Live longer, work longer

165 Pages·2006·1.68 MB·English

by  Keese, MarkOECD

«
international investment Law
a changing LandscaPe
A COMPANION VOLUME TO INTERNATIONAL INVESTMENT PERSPECTIVES international
International investment agreements reinforce domestic liberalisation and underpin
investment Law
legal security for investment. Recently, a “new generation” of bilateral and regional
investment agreements has emerged, together with a growing body of jurisprudence.
Analysis undertaken by the OECD Investment Committee of their core provisions and
arbitration procedures contributes to a common understanding of their implications, a changing LandscaPe
and ultimately better and more predictable outcomes for governments and investors.
A COMPANION VOLUME TO INTERNATIONAL
The present publication includes four surveys which have been developed to support
the work programme of the OECD Investment Committee on legal and policy issues INVESTMENT PERSPECTIVES
arising from international investment agreements. The first survey deals with the
role of transparency and third party participation in investor-state dispute settlement
procedures. It examines the current rules and recent steps taken to improve
transparency.
The survey on “Fair and Equitable Treatment Standard” reviews the concept and
the elements of its content, based on jurisprudence and state practice. The survey
on “Indirect Expropriation and the Right to Regulate” touches upon one of the
most frequently contested provisions in investor-state arbitration in recent years.
It identifies main criteria found in investment agreements and used by tribunals to
articulate the difference between the two concepts. The survey on “Most-Favoured
Nation Treatment” reviews accepted principles to interpret the application of this long
standing provision in investment agreements.
The full text of this book is available on line via this link:
http://www.sourceoecd.org/fnance/9264011641
Those with access to all OECD books on line should use this link:
http://www.sourceoecd.org/9264011641
SourceOECD is the OECD’s online library of books, periodicals and statistical databases. For more
information about this award-winning service and free trials ask your librarian, or write to us at
International
Investment Law:
A Changing Landscape
A COMPANION VOLUME TO INTERNATIONAL
INVESTMENT PERSPECTIVES
ORGANISATION FOR ECONOMIC CO-OPERATION AND DEVELOPMENT
ORGANISATION FOR ECONOMIC CO-OPERATION
AND DEVELOPMENT
The OECD is a unique forum where the governments of 30 democracies work
together to address the economic, social and environmental challenges of globalisation.
The OECD is also at the forefront of efforts to understand and to help governments
respond to new developments and concerns, such as corporate governance, the
information economy and the challenges of an ageing population. The Organisation
provides a setting where governments can compare policy experiences, seek answers to
common problems, identify good practice and work to co-ordinate domestic and
international policies.
The OECD member countries are: Australia, Austria, Belgium, Canada, the
Czech Republic, Denmark, Finland, France, Germany, Greece, Hungary, Iceland,
Ireland, Italy, Japan, Korea, Luxembourg, Mexico, the Netherlands, New Zealand,
Norway, Poland, Portugal, the Slovak Republic, Spain, Sweden, Switzerland, Turkey,
the United Kingdom and the United States. The Commission of the European
Communities takes part in the work of the OECD.
OECD Publishing disseminates widely the results of the Organisation’s statistics
gathering and research on economic, social and environmental issues, as well as the
conventions, guidelines and standards agreed by its members.
This work is published on the responsibility of the Secretary-General of
the OECD. The opinions expressed and arguments employed herein do not
necessarily reflect the official views of the Organisation or of the governments
of its member countries.
Publié en français sous le titre :
Le droit international de l’investissement : un domaine en mouvement
Complément aux Perspectives d’investissement international
© OECD 2005
No reproduction, copy, transmission or translation of this publication may be made without written permission.
Applications should be sent to OECD Publishing:
FOREWORD
Foreword
International investment agreements reinforce domestic liberalisation and underpin
legal security for investment. Recently, a new generation of bilateral and regional
investment agreements has emerged, together with a growing body of jurisprudence.
The OECD serves as an effective forum for international discussions in this field. It
engages in thorough analysis of the core provisions of investment treaties and systemic
issues related to investor-state dispute settlement in co-operation with the
International Centre for Settlement of Investment Disputes (ICSID), other institutions,
academics and practitioners. The goal of this work is to enhance common
understanding of their implications, and ultimately better and more predictable
outcomes for governments and investors.
The OECD has been at the centre of the discussion on investment agreements
since the beginning of its existence: in the 1960s, the draft OECD Convention on the
Protection of Foreign Property provided the basis for future bilateral investment
treaties; in the 1980s, it reported on OECD members’ positions on main features of
