The Journal of

WORLD INVESTMENT & TRADE

ABSTRACTS 

Christoph Schreuer: Travelling the Bit Route—Of Waiting Periods, Umbrella Clauses and Forks in the Road

This article deals with three clauses typically contained in bilateral investment treaties (Bits). “Waiting periods” require parties to attempt a negotiated settlement of a dispute before resorting to international arbitration. “Umbrella clauses” are provisions that place undertakings made by host States vis-à-vis investors under a Bit’s protective umbrella. “Forks in the road” provisions require investors to make an irreversible choice between litigation of a dispute in domestic courts or international arbitration. These three types of provisions are examined in the light of recent arbitral practice.

Christoph Schreuer is Professor of International Law at the University of Vienna, Austria.

Michael Clancy and Thomas Wälde: Efficiency in Mediation—Solving a Complex Cross-border Energy Infrastructure Dispute in the Shadow of Three Moving Regulatory Regimes

This article discusses a recent case in which two energy companies used mediation to completely restructure a long-term contractual package for a large joint investment. In addition to the parties to the dispute, there were also several other companies involved—transporters, traders, suppliers—and the rapidly moving, disjointed regulatory regimes of the two countries and the EU to be taken into account. The article examines how mediation was employed to create a win–win solution to the dispute rather than resorting to the zero-sum game of litigation or arbitration.

Michael Clancy holds degrees of Bachelor of Engineering, Master of Science and LL.M. He is currently applying petroleum development risk assessment techniques to the economic analysis of dispute processes at Cepmlp/Dundee University, Scotland. He has worked for some 20 years in oilfield evaluation and development projects worldwide.

Thomas Wälde, Dr. iur. LL.M. (Harvard) is Professor and Jean Monnet Chair at Cepmlp/Dundee University, Scotland. He was formerly the principal UN adviser on energy/investment law and has practiced deal and dispute mediation throughout the world since 1980. He is also the author of Renegotiation and Contract Adaptation in International Investment Projects—Applicable Legal Principles and Industry Practices (with Abba Kolo), which appeared in The Journal of World Investment, Vol. 1, No. 1, July 2000.

Bill Dymond and Michael Hart: The Doha Investment Negotiations—Whither or Wither

At the 2001 Wto Ministerial Meeting, it was decided to delay launching negotiations on a multilateral agreement on investment negotiations until the 2003 Meeting, subject to an explicit consensus on the modalities of negotiations. At that Meeting, very little was accomplished, as the modalities had not yet been agreed. What can now be expected of the negotiations? At some point, Wto Ministers will need to dispose of the Doha mandate by deciding on the object and purpose of bringing investment within the Wto family of agreements. This article aims to contribute to that decision. It first reviews the efforts to negotiate multilateral investment agreements in the past and the discussions at the Wto that led to the Doha investment mandate. It then examines the intellectual and policy foundations for a Wto investment agreement. Finally, it discusses some of the major issues that require resolution and offers some recommendations on the way forward, even considering the option of taking investment off the Wto negotiating agenda entirely.

Bill Dymond is Senior Executive Fellow of the Centre for Trade Policy and Law, Carleton University/University of Ottawa, Ontario, Canada.

Michael Hart is Simon Reisman Chair in Trade Policy at the Norman Paterson School of International Affairs, Carleton University, Ontario, Canada. Both authors are former Canadian trade officials.

Suman Modwel: The Wto and Agriculture—Why Is India so Furious?

This article attempts to explain the perspective of India (and a number of other developing countries) in the continuing negotiations at the Wto on agriculture in the special context of the importance of this sector and of the extremely poor who subsist on it. In juxtaposing this with the incredible levels and varieties of continuing protectionism in the developed world, it attempts also to explain why India is so discontented with the way the trade talks are proceeding.

Suman Modwel is Professor and Director of Research at the Enpc School of International Management in Paris, France; and Visiting Research Fellow at the Institut d'Etudes Politiques de Paris (Sciences Po).

Vincent Akpotaire: The Legal Imperatives for Foreign Investment in Nigeria—Their Success Index Explored

The years, Nigeria has introduced several pieces of legislation intended to impact the quantity and types of foreign investment in the country. These legislative actions reveal some of the reasons for the failure to enhance Nigeria’s foreign investment profile. A cursory look at the current laws will reveal whether or not they have in fact succeeded in stimulating foreign investment. Nigerian government efforts beginning in 1995 to create a laissez-faire investment climate appear to follow global trends towards the liberalisation of investment laws and emergent norms in this regard. This article reviews these laws and measures the success index of these efforts within a global framework.

Vincent Akpotaire holds degrees of LL.M. and B.L.; and is a Lecturer in the Department of Public Law, Faculty of Law at the University of Benin, Benin City, Nigeria.

The 10th Geneva Global Arbitration Forum: Settling Disputes on a Shrinking Planet

This issue publishes parts of the proceedings of the 10th Geneva Global Arbitration Forum held on 3 and 4 December 2003, which was sponsored by The Journal of World Investment & Trade. The largest part of these proceedings was published in the February 2004 issue, Vol. 5, No. 1.