Investment Law and Policy
Overview
International investment treaties establish a preferential regime for the protection of the property of foreign investors. Under these treaties, covered investors are granted substantive rights, which are independent (and often stronger) than those provided in domestic law. In addition, covered investors are given the option of enforcing these rights outside of the host state’s courts through international arbitration. There are presently some 2,700 such treaties in force worldwide.
Investment treaties raise difficult normative questions about the rights and obligations of international investors and sovereign states, and the appropriate mechanisms for resolving disputes between them. Moreover, on the policy level, investment treaties raise complex empirical questions about the relationship between investment treaties and foreign investment flows, and the effects of investment treaties on domestic governance.
As international investment law has begun to mature, states around the globe have begun to reappraise their existing investment treaty commitments. Having relevant information on which to base policy reviews and consider possible reforms is a key component for the development of sound international investment policies. Moreover, there is the challenge of developing internal capacity in an area that is specialised, rapidly evolving and often best understood through a multidisciplinary lens.
The Investment Law and Policy Programme was founded at CIL to develop new bodies of relevant knowledge, provide and foster new thinking about key issues, and disseminate that knowledge and thinking in a way that is both academically rigorous and accessible, as well as relevant and timely for decision makers.
International Investment Treaties and Domestic Governance
International investment agreements (IIAs) pose significant governance challenges to states. First, states must determine whether to enter into such agreements as a matter of policy. Second, states must consider how to negotiate and draft such treaties. Third, states must consider how to take such treaties into account in governmental decision making and exercises of regulatory power. Fourth, states must consider how to take IIAs into account in addressing investor concerns and complaints vis-à-vis the state and its organs. Fifth, in the event of formal claims arising under IIAs, states must respond to such complaints pursuant to the legal procedures set out therein.
Technical Assistance and Capacity-Building
Individual staff members at CIL have provided technical assistance and training to states on a range of matters regarding the negotiation of investment treaties and the management of investment treaty obligations to avoid disputes. Individual staff members have worked with ministers, judges, legislators, and civil servants on programmes of specialised and general content in Africa, Asia, Europe and the Middle East.
The Avoidance and Management of Investment Treaty Disputes
A key component to the effective management of investment treaty obligations by states is the diffusion of knowledge regarding those obligations across organs of the state. Under international law, the state is treated as a unified entity such that the acts or omissions of all the state’s organs are regarded as acts or omissions of the state for the purposes of international responsibility.
International Investment Treaties and International Economic Governance
Members of the Investment Law and Policy team conduct research on a variety of legal issues arising with respect to the international investment treaties and international economic governance.