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dc.contributor.author
Fokaidou, Lemonia
en
dc.date.accessioned
2016-02-26T14:08:14Z
dc.date.available
2016-02-27T01:00:16Z
dc.date.issued
2016-02-26
dc.identifier.uri
https://repository.ihu.edu.gr//xmlui/handle/11544/12452
dc.rights
Default License
dc.subject
BIT(s)
en
dc.subject
Investment Arbitration
en
dc.subject
State Sovereignty
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dc.subject
Arbitration clause(s)
en
dc.subject
Investment Protection Provision(s)
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dc.title
Impact of the investment protection provisions in the Bilateral Investment Treaties and the Treaties, in general, on the ability of governments to regulate matters of public interest, i.e. taxes, commerce, etc.
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heal.type
masterThesis
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heal.creatorID.email
l.fokaidou@gmail.com
heal.generalDescription
During the past years, it was a common belief that, when it came up to the investor- state relationship, the first party was almost always the weakest one, since it had to comply with the national law of the Host State, which further means that it was subjected to the changes of the latter too. Inherently and clearly, changes are not always positive and can create problems of smaller or bigger importance to a thriving enterprise. Thus, in order for these negative consequences to be prevented, or at least limited as much as possible, investment protection provisions started being drafted and used in the text of international investment agreements. Investment protection provisions were implemented in Bilateral Investment Treaties (hereinafter BITs), and until today, as designated by the name they are aiming to protect the investor from any unjust or excessively unfavorable alteration that the Host State might decide to implement in its legislation. Over the years, investment protection provisions were not the only way investors could be protected, or even favored. Investor- State Dispute Settlement (hereinafter ISDS), too, came to the fore to protect investors in developing or undeveloped countries that had a more primitive national law, i.e. did not provide for adequate guarantees and safeguards in case a dispute between the state and the investor would arise. ISDS is considered by many to solve disputes in a more objective way than national courts do. However, the latter remains to the experience of the coming years to show. In addition to the discussed ways, one could say that stabilization clauses and umbrella clauses work also to the benefit of the investor as they are trying to protect them, in a different modus, from the extensive powers of the Host State. However, we should not forget that the aim of these clauses is not about the foreign investor to obtain unlimited powers, but to have the same level of protection and the same rights with other (national or not) investors. In other words, these clauses are destined not only to protect the investor against potential unfavorable legislation adopted by the Host State, but also to ascertain that foreign investors do not obtain a more favorable position compared to the one of the national investors. Thus, it has to be paid a lot of attention in order for these clauses not to override their initial purpose and for their function to have more of a positive effect, i.e. the one of providing balance between the interests of the Host State and the national and/ or foreign investors. Nevertheless, both of the aforementioned ways, apart from the stabilization clauses and umbrella clauses, proved that they do not only provide protection to the investors, but also sometimes encroach on the sovereignty of the host states and limit it. There is a conflict between scholars, officials and any other social group that could possibly be affected by this encroachment, with one part saying that there is no such danger regarding the limitation or infringement of the sovereignty of the state and with the other one claiming that the danger is grave and imminent. Both sides have quite convincing arguments, which we will examine in more detail further on this paper. Baring that in mind, the importance of leaving intact the exclusive competences of the State is of utmost importance. The implications and possible reasons arisen out of this encroachment will be analyzed hereinafter in this paper.
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heal.classification
Law
en
heal.classification
Arbitration
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heal.keywordURI.LCSH
Arbitration (International law)
heal.keywordURI.LCSH
Investments--Law and legislation
heal.keywordURI.LCSH
Investments, Foreign--Law and legislation.
heal.keywordURI.LCSH
Arbitration and award.
heal.keywordURI.LCSH
International commercial arbitration
heal.keywordURI.LCSH
Sovereignty.
heal.keywordURI.LCSH
Arbitration agreements, Commercial.
heal.keywordURI.LCSH
Conflict of laws--Arbitration and award.
