Abolghasem Shahbazian; Sadegh Salimi
Abstract
Measures taken by governments during armed conflict to safeguard their essential interests sometimes cause damages to foreign investors. The investors thus affected seek remedies in the arbitration tribunals invoking breach of host government obligations to protect investments. The host government also ...
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Measures taken by governments during armed conflict to safeguard their essential interests sometimes cause damages to foreign investors. The investors thus affected seek remedies in the arbitration tribunals invoking breach of host government obligations to protect investments. The host government also usually attempts to assert as defense non-precluded measures to prove its irresponsibility, or if it proves responsible, justify it by resorting to circumstances precluding wrongfulness in the customary international law. But since different courts do not consider the same requirements to invoke these rules, there is no certainty that the parties to the lawsuit will be able to invoke them and, as a result, the scope of government's obligations to protect the foreign investor during the armed conflict is obscure. To clarify the scope of the host government's obligations to protect the foreign investor during armed conflicts and balance the interests of the investor and the host government during the investment disputes arising from the armed conflict, this article explores the possibility and requirements of invoking circumstances precluding wrongfulness and non-precluded measures and the relationship between them.
elnaz nesari
Abstract
Nowadays, issues non-related to investment have been entered in foreign investment law. Investment may bring about human rights and environmental challenges. Sustainable Investment emphasizes on the necessity of observing environmental and social standards in foreign investment process. While international ...
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Nowadays, issues non-related to investment have been entered in foreign investment law. Investment may bring about human rights and environmental challenges. Sustainable Investment emphasizes on the necessity of observing environmental and social standards in foreign investment process. While international instruments which are related to foreign investment do not contain legal necessity on foreign investment to conform with sustainability paradigm, foreign investment insurer organs –especially MIGA- provide that the continuance in supporting the project is subject to environmental and social considerations. It is mentioned through MIGA’s Policy on Environmental and Social Sustainability that the agency is obliged to consider environmental issues before deciding to guarantee the project. Importance of protecting the environment is also emphasized by classifying the activities according to environmental and social basis. Emphasis on foreign investment sustainability which is indicated in MIGA’s instruments, regulations and practice encourages investors to conform investment projects to environmental regulations.
Ebrahim Rahbari; Mahdi Shahabi; Soroosh Falahati
Abstract
Patents are considered as investments protected under the International Investment Law. Although, these properties are protected under the principle of territoriality, similar to other investments, they can be expropriated as a result of host states’ regulatory measures inconsistent with protection ...
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Patents are considered as investments protected under the International Investment Law. Although, these properties are protected under the principle of territoriality, similar to other investments, they can be expropriated as a result of host states’ regulatory measures inconsistent with protection standards stemming from foreign investment protection regulations and treaties including fair and equitable treatment and legitimate expectations of foreign investors. Considering the fact that few arbitration awards have been issued by arbitration panels in this regard, it is yet difficult to claim there is a strong precedent in International Investment Law. Nevertheless, reflecting the provisions of international regulations, the stance of the domestic law and the most important relevant case, this article provides the most significant elements of indirect expropriation as well as existing doctrines in this respect and further investigates whether invalidation of patents can amount to indirect expropriation. It will also be mentioned that despite the fact that according to several foreign investment protection treaties, invalidation of patents shall not be subject to regulations regarding indirect or creeping expropriation, the final determination lies with the arbitration panel.
