International and foreign Investment Law
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Transcript International and foreign Investment Law
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
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