Protection of Foreign Investments in Armed Conflict. Part 1
Abstract
The article discusses the notion of protection of foreign investments within the context of armed conflict. The author examines the provisions of bilateral investment treaties aimed at protecting investors in the situations of violence, as well as the substantive standards rooted in investment protection. The author also refers to the historical context behind the advent of the first investment treaties and the colonial nature that characterises the emergence of international investment law. The analysis focuses on the challenges commonly indicative of the applicability of investment agreements in armed conflict, which is further complicated by the weakness of the current international legal regulation and the insufficiency of existing provisions. The author argues that the regulatory framework for the protection of foreign investments is not only imperfect for regulating the protection of investments in the event of armed conflict but is also overly cautious with regard to the application of the principles of international humanitarian law to investment disputes. The author considers that the concept of investment protection should be reconciled with the concept of human rights, as well as with the interests of developing countries, since although investment is usually associated with economic stability, this discourse is inapplicable to developing countries, which are often negatively affected by both foreign investment itself and its protection, as the example of Colombia shows. Therefore, the article dwells on the fact that the effectiveness of protecting foreign investment, which is always based on the premise of peace, should be viewed through the prism of three lenses: the law of international treaties, international humanitarian law, and international human rights law. It is precisely on these three levels the author shows the interaction between the economic aims of investors who wish to safeguard their investments, the goals of governmental agencies, and the rights and interests of local communities and indigenous peoples.
Downloads
References
Ackermann T. (2019) Investments under Occupation: The Application of Investment Treaties to Occupied Territory. In: Baetens F. (ed.) International Investment Law and the Law of Armed Conflict. Springer International Publishing, pp. 67–92. DOI: https://doi.org/10.1007/978-3-030-10746-8_4
Ackermann T. (2022) The Effects of Armed Conflict on Investment Treaties. Cambridge Studies in International and Comparative Law, Cambridge: Cambridge University Press.
Alexandrowicz C. (1967) History in the East Indies, Oxford: Clarendon Press.
Ambach P. (2019) International Criminal Responsibility of Transnational Corporate Actors Doing Business in Zones of Armed Conflict. In: Baetens F. (ed.) International Investment Law and the Law of Armed Conflict. Springer International Publishing, pp. 51–83.
Baetens F. (2013) Investment Law within International Law: Integrationist Perspective, Cambridge University Press. DOI: https://doi.org/10.1017/CBO9781139855921
Davitti D. (2019) Investment and Human Rights in Armed Conflict. Charting an Elusive Intersection, Hart Publishing. DOI: https://doi.org/10.5040/9781509911653
Dolzer R., Schreuer C. (2022) Principles of International Investment Law, Oxford University Press. DOI: https://doi.org/10.1093/law/9780192857804.003.0004
Gagliani G. (2019) Supervening Impossibility of Performance and the Effect of Armed Conflict on Investment Treaties: Any Room for Manoeuvre? In: Baetens F. (ed.) International Investment Law and the Law of Armed Conflict. Springer, pp. 341–363. DOI: https://doi.org/10.1007/978-3-030-10746-8_16
Gardiner R. (2015) Treaty Interpretation, Oxford University Press. DOI: https://doi.org/10.1093/law/9780199669233.001.0001
Ghouri A. (2015) Interaction and Conflict of Treaties in Investment Arbitration, Kluwer Law International.
Hallward-Driemeier M. (2019) Do Bilateral Investment Treaties Attract FDI? Only a Bit . . . and They Could Bite. In: Sauvant K., Sachs L. (ed.) The Effect of Treaties on Foreign Direct Investment: Bilateral Investment Treaties, Double Taxation Treaties, and Investment Flows, Oxford University Press, pp. 349–378. DOI: https://doi.org/10.1093/acprof:oso/9780195388534.003.0013
Hernandez G. (2019) The Interaction Between Investment Law and the Law of Armed Conflict in the Interpretation of Full Protection and Security Clauses. In: Baetens F. (ed.) International Investment Law and the Law of Armed Conflict, Springer International Publishing, pp. 21–51. DOI: https://doi.org/10.1017/CBO9781139855921.005
Koskenniemi M. (2009) The Gentle Civilizer of Nations, Cambridge University Press.
McNair A. (1961) The Law of Treaties, Oxford: Clarendon Press.
McNair A. (1966) The Legal Effects of War, Cambridge: Cambridge University Press.
Miles K. (2013) The Origins of International Investment Law: Empire, Environment, and the Safeguarding of Capital. Cambridge University Press. DOI: https://doi.org/10.1017/CBO9781139600279
Newcombe A., Paradell L. (2009) Law and Practice of Investment Treaties: Standards of Treatment, Kluwer Law International.
Oppenheim L. (1952) International Law: a Treatise. Vol. 2: War and Neutrality, London: Longman.
Rosenteter D. (2015) Article 31(3)(c) of the Vienna Convention on the Law of Treaties and the Principle of Systemic Integration in International Investment Law and Arbitration. Luxembourg Legal Studies, pp. 328–331. DOI: https://doi.org/10.5771/9783845262383
Salacuse J. (2005) Do BITs Really Work? An Evaluation of Bilateral Investment Treaties and Their Grand Bargain. Harvard International Law Journal, vol. 46, no. 1, pp. 67–130.
Salacuse J. (2007) The Treatification of International Investment Law. Law and Business Review of the Americas, vol. 13, no. 1, pp. 155–166.
Salacuse J. (2021) The Law of Investment Treaties, Oxford University Press. DOI: https://doi.org/10.1093/law/9780198850953.001.0001
Sauvant K., Sachs L. (2009) The Effect of Treaties on Foreign Direct Investment: Bilateral Investment Treaties, Double Taxation Treaties, and Investment Flows, Oxford University Press. DOI: https://doi.org/10.1093/acprof:oso/9780195388534.001.0001
Schill S. (2009) The Multilateralization of International Investment Law. Cambridge University Press. DOI: https://doi.org/10.1017/CBO9780511605451
Schreuer C. (2019) The Protection of Foreign Investment in Times of Armed Conflict. Oxford University Press.
Schreuer C. (2019) War and Peace in International Investment Law. In: Baetens F. (ed.) International Investment Law and the Law of Armed Conflict, Springer International Publishing, pp. 3–20. DOI: https://doi.org/10.1007/978-3-030-10746-8_1
Schreurer C. (2022) Investment Protection in Times of Armed Conflict. Journal of World Investment and Trade, vol. 23, no. 8, pp. 701–715. DOI: https://doi.org/10.1163/22119000-12340266
Schwarzenberger G. (1969) Foreign Investments and International Law, Praeger.
Sornarajah M. (2010) The International Law on Foreign Investment, Cambridge: Cambridge University Press. DOI: https://doi.org/10.1017/CBO9780511841439
Zrilic J. (2019) The Protection of Foreign Investment in Times of Armed Conflict, Oxford University Press. DOI: https://doi.org/10.1093/oso/9780198830375.001.0001
Zrilic J. (2022) Armed Conflicts and the Law of Treaties: Recent Developments and Reappraisal of the Doctrine in Light of the Wars in Syria and Ukraine. Japanese Yearbook of International Law, vol. 65, pp. 107–137. DOI: https://doi.org/10.2139/ssrn.4242811
Zrilic J., Fleck D. (1995) The Handbook of Humanitarian Law in Armed Conflict, Oxford University Press.
This work is licensed under CC BY-NC-ND 4.0
