JJUA55142U International Investment Law - NOTE: the course is cancelled in the autumn semester 2020
International investment law is a legal system, which essentially concerns the protection of foreign investors in a country other than their own. It is based on thousands of international investment treaties (IIAs), most of which are bilateral investment treaties (BITs) which give foreign investors the remedy to seek damages and compensation based on IIA violations of states vis-à-vis these investments. These violations can be expropriations or nationalizations that are illegal or otherwise not compensated, unfair treatment, discrimination (vis-à-vis national investors and other foreign investors), and so on. The system allows foreign investors, subject to certain preconditions, to have ‘access to justice’ outside the domestic courts of the host country, who allegedly destroyed or substantially harmed an investment or mistreated the foreign investor. Most IIAs that ensure these protections also provide for an arbitration-based dispute settlement system, which is referred to as the investor-State dispute settlement (ISDS).
This general framework might look uncontroversial at first glance. However, international investment flows establish a complex network of relationships between the state, the foreign investor, and the public. It is a system highly publicized and heavily criticized for its alleged ‘investor-’ or ‘capital-centric’ approach to this complex interrelation between different stakeholders. Especially in foreign investments handling large-scale public services or more politically sensitive sectors such as energy production, telecommunication, waterworks, infrastructure, waste management, etc., there is an undeniable and substantial public interest embedded. In particular, the criticisms are focused on the system’s disregard for public concerns, as well as a state’s right to ‘regulate’ for the good of its citizens. In many cases, such as Vattenfall v. Germany (in which Vattenfall sued Germany for expropriating its investment because the state decided to opt out of nuclear energy) and the Philip Morris arbitrations (in which Philip Morris brought claims against a number of states where plain packaging for tobacco products were introduced), said foreign investors brought claims against their host states for state measures arguably aimed at protecting public health and security. Because these measures adversely affected these investors, the states were sued for millions, if not billions, of dollars – eventually to be paid by the taxpayers – for acts essentially for the benefit of their people. Should a host state be responsible for damages suffered by foreign investors because, for instance, a state passed a law that benefits the public, but restricts the foreign investor and/or devalues foreign investment? To what extent must a state be held accountable? How should the system ‘balance’ the protection of foreign investment with public interest and a state’s right to regulate?
Based on the explanations above, this course aims to acquaint students with fundamental knowledge of the legal-political regime that is international investment law. It will familiarize students with the highly fragmented treaty-based international network that aims at promoting and protecting foreign investment. The course will provide a comprehensive overview of how these treaties are signed, and to what extent they undertake to protect foreign investment in a host country. It will give a detailed account of each state obligation included in the vast majority of IIAs currently in force, counting more than three thousand. It also looks at systemic criticisms targeting international investment law, its current reform processes, as well as steps that can be taken to amend the shortcomings and fine-tune systemic priorities.
This course is part of iCourts Excellence Programme (iEP) – International Law and Courts in a Global World, please see 'Remarks' below.
The students should possess the following skills and competences upon this course’s completion:
- Understand and explain key legal problems and policy trends in international investment law and policy-making;
- Identify legal problems and relevant principles that apply to an investment dispute;
- Analyze complex legal issues relating to an investment dispute;
- Formulate elaborate, coherent and persuasive written legal arguments;
- Critically assess claimant and respondent arguments, different applicable theories to treaty provisions and properly interpret principles;
- Apply theoretical/abstract concepts and principles to real or fictionalized cases and disputes
- Conduct relevant, comprehensive case-law and literature research;
- Communicate the findings in a professional, grammatically, and linguistically correct manner.
The main coursebook is Dolzer and Schreuer’s “Principles of International Investment Law”, 2nd edition, OUP, 2012.
Additional reading, shared on Absalon, includes:
- August Reinisch, ‘Jurisdiction and Admissibility in International Investment Law’ (2017) 16 The Law & Practice of International Courts and Tribunals 21
- Suzi Nikiema, "Best Practices: Indirect Expropriation"; Ursula Kriebaum, "Regulatory Takings: Balancing the Interests of the Investor and the State
- Gunes Unuvar, "The Vague Meaning of Fair and Equitable Treatment Principle in Investment Arbitration and New Generation Clarifications"
- José Antonio Rivas, ‘ICSID Treaty Counterclaims: Case Law and Treaty Evolution’ in Jean E Kalicki and Anna Joubin-Bret (eds), Reshaping the investor-state dispute settlement system: journeys for the 21st century (Brill Nijhoff 2015)
- Anna K Hoffman, "Counterclaims in Investment Arbitration" ICSID Review Vol. 28 No 2 (2013)
- Patrick Dumberry and Gabrielle Dumas-Aubin, ‘When and How Allegations of Human Rights Violations Can Be Raised in Investor-State Arbitration’ (2012) 13 The Journal of World Investment & Trade 349
- N Jansen Calamita, "International human rights and the interpretation of international investment treaties: constitutional considerations"
- Judith Levine, "The interaction of international investment arbitration and the rights of indigenous peoples" in Investment Law within International Law (ed. Freya Baetens, 2013)
The course will also to some extent draw on relevant external experts with practical knowledge of investment arbitration, negotiations of investment treaties or experience as counsellors for foreign investors. The course will combine a legal doctrinal approach with analysis offered from the perspectives of policy analysis, economics and international negotiations.
Read more about the programme here: https://jura.ku.dk/icourts/education/excellence-programme/
- 15 ECTS
- Type of assessment
- Written examination, 1 dayAssigned individual written assignment, 1 day
- Marking scale
- 7-point grading scale
- Censorship form
- No external censorship
- Exam period
The course is cancelled in the autumn semester 2020
The course is cancelled in the autumn semester 2020
Criteria for exam assesment
The examination is a written, take-home, open book, 1-day exam. The exam consists of two compulsory parts.
Part I where the students must write an individual research essay on a legal topic selected from 2 themes provided by the instructor.
Part II where the students must write a memorandum providing legal advice based on a case study, advising a fictitious government department or an investor on what to do in an investment dispute.