The Journal of

WORLD INVESTMENT & TRADE

ABSTRACTS

Locknie Hsu: Multi-Sourced Norms Affecting Sovereign Wealth Funds: A Comparative View of National Laws, Cross-Border Treaties and Non-binding ‘Codes’

Sovereign Wealth Fund (SWF) investors operate within the sphere of a variety of legal norms, including national laws, which in turn may be shaped or influenced by treaty obligations of their home and recipient states, and ‘soft law’ instruments. This article will examine the familiar issue of legal fragmentation of norms, in the evolving context of SWF activities. The issue is examined particularly from the perspective of their treatment in recipient countries, national security concerns that may arise from such investments, and recent ‘soft’ law developments. It compares recent legislative changes in a number of jurisdictions, their possible implications for SWFs, and whether there may be a place for sui generis rules to govern SWF investments. Relevant provisions from investment and trade agreements are also discussed.

 Associate Professor Locknie Hsu, LL.B. (Hons., NUS), LL.M. (Harvard), teaches at the School of Law , Singapore Management University .

An Chen: Queries to the Recent ICSID Decision on Jurisdiction Upon the Case of Tza Yap Shum v. Republic of Peru : Should China-Peru BIT 1994 Be Applied to Hong Kong SAR under the “One Country Two Systems” Policy

 An investor from Hong Kong , Mr. Tza Yap Shum, applied for ICSID’s arbitration on the allegation that the host state Peru Government took expropriation of his fish flour company. It was reported that this is the first Chinese investor submitting a dispute against a host state to ICSID for arbitration since 1993 when China formally acceded to the ICSID Convention. The main issue then focused on whether the ICSID’s Tribunal is competent for the jurisdiction on the disputed case. It mainly depends upon whether the China-Peru Bilateral Investment Agreement of 1994 could be directly applied to Hong Kong Special Administration Region under “One Country, Two Systems”. Recently on 19 June 2009, the ICSID Tribunal issues a Decision on Jurisdiction, maintaining that the Tribunal has jurisdiction on and is competent for the specific Case. However, this article, from a jurisprudential perspective, finds that the Tribunal has no jurisdiction on and is not competent for the specific Case. Consequently，the said Decision is incorrect, unreasonable and unacceptable.

 An Chen, Senior Professor of Law School, Xiamen University, People’s Republic of China, and former Dean of the School (1987–1998); Chairman, Chinese Society of International Economic Law since 1993; International Arbitrator, selected and designated by the Chinese government to the International Centre for Settlement of Investment Disputes (ICSID) under the Washington Convention since 1993.

Rafael Leal-Arcas: Towards the Multilateralization of International Investment Law

This article explores whether a multilateral investment treaty is necessary and possible in the framework of foreign direct investment (FDI) law or whether the current multifaceted and multilayered system of bilateral and regional investment agreements should be retained. This article aims to study existing investment regimes with a view toward creating a multilateral investment framework. This goal, however, does not suggest that current bilateral and regional investment regimes should be replaced or that the existing regimes are inadequate. The article reviews the multilateralization of FDI regulation, followed by an overview of the current principles and rules of FDI. As a necessary next step, the article examines the support for a multilateral investment framework. The main reasons behind such a framework are twofold: the current fragmented international investment regime may encourage regulatory competition among the various models of international investment agreements; and investor-state arbitration is causing issues of inconsistency of arbitral awards as well as forum shopping in dispute resolution. Finally, the article identifies policy considerations for a future multilateral investment framework. The article concludes that the World Trade Organization (WTO) has the opportunity here to incorporate years of experience of bilateral and regional investment agreements and develop a multilateral agreement for investment. Such an agreement in the WTO context would not replace current investment regulatory regimes, but could clarify the relationship among the General Agreement on Trade in Services, the Agreement on Trade-Related Investment Measures, and bilateral investment treaties.

 Rafael Leal-Arcas is Senior Lecturer in International Economic Law and European Union Law, and Deputy Director of Graduate Studies, Queen Mary University of London (Centre for Commercial Law Studies, UK). B.A., J.D. ( Granada University ); M.Phil. (LSE); LL.M. ( Columbia Law School ); JSM ( Stanford Law School ); M.Res., Ph.D. (EUI). Member of the Madrid Bar. He is the author of the books International Trade and Investment Law: Multilevel Governance (forthcoming 2010) and Theory and Practice of EC External Trade Law and Policy (Cameron May 2008).

Ahmad Ali Ghouri: Investment Treaty Arbitration and the Development of International Investment Law as a ‘Collective Value System’: A Synopsis of a New Synthesis

 Investment Treaty Arbitration (ITA) has been described as a ‘businessman’s court’ for favouring investors to make it an attractive forum to compensate any loss to their investments caused by host states. This article concedes to this contention. It is, however, argued that replacing ITA with any other adjudicative forum, if possible, would only cure the symptoms and not the disease. Loose grip of substantive rules and lack of collective policy is the real malady of the system. ITA is built upon a particular philosophy and is playing an important role to resolve investor-to-state disputes together with the development of distinct rules of International Investment Law. It has the potential to cure its defects which entails the clarification of substantive rules and realisation of a policy based on undisputed collective values established on the international plane like the protection of environment, human rights, culture and health & safety of individuals.

 Ahmad Ali Ghouri is a Doctoral Scholar at University of Turku , Finland and a Lecturer in Law at University of the Punjab (Gujranwala Campus), Pakistan . He received an LL.M from University of Manchester , UK and an LL.B from International Islamic University Islamabad, Pakistan.

 Pierre-Emmanuel Dupont: Foreign Investment and the Status of Kosovo in International Law

 This article examines whether and to what extent international investment agreements (IIAs)  entered into by Kosovo are likely to grant foreign investors meaningful protection, in consideration of the unsettled issue of Kosovo’s situation with respect to the international law of State succession, and subsequently of the disputed statehood of the entity. The article first summarizes the principal legal opinions expressed so far with respect to Kosovo’s current status in international law, looking forward to the International Court of Justice (ICJ) rendering its advisory opinion on the issue. It then explores the issue of the membership of Kosovo in international investment institutions. The article finally deals with the current investment regime in Kosovo, and examines the effectiveness of IIAs related to Kosovo.

 Pierre-Emmanuel Dupont, LL M ( Nantes University ), is a Lawyer, Allez & Associés law firm, Paris.

Jacques Werner: Arbitral Chronicle IV—Thomas and the Three German Maxims

In this article, the author honours the legacy of Thomas Wälde by discussing whether the Necessity Concept should be revisited in view in particular of the passage in several countries from a system of free market to a system of managed economy—managed by the State and international institutions. 

Jacques Werner is an International Commercial Arbitrator in Geneva , Switzerland and the Chairman of the Geneva Global Arbitration Forum.