Law Commons^™

The Role Of Expropriation Clauses In Protection And Promotion Of Foreign Investments In Renewable Energy: An Essential But Overlooked Legal Consideration, Moosa Akefi Ghaziani, Mohammad Akefi Ghaziani

Indonesia Law Review

Today the world is tackling climate change. The global threat of energy poverty along with the growing need for energy has escalated this crisis. The promotion of renewable energy sources is widely known as the main solution to this challenge. Many International and regional agreements address various aspects of renewable energy development such as trade, transit, security, and investment. Since not all states have the financial and technological abilities to develop this sector, foreign investment is recognised as a crucial prerequisite for the global deployment of renewable energies. Various investment agreements are signed to facilitate and promote investments. These instruments …

Riding The Wave: Fairness For Foreign Investors In India’S Impending Insolvency Tsunami, Nicole Mecca

Fordham Journal of Corporate & Financial Law

Reminiscent of the warning signs of a tsunami, bankruptcy and insolvency courts across the globe have been eerily calm despite unprecedented conditions during the COVID-19 pandemic. The full extent of the pandemic’s effect, including a tidal wave of wide-spread corporate and financial sector harm and wide-spread economic distress, remains to be seen. Much like victims of natural disasters, unsuspecting and increasingly delayed courts will find themselves totally overwhelmed. The inconvenience felt by the courts is distinct, however, from potential harm to financial investors. Although investors could also be harmed by these judicial conditions, they knowingly assumed certain financial risk when …

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 …

The Foreign Investment Risk Review Modernization Act: The Double-Edged Sword Of U.S. Foreign Investment Regulations, J. Russell Blakey

Loyola of Los Angeles Law Review

No abstract provided.

The International Investment Regime After The Global Crisis Of Neoliberalism: Rupture Or Continuity?, Nicolas Perrone

Indiana Journal of Global Legal Studies

This article aims to show that the tools being used to recalibrate the international investment regime, in particular proportionality and corporate social responsibility, constitute continuity rather than rupture with neoliberalism and neoliberal legality. Neoliberalism has been discredited, and few actors suggest a return to self-regulation after the 2008 global economic crisis. This call for regulation, however, finds international economic law scholarship divided between those who claim that standards of review and corporate social responsibility can solve the crisis of neoliberalism, and those who believe that the problem is more profound. In the case of the international investment regime, this article …

The Standard Investment Agreement: Text And Comments, Philippe Kahn

Georgia Journal of International & Comparative Law

No abstract provided.

The Development Of Foreign Investment Law In Egypt And Its Effect On Private Foreign Investment, George E. Bushnell Iii

Georgia Journal of International & Comparative Law

No abstract provided.

Narrowing The Accountability Gap: Toward A New Foreign Investor Accountability Mechanism, David Hunter, Natalie L. Bridgeman

David B. Hunter

An ever-increasing number of standards, guidelines, principles, norms, and best practices have been adopted to address the environmental and social impacts of multinational enterprises (MNEs). This increase in standards and norms corresponds to a rise in MNE sensitivity to the environmental and social impacts that their activities have on local communities in developing countries. These standards and norms are considered voluntary by definition because they are typically not state-sponsored or the product of public regulation. They fill a normative gap located between the state-centered focus of international law and the often inadequate or unenforced standards of the developing country hosts …

Welcome To Fabulous Las Vegas: The Nevada Gaming Regulatory Response To Sovereign Wealth Fund Investment, John J. Piro

UNLV Gaming Law Journal

The bulk of recent scholarly work surrounding sovereign wealth funds ("SWFs") is dedicated to assessing the federal regulatory systems’ adequacy—or likely, inadequacy—in dealing with issues unique to SWF investment. However, the federal regulatory system has not been the only regulatory body to deal with SWF investment in the United States. In 2008, one of the United Arab Emirates’ (“UAE”) SWFs, Dubai World, made a large investment into the Nevada gaming industry and was found suitable to purchase up to twenty percent of MGM Mirage’s stock. This article will address how the Nevada gaming regulatory system has found an effective way …

Taxation And The Competitiveness Of Sovereign Wealth Funds: Do Taxes Encourage Sovereign Wealth Funds To Invest In The United States?, Michael S. Knoll

All Faculty Scholarship

Sovereign wealth funds (SWFs) control vast amounts of capital and have made and are continuing to make numerous large, high-profile investments in the United States, especially in the financial services industry. Those investments in particular and SWFs in general are highly controversial. There is much discussion of the advantages and disadvantages to the United States of investments by SWFs and there is an intense and ongoing debate over what should be the United States’ policy towards investments by SWFs. In the course of that debate, some critics have called upon the US government to abandon its long-held public position of …

