The role of arbitration in settling foreign invetment related Dissertation

The role of arbitration in settling foreign invetment related disputes' - Dissertation Example It will be argued that despite the lack of an international convention or codification of investor-state FDI law, customary law and the doctrine of fair and equitable treatment as interpreted by arbitrators has inspired sufficient confidence in arbitration and as such, FDI. It will therefore be argued that the role of arbitration as a method of resolving ISA in FDI relate disputes is very important to promulgating FDIs. To substantiate this hypothesis, this dissertation will examine and analyse the rapid growth of BITs, the fair and equitable treatment clause and the arbitration clauses typically included in BITs. An analysis of resulting arbitration awards will also be conducted. The provision for institutional and ad hoc ISA in BITs will also be examined. Contents Abstract 2 Contents 3 Introduction 5 I.Research Questions 7 II.Statement of the Problem 8 III.Significance of the Study 10 IV.Aims and Objectives 11 V.Research Methods and Designs 11 A.Research Methods 11 B.Research Desig n 13 Chapter Two 14 The Investor State Relationship 14 Introduction 14 I.Investor/State Relationships 14 A.Definition of Foreign Direct Investment 14 B.FDI and Investor-State Relations 17 II.Issues Arising in FDIs Between the Foreign Investor and the Host State 20 A.The Risk of Expropriation Without Compensation 21 B.The Need For Fair and Equitable Treatment 23 C.The Risk of the Host State Changing the Regulatory Framework Once The Investment is Made. 26 D.The Risk of Contract Breaches and Breaches of Other Promises and Violations of International Law 27 III.International Investment Treaties 28 A.Compensation 30 B.Currency Control 31 C.Non-discriminatory Treatment 32 D.Full Protection and Security 35 E.Umbrella Clauses 36 F.Minimum Treatment Standard 37 G.Fair and Equitable Treatment 39 Conclusion 42 Chapter Three 44 Investor-State Arbitration: Substantive and Procedural Laws 44 I.Investor/State Arbitration: The Washington Convention 44 II. Arbitration Decisions 49 Conclusion 60 Cha pter Summary 61 Chapter Four 62 Findings/Conclusion 62 Findings 62 Conclusion 65 Bibliography 67 Chapter One Introduction Over the past 20 years, the number of FDI treaties have tripled.3 Since the 1970s the rate of growth of FDIs has eclipsed that of the growth of worldwide exports by double. This trend continues today.4 The proliferation of FDI is attributed to the â€Å"widespread liberalization of the FDI regulatory framework† as well as advancement in information technologies and the intensification of business competition. A majority of states have implemented institutional and policy reforms that appeal to FDI and have improved treatment and protection standards. These changes reflect the popular view that FDIs are associated with the introduction of capital, skills, technology, employment and access to markets. The main objective in implementing foreign investment treaties, particularly BITs is to let investors know that their investments will have the benefit of lega l protection and to encourage the inflows from FDIs.5 By year end 2010, the number investor/state arbitration (ISA)