The Journal of

WORLD INVESTMENT & TRADE

ABSTRACTS

Sébastien Manciaux: The Notion of Investment: New Controversies

This article explores the question of what is an investment. with special attention to the sixteen Icsid Decisions or Awards that have dealt with the question of the "existence" of an investment between June 2004 and September 2008.  In addition to exploring that pros and cons of even defining “investment”, the author offers a tentative working definition derived from his analysis of the sixteen Icsid cases.

Sébastien Manciaux is a Professor at the University of Bourgogne and a member of the Centre de recherche sur le droit des marches et des investissements internationaux (Credimi)..

Chen Huiping: The Investor-State Dispute Settlement Mechanism: Where to Go in the 21st Century?

 The recent decade has seen new trends limiting or even abandoning the investor-state dispute settlement mechanism (Isdsm) by both developing and developed countries. These new trends reflect the emerging consensus between developing and developed countries that if Isdsm is not included in future multilateral investment agreements, such as Wto or Unctad agreements, as it was in the Ausfta, it will be easier for such an agreement to be concluded in the 21st century.

 Chen Huiping, LL.B., M.A., and PhD ( Xiamen University Law School , China ), is Professor of Law at Xiamen University Law School .

Adrian Emch: News from Luxemburg – Is the New EU Investment Law Taking Shape?

This article comments on five judgments of the European Court of Justice, adopted in 2007 and 2008, which concern barriers to capital movements between EU Member States and to/from third countries. Four judgments are so-called golden share cases – the Volkswagen and Federconsumatori judgments; and two judgments relating to Spain ’s energy regime. The fifth case – Skatteverket v A – deals with international taxation. The article argues that the five judgments taken together may give a glimpse of what the future EU investment law could look like: Measures seen as restrictive of intra-EU investment may continue to face tough scrutiny by the EU courts, while measures restricting non-EU investment may be treated more leniently.

Adrian Emch is a former Fulbright scholar, has an LL.M. in EU law ( Bruges ) and international law (Tulane), and works as an associate at Sidley Austin LLP in Beijing .

Andriy Alexeyev and Sergiy Voitovich: Tokios Tokelės Vector: Jusrisdictional Issues in Icsid Case Tokios Tokelės v. Ukraine

The authors of this article were co-counsel for Ukraine in the Tokios Tokelės case.This dispute has been well known to the international arbitration community and discussed in the professional publications, as well as referred to in Icsid cases. Being happy about the decision of the Tribunal on the merits, the authors have certain concern with respect to the jurisdictional findings of the Tribunal. The article touches upon the arguments of the parties on various aspects of jurisdiction, which, in some instances, remained behind the curtain. The authors also provide a brief summary of the findings of the Tribunal on the merits of the “difficult case”, in which the Tribunal with regret found itself “unable unanimously to agree on the central issue in the dispute” concerning the alleged “concerted, malicious and politically inspired campaign” against the Claimant’s subsidiary in Ukraine.

 Andriy Alexeyev is a Consultant with the law firm Proxen & Partners in Kyiv , Ukraine .

 Dr. Sergiy Voitovich, Candidate of Legal Science ( Kyiv University ), L.L.M. and PhD (European University Institute, Florence , Italy ), is a Partner in the law firm Grischenko & Partners in Kyiv , Ukraine .

Prabhash Ranjan: Understanding the Conflicts between the Trips Agreement and the Human Right to Health

This paper analyses the relationship between the agreement on Trade Related Aspects of Intellectual Property Rights (Trips) in the World Trade Organization (Wto) and the human right to health. The paper shows that the Trips agreement is in conflict with the human right to health as contained in human rights treaties such as the Universal Declaration of Human Rights (Udhr) and the International Covenant on Economic Social and Cultural Rights (Icescr) and the International Covenant on Civil and Political Rights (Iccpr). The paper also discusses the limitations of the flexibilities in the Trips agreement in safeguarding the human right to health. The Wto member countries have taken steps in order to mitigate the adverse impact that the Trips agreement may have on human right to health. However, the paper discusses the limitations of these measures and shows that notwithstanding their limited significance, these measures may not be adequately effective in enabling countries to promote, protect and fulfill the human right to health.

Prabhash Ranjan, B.A. (Hons.) Economics, LL.B. ( Delhi ), LL.M. ( London ), is a Lecturer at WB National University of Juridical Sciences in Kolkata , India .

Youngshin Bae and Jai S. Mah: The Post-Crisis Development of Foreign Direct Investment Policies of Korea

By providing various incentives to foreign-invested enterprises (Fies), the Korean government has attracted substantial amount of foreign direct investment (Fdi) inflows since the occurrence of the economic crisis. Fdi inflows have provided many positive effects on the Korean economy such as capital formation, employment generation, technology transfer, and trade expansion. Fdi inflows have brought structural changes. First, while the Japanese and American investors’ influences have weakened, those of EU and China have been strengthened. Second, chaebols’ dominance in the Korean economy has tended to weaken. It has been replaced by the critical roles of Fies. Third, the government policies welcoming Fdi inflows together with other neo-liberal reform measures have entailed negative effects such as workers’ job insecurity and worsened income inequalities.

Youngshin Bae holds a master’s degree at Ewha Womans University in Seoul , Korea and is a Researcher at the Institute for Trade and Investment.

Jai S. Mah, Ph.D. ( Brown University ), is a Professor in the Division of International Studies at Ewha Womans University .