heal.language
en
el
heal.access
free
el
heal.license
http://creativecommons.org/licenses/by-nc/4.0
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heal.references
1. Ghouri, A. A., INTERACTION AND CONFLICT OF TREATIES IN INVESTMENT ARBITRATION, The Netherlands, Kluwer Law Arbitration, 2015 2. Lenk, H., Investor- state arbitration under TTIP (Resolving investment disputes in an (autonomous) EU legal order), Swedish Institute for European Policy, 2015 3. Newcombe, A. P. and Paradell, L., Law and Practice of Investment Treaties: Standards of Treatment, The Netherlands, Kluwer Law Arbitration, 2009 4. Salacuse, J., The Law of Investment Treaties, Second Editions, Massachusetts, Oxford University Press, 2014 5. Struycken, A. V. M., ARBITRATION AND STATE CONTRACTS, Leiden, Hague Academy of International Law, 2015 6. Παμπούκης, Χ., Δίκαιο Διεθνών Συναλλαγών, Αθήνα, Νομική Βιβλιοθήκη, 2010
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heal.references
1. Albrecht, J. P., ‘Opinion of the Committee on Civil Liberties, Justice and Home Affairs for the Committee on International Trade on recommendations to the European Commission on the Commission on the negotiations for the Transatlantic Trade and Investment Partnership (TTIP)’, European Parliament – Committee on Civil Liberties , Justice and Home Affairs, 2014. 2. Alford, R. (ed), ‘Scholars Debate Investment Arbitration Chapter in TPP and TTIP’, Kluwer Arbitration Blog, April 2015. Available online (accessed 7 November 2015): http://kluwerarbitrationblog.com/2015/04/07/scholars-debate-investment-arbitration-chapter-in-tpp-and-ttip/ 3. Egger, P. and Pfaffermayr, M., ‘The impact of bilateral investment treaties on foreign direct investment’, Journal of Comparative Economics 32, 2004. 4. Grabowski, A., ‘The Definition of Investment under the ICSID Convention: A Defense of Salini’, Chicago Journal of International Law: Vol. 15: No. 1, Article 13, 2014 5. ‘INVESTOR- STATE DISPUTE SETTLEMENT (ISDS) PROVISIONS IN THE EU’S INTERNATIONAL INVESTMENT AGREEMENTS’, Directorate- General for External Policies, 2014 6. Kleinheisterkamp, J., ‘Who is Afraid of Investor-State Arbitration? Or Comparative Law?’ (June 2014). LSE Law: Policy Briefing Paper No. 4. Available at SSRN: http://ssrn.com/abstract=2483775 or http://dx.doi.org/10.2139/ssrn.2483775 7. Latek, M. and Members’ Research Service, ‘Investor- State Dispute Settlement (ISDS)- State of play and prospects for reform’, European Parliamentary Research Service, 2014 8. Manciaux, S., ‘The Notion of Investment: New Controversies’, 2008 9. Nariman, F., ‘Investment Arbitration under the Spotlight- What next for Asia’, Herbert Smith Freehills- SMU Arbitration Lecture Series, 2014. Available online: http://ink.library.smu.edu.sg/hsmith_lect/3/ 10. Olmedo, J. V., ‘ISDS: which way will the scales TTIP? ’, Kluwer Arbitration Blog, October 2014. Available online (accessed 7 November 2015): http://kluwerarbitrationblog.com/2014/10/03/isds-which-way-will-the-scales-ttip/ 11. Patton, J., ‘A Case For Investor-State Arbitration Under the Proposed Transatlantic Trade and Investment Partnership.’ The Arbitration Brief 4, no. 1 (2014): 75-91, 2014. Available online (accessed 7 November 2015): http://digitalcommons.wcl.american.edu/cgi/viewcontent.cgi?article=1044&context=ab 12. UNCTAD International Investment Rule Making: stock taking Challenges and the Way Forward - UN Document UNCTAD/iit/2007/3/unsalesnumber.08.II.D.1(2008). Available online (accessed 1 December 2015) http://unctad.org/en/Docs/iteiit20073_en.pdf
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heal.references
1. Philip Morris Brand Sàrl (Switzerland), Philip Morris Products S.A. (Switzerland) and Abal Hermanos S.A. (Uruguay) v. Oriental Republic of Uruguay (ICSID Case No. ARB/10/7). Available online (accessed 24 November 2015): https://icsid.worldbank.org/ICSID/FrontServlet?requestType=CasesRH&actionVal=showDoc&docId=DC3592_En&caseId=C1000 2. Vattenfall AB, Vattenfall Europe AG, Vattenfall Europe Generation AG v. Federal Republic of Germany (ICSID Case No. ARB/09/6). Available online (accessed 24 November 2015): http://www.italaw.com/sites/default/files/case-documents/ita0890.pdf