investment agreements; and, in the 1990s, the work on a Multilateral Agreement on
Investment, whilst not reaching a successful conclusion, advanced the understanding
of issues facing treaty negotiators.
I am very pleased that we are able to share the OECD’s most recent work with a
broader audience. The present publication includes four surveys. The first survey
examines the current rules relating to transparency and third party participation in
investor-state dispute settlement procedures, as well as recent steps taken to improve
transparency. The work has given rise to a public statement by the Investment
Committee on additional transparency which is also included in this publication.
The survey on “Indirect Expropriation and the Right to Regulate” touches upon
one of the most frequently contested provisions in investor-state arbitration. It
identifies main criteria found in investment agreements and used by tribunals to
articulate the relationship between the two concepts. The survey on “Fair and
Equitable Treatment Standard” reviews the concept and the elements of its content,
based on jurisprudence and state practice. The survey on “Most-Favoured-Nation
INTERNATIONAL INVESTMENT LAW: A CHANGING LANDSCAPE – ISBN 92-64-01164-1 – © OECD 2005 3
FOREWORD
Treatment” reviews accepted principles to interpret the application of this long
standing provision in investment agreements.
Manfred Schekulin
Chair, OECD Investment Committee
INTERNATIONAL INVESTMENT LAW: A CHANGING LANDSCAPE – ISBN 92-64-01164-1 – © OECD 2005
4
NOTE BY THE EDITOR
Note by the Editor
This publication has been developed as an input to the Investment
Committee’s work aimed at enhancing understanding of international
investment law. The material in this publication benefited from discussions and
a variety of perspectives in the Committee. The publication as a collection of
factual surveys, however, does not necessarily reflect the views of the
Organisation for Economic Co-operation and Development or those of its
member governments. It cannot be construed as prejudging ongoing or future
negotiations or disputes pertaining to international investment agreements.
International Investment Law – A Changing Landscape is a companion volume
to the 2005 edition of International Investment Perspectives. Queries concerning
this annual publication should be addressed to the Investment Division of the
OECD Directorate for Financial and Enterprise Affairs (Hans Christiansen, Editor,
tel: [phone]; email:
TABLE OF CONTENTS
Table of Contents
Chapter 1. Transparency and Third Party Participation
in Investor-state Dispute Settlement Procedures . . . . . . 9
Annex 1.A1. NAFTA Free Trade Commission’s Interpretations
and Statements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Annex 1.A2. The Multilateral Agreement on Investment:
Draft Consolidated Text . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Annex 1.A3. Provisions on Transparency of Proceedings
in US Free Trade Agreements with Chile, Singapore,
Dominican republic-Central America (DR-CAFTA)
and Morocco . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
Annex 1.A4. Model Bilateral investment Treaties . . . . . . . . . . . . . . . . 36
Annex 1.A5. Suggested Changes to the ICSID Rules
and Regulations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
Chapter 2. “Indirect Expropriation” and the “Right to Regulate”
in International Investment Law . . . . . . . . . . . . . . . . . . . . 43
Chapter 3. Fair and Equitable Treatment Standard in International
Investment Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
Chapter 4. Most-Favoured-Nation Treatment in International
Investment Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 127
Annex 4.A1.Vienna Convention on the Law of Treaties . . . . . . . . . . . 160
INTERNATIONAL INVESTMENT LAW: A CHANGING LANDSCAPE – ISBN 92-64-01164-1 – © OECD 2005 7
ISBN 92-64-01164-1
International Investment Law: A Changing Landscape
A Companion Volume to International Investment Perspectives
© OECD 2005
Chapter 1
Transparency and Third Party Participation
in Investor-state Dispute Settlement
Procedures*
The system of investment dispute settlement has borrowed its
main elements from the system of commercial arbitration.
However, investor-state disputes often raise public interest issues
which are usually absent from international commercial
arbitration. As a result, the traditional manner in which
governmental measures are reviewed for compliance with
international law in a private setting, i.e. confidential in-camera
proceedings has come under increased scrutiny and criticism.
This survey examines the current rules related to transparency and
third party participation in investor-state dispute settlement
procedures, steps taken to improve transparency and the perceived
advantages as well as the challenges of additional transparency.
* This survey was prepared by Catherine Yannaca-Small, Investment Division, OECD
Directorate for Financial and Enterprise Affairs, and benefited from discussions,
comments and a variety of perspectives in the OECD Investment Committee. The
document as a factual survey, however, does not necessarily reflect the views of the OECD
or those of its member governments. It cannot be construed as prejudging ongoing or
future negotiations or disputes pertaining to international investment agreements.
INTERNATIONAL INVESTMENT LAW: A CHANGING LANDSCAPE – ISBN 92-64-01164-1 – © OECD 2005 9