International Standards of Foreign Investment Protection

دانشنامه حقوق اقتصادی

Article 3, Volume 25, Issue 14, October 2018, Pages 47-88   

Document Type: Scientific research

DOI: 10.22067/le.v25i13.64645

Authors

Alireza Ansari Mahyari^{* 1}; Leila Raisi²

¹Ph.D. Candidate of Public International Law, Department of Law ,Isfahan (khorasgan) Branch, Islamic Azad University, Isfahan, Iran

²Islamic Azad University, Khorasgan Branch

Abstract

1. Introduction
Today, one of the important economic issues that has a significant role in the economic growth and development of countries, especially in developing countries, is foreign investment. Therefore, these countries compete to attract more foreign investment.
One of the major obstacles to foreign investment is the lack of security in the host state; this lack of security is due to dangers such as war, turbulence and regime change that threaten investors. Therefore, the formulation of regulations on the protection of foreign investors at the national and international levels can cause to reduce the sense of danger and be a source of confidence among investors. Protecting foreign investment today is one of the important issues of international investment law that can help countries and investors to remove investment barriers and attract more capital.
Since the 1960s, countries have created an extensive collection of bilateral treaties in order to protect foreign investors. It was known as bilateral treaties for promotion and protection of investment. In fact, the main purpose of concluding these treaties was that, as a supplement to the domestic laws and regulations of investment, they can provide an international mechanism to support as much as possible foreign investment and regulate related affairs, as well as a favorable environment for host governments to attract foreign investment. In these treaties, a set of standards is anticipated to support foreign investors and create a secure environment that has had a significant impact on the growth and development of foreign investment. Some of these standards include fair and equitable treatment, full protection and security, national treatment and most-favored-nations treatment.
2. Methodology
This study with analysis of international arbitral tribunals and state practices in bilateral and multilateral treaties discusses the development of standards of fair and equitable treatment, full protection and security, national treatment and most-favored-nations treatment. The research method used in this study is descriptive-analytical using library resources.
3. Results and Discussion
The fair and equitable treatment standard establishes one of the most important elements available to a foreign investor to protect his investment in a foreign country, because it provides him with a certain treatment that the host state must grant regardless of the treatment given to its own nationals. Full protection and security standard can be a complement to fair and equitable treatment and according to it, the host state is committed to adopt some measures to protect foreign investors against unfavorable events and harmful acts.
National treatment is considered as one of the important standards in international investment law to ensure optimal performance of the host state with foreign investments so that the host state in the same way which treats domestic investors also deal with foreign investors. The most-favored-nation treatment standard can be a complement to national treatment. According to this standard, host state must treat third state investors as it treats foreign investors because this standard is used to prevent discrimination against foreign investment.
These standards are a treaty-based obligation that must be put into a specific treaty and are not a requirement of customary international law. So, if these standards are not stipulated in the treaty, the host state will have no obligation to comply with these standards against the foreign investor.
One of the important issues of international standards of foreign investment protection is identification of concepts, examples and their application; but, in this study, in addition to the above, the main goal is to examine whether these standards of protection have been developed since the emergence, so far, or it is still used in the present era traditionally? The hypothesis of the authors is that the standards of foreign investment protection, like many other international issues, have had many fluctuations since the emergence and due to the dynamics and development of international investment law, they have also undergone many changes; therefore, today we can speak of significant progress and development in this area.
4. Conclusion
In this study, by describing and analyzing concepts and examples and methods of enforcement of foreign investment protection standards in bilateral and multilateral investment treaties which these standards have been used in most of them and as well as the examination of international arbitration tribunals procedure that have issued various decisions regarding these standards, it is concluded that there are no specific examples for the application of investment protection standards in the investment treaties and international arbitration tribunals procedure.This implies the breadth, flexibility and dynamism of the aforementioned protective standards. Therefore, the growth and development of investment treaties and international arbitration procedure has caused the development of these standards over time. This development has had a positive role in attracting and growing foreign investment in host countries.
Accordingly, today, these standards can be used as a system of foreign investment protection that is not static and is in progress. Consequently, the present study emphasizes this hypothesis that the standards of foreign investment protection have exited from the traditional conditions over time and they are used according to the requirements of the time and circumstances of each particular case.

Keywords

foreign investment; fair and equitable treatment; full protection and security; national treatment; most-favoured-nations treatment

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