Zusammenfassung: The book brings to light how Latin American states have traditionally stood before the field of International Investment Law and Arbitration. It delves into their posture of resistance to critically examine how their perspective has gradually changed and how they have adapted and molded their investment agreements so as not to leave their position as players in the field of International Investment Law. Many Latin American states have appeared as defendants before international investment tribunals and some of these, like Venezuela, Bolivia or Ecuador, have denounced their international investment agreements. Deeming the law field as imbalanced, they have looked for alternatives to continue providing legal protection to foreign investors while protecting their right to regulate in the name of public interest. Some interesting investment agreements models, sometimes of a different ilk, have consequently flourished and have arrested the attention of those studying or working with international investment law. The main objective of this book is to critically discuss how Latin American states have accepted, resisted, or adapted themselves to international investment law and arbitration. Accordingly, the general connection between these states and international investment law are explained in an introduction which examines the general trends as per which Latin American states have offered a legal protection to foreign investments. The first part enters the merits of where international investment law and arbitration stand in some Latin American states whereby the experience of Brazil, Chile, Argentina, Venezuela, and Uruguay are discussed. The following parts explain the trends in international investment law and arbitration in Latin America. These trends are namely related to dispute settlement and governance, to the connection between investment law and human rights and finally to regionalization. In these parts, the experience of states like Brazil, Colombia, Peru, and Mexico are perused

The book brings to light how Latin American states have traditionally stood before the field of International Investment Law and Arbitration. It delves into their posture of resistance to critically examine how their perspective has gradually changed and how they have adapted and molded their investment agreements so as not to leave their position as players in the field of International Investment Law. Many Latin American states have appeared as defendants before international investment tribunals and some of these, like Venezuela, Bolivia or Ecuador, have denounced their international investment agreements. Deeming the law field as imbalanced, they have looked for alternatives to continue providing legal protection to foreign investors while protecting their right to regulate in the name of public interest. Some interesting investment agreements models, sometimes of a different ilk, have consequently flourished and have arrested the attention of those studying or working with international investment law. The main objective of this book is to critically discuss how Latin American states have accepted, resisted, or adapted themselves to international investment law and arbitration. Accordingly, the general connection between these states and international investment law are explained in an introduction which examines the general trends as per which Latin American states have offered a legal protection to foreign investments. The first part enters the merits of where international investment law and arbitration stand in some Latin American states whereby the experience of Brazil, Chile, Argentina, Venezuela, and Uruguay are discussed. The following parts explain the trends in international investment law and arbitration in Latin America. These trends are namely related to dispute settlement and governance, to the connection between investment law and human rights and finally to regionalization. In these parts, the experience of states like Brazil, Colombia, Peru, and Mexico are perused.

With the bilingual volume International Investment Law in Latin America: Problems and Prospects, Attila Tanzi, Alessandra Asteriti, Rodrigo Polanco Lazo and Paolo Turrini provide a regional perspective on one of the liveliest branches of international law by situating it in one of the most dynamic areas of the world. Latin America has always had an ambivalent relationship with international investment law and, more recently, it has been the home of harsh and resolute criticisms, questioning the ultimate legitimacy of the regime. By bringing together distinguished scholars of this legal field, the volume analyses ongoing trends and draws lessons from the Continent’s past experiences while identifying possible solutions to the important challenges it faces. Con el volumen bilingüe Derecho Internacional de las Inversiones en América Latina: Problemas y Perspectivas, Attila Tanzi, Alessandra Asteriti, Rodrigo Polanco Lazo y Paolo Turrini tienen por objetivo proporcionar una perspectiva regional para una de las ramas más vigorosas del derecho internacional, situándola en una de las áreas más dinámicas del mundo. Latinoamérica siempre ha tenido una relación ambivalente con el derecho internacional de inversiones y, más recientemente, ha sido el hogar de duras y decididas críticas en su contra, cuestionando la legitimidad última del régimen. Al reunir a distinguidos estudiosos de este campo legal, tanto de América Latina como de fuera de la región, este volumen analiza esta actual tendencia, extrayendo lecciones de las experiencias pasadas del continente e identificando posibles soluciones a los desafíos importantes que ahora enfrenta.

