• A
  • A
  • A
  • АБB
  • АБB
  • АБB
  • А
  • А
  • А
  • А
  • А
Обычная версия сайта
Магистратура 2021/2022

Международное инвестиционное право

Статус: Курс обязательный
Направление: 40.04.01. Юриспруденция
Когда читается: 1-й курс, 1, 2 модуль
Формат изучения: без онлайн-курса
Охват аудитории: для своего кампуса
Прогр. обучения: Право международной торговли, финансов и экономической интеграции
Язык: английский
Кредиты: 6

Course Syllabus

Abstract

Cross-border investments play an important role in modern economy, as well as international relations. They have significant impact on development of countries, environment, trade and communities. It comes as no surprise that States increasingly regulate various aspects of such investments both by national laws and by entering into bilateral and multilateral treaties. Treaties and laws governing protection of foreign investment, insurance of cross-border investment, implementation of investment-related regulations that may have impact on trade, laws governing access of foreign investors are the key elements that the course will explore. Various aspects of foreign investment are subject of increasing criticism from various stakeholders including States and civil society. Criticism of investment arbitration system, where ‘unelected judges’ allegedly favor investors over States is the most intensively discussed subject. However other aspects, such as lack of effective control over foreign investors and lack of their accountability for human rights and environmental law violations, also raise important concerns. The course will explore the extent to which the various criticisms are justified and ways to address them, including the investment dispute settlement reform.
Learning Objectives

Learning Objectives

  • The aim of the course is to provide students with a theoretical and practical understanding of international investment law, particularly the regime governing protection and implementation of foreign investments. The course explains various frameworks established by national laws and rules of international law governing cross-border or international investments and how they operate in practice.
Expected Learning Outcomes

Expected Learning Outcomes

  • Students must gain knowledge on: • Rules of international law and frameworks established at national law governing international investments; • Procedural framework for resolution of disputes concerning foreign investment.
  • Skills and abilities: • to use specific terms and sources of the global investment law; • practical abilities to research international investment law and national laws and regulations governing international investment; • skills to advise clients on rules relating specifically to implementation of international investments and represent them in disputes concerning compliance with such rules.
  • Students should gain the following competences: • ability to work with information (search, evaluate, use information, necessary for fulfilment of academic and professional tasks, from various sources, including application of the systematic approach); • ability to carry out professional activities in the international environment; • ability to search, analyse, and work with relevant information by using the juridical, comparative and other specific methods,
Course Contents

Course Contents

  • Introduction to International Investment Law: Various Areas and Various Regimes
    Defining ‘investment’ and ‘foreign’ investment. Various types of investment and application of existing rules to new types of investment (IT and E-commerce). International and national law rules applicable to foreign investments: access of foreign investors, promotion and protection, insurance of foreign investment. Trade-related aspects of foreign investment. Introduction to the rules on promotion and protection of foreign investments. Historical development of the rules governing foreign investment,
  • Application of General International Law to Foreign Investment
    Customary international law on access and protection of foreign investment. Interpretation of treaties governing international investment. Responsibility of States and rules governing protection of foreign investment. Diplomatic protection and human rights law rules. Nature of the investor’s rights under bilateral and multilateral treaties.
  • Protection of Foreign Investment: Scope of Applicable Treaties
    Definition of investment and national laws, bilateral and multilateral treaties. Definition of investor. Treaty structuring and abuse of process. Temporal scope of protection. Application of treaties to legacy investments and termination of protection (sunset clauses). Compatibility of rules on protection of foreign investment with other international law obligations of the State (EU, human rights law).
  • Expropriation
    Definition of expropriation. Direct and indirect expropriation. Conditions of lawful expropriation: public purpose, due process, non-discriminatory nature, compensation. Police powers doctrine.
  • Standards of treatment (I): Fair and Equitable Treatment, Full Protection and Security
    The plurality of standards of protection under BITs. Importance of the wording and other factors that affect interpretation. Minimum standard of treatment under customary international law. Fair and equitable treatment and prohibition on arbitrary measures. Full protection and security. Global administrative law: the standards applicable to assessment of regulatory actions of States.
  • Standards of Treatment (II): National Treatment and Most-Favored Nation Treatment
    Standards based on prohibition of discrimination, key elements: ‘like circumstances’, reasonable non-discriminatory basis. National treatment and exceptions from the general grant of national treatment. Most-favored national treatment. Application of MFN to importation of general standards of treatment.
  • Standards of Treatment (III): Umbrella Clause and Freedom of Transfers
    Scope of the umbrella clauses under various BITs. Application of umbrella clauses to commercial contracts and contracts with various state instrumentalities and regions of federal States. Rules on freedom of transfers, restrictions on the freedom of transfers under national law and WTO rules.
  • Settlement of Investment Disputes (I): fora
    National courts as a forum for settlement of investment disputes. International Center for the Settlement of Investment Disputes. Arbitration under the UNCITRAL Rules. Permanent Court of Arbitration. Arbitration Institute at the Stockholm Chamber of Commerce and its rules. A permanent investment court? Proposals for the reform of the current system of investor-state dispute settlement.
  • Settlement of Investment Disputes (I): procedure
    Stages of a typical investor-state dispute settlement. Jurisdictional and admissibility objections. Fork-in-the-road, cooling-off period, exhaustion of local remedies. The role of the investor’s home State
  • Obligations of Foreign Investor and Their Enforcement
    Rules governing access of foreign investors. Case studies of Russia and the United States of America. Obligations of Foreign Investors in bilateral and multilateral treaties and national laws. Enforcement of investor’s obligations in arbitration: counterclaims and claims by host states. Enforcement of investor’s obligations though the courts of investor’s home State. Non-governmental rules and standards on conduct of investors. Case study of Bangladesh Accords.
Assessment Elements