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heal.fileFormat
pdf
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heal.recordProvider
School of Economics, Business Administration and Legal Studies, LLM in Transnational and European Commercial Law, Mediation, Arbitration and Energy Law
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heal.publicationDate
2016-01-25
heal.bibliographicCitation
Lemonia Fokaidou, Impact of the investment protection provisions in the Bilateral Investment Treaties and the Treaties, in general, on the ability of governments to regulate matters of public interest, i.e. taxes, commerce, etc., SCHOOL OF ECONOMICS, BUSINESS ADMINISTRATION & LEGAL STUDIES, International Hellenic University, 2016
en
heal.abstract
This dissertation was written as part of the LLM in Transnational and European Commercial Law, Mediation, Arbitration and Energy Law at the International Hellenic University. This dissertation addresses the issue of the interaction between investment arbitration and state sovereignty. Specifically, in connection with the proposed EU-USA free trade agreement (TTIP, ISDS) there is quite some discussion on investor arbitration and whether this encroaches on the sovereignty of states. One particular allegation is, that investor-state arbitration restricts the ability of a government to impose new taxes, or to regulate public safety, commerce or health. By seizing the opportunity given from the above- mentioned argument, it becomes the purpose of this thesis to deal with questions arising out of this matter. In particular, the questions are the following: i) Is it true that investment arbitration can limit down the sovereignty of a State or is it just a meaningless fear? ii) If the allegation is true, what is the kind and the size of impact that these clauses have on a government’s law-making decisions? iii) Lastly, is such an impact a problem created by sloppily drafted arbitration clause/ investment protection provision, or maybe a flaw of the Bilateral Investment Treaties themselves? What other reasons could result to that? (en)
en
heal.tableOfContents
ABSTRACT I CONTENTS ΣΦΑΛΜΑ! ΔΕΝ ΕΧΕΙ ΟΡΙΣΤΕΙ ΣΕΛΙΔΟΔΕΙΚΤΗΣ. INTRODUCTION 1 INVESTMENT PROTECTION PROVISIONS VS STATE SOVEREIGNTY 3 STATE SOVEREIGNTY 3 INVESTMENT PROTECTION PROVISIONS 4 Investor 5 Investment 6 Bilateral Investment Treaties 6 Investment Arbitration 7 EFFECTS THAT THE INVESTMENT PROTECTION PROVISIONS MAY HAVE ON STATE SOVEREIGNTY 8 REASONS FOR THIS INFLUENCE 9 Sloppily drafted arbitration clauses and Investment Protection Provisions 9 Defficiencies of the BIT itself 11 Public Sector v. Private Sector Gap- Friends or Enemies? 12 CASE LAW RELATIVE TO THE EFFECT OF INVESTMENT PROTECTION PROVISIONS AND INVESTMENT ARBITRATION ON STATE SOVEREIGNTY 13 VATTENFALL V. GERMANY I (COAL-FIRED ELECTRIC PLANT) AND VATTENFALL V. GERMANY II (NUCLEAR ENERGY) 14 PHILIP MORRIS V. AUSTRALIA AND PHILIP MORRIS V. URUGUAY 1ΣΦΑΛΜΑ! ΔΕΝ ΕΧΕΙ ΟΡΙΣΤΕΙ ΣΕΛΙΔΟΔΕΙΚΤΗΣ. ELI LILLY V. CANADA, VEOLIA V. EGYPT AND YUKOS UNIVERSAL LIMITED (ISLE OF MAN) V. THE RUSSIAN FEDERATION 17 INVESTOR STATE DISPUTE RESOLUTION (ISDS) ON TTIP 19 OPINION OF ISDS OPPONENTS 20 OPINION OF ISDS PROPONENTS 22 CONCLUSIONS 23 BIBLIOGRAPHY 26
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heal.advisorName
Otto, Dirk
en
heal.committeeMemberName
Otto, Dirk
en
heal.committeeMemberName
Kaissis, Athanassios
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heal.committeeMemberName
Rosenfeld, Friedrich
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heal.academicPublisher
IHU
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heal.academicPublisherID
ihu
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heal.academicPublisherDhareID
IHU
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heal.numberOfPages
27
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