Regionalism in international investment law

555 Pages·2013·4.28 MB·English

by  Leon E Trakman, Nick W Ranieri

regionalism in international investment law
This page intentionally left blank
Regionalism in International
Investment Law
Edited by
Leon E. Trakman
and
Nicola W. Ranieri
1
1
Oxford University Press is a department of the University of Oxford. It furthers the University’s objective
of excellence in research, scholarship, and education by publishing worldwide.
Oxford New York
Auckland Cape Town Dar es Salaam Hong Kong Karachi Kuala Lumpur Madrid
Melbourne Mexico City Nairobi New Delhi Shanghai Taipei Toronto
With offi ces in
Argentina Austria Brazil Chile Czech Republic France Greece Guatemala Hungary
Italy Japan Poland Portugal Singapore South Korea Switzerland Th ailand
Turkey Ukraine Vietnam
Oxford is a registered trade mark of Oxford University Press in the UK and certain other countries.
Published in the United States of America by
Oxford University Press
198 Madison Avenue, New York, NY 10016
© Oxford University Press 2013
All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or
transmitted, in any form or by any means, without the prior permission in writing of Oxford University
Press, or as expressly permitted by law, by license, or under terms agreed with the appropriate
reproduction rights organization. Inquiries concerning reproduction outside the scope of the above should
be sent to the Rights Department, Oxford University Press, at the address above.
You must not circulate this work in any other form
and you must impose this same condition on any acquirer.
Library of Congress Cataloging-in-Publication Data
Regionalism in international investment law / edited by Leon E. Trakman and Nicola W. Ranieri
p. cm.
Includes bibliographical references and index.
ISBN 978-0-19-538900-5 ((hardback) : alk. paper)
1. Investments, Foreign (International law) 2. Investments, Foreign—Law and legislation.
3. Canada. Treaties, etc. 1992 Oct. 7. I. Trakman, Leon E. II. Ranieri, Nicola (Nicola William)
K3830.R435 2013
346'.092—dc23
2012033074
9 8 7 6 5 4 3 2 1
Printed in the United States of America on acid-free paper
Note to Readers
Th is publication is designed to provide accurate and authoritative information in regard to the
subject matter covered. It is based upon sources believed to be accurate and reliable and is intended
to be current as of the time it was written. It is sold with the understanding that the publisher
is not engaged in rendering legal, accounting, or other professional services. If legal advice or
other expert assistance is required, the services of a competent professional person should be
sought. Also, to confi rm that the information has not been aff ected or changed by recent
developments, traditional legal research techniques should be used, including checking primary
sources where appropriate.
(Based on the Declaration of Principles jointly adopted by a Committee of the
American Bar Association and a Committee of Publishers and Associations.)

