Law Commons^™

Against Balancing: Revisiting The Use/Regulation Distinction To Reform Liability And Compensation Under Investment Treaties, Jonathan Bonnitcha, Emma Aisbett

Michigan Journal of International Law

Investment treaties generate mutual benefits for host states and foreign investors to the extent that they discipline opportunistic conduct by host states. Investment treaties do not necessarily generate mutual benefits insofar as they constrain states’ ability to respond to new information or to change their policy priorities. In a companion paper, we use the tools of law and economics to formalize and clarify the relationship between problems of opportunism on the one hand, and new information and shifts in policy priorities on the other. On this basis, we develop a proposal to reform the legal principles that govern liability and …

Given Today's New Wave Of Protectionsim, Is Antitrust Law The Last Hope For Preserving A Free Global Economy Or Another Nail In Free Trade's Coffin?, Allison Murray

Loyola of Los Angeles International and Comparative Law Review

No abstract provided.

Expectations As Property: Histories, Contexualizations, Critiques, Freya Irani, Katharina Pistor

Faculty Scholarship

The last four decades have seen an enormous expansion in the number of international investment treaties (particularly bilateral investment treaties) and in investment treaty-based arbitrations and awards. Traditionally made between capital-exporters and capital-importing states (that is, along a North-South axis), such treaties generally assure investors of one signatory state (the "home state") protection on the basis of pre-determined standards in the other signatory state or states (the "host state"). Such treaties also provide for compensation in case of breaches of these standards, and give investors recourse to arbitration in case of disputes. Given these provisions alongside arbitral treaties themselves, in …

The Cape Town Convention’S Improbable-But-Possible Progeny Part One: An International Secured Transactions Registry Of General Application, Charles W. Mooney Jr.

All Faculty Scholarship

This essay is Part One of a two-part essay series. It outlines and evaluates two possible future international instruments. Each instrument draws substantial inspiration from the Cape Town Convention and its Aircraft Protocol (together, the “Convention”). The Convention governs the secured financing and leasing of large commercial aircraft, aircraft engines, and helicopters. It entered into force in 2006. It has been adopted by sixty Contracting States (fifty-four of which have adopted the Aircraft Protocol), including the U.S., China, the E.U., India, Ireland, Luxembourg, Russia, and South Africa.

A novel, distinctive, and path-breaking feature of the Convention is the international registry …

Africa-China Bilateral Investment Treaties: A Critique, Uche Ewelukwa Ofodile

Michigan Journal of International Law

The purpose of this Article is to draw attention to, raise questions about, and generate discussions regarding the emerging norms, legal context, and long-term development-implications of South-South foreign direct investment (“FDI”) and South-South bilateral investment treaties (“BIT”). This Article seeks to refocus the discourse about FDI and BITs on developing countries in their role as exporters of capital and in the context of the much-touted new geography of investment. Can South-South BITs play a positive role in promoting development in sub-Saharan Africa any more than the Africa-North BITs? Is China concluding development-focused BITs with countries in Africa? The Article identifies …

The Subprime Mortgage Crisis: Will It Change Foreign Investment In Us Markets?, Lindsay Joyner

South Carolina Journal of International Law and Business

No abstract provided.

The Relationship Of Imf Structural Adjustment Programs To Economic, Social, And Cultural Rights: The Argentine Case Revisited, Jason Morgan-Foster

Michigan Journal of International Law

Perhaps as important as what this Note is, is what it is not: Economic theories abound concerning the causes of the Argentine crisis, some of which directly analyze the IMF's causal connection to the Argentine catastrophe. A Note on this subject would be one of economic theory, not international human rights law. While at certain points in the analysis of the human rights implications of SAPs, it will become difficult to avoid some speculation of economic theory, it is not the primary focus of this Note. Rather than implicate the IMF as part of the cause of the crisis, this …

Labor Rights, Globalization And Institutions: The Role And Influence Of The Organization For Economic Cooperation And Development, James Salzman