With changes to the international investment law landscape and Asian countries now actively developing their network of bilateral investment treaties (BITs) and free trade agreements (FTAs), this volume studies issues relating to Asian perspectives on international investment law and forecasts the future of Asian contribution to its science and practice. The book discusses the major factors that have been driving Asian countries to new directions in international investment rule-making and dispute settlement. It also looks at whether Asian countries are crafting a new model of international investment law to reflect their specific socio-cultural values. Finally, the book examines whether there are any ‘Asian’ styles of international investment rule-making and dispute settlement, or if individual Asian countries are seeking specific national ‘models’ based on economic structure and geopolitical interests. This unique collection is exceptionally useful to students, scholars and practitioners of international investment law, international trade law and public international law.

This book develops a conceptual framework that captures not only the tensions between constitutional values that are common to liberal democracies – human rights, democracy, and the rule of law – and the investment treaty regime, but also the potential for co-existence and complementarity.

Are courts resisting the rise of legal limitations to state action caused by investment treaty commitments? This book pioneers a unique analysis of both investment law and comparative constitutional law by examining how a selection of the highest courts around the world have addressed this potential discord.

'...This book [...] goes beyond stating what the law is and focuses on controversies occurring within this area of the law... an excellent introduction to this complex area of international law for newcomers to the subject' Kate Miles, Australian International Law Journal The updated edition of this acclaimed book offers a critical overview of the law of foreign investment, incorporating a thorough analysis of the principles and standards of treatment available to foreign investors in international law. It is authoritative and multi-layered, offering an analysis of the key issues and an insightful assessment of recent trends in the case law, from both developed and developing country perspectives. A major feature of the book is that it deals with the tension between the law of foreign investment and other competing principles of international law. In doing so, it proposes ways of achieving a balance between these principles and the need to protect the legitimate rights and expectations of foreign investors on the one hand, and the need not to restrict unduly the right of host governments to implement their public policy on the other, including the protection of the environment and human rights, and the promotion of social and economic justice within the host country. Many of the pioneering ideas that were advanced in the first edition of this book in 2008 have been taken up by governments and international organisations in their attempts to reform the investor-State dispute settlement mechanism and strike a balance between different competing principles in developing international investment law. Accordingly, this fourth edition captures the essence of the ongoing multiple reform processes -either planned or envisaged – currently underway.

Environmental Interests in Investment Arbitration Challenges and Directions Flavia Marisi Economic growth, social inclusion, and environmental protection stand at the core of sustainable development, which aims to deliver long-term growth for current and future generations. Foreign Direct Investment (FDI) can play a key role in sustainable development. Host states’ benefits descending from FDI inflows include tax revenues, technology transfer, specialised training of local human resources, network with satellite activities, better availability of quality products and customer-centric services. These downstream effects jointly stimulate economic growth and social inclusion. This thoroughly researched book explores the relationship between environmental protection – the third component of sustainable development – and FDI. In practice, the intersection between environmental protection and foreign investment not only has generated remarkable success stories such as cross-sectoral green investment but has also in some instances led to severe cases of environmental degradation. Certain foreign investments resulted in open-pit mines leaking harmful substances into the soil, excessive deforestation, improper treatment of water, pollution of groundwater and contamination of mud pits following oil exploitation, leaving the host state with significant environmental damage. Some other cases have witnessed the host state withdrawing or infringing its own environmental policies, which could, in principle, lead to a decrease in the value of the foreign investment as a result of natural resources deterioration. In recent years, an increasing number of investment arbitration cases have seen a clash between the states’ commitments towards their citizens, which include the duty to protect the environment, their health and well-being, and the commitment towards foreign investors to protect their investments. In this book, the author focuses on investor-state cases in which environmental protection measures have been contested and discusses substantive mechanisms in treaty drafting, rules of Customary International Law, and interpretation doctrines, which are aimed at taking environmental concerns into consideration. The topics covered include the following: statistical analysis of investor-state cases where environmental protection measures have been contested; the role of environmental principles in investor-state arbitration; treaty mechanisms addressing environmental concerns; legal tools available under Customary International Law to address environmental interests; the application of the doctrines of proportionality, police powers, and margin of appreciation; and environmental counterclaims as an instrument to claim compensation for environmental damage. The author provides a detailed framework on the normative architecture, offers an extensive analysis of the relevant case law, and proposes concrete solutions to the identified clashes, aimed at refining the balance between environmental and investment protection. With its in-depth analysis and careful documentation, this book aptly captures the inherent fragmentation of international law and undoubtedly represents an invaluable resource for both international law practitioners and scholars. The solution-oriented approach adopted in the book will be welcomed by legal counsel, law firms, investment treaty negotiators, and decision makers at the different stages of investment lawmaking and practice, as well as by international institutions and academics.

