Emerging International Law of Foreign Investments Omar E. Garcia-Bolivar.

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Presentation transcript:

Emerging International Law of Foreign Investments Omar E. Garcia-Bolivar

Issues of Foreign Investment (FI) Flow of capital -from one country to other -in search of economic objective Right of property Sovereignty -of Host State regulating -of Home State extraterritorial rule Diplomatic protection International Law Development/Dominance

Parties to F I Investor: individual or corporation, Transnational Corporations (TNCs) Host State Home State International Organizations

TNCs TNC Sub ASub BSub C Country A Country B Country C Country D What is the nationality of TNC?

Kind of FI Foreign Direct Investment (FDI) - “Greenfield” - Mergers and Acquisitions Portfolio Investment (PI) New forms of FI - BOO - Non incorporating forms.

Traditional Law of FI State Sovereignty Diplomatic Protection State Responsibility for injury to aliens UN Declaration on Permanent Sovereignty on Natural Resources Calvo Doctrine Charter Economic Rights and Duties of States TNCs: a matter of domestic law

New Reality of FI Source: UNCTAD World Investment Report 2001

New Reality of FI (II) Source: UNCTAD World Investment Report 2001

Regulatory changes on FI Source: UNCTAD World Investment Report 2001

Bilateral Investment Treaties (BITs) Bilateral “lex speciali” Protects and promotes FI Not only FDI Based on idea of economic liberalization More than 1300 signed as of 1996

Non Binding UN draft Code of Conduct on TNCs OECD Guidelines to TNCs World Bank Guidelines

Multilateral ICSID Convention MIGA Convention WTO agreements: GATS, TRIMs NAFTA Chapter 11 Energy Charter Treaty Others (ASEAN, CARICOM, MERCOSUR, SADC, ANZCERTA) Failed OECD MAI Draft FTAA

International Law of FI Int’ law FI BITs Multilateral RegionalSpecialized FIAdmissionTreatmentPropertyDisputeInvestor

Conclusions International law of FI enhances investment climate. Emerging law protects FI, not only FDI. TNCs’ nationality is determined. Admission. Treatment. Expropriation upon conditions. Investment dispute settlement mechanisms.

Omar E. Garcia-Bolivar (703)