Skip to main content
×
×
Home

Investor Responsibilities from a Host State Perspective: Qualitative Data and Proposals for Treaty Reform

  • Mavluda Sattorova (a1)
Extract

The need to address negative impacts of foreign investment on the environment, public health, and human rights has long been acknowledged. Drawing on recent case studies, this essay focuses on a number of concerns that arise when investors seek to unduly influence host government decision-making, including in the context of national policy-making in the public interest. This essay argues that International Investment Agreements (IIAs) should begin to more directly incorporate investor responsibilities so to avoid detrimental societal impacts of foreign investment and to maximize foreign investment's positive contribution to host communities. A fundamental reframing of IIA objectives is key in overcoming the existing resistance to incorporating investor obligations in new and amended treaties.

  • View HTML
    • Send article to Kindle

      To send this article to your Kindle, first ensure no-reply@cambridge.org is added to your Approved Personal Document E-mail List under your Personal Document Settings on the Manage Your Content and Devices page of your Amazon account. Then enter the ‘name’ part of your Kindle email address below. Find out more about sending to your Kindle. Find out more about sending to your Kindle.

      Note you can select to send to either the @free.kindle.com or @kindle.com variations. ‘@free.kindle.com’ emails are free but can only be sent to your device when it is connected to wi-fi. ‘@kindle.com’ emails can be delivered even when you are not connected to wi-fi, but note that service fees apply.

      Find out more about the Kindle Personal Document Service.

      Investor Responsibilities from a Host State Perspective: Qualitative Data and Proposals for Treaty Reform
      Available formats
      ×
      Send article to Dropbox

      To send this article to your Dropbox account, please select one or more formats and confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your <service> account. Find out more about sending content to Dropbox.

      Investor Responsibilities from a Host State Perspective: Qualitative Data and Proposals for Treaty Reform
      Available formats
      ×
      Send article to Google Drive

      To send this article to your Google Drive account, please select one or more formats and confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your <service> account. Find out more about sending content to Google Drive.

      Investor Responsibilities from a Host State Perspective: Qualitative Data and Proposals for Treaty Reform
      Available formats
      ×
Copyright
This is an Open Access article, distributed under the terms of the Creative Commons Attribution licence (http://creativecommons.org/licenses/by/4.0/), which permits unrestricted re-use, distribution, and reproduction in any medium, provided the original work is properly cited.
References
Hide All

2 See, e.g., Kyla Tienhaara, Regulatory Chill and the Threat of Arbitration: A View From Political Science, in Evolution in Investment Treaty Law and Arbitration 606 (Chester Brown & Kate Miles eds., 2011); Christine Côté, A Chilling Effect? The impact of International Investment Agreements on National Regulatory Autonomy in the Areas of Health, Safety and the Environment (PhD Thesis, LSE, 2014).

3 UNCTAD, supra note 1, at 126.

5 See Tienhaara, supra note 2, and Côté, supra note 2.

6 Some case studies are discussed in Mavluda Sattorova, The Impact of Investment Treaty Law on Host States: Enabling Good Governance? 61–70 (2018).

7 See Tienhaara, supra note 2, and Côté, supra note 2.

8 As one interviewee put it, “[F]oreign investors are … known for their lobbying and otherwise influencing the government to get the outcome they want, for instance a hands-off regulation of a relevant industry.” Sattorova, supra note 6, at 149.

9 Id. at 149.

10 Id. Having learned about the government's plans to introduce health warnings and smoking-free zones, the company condemned the proposed regulations as “seriously interfering with … commercial freedom” and threatened to withdraw its investment. See Anna B. Gilmore et al., British American Tobacco's Erosion of Health Legislation in Uzbekistan, 332 BMJ 355 (2006); Jennifer Knight & Simon Chapman, Asia is Now the Priority Target for the World Anti-Tobacco Movement: Attempts by the Tobacco Industry to Undermine the Asian Antismoking Movement, 13 Tobacco Control 1130–36 (2004).

11 See Côté, supra note 2.

12 M. Sornarajah, The International Law on Foreign Investment 78 (2004).

13 Sattorova, supra note 6, at 149.

14 See, e.g., World Duty Free v. Kenya, ICSID Case No. ARB/00/7, Award (Oct. 4, 2006); Wena Hotels v. Egypt, ICSID Case No. ARB/98/4, Award (Dec. 8, 2000); and Azpetrol v. Azer., ICSID Case No. ARB/06/15, Award (Sept. 8, 2009).

15 Moshe Hirsch, The Sociology of International Investment Law, in The Foundations of International Investment Law: Bringing Theory Into Practice 146 (Zachary Douglas et al. eds., 2014).

16 Jorge E. Viñuales, Investor Diligence in Investment Arbitration: Sources and Arguments, 32 ICSID Rev. 346, 367 (2017).

17 Id. at 367.

18 Yarik Kryvoi, Economic Crimes in International Investment Law, 67 Int'l & Comp. L.Q. 577 (2018). See also Bear Creek Mining v. Peru, ICSID Case No. ARB/14/21, Award paras. 4, 35–40 (Sands, dissenting) (Nov. 30, 2017).

19 Sattorova, supra note 6, at 155–56.

20 Saba Fakes v. Turkey, ICSID Case No ARB/07/20, Award, para. 112 (July 12, 2010).

21 Julian Arato, Corporations as Lawmakers, 56 Harv. Int'l L.J. 301 (2015).

24 For recent proposals, see Arbitrating The Conduct of International Investors (Jose D. Amado et al. eds., 2017).

25 Int'l Inst. for Sustainable Dev., Model International Agreement on Investment for Sustainable Development (Apr., 2005).

26 UNCTAD, supra note 1, at 126.

27 See Int'l Inst. for Sustainable Dev., supra note 25, arts. 11 and 12.

29 See also Investment Agreement for the COMESA Common Investment Area, May 5, 2007 which to a certain extent seeks to address investment conduct.

30 Sergio Puig & Gregory Shaffer, Imperfect Alternatives: Institutional Choice and the Reform of Investment Law, 112 AJIL 361, 367 (2018).

31 Nowrot, supra note 23, at 631.

32 Id.

33 Under traditional international law it is still questionable whether corporations can be held reponsible for international law violations. See, e.g., Ian Brownlie, Principles Of Public International Law 65 (2003). This is reflected in Ruggie's Guiding Principles, see Guiding Principles on Business and Human Rights: Implementing the United Nations ‘Protect, Respect and Remedy’ Framework, UN Doc. HR/PUB/11/04 (2011).

34 For an overview, see Peter Muchlinski, Multinational Enterprises and the Law 515 (2007).

36 See, e.g., Zhiguo Gao, International Petroleum Contracts: Current Trends and New Directions (1994).

37 Shaffer & Puig, supra note 30, at 368.

Recommend this journal

Email your librarian or administrator to recommend adding this journal to your organisation's collection.

AJIL Unbound
  • ISSN: -
  • EISSN: 2398-7723
  • URL: /core/journals/american-journal-of-international-law
Please enter your name
Please enter a valid email address
Who would you like to send this to? *
×

Metrics

Altmetric attention score

Full text views

Total number of HTML views: 0
Total number of PDF views: 0 *
Loading metrics...

Abstract views

Total abstract views: 0 *
Loading metrics...

* Views captured on Cambridge Core between <date>. This data will be updated every 24 hours.

Usage data cannot currently be displayed