The Journal of

WORLD INVESTMENT & TRADE

ABSTRACTS 

Thomas W. Wälde: The “Umbrella” Clause on Investment Arbitration—A Comment on Original Intentions and Recent Cases

This article examines the role of the clause in investment treaties relating to the “observation of commitments”  (labelled the “umbrella”, “pacta sunt servanda”, “sanctity of contract” or “respect for contract” clause). This clause appeared first in the 1959 Germany–Pakistan Bit and has since become a widespread practice in investment treaties, but it has neither been analysed in any depth in scholarly commentary nor been subject to serious testing until the two Sgs cases of 2003. The article first sketches the economic and conceptual context relating to the principle of “sanctity of contract” and then examines the treatment of contracts by government agencies with foreign investors under customary international law and summarizes how the umbrella clause in modern investment treaties should be read. It then examines in more detail the reading given to the clause in the two Sgs cases, adds some comments on contracts with State enterprises and concludes with a proposal as to how arbitral tribunals should deal with this clause.

Thomas W. Wälde, Dr. iur./LL.M., Harvard, Rechtsanwalt (Frankfurt) is Professor of International, Economic, Natural Resources and Energy Law and Jean-Monnet Chair, Centre for Energy, Petroleum and Mineral Law & Policy, University of Dundee, Scotland. He is also an Associate Editor of The Journal of World Investment and Trade and the author of the following articles which have appeared in therein: Methods for Settling Boundary Disputes—Escaping from the Fetters of Zero-SumOutcomes, Volume 4, No. 1, February 2003; and Energy Charter Treaty-based Investment Arbitration—Controversial Issues, Vol. 5, No. 3, June 2004.

Wenhua Shan: EU Enlargement and the Legal Framework of EU–China Investment Relations

The 2004 EU enlargement successfully expanded the boundary of the European Union to embrace eight former communist counties with which China has had and maintained good relationships. Whilst this enlargement may not tremendously increase the general volume of EU investment in China, it probably will significantly promote Chinese investment in the EU. The legal framework of EU–China investment relations will likewise be modified by the enlargement. This article thus deals with the legal framework governing the investment relations between China and the EU 10 States. It first explores the trade and investment relations between China and the EU 10 States and the applicable legal framework. Then it takes a closer look at the bilateral investment treaties concluded between the two sides.

Wenhua Shan, Ph.D. (Cambridge); Ph.D. (Xiamen); M. Econ. (Jinan); LL.B. (Sun Yat-sen); is Senior Lecturer in Law, Oxford Brookes University, U.K.; Adjunct Professor, Jinan University, People’s Republic of China; Visiting Fellow, East Asia Institute, National University of Singapore; Of Counsel, Haoliwen , Shanghai, People’s Republic of China. He is also the joint author of Towards a Common European Community Policy on Investment Issues, in The Journal of World Investment, Vol. 2, No. 3, September 2001; and Towards a Level Playing Field of Foreign Investment in China, in The Journal of World Investment, Vol. 3, No. 2, April 2002.

A.F.M. Maniruzzaman: The Relevance of Public International Law in Arbitrations concerning International Economic Development Agreements—An Appraisal of some Fundamental Aspects

 The purpose of this article is to appraise certain fundamental aspects of international economic development agreements (Edas) in the light of recent developments and their relevance to public international law. They merit consideration afresh as they are very often confronted in international arbitrations involving a State, a State enterprise or both and which raise various issues. A public international lawyer cannot afford to ignore the importance of their understanding in the real world while dealing with the arbitration of international disputes arising out of Edas.

 Professor A.F.M. Maniruzzaman, Ph.D. (Cambridge), Frsa, Fsals, is Professor of International and Business Law and Director of Post-Graduate Studies and Research in Law at the University of Portsmouth, United Kingdom. He is also the author of Internationalization of Foreign Investment Agreements—Some Fundamental Issues of International Law, which appeared in The Journal of World Investment, Vol. 1, No. 2, December 2000, and of Towards Regional Energy Co-operation in the Asia–Pacific—Some Lessons from the Energy Charter Treaty, which appeared in The Journal of Worls Investment, Vol. 3, No. 6, December 2002.

Barnali Choudhury: Evolution or Devolution?—Defining Fair and Equitable Treatment in International Investment Law

 This article seeks to recognize and categorize the themes emerging from the discussions of "fair and equitable treatment" as that concept is employed in recent practice, particularly in the North American Free Trade Agreement and bilateral investment treaties.  Moreover, by tracking the progression of the ever expanding scope of fair and equitable treatment, the article reviews relevant case-law and treaty provisions from their historical origins to the present day.  It then concludes by providing a working definition for fair and equitable treatment and by discussing the proper scope that should be ascribed to the fair and equitable standard.

 Barnali Choudhury, B. Comm., LL.B., LL.M. (Columbia) completed this article while a Visiting Lecturer at the University of Otago, New Zealand.  She lives in Toronto, Ontario, Canada.

 Dilip K. Das: Trade in Agriculture and the Doha Round of Multilateral Trade Negotiations

 Multilateral trade in agriculture and agricultural products is known to have had a difficult political chemistry. An innovation of the World Trade Organization's Doha Ministerial Conference was that it made special and differential treatment for developing countries integral throughout the negotiations. Special and differential treatment applies to both new commitments made by the Member economies and to any relevant new or revised rules and disciplines initiated during the Doha Round of multilateral trade negotiations. After prolonged negotiations, there was little agreement on issues of significance and a complete lack of progress before the Cancún Ministerial Conference. This article focuses on the recent progress made in negotiations on agriculture under the sponsorship of the Doha Round.

 Dilip K. Das, Ph.D., Graduate Institute of International Studies, University of Geneva, Switzerland has been a professor of international trade and international finance and banking at several universities in Europe and Australia.  He has published extensively on international trade, international finance, international business and globalization-related issues, including Intellectual Property Rights and the Doha Round, in The Journal of World Intellectual Property, Vol. 8, No. 1, January 2005; Liberalization Efforts in China and Accession to the World Trade Organization, in The Journal of World Investment, Vol. 2, No. 4, December 2001; Regional Trading Agreements—The Contemporary Scenario, in The Journal of World Investment, Vol. 2, No. 2, June 2001; and An Action Agenda for the Next Wto Round—A Post-Seattle Perspective, in The Journal of World Intellectual Property, Vol. 3, No. 5, September 2000.