Investment Law and Sustainable Development: Pakistan’s Opportunity to Strike the Balance by Nida Mahmood*


This paper aims to look at the intricate link between foreign investment and sustainable development stressing upon its importance for all, the home and host states, the foreign investors as well as all other stakeholders in the ecological paradigm including the human beings, animals, flora and fauna. Continue reading

Africa and the System of Investor-State Dispute Settlement: To Reject or Not to Reject? Uche Ewelukwa Ofodile*


This paper examines the position of countries in Sub-Saharan Africa (SSA) regarding proposals to reform the investor-State dispute settlement (ISDS) system. Despite their silence on ongoing discussions about the future of the ISDS system and possible pathways for reform, SSA countries are making their position on the issue known. The paper argues that the position of SSA countries can be gleaned from instruments that these countries have pushed for at the sub-regional level. In particular, in the Investment Agreement for the COMESA Common Investment Area (CCIA),[1] in the SADC Bilateral Investment Treaty Template (SADC Model BIT),[2] and even in the SADC Protocol on Investment, countries in SSA appear to express a desire for a radically transformed ISDS system. However, closer inspection suggests that SSA countries are inconsistent in their actions when it comes to reforming the ISDS mechanism. Although these countries espouse a vision of an ISDS mechanism that is different from the existing mechanism, their actions tell a different story. For example, the CCIA is not operational, the SADC Model BIT is not binding and very few countries, if any, have taken steps to model their bilateral investment treaties (BITs) after it. And in their BITs and related treaties, SSA countries still cling to the traditional approach to ISDS and BITs more generally. Furthermore, while SSA countries would prefer to limit investor access to ISDS, the demise of the SADC Tribunal in the wake of Mike Campbell (Pvt) Ltd and Others v. Republic of Zimbabweundermines efforts to project domestic and regional institutions in Africa as credible alternatives to international arbitration. The paper suggests that the inconsistent position of SSA countries on the ISDS question deserves closer study. Also deserving closer study is an assessment of the experience of SSA countries with the ISDS system since the system emerged some forty years ago. Finally, attention must be paid to the myriad of factors that presently limit the capacity of countries in Africa to negotiate tailored and development-oriented international investment agreements (IIAs) as well as factors that undermine their effective participation in the international investment law regime more generally.  Continue reading

Mongolia enacts a new Law on Investment, by Antonio Delgado

Mongolia has recently passed a Law on Investment strengthening the rights of investors and increasing the certainty and predictability of its tax regulations. In addition, the Law creates a State Administrative Body in Charge of Investment Affairs (the “agency”) to promote investments and provide services to investors. The Law, which took effect on 1 November 2013 pursuant to its Article 24, is expected to increase foreign investment flows.[1] Economic growth in Mongolia, which has a population of less than 3 million people, is mainly driven by its copper and coal resources, making investment a top priority for its government.[2] Continue reading

ICSID Tribunal Declines Jurisdiction when Confronted with Corruption, by Antonio Delgado

On 4 October 2013, ICSID dispatched the arbitral tribunal’s award in Metal-Tech Ltd v the Republic of Uzbekistan.[1] The tribunal declined jurisdiction after finding that corruption had been established “to an extent sufficient to violate Uzbekistan law in connection with the establishment of the Claimant’s investment in Uzbekistan.”[2] Continue reading

Awaiting the Trans-Pacific Partnership, by Antonio Delgado

Last month, the leaders of Australia, Brunei Darussalam, Canada, Chile, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore, United States and Vietnam announced that the negotiations for completion of the Trans-Pacific Partnership (“TPP”) were on track. Progress was made on the legal texts and annexes that will regulate a diverse range of sectors that include goods and services, investment, financial services, government procurement, and temporary entry markets. The focus of the TPP is now aimed at resolving the outstanding issues and achieving a final agreement by the end of this year.[1] Continue reading

