JJUA55305U International Investment Law and Sustainability

Volume 2022/2023
Content

International Investment Law or, International Law on Foreign Investments, is one of the principal sub-disciplines within International Law. It concerns the law and regulation that States commit to follow in respect of investments originating from foreign States. It is based on  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 the last decade, the issue of the capabilities of States to regulate foreign investments in case of environmental concerns or on the challenges posed by changing climate has taken a center-stage. Thus, compelling the need of the law to engage with the broader discourse beyond protection of investment.

 

We are still very much at the defining moments for this interaction between investment law and environmental norms. What makes the challenge of climate change and consequently, sustainability unique is its all-pervasive character, affecting every geography and nearly all aspects of existing law and doctrine. Thus, International Investment Law today has reached a tipping point where it recognizes the differences in viewpoints of stakeholders, as well as the presence of room for divergence in interpretations and prospective solutions.

 

The course is thus an invitation to engage with the complexities of law of foreign investment and its ongoing debates on account of sustainability and climate change. The course begins by introducing the origins and evolution of the International Investment Law with its doctrines and principles. It follows this discussion by actively engaging with its critiques with the goal of locating the prospective solutions and discourse towards balance between the needs of protection of foreign investment as well as sustainability. 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.

 

The questions that arise from such instances are 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? What is a permissible environmental regulation and what is not? How the standards of treatment employed in hundreds of existing International Treaties could be changed without fundamentally altering the bargain that the States entered into? Additionally, how all of this ties within the framework of European legal order and the challenge of climate change.

 

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 endeavors to comprehensively cover investment treaty standards, their key doctrinal debates, investor-state dispute mechanism and the role of procedure. With each topic, discussion engages with the need to address the concerns of environmental sustainability. 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.      The module will also offer insights into regulation of such key subfields of international investments as the energy sector and as the trade in carbon emission quotas. 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.

Learning Outcome

Upon completion of course, the Student will be in terms of:

Knowledge:

Familiar with

  • History, politics and doctrines of International Investment Law including the specific issues concerning Jurisdiction, Standards of Treatment and Dispute Resolution Mechanisms.
  • Critiques as well as developing positions on account of improving the interface of Investment Law and its impact on the environment including the new generation of provisions being developed for Investment Treaties as well as challenges to the extant jurisprudence around Standards of Treatment.
  • Tensions and debates engendered between the Investment Law principles and procedures and its impact on the environment and how these tensions translate into language of law, namely, questioning and re-reading of existing doctrines around the Standards of Treatment and the nature of regulatory power of the State.

 

Skills:

Possess the skill to:

  • Identify legal issues in investment matters.
  • Formulate arguments and anticipate possible counter-arguments.
  • Critically examine the impact of adopting different perspectives on the environment.
  • Preparing and arguing in hypothetical and mock proceedings.

 

Competences:

Able to:

  • Understand the competing perspectives of the investors, host States, local populations and environmental concerns;
  • Explain key legal principles, doctrines and procedures employed in international investment law;
  • Recognize the tensions within these principles, doctrines and procedures from a critical point of view;
  • Identify their impact on environment protection and powers of the State to regulate in the needs of sustainability and climate change;
  • Formulate elaborate, coherent and persuasive written legal arguments.

 

The main coursebook is Dolzer and Schreuer’s “Principles of International Investment Law”, 2nd edition, OUP, 2012.

 

The second coursebook, though not mandatory but recommended, is Sornarajah, “The International Law on Foreign Investment”, Cambridge, 2017. Select audiovisual material from the documentary “Commanding Heights” by Daniel Yergin will also be used to contextualize the evolution of economic ideas of twentieth century.

 

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)
  • Stefanie Schacherer, “Sustainable Development—An Integral Part of EU Investment Law-Making” in Sustainable Development in EU Foreign Investment Law, 148-222

The total pages are expected to be around 750.  

Knowledge of English.
● Group Discussions with peer feedback.
● In-group debates towards policy/position statement on a doctrine or principle.
● Mock Moot Court proceedings including, arguing from both sides and preliminary judgment.
● Case studies
● Lecture.
The course replaces the former International investment Law
  • Category
  • Hours
  • Preparation
  • 356,5
  • Seminar
  • 56
  • Total
  • 412,5
Written
Oral
Individual
Collective
Continuous feedback during the course of the semester
Feedback by final exam (In addition to the grade)
Peer feedback (Students give each other feedback)
Credit
15 ECTS
Type of assessment
Oral examination, 20 min
Type of assessment details
Oral exam based on synopsis, 20 minutes
Exam registration requirements

In order to attend the oral examination, it is a prerequisite to hand in the synopsis before the specified deadline. The deadline will be stated in the Digital exam.

Marking scale
7-point grading scale
Censorship form
External censorship