Investor–state dispute settlement

Tienhaara, Kyla

doi:10.22459/rt.02.2017.38

Cited by 5 publications

(5 citation statements)

References 8 publications

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“…For example, state employed climate change measures and measures meant to address Covid 19 both continue to be stunted by TNC evocation of ISDS treaties. 72 Furthermore, the emergence of these crises, which highlights the shortcomings of the traditional state-centric approach to IL, has not led to the abandonment of the Westphalian paradigm. 73 Instead, it has provided transnational corporations with an opportunity to exploit the ISDS regime as a means of disciplining states that attempt to address such crises evident in the surge of TNCs' litigation grievances against nation-states for trying to restrict corporate emissions.…”

Section: Dmentioning

confidence: 99%

The Gaza Conflict Within International Law

Weiss

2024

Int’l J. L. Ethics Tech.

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Orthodox international law (IL)—primarily legal positivism, assumes a horizontal legal order. In adopting a Hobbesian understanding of the international arena, legal positivists assert that no sovereign supersedes that of any individual nation state; therefore, states hold each other legally culpable in a horizontal manner 1 and international legal institutions derive authority from state-consent. However, this document aims to challenge the adherence of orthodox IL to a horizontal legal order by demonstrating how capital effectively acts as a defacto sovereign in the international arena, imposing IL top-down onto states as subordinate legal actors. This claim is corroborated by Antony Anghie's postcolonial legal assertion that IL has historically served as a Trojan horse for furthering colonial ambitions. 2 Additionally, the Marxian concept of primitive accumulation, which situates colonialism within a larger project of capital accumulation, provides further theoretical backing for this perspective. Thus, this paper posits that the orthodox conception of IL as a horizontal system of equal sovereign states is inadequate, and instead proposes a paradigm in which capital acts as a de-facto sovereign, enforcing a vertical hierarchy undergirding international legal relations. This scholarly analysis will blend Marxian analysis with the empirical historical examples posited by Anghie, offering an in-depth examination of the manner in which colonialism dynamically influences and continually restructures the very fabric of IL. 3 Ultimately, considering the implications of nation-states being subservient to the normative prescriptions of IL, coupled with the understanding that these laws are fundamentally influenced by a larger colonial project, and acknowledging that this colonial project is inherently embedded within a broader structure of capital acquisition as per the theory of primitive accumulation; it can be posited that nation-states, through their subservience to IL, are ultimately guided by capital, thus, do not operate in a horizontal, International arena.

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Section: Dmentioning

confidence: 99%

The Gaza Conflict Within International Law

Weiss

2024

Int’l J. L. Ethics Tech.

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“…Such commitments, however, equally entail the relinquishment of part of their sovereignty. Indeed, the jurisprudence of arbitral tribunals installed to settle investment disputes shows a large number of examples in which national capacity to co-ordinate investments and pursue legitimate policy objectives has been reduced due to the foreign investment protections conferred by IIAs (Tienhaara 2017). Therefore, the IFFs, as long as they avoid such contentious issues, do not encumber the freedom of states to develop policies that they judge as more appropriate for their developmental needs.…”

Section: Investment Facilitation and The Political Economy Of Fdi: In...mentioning

confidence: 99%

“…It is also in the interest of countries in the global South to ensure that the future IFF does not restrict their policy space and secures their right to regulate. One of the main shortcomings of investment treaties has been the curtailment of countries' policy space, which is constantly challenged by investors-a situation occurring most frequently in developing countries (Pauwelyn 2014;Tienhaara 2017). Regulatory autonomy is essential for host countries to formulate the rules that appropriately craft investment policies designed to promote development.…”

Section: Promoting Sustainable Development and Safeguarding Host Coun...mentioning

confidence: 99%

“…On the other hand, the exponential increase in international investment arbitration disputes based on protection clauses in the late 1990s and early 2000s leaves no room to doubt that such protection clauses have served their original purpose of preserving investors' interests in host countries (Tienhaara 2017). Moreover, investment protection clauses are often pointed out as constraints for host-country governments to pursue legitimate policy objectives (Pohl 2018).…”

Section: Introductionmentioning

confidence: 99%

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Multilateral Framework of Investment Facilitation at the WTO: Initiatives and Perspectives from the Global South

Codeço¹,

Freitas

2021

Contexto int.

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The focus of International Investment policymaking in the global South has been shifting from investment protection to investment facilitation (IF). This movement marks an attempt to improve the attractiveness of national economies for foreign direct investment (FDI) and to recover the policy space previously curbed by traditional investment protection clauses. The popularity of investment facilitation led to the beginning of a negotiation process at the World Trade Organization (WTO) to formulate a multilateral agreement in this area. However, the differing negotiation practices related to IF could provoke schisms between the WTO members engaging in this discussion. The latest international investment agreements (IIAs) featuring IF provisions, signed by countries in the global South, indicate that during multilateral negotiations, these countries will focus on improving transparency, predictability and simplicity of the investment environment, as well as preserving their ability to develop public policies that are in line with their development strategies. However, some of the provisions that bring such preferences to fruition would challenge these countries’ bureaucratic and financial capacity. As discussions evolve at the WTO, countries in the global South will need to clarify their positions and co-ordinate their efforts in order to shape an alternative framework that fits their interests.

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“…As Kyla Tienhaara has suggested in the last decade several investment provisions have been interpreted in such a broad manner that it would appear that (at least some) arbitrators believe that it is within their purview to review any state regulatory action, or indeed inaction, that has a negative (not necessarily devastating) impact on a foreign investor or investment. 77 This expansion of remit has been allowed by the relatively vague language of earlier Bilateral Investment Treaties, and the increasing competition between arbitration bodies for the 'business' of aggrieved multinational corporations.…”

Section: The Two Moments Comparedmentioning

confidence: 99%

Multinational Corporations in World Development: 40 years on

May

2017

Third World Quarterly

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In light of the 2014 Ecuador-sponsored resolution at the UN Human Rights Council to examine the link between Transnational Corporations and Human Rights, in this paper I review the first major discussion at the United Nations of the role of multinational corporations. The report on Multinational Corporations in World Development (1973) for the UN Department of Economic and Social affair launched the (then) new UN Centre on Transnational Corporations. I examine the report in some detail, compare and contrast this with the Ecuadorian resolution from 2014, and reflect on the continuities and changes in attempts to regulate the conduct of global corporations over the forty years between these two moments.

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Investor–state dispute settlement

Cited by 5 publications

References 8 publications

The Gaza Conflict Within International Law

The Gaza Conflict Within International Law

Multilateral Framework of Investment Facilitation at the WTO: Initiatives and Perspectives from the Global South

Multinational Corporations in World Development: 40 years on

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