This book offers insights into how international investment law (IIL) has frustrated states’ protection of human rights in Latin America, and IIL has generally abstained from dealing with inter-regime frictions. In these circumstances, this study not only argues that IIL should be an object of contention and debate (‘politicisation’). It also contends that Latin American countries have traditionally been the frontrunners in the politicisation of international legal instruments protecting foreign investment, questioning whether the paradigms informing their claims’ articulation are adequate to frame this debate. It demonstrates that the so-called ‘right to regulate’ is the paradigm now prevalently used to challenge IIL, but that it is inadequate from a human rights perspective. Hence, the book calls for a re-politicisation of IIL in Latin America through a re-conceptualization of how states’ regulation of foreign investment is understood under international human rights law, which entails viewing it as an international duty. After determining what the ‘duty to regulate’ constitutes in relation to the right to water and indigenous peoples’ right to lands based on human rights doctrine, the book analyses the extent to which Latin American countries are currently re-politicising IIL through an articulation of this international duty, and arbitral tribunals’ responses to their argumentative strategies. Based on these findings, the book not only proposes investment treaties’ reform to anchor the ‘duty to regulate’ paradigm in IIL, and in the process, to induce tribunals’ engagement with human rights arguments when they come to underpin respondent states’ defences in investor-state dispute settlement (ISDS). In addition, drawing upon the (now likely defunct) idea of creating a regional ISDS tribunal, the book briefly reflects on options available to such a tribunal in terms of dealing with troubling normative/institutional interactions between regimes during ISDS proceedings.

International investment law is at a crossroads. Civil society groups, prominent think tanks, and international organisations are calling for widespread reform. At the centre of controversy are international investment agreements (IIAs) and investor-state dispute settlement (ISDS). Over 1,000 legal claims have been brought by foreign investors under IIAs since the mid-1990s, resulting in multi-million dollar fines imposed against governments for policies related to the environment, natural resource governance, and access to basic services among other areas of public concern. Governments targeted by investor claims are pursuing a variety of reforms that range from the incremental to paradigm-shifting. These different responses raise important questions about the politics of infringement and reform: Why do governments infringe on IIAs despite the costs of doing so? Why do some governments heavily targeted by investor claims pursue more substantive reforms than others? This book provides a timely examination of infringement and reform in Latin America, where governments felt the sting of investor claims sooner and with greater frequency than in other regions. It focuses on Peru, Argentina, and Ecuador, countries that responded very differently to waves of investor claims. Based on interviews with government officials, and international lawyers as well as an extensive analysis of legal transcripts, detailed case study chapters examine the conditions that prompted investor claims and the factors that inform country's reform agendas. In doing so, the book illustrates the conditions under which IIAs constrain state behaviour and how different belief systems produce different responses to external pressures for treaty compliance.