The Obligation of Regulatory Stability in the Fair and Equitable Treatment Standard: How Far Have We Come?

Ortino, Federico

doi:10.1093/jiel/jgy039

Cited by 10 publications

(6 citation statements)

References 3 publications

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“…Central to this concept is the rigorous examination of a nation's regulatory framework, encompassing an intricate web of laws, regulations, and policies that profoundly influence capital investment decisions. Its essence lies in the cultivation of investor confidence through the assurance of equitable treatment (Ortino, 2019), safeguarding assets (Qumba, 2018), and the predictability of legal processes (Butler & Subedi, 2017), thereby mitigating investment risks attributable to legal uncertainties and political instability (White et al, 2015). This concept exerts a discernible influence on foreign investors, shaping a nation's economic growth trajectory and enhancing its global competitiveness (Meyer & Habanabakize, 2018;Ra, 2020).…”

Section: Literature Reviewmentioning

confidence: 99%

Legal environment as a factor in the inflow of Foreign Direct Investment: Case of Serbia

Marjanović,

Domazet,

Vukmirović

2024

JEECAR

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The economic growth and development of a country depend on the inflow of foreign direct investment, and the legal environment factors play an important role in securing it. Compared to other countries in South-Eastern Europe, Serbia has achieved remarkable results in terms of FDI inflows over the last ten years. The research examines the impact of the legal environment on FDI inflows in Serbia. The study was conducted using a quantitative approach and a survey technique based on a structured questionnaire. The basic set of the research consists of the 300 most prominent foreign investors (response rate of 28%) who invested capital in Serbia in the period 2011-2019. The results of the conducted research show that ownership in Serbian companies is the most important factor in the legal environment that influences a foreign investor's decision to invest capital in these companies. The results show that labor legislation, law enforcement, and confidence in the legal system can significantly contribute to a foreign investor's decision to invest capital in Serbia. The legal environment's implications influence investor decisions and shape the overall investment climate of a country. A well-structured and investor-friendly legal framework will increase Serbia's competitiveness and attractiveness for foreign investments.

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Section: Literature Reviewmentioning

confidence: 99%

Legal environment as a factor in the inflow of Foreign Direct Investment: Case of Serbia

Marjanović,

Domazet,

Vukmirović

2024

JEECAR

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“…Compensation is not granted for any regulatory change but only when it is considered unreasonable. 154 When in Spain subsidies for renewable energies were drastically cut for existing plants, companies that had been incentivized to invest by a law guaranteeing a fixed feed-in tariff for 20 years suffered dramatic losses. The arbitration tribunal emphasized that Spain had the right to adapt its legislation, but found that the companies could not expect such dramatic change.…”

Section: Obligations To Regulatory Stability In Investment Treatiesmentioning

confidence: 99%

Treaty rigidity and domestic democracy: Functions of and constitutional limits to democratic self-binding

Hohnerlein

2022

Leiden Journal of International Law

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International treaties create a layer of law that is particularly hard to change: While modern treaties entail significant constraints on domestic law-making, amendments require a new consensus of state parties. This creates a conflict with a core aspect of democratic constitutions: the power of new majorities to revise the laws made by their predecessors. In particular, several obligations of international economic law, namely regulatory stability promises in investment protection treaties, but also criminalization requirements under the UN drug control conventions face critique for overly diminishing domestic policy space. How can democratic constitutions deal with those tensions? One approach that is common in some countries accepts a power to legislate in violation of treaty obligations. But denying treaties the quality as real law in the domestic sphere risks to undermine the benefits of the instrument without truly solving the democracy concerns. Instead, democratic constitutions can be read to entail certain standards for engaging in treaties, namely (i) procedure-related duties to include denunciation clauses and political reform mechanisms in the treaty, and (ii) the need to establish a substantive justification for treaty constraints on future domestic law-making by legitimate aims of international constitutionalism or co-operation.

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“…99 Investors could still sue the states against compulsory licensing by using the Fair and Equitable Treatment (FET) clause and the national treatment clause. This could be done by alleging that the exercise of compulsory licensing was founded on unstable regulation made due to trends in COVID-19, 100 or that the exercise of compulsory licensing is discriminately targeted to a foreign company. 101 Alternatively, investors could use the ISDS mechanism to force states into lobbying against compulsory licensing.…”

Section: Possible International and Local Remedies Against Compulsory Licensingmentioning

confidence: 99%

Good Faith in Trips Compulsory Licensing of Pharmaceutical Patents: Lessons From Previous Pandemic Cases

Arifin

2021

LaJIL

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The COVID-19 pandemic impacts the world of patents as countries prepare their legal framework to ease the process of compulsory licensing. Some like India and South Africa even went further by proposing a suspension for patents needed to combat COVID-19 which is still under discussion. It is a real possibility that a patented drug that is effective against COVID-19 would potentially see compulsory licensing in many countries its patent holder is doing business. This article discusses why compulsory licensing is an essential issue by examining its legitimacy, previous cases of compulsory licensing, and the conduct of states in cases of compulsory licensing issuance, particularly in examples of Thailand, Brazil, and India. The article will examine ways of remedy against compulsory licensing, including a theoretical possibility for constitutional review of treaties. The remedies discussed shall include international and domestic remedies, both litigation and alternative measures. The research shall use qualitative research methods with the use of primary and secondary legal sources. The result of this article found that a combination of soft law power of the Doha Declaration and the invocation of subsequent compulsory licensing cases be the support pillars of compulsory licensing practice. However, the practice of compulsory licensing both by the patent holder and the state actors is still not performed entirely in good faith according to the Vienna Convention of the Law of Treaties (VCLT) 1969 and the TRIPS Agreement. Hence, such patent holders need to be familiar with both international and domestic remedies, especially the possibility for constitutional review of treaties remedies.

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The Obligation of Regulatory Stability in the Fair and Equitable Treatment Standard: How Far Have We Come?

Cited by 10 publications

References 3 publications

Legal environment as a factor in the inflow of Foreign Direct Investment: Case of Serbia

Legal environment as a factor in the inflow of Foreign Direct Investment: Case of Serbia

Treaty rigidity and domestic democracy: Functions of and constitutional limits to democratic self-binding

Good Faith in Trips Compulsory Licensing of Pharmaceutical Patents: Lessons From Previous Pandemic Cases

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