International and foreign Investment Law Part I Introduction, history and sources Azar Aliyev LL.M. (University of Heidelberg)

Overview I. What is Investment Law about? II. Investment protection and treatment (material aspects) III.Investor-State dispute settlement (procedural aspects) IV. History V.Legal sources

Materials Database (free) Database (available in Campus) Website of the ICSID Website of the ICSID (free) Dolzer/Schreuer, Principles of International Investment Law Schreuer, The ICSID Commentary Muchlinski/Ortino/Schreuer, Oxford Handbook of International Investment Law Griebel, Internationales Investitionsrecht

I.What is Investment Law about?  (Foreign) Investment is not always sufficiently protected against expropriation or unfair treatment in the host State Gaps in the legislation Poor interpretation of the law Political interests …  State sovereignty impede private persons to sue the State beyond its‘ borders

I.What is Investment Law about? Investment Law providing  Standards of Protection protection against expropriation fair and equitable treatment non-discrimination …  Dispute settlement instruments competence of international arbitration courts special enforcement instruments …

Host State legislation Investment Claim Investor Right to claim Home State International Investment Treaty Guarantees Investment contract

II.Investment Protection and Treatment Expropriation (taking of property) Fair and Equitable Treatment Most favoured Nation National Treatment Full Security and Protection Transfer of Funds Umbrella Clause Stabilization Clause

III. Investor-State dispute settlement Arbitration as the main dispute settlement tool  Is commercial arbitration a good basis  Public interests and state sovereignty  Costs  Transparency  Awareness of developing countries Mediation an alternative?

IV. History B EFORE W ORLD W AR II  Main idea – protection of foreign property rights  Contract origins (concessions in Latin America and Soviet Union)  Customary international law (Neer, Factory in Chozrow etc.)

IV. History AFTER W ORLD W AR II  Abs-Shawcross Draft Convention on Investments Abroad 1959  German-Pakistan BIT 1959  ICSID-Convention 1965  Multilatiralization attempts MAI, EU-Competence after Lisbon Treaty, Asia-Pacific regional trade and investment agreement SINCE LATE 90- IES  Explosive raise of cases  Claims against developed countries

V. Sources of Investment Law Customary international law Bi- and Multilateral Investment Treaties more than 6000 (3000) BITs Several multilateral Treaties (ICSID, NAFTA, Energy Charta Treaty, EurAsEC etc.) EU-competence after the Treaty of Lisbon National legislation Special legislation in developing and transition countries Other legal acts

V. Sources of Investment Law State Contracts (e.g. Contract of the Century Azerbaijan) ICSID Convention 1965 Established a special forum Simplified recognition and enforcement Actively used since end 90-ies Decisions of arbitral tribunals Non-binding High controversy Legal literature

V. Sources of Investment Law  legal nature?  hierarchy?  Clash of the legal cultures

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