BIT praisers is considered to be the most impactful. As a result, the conclusion of the thesis is that it is the ISDS-system, the investor- state dispute settlement, in which an investor can raise charges towards a state, that is the most valuable part of the investment protection given by the intra-EU BITs. Accordingly, it is analysed weather investment protection containing an ISDS-system can be compatible with the principle of mutual trust and recognition. In the thesis it is concluded that the ISDS-system cannot be considered to be compatible with the principle and that this problem should be debated on a high political level and cannot be solved through a legal debate.

1 The Influence of EU Common Investment Policy on the System of International Investment Law Abstract Extending exclusive European Union (EU) competence to foreign direct investment (FDI) in the Lisbon Treaty has had profound implications. The EU began to develop its own investment policy, including negotiating either international investment agreements or comprehensive trade and investment agreements with third parties. Taking into account the magnitude of the EU economy and the fact that EU Member States have concluded almost 1 400 bilateral investment treaties (BITs) out of roughly 3 300 in force worldwide, the potential of European influence over the system of international investment, based principally on BITs, is enormous. The aim of this dissertation is to assess how and in which way the new EU competence changes the system. The EU investment policy has developed a specific approach towards investment protection and investment dispute mechanism which does not envision content declared at its beginning. According to initial documents such as the European Commission's Communication Towards a comprehensive European international investment policy, the Union should have followed the available best practices of the Member States. Nevertheless, during the first bilateral negotiations with Canada and...

Performance requirements act as policy instruments for achieving broadly-defined economic and developmental objectives of States, especially industrial and technological development objectives. Many States consider that performance requirements distort trade and investment flows, negatively impact global and national welfare and disrupt investment decisions compared to business-as-usual scenarios. As a result, a number of States have committed to prohibiting performance requirements in international investment agreements (“IIAs.”). Performance requirement prohibitions (“PRPs”) are meant to eliminate trade-distorting performance requirements and performance requirements which replace investor decision-making by State decision-making. This thesis focuses on providing answers to two research questions: first, how do States prohibit performance requirements in IIAs? And second, how should PRPs in IIAs be interpreted and applied? For the first time, this thesis: proposes a comprehensive understanding of PRPs in IIAs by drawing notably on the General Agreement on Tariffs and Trade (“GATT”) Uruguay Round of negotiations and on the United States Bilateral Investment Treaty (“BIT”) Programme; develops a detailed typology and analysis of PRPs in IIAs through the identification of systematically reproduced drafting patterns; conducts the first critical and in-depth analysis of all arbitral awards which have decided claims based on PRPs in IIAs; analyses interpretation and application issues related to provisions that exempt government procurement from PRPs and to reservations that shield sensitive non-conforming measures or strategically important sectors from PRPs; and anticipates the application of most-favoured nation (“MFN”) treatment clauses to PRPs in the future. Finally, this thesis formulates proposals that can help interpret and apply existing PRPs and draft future PRPs in a more deliberate and informed way.

Foreign investments in SADC are regulated by Annex 1 of the SADC Protocol on Finance and Investments (SADC FIP), as well as the laws of SADC Member States. At present, SADC faces the challenge that this regime for the regulation of foreign investments is unstable, unsatisfactory and unpredictable. Furthermore, the state of the rule of law in some SADC Member States is unsatisfactory. This negatively affects the security of foreign investments regulated by this regime. The main reasons for this state of affairs are briefly explained below. The regulatory regime for foreign investments in SADC is unstable, due to recent policy reviews and amendments of key regulatory instruments that have taken place. Major developments in this regard have been the suspension of the SADC Tribunal during 2010, the amendment of the SADC Tribunal Protocol during 2014 to bar natural and legal persons from access to the Tribunal, and the amendment of Annex 1 during 2016 to remove investor access to international investor-state arbitration, better known as investor-state dispute settlement (ISDS). The regulation of foreign investments in SADC has been unsatisfactory, among others because some SADC Member States have failed or neglected to harmonise their investment laws with both the 2006 and the 2016 Annex 1. Furthermore, SADC Member States such as Angola, Democratic Republic of Congo (DRC), Malawi, Mauritius, Seychelles, Eswatini, Tanzania, Zambia, and Zimbabwe have multiple Regional Economic Community (REC) memberships. This places these Member States in a position whereby they have conflicting interests and treaty obligations. Finally, the future of the regime for the regulation of foreign investments in SADC is unpredictable, due to regional integration efforts such as the recent formation of the COMESA-EAC-SADC Tripartite Free Zone (T-FTA) and the African Continental Free Trade Area (AfCFTA). The T-FTA is entitled to have its investment protocol, while the AfCFTA investment protocol will be negotiated from 2018 until 2020. These developments entail that the 2016 Annex 1 will soon be replaced by an investment protocol at either the T-FTA or AfCFTA levels, thereby ushering a new regime for the regulation of foreign investments in SADC. The unknown nature of the future regulations create uncertainty and instability among foreign investors and host states alike. This study analyses the regulation of foreign investments in terms of Annex 1 and selected laws of SADC Member States. In the end, it makes the three findings mentioned above. In order to address these findings, the study makes four recommendations. The first is that foreign investments in SADC must be regulated at African Union (AU) level, by means of an AfCFTA investment protocol (which incidentally is now the case). Secondly, investor-state disputes must be referred to the courts of a host state, optional ISDS, the African Court of Justice and Human Rights (ACJ&HR) or other agreed forum. Thirdly, an African Justice Scoreboard (AJS) must be established. The AJS will act as a gateway to determine whether an investor-state dispute shall be referred to the courts of a host state, ISDS, the ACJ&HR or other forums. Fourthly, the office of an African Investment Ombud (AIO) must be created. The AIO shall facilitate the early resolution of investor-state disputes, so as to reduce the number of disputes that may end-up in litigation or arbitration. / Mercantile Law / LL. D.