investment

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HARMONIZING COMMERCIAL AND INVESTMENT ARBITRATION: CONFLICT DYNAMICS

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Jaya Vasudevan

INTRODUCTION

This article provides an independent analysis of the scope and extent of arbitration under investment agreements, and the implications of the possible convergence in the process of harmonization of international commercial arbitration law. The successful settlement of any dispute depends on the compatibility of the nature of the dispute with the technique to which it is submitted for resolution. In the last decade, there was a constant increase in the number of disputes that were subjected to arbitration and a major chunk of those disputes covered a comparatively new but known area called international investment law. With economic globalization allowing the free flow of foreign direct investment (FDI) in and out of a country, the existing regulatory framework in international law to standardize investment liberalization is often seen as ineffective, hence the consequent disputes. Here, arbitration offers a suitable framework for the amicable settlement of commercial disputes covering investment agreements with the assistance of bilateral or multilateral agreements between the states. Preferential trade agreements pertaining to investment often contain an arbitration clause for the settlement of future disputes between parties. At this juncture, one may find that there exists a fundamental dilemma in ascertaining the true nature of investment arbitration and how it is different from commercial arbitration. For example, the protection being offered to human rights under the purview of investment arbitration may generate doubts in the minds of investment arbitrators. In commercial arbitration, divergences in a pluralistic order become particularly relevant whereas the diverse legal cultures supported by individual constitutional frameworks have a direct impact on investment arbitration due to their practical application. The article also discusses the need for harmonized rules governing arbitration procedures while maintaining the functional dissimilarities between commercial and investment arbitration.

Keywords: Investment; Arbitration; ADR;

DOI: https://dx.doi.org/10.4314/jsdlp.v12i2.6

Jaya Vasudevan, Humboldt Fellow (Heidelberg University), Associate Professor Centre for Postgraduate Legal Studies, TERI School of Advanced Studies, New Delhi-110070. Email: Jaya.vasudevan@terisas.ac.in

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THE DEFINITION OF INVESTMENT AND THE ICSID CONVENTION: MATTERS ARISING UNDER THE NIGERIAN INVESTMENT PROMOTION ACT AND INTERNATIONAL INVESTMENT LAW

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Felix O. Okpe*

ABSTRACT

This article contends that the omission to define investment in the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (the ICSID Convention) has a trickledown effect on the Nigerian Investment Promotion Act (the NIPC Act), in the context of investment treaty law and arbitration. Its greatest impact is the relegation of the contribution to economic development element of the definition of “investment” to a backseat contrary to the purpose of the ICSID Convention. This article proposes a simple thesis: the omission to define investment in the ICSID Convention has fostered an amorphous definition of investment under the NIPC Act, thus creating uncertainty, irrelevance and ambiguity. The uncertainty is a potential problem in the conduct of foreign direct investment under the ICSID Convention. The article recommends a review of the definition of “investment” under the Act and the adoption of a definition that restricts foreign investment within the territory of Nigeria and makes acontribution to economic development its core element in line with the fundamental objective of the ICSID Convention.

Keywords: Nigerian Investment Promotion Act, Law and Development, Investment Law and ICSID Arbitration

DOI: https://dx.doi.org/10.4314/jsdlp.v8i2.9

* PhD (Aberdeen); Attorney at Law; Law Professor at Salmon P. Chase College of Law, Northern Kentucky University, USA. The usual caveat applies. The author may be reached at f.o.okpe@gmail.com

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EMERGING PRACTICES IN COMMUNITY DEVELOPMENT AGREEMENTS

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Jennifer Loutit*, Jacqueline Mandelbaum**, and Sam Szoke-Burke***

ABSTRACT

Community Development Agreements (CDAs) have the potential to facilitate the delivery of tangible benefits from large-scale investment projects, such as mines or forestry concessions, to affected persons and communities. To be effective, however, CDAs must be adapted to the local context, meaning that no single model agreement or process will be appropriate in every situation. Nonetheless, leading practices are emerging which can be required by governments, voluntarily adopted by companies, and demanded by communities. These practices are grounded in ensuring that all parties are sufficiently informed, capacitated, and prepared to engage in meaningful negotiations regarding how the investor’s operations should benefit local stakeholders. This article reviews existing research on CDAs, as well as available agreements from the extractive sector in Australia, Canada, Laos, Papua New Guinea, Ghana and Greenland. It articulates seven broad leading practices and how different stakeholders could work to achieve more effective agreements.

Keywords: Community development agreement, extractive, investment, leading practices.

Doi: http://dx.doi.org/10.4314/jsdlp.v6i2.4

* Attorney, Latham & Watkins LLP, New York, United States.

** Special Counsel, Corrs Chambers Westgarth; former Legal Researcher, Columbia Centre on Sustainable Investment, New York.

*** Legal Researcher, Columbia Centre on Sustainable Investment, Columbia University, New York.