Challenges Facing Investment Disputes: Reconsidering Dispute Resolution In International Investment Agreements, Susan Franck

Contributions to Books

International investment and international investment agreements have experienced a particular level of growth in the past few decades. With that growth and the granting of affirmative dispute resolution rights to foreign investors, international investment conflict has become increasingly highlighted; and one particular methodology - namely investment treaty arbitration - has become particularly visible. Reliance on this single option for resolving conflict has a unique set of systemic implications. This chapter therefore takes a more systemic look at investment treaty conflict and, in an effort to provide an appropriate historical and doctrinal framework, approaches to dispute resolution broadly. It asks for …

Narrowing The Accountability Gap: Toward A New Foreign Investor Accountability Mechanism, David Hunter, Natalie L. Bridgeman

Articles in Law Reviews & Other Academic Journals

An ever-increasing number of standards, guidelines, principles, norms, and best practices have been adopted to address the environmental and social impacts of multinational enterprises (MNEs). This increase in standards and norms corresponds to a rise in MNE sensitivity to the environmental and social impacts that their activities have on local communities in developing countries. These standards and norms are considered voluntary by definition because they are typically not state-sponsored or the product of public regulation. They fill a normative gap located between the state-centered focus of international law and the often inadequate or unenforced standards of the developing country hosts …

Dubai Or Not Dubai?: A Review Of Foreign Investment And Acquisition Laws In The U.S. And Canada, Chris Lalonde

Vanderbilt Journal of Transnational Law

The proposed purchase of a British company that controlled several ports in the United States by Dubai Ports World could accurately be described as one of the most politically contentious acquisitions in U.S. history. The transaction raised questions not only about U.S. foreign investment laws but provoked national security concerns, as well. Similar issues were raised more recently during the acquisition of a share in Nasdaq by the Dubai stock exchange. In the same vein, Canada has seen similar issues arise during recent transactions involving domestic companies--most notably the acquisition of PrimeWest Energy by TAQA, the national energy company of …

Development Decision Making And The Content Of International Development Law, Daniel D. Bradlow

Articles in Law Reviews & Other Academic Journals

International development law deals with the rights and duties of states and other actors in the development process. As the consensus view of the development process disintegrated during the 1970s and 1980s, the agreement on the content of international development law also began to break down. Today there are two competing idealized views of development. The first, the traditional view, maintains that development is about economic growth, which can be distinguished from other social, cultural, environmental, and political development issues in society. The second, the modern view, maintains that development is an integrated process of change involving intertwined economic, social, …

The Executive Protection: Freezing The Financial Assets Of Alleged Terrorists, The Constitution, And Foreign Participation In U.S. Financial Markets, R. Colgate Selden

Fordham Journal of Corporate & Financial Law

No abstract provided.

The Feasibility Of Debt-Equity Swaps In Russia, Thomas M. Reiter

Michigan Journal of International Law

This Note examines the origins, development, and mechanics of debt-equity swap programs in Latin America before discussing the various goals and policy considerations involved in formulating debt-equity swap programs. Next, the Note describes Russia's debt situation and sketches the outlines of a debt-equity swap program that will reduce Russia's foreign debt while stimulating foreign direct investment.

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 …

Privatization And Foreign Investment In Czechoslovakia: The Legal Dimension, Vratislav Pechota

Vanderbilt Journal of Transnational Law

This Essay is intended to outline the legal developments in Czechoslovakia since the November 1989 revolution, which ended forty-one years of Communist domination. The new era, inaugurated by the revolution, began with a painstaking search for a political and constitutional model and for a strategy of socio-economic development that would make the country's transition to democracy and prosperity as smooth and painless as possible.

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 …

Joint Ventures And The Law Of International Claims, Richard B. Lillich

Michigan Journal of International Law

Joint ventures are one of the most remarkable post-World War II international business developments. Although the late Professor Friedmann noted in 1971 that they were becoming "the most important form of foreign investment in the developing countries of Africa, Asia and Latin America," "only within the last two decades has the joint capital venture received more than scant attention." Now, whether one is interested in establishing a "minority joint venture," in which the foreign investor holds less than fifty percent of the equity in the joint enterprise and the host country the majority interest, or a "multipartite joint venture," in …

Extraterritorial Impact Of The United States Antitrust And Commercial Bribery Considerations, James G. Park

Penn State International Law Review

Historically, the United States has sought to impose its moralistic values extraterritorially. Our antitrust laws and the Foreign Corrupt Practices Act are two well-known examples. Thus, in making the determination to engage in investment in the United States, a foreign entity must consider not only the more publicized restrictions of the Sherman Act and the Clayton Act on its activity within the borders of this country, but also be concerned with the extraterritorial impact of the United States' antitrust laws and the extent to which the decision to invest in the United States may create exposire under United States antitrust …

Special U.S. Rules Directly Affecting Foreign Investment, C. Tanner Rose Jr.

