International Investment Arbitration: Policies, Issues and Challenges

International Investment Arbitration: Policies, Issues and Challenges

Mr. Ko-Yung Tung
Spring 2018 reading group
Th 3:00pm - 5:00pm
1 classroom credit

Prerequisites: None

Exam Type: No Exam

International investment is an important driver for economic development, providing jobs, bringing in technology, and critical capital. Accordingly, most countries compete vigorously with each other to promote foreign investments into their domestic economy. There are now over 3,000 bilateral and multilateral investment treaties among over 150 countries that promote foreign investments by providing certain protections and treatment to foreign investments. The principal protections are national treatment, most favored nation treatment, fair and equitable treatment, minimum international law standards, and non-discriminatory expropriation with compensation. Many of them also include investor-state dispute systems (“ISDS”) to resolve disputes between the foreign investors and the host countries through binding arbitrations.

However, ISDS has come under severe criticisms from various quarters. It is noteworthy that both U.S. presidential candidates in the recent election repudiated the Trans-Pacific Partnership and singled out its ISDS provisions. Critics include populists who claim that ISDS favors big foreign investors over domestic companies, environmentalists who charge that foreign investment is favored over the environment, and human rights activists who see foreign investment trumping human rights. Some legal scholars are dismayed by conflicting arbitral awards and by the lack of “legitimacy” in ad hoc private arbitrators deciding public interest issues.

The reading materials in this Reading Group will explore the nature and consequences of foreign investment in host countries, weigh the policy considerations in drafting investment treaties, and analyze arbitral decisions that highlight the conflicting interests between those of the foreign investors and those of the host state and its citizens. We will also study and evaluate the various proposed solutions to these issues that are now recently proffered by various countries, institutions and legal scholars in the field.

Note: This reading group will meet on the following dates: 3/1, 3/8, 3/22, 3/29, 4/5, 4/12.

Drop Deadline: March 2, 2018 by 11:59 pm EST

Subject Areas: Business Organization, Commercial Law, and Finance, International, Comparative & Foreign Law