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The open access publication of this book has been published with the support of the Swiss National Science Foundation.

In The Interpretation and Application of the Most-Favored-Nation Clause in Investment Arbitration, Dr. Anqi Wang provides suggestions for MFN drafting in future international investment agreements (IIAs), as well as for MFN application by investor-state dispute settlement (ISDS) tribunals in case of ambiguity. Dr. Wang conducts a systemic review of MFN clause in history and maps all the relevant ISDS cases. She argues that ISDS tribunals should interpret the MFN clause according to the treaty text on a case-by-case basis, and that tribunals should also consider state consent as the foundation for the jurisdiction of international adjudication, current IIA reform, and essential treaty interpretive principles.

Abstract

The European Union and the People’s Republic of China ‘in principle’ concluded the Comprehensive Agreement on Investment (CAI). Considering that the agreement has been passed in the backdrop of dynamic multi-fora trade and investment policy-making practices, both parties’ negotiations at the bilateral, multilateral and plurilateral levels require testing. This is important to understand whether the growth of bilateral and regional agreements and the fragmentation of international economic law are enablers or roadblocks to further liberalisation of international trade and investment. This Special Issue shall analyse the CAI and argue in favour of the importance of this development. It will examine the current hyper-politicisation and geo-politicisation of investment treaties to situate the symbolic importance of the CAI. In lieu of the uncertainty of final ratification of CAI and sanctions imposed by China, this article (and the whole Special Issue it introduces) are a timely academic contribution that shall trace its scope and potential effectiveness and enable much-needed discourse.

Open Access
In: The Journal of World Investment & Trade
Authors: and

Abstract

Domestic screening of foreign investment, often on national security grounds, has intensified in recent years. More countries are introducing such regimes, while others expand their scope or allow retrospective screening. These developments increase the potential for investor–State claims under international investment agreements, even sometimes regarding investments that are not yet established. Host States need to be aware of the potential for adverse screening decisions, the imposition of conditions, or due process shortcomings to conflict with investment obligations, such as fair and equitable treatment or most-favoured nation treatment. Although tools exist in some treaties to exclude or exempt investment screening, these may not prevent a successful investment claim. For example, listing a screening regime as a non-conforming measure may not cover all future amendments, and general and security exceptions are subject to considerable uncertainty. Host States need to ensure compliance with international investment law in creating and developing screening regimes.

Open Access
In: The Journal of World Investment & Trade
Author:

Abstract

Racism is not a natural phenomenon. Historically, it was socialised into global existence through intentional acts that have become embedded parts of the international legal order and domestic social systems. Rejecting racism and developing alternative antiracist approaches similarly require intentionality. One area of concern for scholars is how our linguistic and framing choices perpetuate or reproduce racialised hierarchies. In this article, I employ I. Bennett Capers’s ‘Reading Black’ methodology to interrogate racialised narratives embedded in four contributions to modern international investment law debates. The purpose is not to condemn the individual authors but to identify how the socialisation and structures of racism continue to affect our scholarship. Premised on the belief that countering implicit, racialised biases is a normative good, I examine how it can also facilitate better scholarship. I offer suggestions that researchers and journals can take, individually and collectively, to develop antiracist praxes.

Open Access
In: The Journal of World Investment & Trade

Abstract

Global regulatory standards of due diligence, regulatory coherence, and due regard are emerging in public international law. Investment law has been concerned to settle upon the most appropriate regulatory coherence tests for application in the arbitration of regulatory disputes. Candidates have included proportionality, rationality, and reasonableness tests. This article argues instead for reliance on the due regard standard in conjunction with reasonableness or rationality testing. This will more appropriately reflect the nature of investment treaties as inter-State bargains. Further, responding to arguments for the adoption of proportionality on the basis of comparative public law, the article demonstrates that proportionality is not established as a general head of review in common law jurisdictions including England, Australia, Canada, New Zealand and South Africa. At the same time, the application of the due regard standard can have much in common with procedural proportionality testing as seen among these domestic legal systems and elsewhere.

Open Access
In: The Journal of World Investment & Trade

Abstract

The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement) sets a floor but not a ceiling for intellectual property protection. Examining the EU’s geographical indications regime for wines, this article considers the question of when a World Trade Organization member’s measures taken to implement the TRIPS Agreement might contravene the member’s obligations under the Agreement on Technical Barriers to Trade (TBT Agreement). A technical regulation apparently permitted by the TRIPS Agreement may be inconsistent with the TBT Agreement where it does not in good faith pursue a legitimate objective or where it is incongruent with or poorly calibrated to its objective. In particular, the compatibility with the TBT Agreement of EU regulations that prohibit the labelling of wines with the relevant grape variety name where the variety name ‘contains or consists of’, ‘evokes’ or ‘forms an integral part of’ a GI is open to doubt.

Open Access
In: The Journal of World Investment & Trade
Author:

Abstract

This article examines the significance of investor due diligence in the context of a claim that a host State has breached its obligation to provide fair and equitable treatment (FET). Despite increasing reliance on due diligence exercises, there are considerable differences in how tribunals understand and use such exercises. These differences are related to different visions of the function and future of international investment law. After exploring the different approaches that are taken, this article will argue that the most coherent approach is to treat investor due diligence as merely a technique for assessing investor reasonableness and prudence, rather than a strict requirement.

Open Access
In: The Journal of World Investment & Trade

Abstract

Article 22 of the Agreement on Trade-Related Aspects of Intellectual Property Rights defines Geographical Indications (GI). However, GI claims are increasingly contentious. Given the significance of trade barriers which can arise from unjustified GI claims, the article argues that legitimacy of GI claims must turn on whether objective evidence exists to the effect that Article 22(1) criteria are met. This article tests certain elements of the EU ‘Prosecco’ GI claim – that its qualities and characteristics are essentially attributable to the relevant location – against Italian production specifications to determine whether they provide evidentiary justification for the GI claim. This reveals evidence of absence of consistent qualities or characteristics in ‘Prosecco’ wine. The article additionally examines evidence explaining why this is so. The consequence of this conclusion is that the EU ‘Prosecco’ GI claim must rest solely upon the concept of ‘reputation’ for its legitimacy. Moreover, the approach taken by this article can be utilized to test the legitimacy of any GI claim so far as it relates to quality and characteristics.

Open Access
In: The Journal of World Investment & Trade