Index
alternative dispute resolution (adr)
comparing investor-state adr to arbitral settlement: strengths and weaknesses
371 –375
confidentiality in investor-state
384 –386
in investor-state dispute settlement
375 –380
non-arbitral settlement of investment disputes
362 –370
opening investor-state adr to public view and participation
387 –392
Amici Curiae
EU commission and its intervention as
426 –427
intervention before investor-state tribunals
349 –354
intervention subject to tribunals’ control and discretion
356 –357
involvement of
434
non-ngos and EU commission
430 –434
participation in icsid proceedings
411 –420
proliferation of types of
425
regulatory changes and formalisation of
420 –424
submissions
406 –407
from civil society
from international organizations
299 –304
from states
304 –307
in tribunals applying nafta rules
407 –411
community development agreement
136 –138
consultation
40 , 92–94 , 104 , 107–113 , 116–121 , 136 , 152 , 181 , 209 , 241–254
cutural conflict
262 –263
democratic legitimacy critique
40 –48
domestic courts, challenging government action in
97 –98
electing governments
87 –89
environmental conflict
262
environmental impact assessments
229–231 , 234–238 , 243 , 253 , 442
EU intervention in enforcement phase
302 –304
EU’s third party intervention proposal
343 –344
foreign investment
5 –7 , 19 –21
Act 1963
156 –158
Act 1997
162 –164
in eias
legal instruments and decisions
242 –234
environmental impact assessments
230 –235
favoured nation
25 –27
Investor-State Dispute Settlement
30 –33
in lifecycle of
10 –11
minimum standard of treatment
27 –29
national investment Act 1990
158 –162
national treatment
22 –25
reforming
34 –35
foreign-related disputes, in settlement of
11 –13
freedom of information legislation
95 –97
hearings and documents, access to
292 –294
indigenous participatory rights in international treaty law and non-binding documents
208 –215
international investment
law, public participation in
and foreign direct investment
5 –7
and investment law
14
in lifecycle of foreign investment
10 –11
normative process
8 –10
in settlement of foreign- related disputes
11 –13
legal framework for
foreign investment
19 –21
favoured nation
25 –27
Investor-State Dispute Settlement
30 –33
minimum standard of treatment
27 –29
national treatment
22 –25
performance requirements
29 –30
investment codes
2017 natural resources protection legislation
169 –172
adoption of
investment in economy
150 –151
in Tanzania Mainland
156 –164
directive on citizens’ participation on all major decisions by government
164 –166
formulation of
151 –152
participation of public
172 –173
separate codes for Tanzania Zanzibar
investment protection act, 1986
166 –168
Zanzibar investment promotion and protection act 2004
168 –169
in Tanzania
constitutional basis of
154 –156
investment disputes as public decision- making processes
60 –61
investment tribunals as ‘public authorities,’
59 –60
Investor-State Dispute Settlement
30 –33
Latin American
investment projects in latin america
263 –264
regional custom, indigenous consultation as
indigenous participatory rights in international treaty law and non-binding documents
208 –215
new regional custom in
222 –227
participatory rights of indigenous populations and communities
215 –222
mic.