Pakistan’s BIT Dilemma: Understanding Why a ‘Model’ BIT may not be the Best Approach, by Nida Mahmood

Pakistan is on its way to develop its own ‘Model’ Bilateral Investment Treaty (BITs) as the standard international investment treaty to seek and attract more foreign investment.[1] Such ‘Model’ investment treaties usually contain blanket and comprehensive provisions to cater to the diverse relationships that a State may have with other potential capital exporting States and in this way, a standard-form contract-like treaty is perpetuated to achieve a harmony in terms of obligations that a State is prepared to undertake as regards investments to and from its territory.  Continue reading

EU Commission proposes to open negotiations for a BIT with China, by José Ángel Rueda

On 23 May 2013 the European Commission decided to ask EU Member States for their agreement on a mandate to open negotiations on an investment agreement with China.[1] As the Commission has underlined, “this is the first ever proposal for a stand-alone investment agreement since foreign direct investment became the exclusive competence of the EU under the Lisbon Treaty” on 1 December 2009.

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Japan’s favourable stance towards FTAs and treaty succession, by José Ángel Rueda

March 2013 will be remembered as a month in which relevant FTA negotiations were launched or reinforced by accessions of powerful States.[1] One of the most prominent actors in this period has no doubt been Japan as in just a couple of weeks it decided to join[2] existing FTA talks for the Trans-Pacific Partnership (TPP)[3] and launch FTA negotiations with the European Union (EU).[4]  Continue reading

Latest remarks on EU’s FTA and foreign investment plans with developing countries in Asia, by José Ángel Rueda

The EU has been very active in the promotion of free trade and investment during the last two weeks.[1] Morocco, Peru, Ukraine or the United States of America have become or will become EU partners in those fields in the near future.

Now we would like to complete the scenario by pointing out the latest developments of EU initiatives with a further two developing countries: Myanmar and Vietnam.  Continue reading

Germany-Philippines relations not affected by Fraport case, by José Ángel Rueda

Official statements and news reports published during the last five days indicate that Germany reaffirms that the so-called Fraport case is not an obstacle for the deepening of trade and investment relations with the Philippines.

Such conclusion is the outcome of the official visit that German Foreign Minister Dr. Guido Westerwelle paid to the Philippines on 7-8 February 2013 where he met President Benigno Aquino and Foreign Secretary Alberto del Rosario.[1]

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Recent Developments regarding the Recognition and Enforcement of Foreign Arbitral Awards in Pakistan By Nida Mahmood*

The dispute resolution provision contained in a Bilateral Investment Treaty (BITs) that commonly provides for investor-State dispute resolution in a foreign arbitral forum is perhaps the single most influential reason and incentive for States to negotiate BITs with other States. This is because foreign arbitral forums are perceived to be transparent, neutral, independent, and cost effective mechanisms for settlement of those disputes that commonly are between one State and the investors of another State, in which case, the national/local courts just may have an ‘inherent national prejudice’. Continue reading

Harmonisation of Chinese Legal Culture with English Common Law Principles through International Customary Law, By Mary B. AYAD*

Chinese legal culture is compatible with ancient and current English Common Law principles in applications of international customary law construction of contracts.  Proof of this is found in a recent Australian High Court decision on the Forrest Mining case[1]  which from the Australian perspective,[2] though vague on expounding the precise legal principles underpinning its reasons,[3] sets a sophisticated and pragmatic precedent in the topical matter of the constructions of cross-border commercial contracts, international sales contracts and investor—State contracts. Continue reading

The ‘BIT’ Conundrum By Nida Mahmood

The Bilateral Investment Treaties (BITs) are international agreements between states inter se that commonly provide for a framework in which investment from one state (home state) is to be received and managed within the other state (host state). They typically impose obligations on the host states to provide for the basic standards of treatment and investment protection as enunciated in customary international law, including the Most Favored Nation Treatment, National Treatment and the Fair and Equitable Standard of Treatment. Continue reading