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General information

International Investment Law (IIL) can be defined as the body of rules and standards in public international law which aims at protecting investments abroad. Today, there are over 3000 bilateral and regional investment (protection) treaties creating, along with the customary international law on aliens, a dense yet highly complex regulatory network.

The vast majority of bilateral and regional investment treaties provide for investor-state dispute settlement (ISDS); a peculiarity in public international law. An individual, i.e. the investor, can – due to a general consent of the host state given in the investment agreement or elsewhere and independent from its home state – initiate international arbitral proceedings against a sovereign host state challenging its measures on the grounds that they were incompatible with the substantive standards in the investment agreement. These measures accrue regularly from the exercise of public authority of the host state and can be executive, legislative or judicial in nature.

Steadily rising numbers of investor-state-disputes and newly signed investment agreements exemplify the importance and attractiveness of this field of law. In 2012, 58 new investor–state claims were filed, the highest number of disputes ever registered in one year, confirming foreign investors’ steadily increasing reliance on this system. Equally, bilateral investment agreements (BITs) and so-called comprehensive free trade agreements (FTAs), which include chapters on investment, enjoy continuing popularity and support among many state governments around the globe. Recent events, such as the accession of Canada to the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (ICSID-Convention), the inclusion of an investment protection chapter in the negotiation agendas of both the EU and the USA on the Transatlantic Trade and Investment Partnership (TTIP), that of the EU and Canada on the Comprehensive Economic and Trade Agreement (CETA) as well as the opening of negotiations between the EU and China on an investment agreement highlight this trend.

At the same time, contestations are also growing: Some countries, such as South Africa or Indonesia, have not renewed or have even terminated existing BITs while others, such as Ecuador, have withdrawn from the ICSID-Convention. In addition, high-profile cases against industrialised countries such as the pending arbitrations in matters of Vattenfall v. Germany, Philip Morris v. Australia, or Eli Lilly v. Canada lead to continuously growing public opposition to investor-state dispute settlement by way of ad-hoc arbitration. Calls by governments, civil society, think tanks, business associations and in academic literature for preserving (more) policy space are yet another indication that the perception of international investment law is undergoing a profound change. Latest signs of this trend are policy proposals by inter-governmental organisations such as the United Nations Conference on Trade and Development (UNCTAD) or the Commonwealth Secretariat for the (re-)negotiation of BITs with a stronger focus on sustainable development.

In the light of these contradictory developments, the international investment law regime is currently in a ‘state of transition’.

The lecture provides an introduction to and overview of the public international law regimes governing the field. Upon completion of the course students shall be able to understand basic structures of the complex body of international investment law, to work with the main rules in the field, and to critically evaluate them.

Content (overview)

I. A general introduction to IIL
II. Key term: Investment
III. Key term: Investor
IV. Standards of Protection
V. "Defenses"
VI. Dispute settlement in modern international investment law
VII. In Focus: Consistency, "precedence" and the role of the Vienna Convention on the Law of Treaties in IIL
VIII. In Focus: Available remedies, waivers, and the question of the "true" holder of the rights contained in investment treaties
IX. In Focus: Sustainable development, right to regulate and international investment law: much ado about nothing?
X. In Focus: The role of the EU in shaping IIL - the old hiding under the cloak of the new?

Mode of teaching

The lecture will be held predominantly in English. Students are encouraged to actively take part in discussions as well as in case studies presented during class and mini-moot courts. Some reading will be recommended in order to prepare for classes.

Schedule

The lecture will take place as follows:

• Block 1: 03. and 04.02.17, each day from 08.-12.00 and from 13-17.00 hours
• Block 2: 10. and 11.02.17, each day from 08.-12.00 and from 13-17.00 hours
• Oral exam: 17.02.17, 9.00 hours

Prerequisites

The lecture is addressed to undergraduate students in law and in political science as well as to Erasmus and graduate students in the aforementioned fields of study. Knowledge of general public international law would certainly be of advantage.

Assessment (optional)

There is an optional oral examination for those students frequently attending. The final mark will be calculated from an oral exam, counting 70 percent towards the final mark, at the end of the course (17.02.17) and a presentation in class (10. and 11.02.17), which will count 30 percent towards the final mark. Further information will be given in class. close