See
multilateral investment court (mic)
minimum standard of treatment
27 –29
mining investment projects in indigenous territories of Bolivia
Mallku Khota or the ‘New Dorado’
conflict
266 –268
dispute
268 –275
social context
265 –266
San Cristobal mine
overcoming conflicts
276 –277
social context
275 –276
smart managing of conflicts in investment projects
277 –279
multilateral investment court (mic)
333 –339
national assembly’s power of public scrutiny
retroactivity and legitimate expectations
198 –202
stabilization, arbitration, and choice of law clauses
195 –198
umbrella clauses
202 –204
national treatment
22 –25
non-disputing party
49 , 65 , 284–289 , 306–308 , 339–344 , 351–352 , 357–359 , 387–390 , 403–440
norm acceptance
68 –74
normative process
8 –10
norm emergence
66 –68
norm entrepreneurs
65 –66
norm internalisation
74 –78
norm’s life cycle
63 –64
parliamentary committees, engaging with
94 –95
participatory rights of indigenous populations and communities
215 –222
permanent sovereignty
as rule and foreign investment as an exception
189 –190
and state’s ‘right to nationalize,’
183 –185
political conflict
261
private law challenge
assessment
138 –139
community development agreement
136 –138
contractualising human rights with actual beneficiaries
134 –136
third party rule challenge
132 –134
translation problem
130 –132
public consultations, experience of
107 –111
public hearings
112 –113
public participation
in arbitral proceedings
non-disputing parties’ submissions in investment arbitration
agreements
287 –290
rules
290 –294
conflicting rationales
61 –62
contractualisation of human rights and
private law challenge
assessment
138 –139
community development agreement
136 –138
contractualising human rights with actual beneficiaries
134 –136
third party rule challenge
132 –134
translation problem
130 –132
public participation challenge
127 –130
search for remedy
breach of contract and disgorgement of profit
144 –146
specific performance
141 –144
creeping acceptance into investment arbitration
58
in environmental impact assessments for foreign investment projects
in eias
academic commentary
235 –242
legal instruments and decisions
242 –234
environmental impact assessments
230 –235
fta negotiations
115 –120
instruments deployed before ratification
113 –115
instruments deployed in negotiating phase
public consultations, experience of
107 –111
public hearings
112 –113
stakeholders meetings
111 –112
in international investment law
54 –58
and foreign direct investment
5 –7
and investment law
14
in lifecycle of foreign investment
10 –11
normative process
8 –10
in settlement of foreign- related disputes
11 –13
in investment arbitration
See Amici Curiae
investment codes
2017 natural resources protection legislation
169 –172
adoption of
investment in economy
150 –151
in Tanzania Mainland
156 –164
directive on citizens’ participation on all major decisions by government
164 –166
formulation of
151 –152
participation of public
172 –173
separate codes for Tanzania Zanzibar
investment protection act, 1986
166 –168
Zanzibar investment promotion and protection act 2004
168 –169
in Tanzania
constitutional basis of
154 –156
investment disputes as public decision- making processes
60 –61
within investment regime
in investment treaty making
challenging government action in domestic courts
97 –98
electing governments
87 –89
engaging with or lobbying government or members of parliament
90 –91
engaging with parliamentary committees
94 –95
freedom of information legislation, making requests under
95 –97
participating in multilateral fora
98 –101
responding to formal and informal consultations
92 –94
using media
91 –92
voting in referenda
89 –90
investment tribunals as ‘public authorities,’
59 –60
in peaceful settlement of investment disputes
adr in investor-state dispute settlement
375 –380
comparing investor-state adr to arbitral settlement: strengths and weaknesses
371 –375
confidentiality in investor-state adr
384 –386
non-arbitral settlement of investment disputes
362 –370
opening investor-state adr to public view and participation
387 –392
transparency and participation in investor-state adr
380 –384
principle of
53 –54
public to private sphere
58 –62
public scrutiny
asymmetric nature of review
193 –194
national assembly
discretion
194 –195
power of
retroactivity and legitimate expectations
198 –202
stabilization, arbitration, and choice of law clauses
195 –198
umbrella clauses
202 –204
over foreign investments
179 –182
ratione materiae and ratione temporis
191 –193
reforming foreign investment
34 –35
social conflict
262
socio-economic conflict
262
stakeholders meetings
111 –112
states intervention in enforcement phase
305 –307
Tanzania’s natural resources regulatory reform
2017 legislation
permanent sovereignty as rule and foreign investment as an exception
189 –190
public scrutiny
asymmetric nature of review
193 –194
national assembly’s discretion
194 –195
ratione materiae and ratione temporis
191 –193
levelling playing field between foreign investors and states
185 –187
national assembly’s power of public scrutiny
retroactivity and legitimate expectations
198 –202
stabilization, arbitration, and choice of law clauses
195 –198
umbrella clauses
202 –204
permanent sovereignty and state’s ‘right to nationalize,’
183 –185
public scrutiny over foreign investments
179 –182
Tanzania Zanzibar, separate codes for
investment protection act, 1986
166 –168
Zanzibar investment promotion and protection act 2004
168 –169
Third party intervention
339 –342
at icj
345 –349
third party rule challenge
132 –134
transparency
30–34 , 49 , 74–80 , 127–129 , 241–242 , 254–255 , 336–343 , 353–354 , 361–362 , 380–382 , 384–389
wealth conflict
263 –264
written submissions
291 –292