Penn State International Law Review

The purpose of this article is to provide a list of special U.S. rules which guide domestic attorneys in counseling foreign investors on tax and finance consequences of their transactions in the United States. A firm grasp of these rules, as a starting point, enables an attorney to formulate proper suggestions to foreign clients in acquiring property and conducting business without being subject to excessive tax consequences.

Antitrust Consideration In Making Investment In The United States, Thomas L. Vankirk

Penn State International Law Review

The antitrust laws of the United States have taken on an increasingly significant role with regard to acquisitions and investments generally, and must be taken into consideration by a foreign investor interested in making foreign investments in the United States. Where the requisite contracts exist to establish subject matter jurisdiction, the antitrust laws of the United States will be applied to all proscribed acts regardless of the nationality of the participants. It is clear that most foreign investment in the United States constitutes the requisite minimum contacts required for jurisdiction.

There are two primary antitrust areas which should be addressed …

The Foreign Investment In Real Property Act Of 1980, Lisa B. Petkun

Penn State International Law Review

For a number of years, foreign investors were able to invest in real property located in the United States and to avoid, to a great extent, the payment of United States income tax on the operating income from the property and on the gain realized upon the disposition of the property. However, with the enactment of the Foreign Investment in Real Property Tax Act of 1980 ("FIRPTA") the ability of foreigners to avoid the United States tax gains realized upon the sale of real property located in the United States has been greatly circumscribed. To accomplish this result, FIRPTA added …

United States Taxation Of Foreign Direct Investment, Alan G. Cohate

Penn State International Law Review

This article, while broad in scope, is narrow in focus. It aims solely at those aspects of the United States' internal tax laws which should be considered by the foreign investor in planning for his investment. These tax considerations may affect the structure of operation of the business enterprise in the United States. The article is not intended as a short course in United States taxation, and the reader should be aware that the complexities of the United States Internal Revenue Code and the regulations issued thereunder are so great that no particular fact situation can be correctly analyzed except …

Legal And Economic Incentives For Foreign Direct Investment In The Southeastern United States, Paul S. Dempsey

Vanderbilt Journal of Transnational Law

The United States of America may well be the most attractive area for investment in the entire world. Foreign investment, although failing to play a dominant role in the American economy, has nevertheless enjoyed a substantial and significant growth in recent years. This contemporary acceleration may be attributed to a number of factors, including, for example: (a) America's enormous pool of skilled and well educated labor; (b) the narrowing of the gap between the cost of United States and foreign labor; (c) the abundance of domestic energy and other raw materials; and (d) the relative docility of the United States …

Books Received, Journal Staff

Vanderbilt Journal of Transnational Law

A COMMENTARY ON THE FOREIGN INVESTMENT REVIEW ACT

By Graeme C. Hughes

Toronto: Carswell, Ltd., 1975. Pp. 214. $20.65.

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THE EXPORT TRADE: THE LAW AND PRACTICE OF INTERNATIONAL TRADE By Clive M. Schmitthoff

6th ed. London: Stevens & Sons,Ltd., 1975. Pp. 461. $28.75.

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FOREIGN DISINVESTMENT BY U.S. MULTINATIONAL CORPORATIONS: WITH EIGHT CASE STUDIES

By Roger L. Tourneden

New York: Praeger Publishers, 1975. Pp. 157. $15.00.

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THE GATT LEGAL SYSTEM AND WORLD TRADE DIPLOMACY

By Robert E. Hudec

New York: Praeger Publishers, 1975. Pp. 399, $25.00.

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INTERNATIONAL BUSINESS--GOVERNMENT COMMUNICATIONS

By Jack N. Behrman, J.J. Boddeayn, & Ashok …

Emerging Neo-Mercantilism In Canadian Policy Toward State Enterprises And Foreign Direct Investment, Douglas F. Lamont

Vanderbilt Journal of Transnational Law

Canadians have written many volumes about their relative inability to preserve their domestic economy from the deepening entanglements of American foreign investment. They cite such highly visible names as Exxon and General Motors for special notice since their Canadian subsidiaries dominate their respective local industries. Canadian nationalists fear that these firms as well as others from the United States will rejuvenate the now discredited continental thesis, which calls for the economic merger of Canada and the United States into one highly-integrated North American market. So uneasy are Canadians about potential American challenges to their sovereignty that they have resurrected mercantilistic …

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.