A practical guide to investment treaties : - Asia Pacific

Full Title Copyright Foreword Preface Acknowledgement Table of Cases Table of Statutes, Conventions, Institutional Arbitration Rules, Agreements and Treaties Table of Contents Introduction Historical reflections The emergence of BITs, MITs and FTAs Concerns about BITs The utility of BITs in the Asia-Pacific region Investment protection and the arbitration process State contracts — unique and complex Controversies and reactions BITs cannot be ignored Using BITs What investment treaties can and should do Part I: Provisions Defining Scope and Application of the Treaty Chapter 2 Provisions Defining Scope and Application of the Treaty Premises and standard provisions What is protected? The ‘investment’ Broad language and long lists Security rights and indirect interests Criteria for an investment beyond the treaty definition Pre-contractual expenditure as investments Portfolio investment Who is protected? The ‘investor’ Nationality Corporate nationality Three issues arising in respect of the nationality of companies Where are investments protected? Territorial application of investment treaties When is an investment protected? Temporal application of investment treaties Disputes extant at time of treaty Duration of the treaty Claims after the investment has ended Termination and sunset provisions Admission and establishment of investments Part II: Key Standards of Treatment Chapter 3 Expropriation Common features of expropriation treaty provisions Content and application of the standard for expropriation Direct expropriation Indirect expropriation and measures tantamount to expropriation Creeping expropriation The nature of the property expropriated Compensation Other elements of the standard Relationship to other treaty standards Chapter 4 Fair and Equitable Treatment Common features of fair and equitable treatment investment treaties Content and application of the standard Procedural propriety and administrative due process Transparency Protection from arbitrary and discriminatory conduct Good faith Stability, predictability and consistency of the legal framework: the investor’s ‘legitimate expectations’ Reasonableness and proportionality Minimum standard of treatment for foreign nationals under customary international law Chapter 5 Full Protection and Security Common features of protection and security provisions in investment treaties Content of the standard Physical and non-physical protection Overlap with fair and equitable treatment Chapter 6 National Treatment Common features of the treaty provisions Comparison to investments in ‘like’ or ‘similar’ circumstances Pre- and post-establishment investment activities Sector carve-outs and other exceptions Applying the national treatment standard in practice What is the relevant comparator — investor/investment? Was the foreign investor treated differently to the relevant comparator? Is the difference in treatment justified? Chapter 7 Most-Favoured Nation Treatment Common features of the most-favoured nation treatment provisions Comparison to investments in ‘like’ or ‘similar’ circumstances Pre- and post-establishment investment activities Sector carve-outs and other exceptions Applying the standard Application to substantive treatment standards Application to procedural rights in investment treaties Chapter 8 Arbitrary, Discriminatory or Unreasonable Impairment Common features of the treaty provisions Content of the treatment standard Arbitrary Discriminatory Unreasonable Impairment Practical relevance of the treatment standard Chapter 9 Umbrella Clauses Common features of umbrella clauses Approaches to interpretation and application of umbrella clauses Nature of obligations covered Nature of breaches covered State responsibility for breach of obligations Standing to bring claims for breaches of obligations Summary Chapter 10 Free Transfer of Funds The concept of free transfer General scope of transfer rights Application to different types of payments Convertibility rights Timing of transfers Express exceptions Part III: Dispute Settlement Chapter 11 Disputes between the Contracting States to an Investment Treaty Chapter 12 Disputes between a Foreign Investor and the Host State What investor–State arbitration proceedings look like in practice Pre-arbitration phase Arbitration proceedings Duration and post-arbitration phase Common features of investor–State dispute resolution provisions and related procedural considerations What are the likely merits of the potential claim? Are the conditions governing access to treaty benefits met? What is the nature and scope of consent of the host State’s consent to arbitration? Does the treaty impose any procedural or other prerequisites to arbitration? What dispute resolution forums are available and appropriate? Do the applicable arbitration rules provide for the possibility of interim relief? What is the applicable law? Does the treaty impose a time limit on bringing claims? Does the treaty limit the types of relief that an arbitral tribunal can grant? Chapter 13 Compensation, Damages and other Remedies in Investor–State Disputes Rules in the treaty governing compensation for lawful expropriation Legal standard for assessing breaches of an investment treaty Remedies that can comprise full reparation for a treaty breach Monetary damages Non-pecuniary remedies: specific performance and injunctive relief Interest Moral damages Limitations on monetary damages Causation Mitigation Contributory negligence Express limits in the treaty on the types of remedies available Legal fees and arbitration costs Common valuation methods Market value Date of assessment Methods of market valuation Chapter 14 Annulment, Set-Aside and Enforcement of Investor–State Arbitral Awards Post-award remedies under the ICSID Convention Overview Annulment under the ICSID Convention Set-aside proceedings for non-ICSID arbitral awards Recognition, enforcement and execution of arbitral awards rendered under investment treaties Recognition and enforcement of ICSID arbitral awards Recognition and enforcement of non-ICSID awards Execution of investor–State arbitral awards Chapter 15 Conclusion Explanatory notes to the appendices The need for case-by-case assessment Appendix 1 Overview of selected investment treaties in Asia-Pacific Appendix 2 Selected list of publicly-known investor–State disputes based on a treaty involving parties from the Asia-Pacific region as of March 2015 (alphabetical by treaty) Appendix 3 Selected list of publicly-known investor–State disputes based on a contract involving parties from the Asia-Pacific region as of March 2015 Appendix 4 Investment Treaties from the Asia-Pacific Region Appendix 5 Selected practice precedents Selective bibliography and online resources Bibliograhy Online resources Index ”A Practical Guide to Investment Treaties—Asia Pacific provides the reader with an understanding of the essentials of international investment law, as affected by a bilateral or multilateral investment treaty. In this complex area of law a concise and practical guide has been missing - until now. A Practical Guide to Investment Treaties – Asia Pacific offers an explication of the core principles of international investment law, as affected by a bilateral or a multilateral investment treaty. Containing an analysis of the key protections in over 500 treaties involving States from the Asia-Pacific region, this text provides an introduction to the structure, content, and application of those treaties, with a focus on the experiences and future of this field in the region. The key protections afforded by investment treaties and the means by which those protections can be enforced are set out in a concise and accessible manner.”-- Wolters Kluwer Website