Assessment Elements

  • non-blocking Attendance, active participation and in-class discussion. Online.
  • non-blocking Essay. Online.
  • non-blocking Written Exam. Online.
    Exam for the Course will be set up as a 3 hours takeaway exam session. The exam is open book and any external sources may be used. Students are NOT allowed to consult with any other persons during writing their exam. After students receive their assignments they are expected to prepare their answers and to download them in due time to the anti-plagiarism system Turnitin following the link distributed by the HSE study office.
Interim Assessment

Interim Assessment

  • Interim assessment (2 module)
    0.2 * Attendance, active participation and in-class discussion. Online. + 0.3 * Essay. Online. + 0.5 * Written Exam. Online.
Bibliography

Bibliography

Recommended Core Bibliography

  • Douglas, Z. (2003). The Hybrid Foundations of Investment Treaty Arbitration. Retrieved from http://search.ebscohost.com/login.aspx?direct=true&site=eds-live&db=edsbas&AN=edsbas.923ADAFD
  • Lim, C. L., Ho,Jean, & Paparinskis,Martins. (2018). International Investment Law and Arbitration. Cambridge University Press. Retrieved from http://search.ebscohost.com/login.aspx?direct=true&site=eds-live&db=edsrep&AN=edsrep.b.cup.cbooks.9781107180338
  • Stefanie Schacherer, & Rhea Tamara Hoffmann. (2019). International investment law and sustainable development. Chapters, 563. Retrieved from http://search.ebscohost.com/login.aspx?direct=true&site=eds-live&db=edsrep&AN=edsrep.h.elg.eechap.17250.18
  • United Nations Conference on Trade and Development. (2007). Elimination of TRIMs, the Experience of Selected Developing Countries. New York: United Nations Publications. Retrieved from http://search.ebscohost.com/login.aspx?direct=true&site=eds-live&db=edsebk&AN=225794

Recommended Additional Bibliography

  • Chochorelou, M. (2018). Multinational corporations as a new subject of international investment law: Rights conferred to investors under the ISDS provisions of intergovernmental and bilateral treaties and ways to balance this new reality. Universitat Internacional de Catalunya, 2018. Retrieved from http://search.ebscohost.com/login.aspx?direct=true&site=eds-live&db=edstdx&AN=edstdx.10803.664724
  • Douglas, Z. (2011). The MFN Clause in Investment Arbitration: Treaty Interpretation Off the Rails. Retrieved from http://search.ebscohost.com/login.aspx?direct=true&site=eds-live&db=edsbas&AN=edsbas.9E4CD985
  • El Mougy, H. A. M. (2017). Transformations in International Investment Law: Incorporating Public Interest into Private Regime. Global Business & Economics Anthology, 1, 113–116. Retrieved from http://search.ebscohost.com/login.aspx?direct=true&site=eds-live&db=bsu&AN=124646820
  • Kalicki, J., & Medeiros, S. (2007). Fair, Equitable and Ambiguous: What Is Fair and Equitable Treatment in International Investment Law? Retrieved from http://search.ebscohost.com/login.aspx?direct=true&site=eds-live&db=edsbas&AN=edsbas.F627ACCC
  • Norton, P. M. (2018). The Role of Precedent in the Development of International Investment Law. ICSID Review: Foreign Investment Law Journal, 33(1), 280–301. https://doi.org/10.1093/icsidreview/six027
  • Radi, Y. (2018). Philip Morris v Uruguay: Regulatory Measures in International Investment Law: To Be or Not To Be Compensated? ICSID Review: Foreign Investment Law Journal, 33(1), 74–80. https://doi.org/10.1093/icsidreview/six031
  • Zivkovic, V. (Dr. . (2018). International Rule of Law Through International Investment Law. Retrieved from http://search.ebscohost.com/login.aspx?direct=true&site=eds-live&db=edsbas&AN=edsbas.8C42B585