International and foreign Investment Law

Report
International and foreign
Investment Law
Part II
Scope of protection
Azar Aliyev LL.M. (University of Heidelberg)
Overview
I.
Investment
II.
Market Access
III. Investor
I.
Investment
 Investment – an economical term
 Transfer of funds
 Risk
 Duration
 Profit
 Participation in the management
I.
Investment
 Investment as a legal term
 Investment - a legal term?
 Process based definition (Encyclopedia of Public
international Law (1985))
 Asset-based definition (used in almost all
Treaties and Laws)
I.
Investment
 Definition of Investment
(UNCTAD classification)
 Broad asset-based definition with a non-exhaustive
list (Germany - Azerbaijan BIT)
 Broad asset-based definition specifying
characteristics and forms (US Model BIT, )
 Broad asset based definition with an exhaustive list
(BIT Canada Peru)
I.
Investment
 Limitations of Definition
 In accordance with the law (EurAsEC IIA)
Kardassopoulos v. Georgia
Fraport v. Philippines
 Territorial requirement (German Model BIT 2008)
Fedax v. Venezuela
SGS v. Philippines
 Temporal requirement (ECT)
Veteran Petroleum v. Russian Federation
 Sector requirement
 Approved project
 Pre-investment expenditures
I.
Investment
 Investment under the ICSID
 No definition
 Subjective test
 Objective test
 Salini test – contribution to the development
 Controversial discussions
II. Market access
 Treaties are dealing mostly with ‘pos-entry’
treatment (ECT)
 Investment promotion agencies (Germany
Trade and Invest)
 ‘In accordance with national legislation’ and
protectionism


Russian Law on Foreign Investment in strategic Sectors
AWG Germany
III. Investor
 Definition of Investor
 Nationality of private persons






Private persons
State owned companies
Sovereign wealth funds
States
International organizations
Non-profit organizations
III. Investor
 Nationality of private persons
 Dual nationality
No claims against own State (ICSID)
Champion trading v. Egypt
Effective nationality (US Model BIT)
Olguin v. Paraguay
 Nationality of companies
 Incorporation (German Model BIT)
Tokios Tokéles v. Ukraine
 Control or seat as additional criteria (MIGA)
 ICSID Art. 25.2 (b)
Vacuum Salt v. Ghana
III. Investor
 Denial of Benefits (ECT, US Model BIT)
 Shareholder as Investor
 ICSID Art.25(2) (b)
 Minority shareholders
CMS v. Argentina
Thank you very much!

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