Michigan Journal of International Law

This Article has four sections. The first recounts the history of the OECD, from its creation as the overseer of the Marshall Plan to its current prominence as global economic analyst, and explains its operations. The second section explores its influence on the development of labor rights, examining the well-known OECD Guidelines for Multinational Enterprises, publications on trade and labor by the Employment, Labor and Social Affairs Directorate, and the events surrounding South Korea's accession to the OECD. Each of these activities, though quite different from one another (and, in combination, very different from the activities of other IGOs), provided …

Sustainable Liberalism And The International Investment Regime, Kenneth J. Vandevelde

Michigan Journal of International Law

Since 1995, the Organization for Economic Cooperation and Development has been sponsoring negotiation of a multilateral agreement on investment. Several multilateral agreements protecting foreign investment already exist, although these are limited in their applicability to certain regions or sectors of the economy. This article argues that the consensus is not necessarily permanent, but reflects the momentary confluence of several political and economic trends. It concludes that, if the consensus is to be maintained, then States must use this moment to ensure the success of liberalism, rather than to seize temporary economic advantage. In essence, if a liberal investment regime is …

U.S. Bilateral Investment Treaties: The Second Wave, Kenneth J. Vandevelde

Michigan Journal of International Law

This Article describes and appraises the second wave of negotiations. It functions as a sequel to an earlier article that described the first ten years of the program. Although the second wave of negotiations continues, and thus any conclusions about it necessarily are tentative, the second wave already has developed a variety of characteristics that distinguish it from the first wave. The goal of this Article is to identify the ways in which the second wave appears to differ from the first and to assess the significance of the differences.

Drafting Dispute Resolution Clauses For Western Investment And Joint Ventures In Eastern Europe, Mary Theresa Kaloupek

Michigan Journal of International Law

This Note discusses issues the practitioner should consider in drafting a dispute resolution provision for a client investing in one of the newly democratizing countries. Part I will discuss arbitration law in Eastern Europe; the dispute resolution provisions in the various foreign investment laws; the applicable national law; and each nation's enforcement procedures for arbitral awards issued in other nations. Part II reviews the dispute resolution provisions in various bilateral and multilateral treaties relating to foreign investment including the Convention on the Settlement of Investment Disputes (ICSID Convention) and the informal agreements between the American Arbitration Association (AAA) and the …

Negotiating Investment In The Gatt: A Call For Functionalism, Paul Bryan Christy Iii

Michigan Journal of International Law

In part, this article is about the conflict between literalism and functionalism in the GATT. It examines an attempt in the Uruguay Round to negotiate rules on foreign direct investment - the so-called trade-related investment measures (TRIMs) negotiations. Foreign direct investment is often a stage in the internationalization of enterprises; it is helpful to the trade of goods producers and necessary to the trade of many services providers. Affected by the output-oriented history of the GATT, however, the Contracting Parties have treated investment as though it were simply one of three legs of an economic triangle: goods, services, investment. In …

The Treaty With Poland Concerning Business And Economic Relations: Does It Provide More Incentive To The American Investor?, Todd Ewing

Northwestern Journal of International Law & Business

Among the reformed East European countries now embracing democratic notions, Poland has been the most aggressive in the effort to reach full-fledged democracy. These efforts are reflected by Poland's recent amendments to its foreign investment law and, most recently, the signing of a treaty with the United States in hopes of attracting American investors. This article briefly examines the role and content of this treaty in the context of the overall United States treaty program and, more importantly, determines whether the Treaty has the potential to stimulate U.S. investment above and beyond the incentives now in place under the foreign …

The Rising Tide Of Reverse Flow: Would A Legislative Breakwater Violate U.S. Treaty Commitments?, Michigan Law Review

Michigan Law Review

Up to the present the United States has imposed few restrictions on foreign direct investment. It has never enacted any limitations as sweeping as those proposed by the Dent-Gaydos bill. This Note will briefly discuss the need for such restrictions and then examine the extent to which a reversal in policy is permitted by existing U.S. treaty obligations.