You may order this or any other Oxford University Press publication
by visiting the Oxford University Press website at www.oup.com
Table of Contents
Acknowledgments vii
Notes on Editors and Contributors ix
Preface xiii
Introduction xvii
1. Foreign Direct Investment: An Overview 1
Leon E. Trakman and Nicola W. Ranieri
2. Foreign Direct Investment: A Historical Perspective 14
Leon E. Trakman and Nicola W. Ranieri
3. International Investment Law: Some Legal Cultural Insights 27
Colin B. Picker
4. Bilateral Trade and Investment Agreements 59
Leon E. Trakman
5. NAFTA: An Overview 88
Nicola W. Ranieri
6. Th e Legal Framework for Foreign Investments in the EU: Th e EU Internal
Market Freedoms, the Destiny of Member States’ BITs, and Future
European Agreements on Protection of Foreign Investments 120
Anna De Luca
7. Th e Eff ect of Survival and Withdrawal Clauses in Investment Treaties: Protection of
Investments in Latin America 162
Gisela Bolívar
8. ASEAN: Th e Liberalization of Investment through Regional Agreements 182
Vivienne Bath
v
vi Table of Contents
9. China and International Investment Law 214
Wenhua Shan
10. Th e ICSID and Investor–State Arbitration 253
Leon E. Trakman
11. Th e Law of Indirect Expropriation and the Iran–United States Claims Tribunal’s
Role in its Development 314
Romesh Weeramantry
12. Australia’s Rejection of Investor–State Arbitration: A Sign of Global Change 344
Leon E. Trakman
13. Th e Relation of the European Union and Its Member States in
Investor–State Arbitration 374
Stephan W. Schill
14. Investors’ Rights, Legal Concepts, and Public Policy in the NAFTA Context 400
Nicola W. Ranieri
15. Consumer Product Safety Regulation and Investor–State Arbitration Policy and
Practice after Philip Morris Asia v. Australia 452
Luke Nottage
16. Th e Case against a Regime on International Investment Law 475
Muthucumaraswamy Sornarajah
Appendix: A Polemic: Th e Cases for and Against Investment Liberalization 499
Leon E. Trakman: Th e Case for Investment Liberalization
Muthucumaraswamy Sornarajah: Th e Case against Investment
Liberalization
index 
Acknowledgments
this book is the product of many fruitful conversations with scholars across the
globe. Th e diff erent chapters have been written by authors with diff erent backgrounds
and perspectives, working in disparate settings. Th eir inspirations have come from
their participation in the academic life of the universities they serve, their experiences
advising states and investors, and their diff erent roles in investment disputes and
their settlement. Th eir experiences include participating in international investment
conferences, workshops, and symposia from Lima, Peru to Xi’an, China, and across
Europe and North America and Australia. Each contributing author has added exciting
new perspectives to the unfolding history of international investment law. Each has
provided inspirations and insights to his or her fellow authors.
Th e editing authors are indebted to their academic mentors. Leon E. Trakman dedi-
cates his contributions to this book to the memory of Harold Berman, David Cavers,
and Arthur von Mehren, for their inspiration as his doctorate supervisors at the
Harvard Law School. In many respects, they foreshadowed the liberalization of trade
and investment law through their remarkable understanding of global legal systems,
comparative law, and the confl icts of law.
Leon Trakman also thanks Kunal Sharma for his research assistance and Anita Wise
for proof-reading parts of this book.
Nicola W. Ranieri dedicates his contributions to this book to Edward Sherman for
his inspiration as his doctorate supervisor at the Tulane Law School. His dedication
to task, vision, and ability for building consensus among diverse interests facilitated
a multitude of projects that were instrumental to forming a deeper understanding of
alternative dispute resolution.
Th e authors also owe a debt of gratitude to their families who put up with many
hours of late work and endless teleconferencing across multiple time zones.
vii
This page intentionally left blank
Notes on Editors and Contributors
Leon E. Trakman is Professor of Law and Immediate Past Dean, Faculty of Law,
University of New South Wales. He has been appointed distinguished or visiting pro-
fessor at, inter alia, the University of California, Davis; Wisconsin; McGill; Tulane;
and Cape Town. He has been awarded a Bora Laskin National Fellowship and a Killam
Senior Fellowship, both in Canada. Author and editor of eight books, he has written
over one hundred articles on, inter alia, international commercial arbitration and
international trade and investment law. An international commercial arbitrator and
mediator, he chairs or serves on arbitration and mediation panels, boards, and asso-
ciations on four continents. He has served extensively as an intergovernmental trade
adjudicator, appointed by U.S., Canadian, and Mexican governments under the North
American Free Trade Agreement (NAFTA) and before then, under the U.S.–Canada
Free Trade Agreement.
Professor Trakman is a barrister in New South Wales, Australia, a barrister and
solicitor in Nova Scotia, Canada, and an advocate in South Africa. He holds masters
and doctorate degrees in Law, both earned at the Harvard Law School.
Nicola W. Ranieri obtained his doctorate from the Tulane School of Law. He is admit-
ted to the Bars of Ontario and New York, as well as other bars in the United States.
He was the Director of the Centro Juridico Para el Comercio Inter-Americana in
Monterrey, Mexico, and has served as a Panelist under the NAFTA Chapter 19 panel
process dealing with antidumping and subsidies matters. His professional experience
has included counseling state entities on the creation of free trade zones, as well as
counseling private entities on issues dealing with foreign investment and expropria-
tion. He has written on subjects relating to international trade and investment, and
has lectured at the ITESM School of Law. He was a founding member of the NAFTA
Consortium on Legal Education and served on various alternative dispute resolution
ix