"I realise that some of my criticisms may be mistaken; but to refuse to criticize judgements for fear of being mistaken is to abandon criticism altogether... If any of my criticisms are found to be correct, the cause is served; and if any are found to be incorrect the very process of finding out my mistakes must lead to the discovery of the right reasons, or better reasons than I have been able to give, and the cause is served just as well."

-Mr. HM Seervai, Preface to the 1st ed., Constitutional Law of India.

Sunday, June 27, 2021

Lecture 2: History of International Investment Law from 1870 to 1914 (Script & Video)

Those watching this lecture series would recollect that in the last lecture, we discussed about the origins of the IIL wherein we saw that it evolved out of colonialism. We also discussed that many concepts that evolved out of colonialism and imperialism are used even in the latest of Investment treaties.

In this lecture we delve into the evolution of IIL in the first phase that is, between 1870 and 1914. But before we go further, those watching may refer to two interesting papers on the origins before 1870, one by Kate Miles, the author of the book which we referred to in last lecture, and the other by Anne-Charlotte Martineau.

The two papers are:

  • Kate Miles, International Investment Law: Origins, Imperialism and Conceptualizing the Environment, 21 Colo. J. Int'l Envtl. L. & Pol'y 1 (2010); and
  • Anne-Charlotte Martineau, A Forgotten Chapter in the History of International Commercial Arbitration: The Slave Trade's Dispute Settlement System, Leiden Journal of International Law (2018), page 1 of 23.

The first lecture was mainly based on Chapter I of Kate Miles book, whose content is similar to the first paper.

The second paper above is equally interesting: it traces the origins of the present system of IIL and Dispute resolution system in IIL to slave trade in the 16th to 18th centuries. It states that the institution of judges-conservators established to resolve disputes out of slave trade was the precursor to arbitral tribunals established for resolving disputes through international arbitration.

Interesting conclusions are drawn in the paper: one, contrary to the widely held belief that international law came to rescue slaves by advocating its abolition, international law created, supported and perpetrated the slave trade regime for at least three centuries.

The author speaks of ‘private’ dimensions of formal and informal imperialism. This important and interesting. Colonialism has its roots in corporations effecting economic and political control over the third world. East India Company in India an apt example. 

The author is therefore correct in saying that : “There is nothing neutral, normal or apolitical in investment law and adjudication.”

So, the evolution of IIL is not about good faith, treaties and precedents, but about blood, sweat and tears.

Now, coming to the evolution of IIL from 1870, this phase saw two prominent developments.

One was the entrenchment of the expropriation doctrine. Standards for compensation due to expropriation were developed. For example, the Convention of Friendship, Commerce and Extradition Between the United States and Switzerland, 1850 stated in Article 2(3):

In case of [] expropriation for purposes of public utility, the citizens of one of the two countries residing or established in the other shall be placed upon an equal footing with the citizens of the country in which they reside, with respect to indemnities for damages they may have sustained.”

Thus, the standard for compensation on account of expropriation was national treatment.

In this phase, expropriation was considered lawful if certain conditions were met. These conditions were:

a) it was carried out for a public purpose;

b) it was not arbitrary or discriminatory; and

c) prompt, adequate, and effective compensation was paid.

It would be interesting to note that the phrase “prompt, adequate, and effective” was coined in 1940 by United States Secretary of State Cordell Hull in diplomatic correspondence with Mexico. This became the ‘Hull Formula’. Interestingly, Hull was awarded the Nobel Peace Prize in 1945 for playing a pivotal role in establishing the United Nations.

Another development in this period was the entrenchment of the international minimum standards and the national treatment doctrines and the tension between these concepts.

While US and other European powers subscribed to the international minimum standard rule, the countries in the third world, especially the Latin American nations advocated the national treatment rule. Their argument was that the international minimum standards rule impinged on their sovereignty and foreign persons could not be afforded a treatment that was beyond what a state offered to its citizens.

National treatment was also the second limb of the famous Calvo Doctrine. This doctrine arose from the ideas of Carlos Calvo, a jurist from Argentina, first published in 1868.

The first limb of the Calvo doctrine was that state sovereignty precluded states from interfering into the affairs of another state, either through diplomatic channels or by force.

Although the Calvo doctrine came to be looked upon with disfavour by the Western nations, it has had a considerable influence in the evolution of IIL.

This is possibly a precursor to the local exhaustion rule in international investment law.

More on the first phase in the next lecture.

Saturday, June 19, 2021

Lecture Series on International Investment Law: Lectures 1 to 15

Recently, we had commenced a lecture series introducing the subject of International Investment Law. We have completed the first fifteen lectures of the lecture series. The lecture series is aimed at covering the fundamentals of International Investment Law and making the subject more accessible through short lectures (approximately 8 to 10 minutes). The lecture series is divided into various chapters addressing specific topics and each chapter contains several lectures.

In this post, we will provide links to the first fifteen lectures with a brief overview of each video.

[Note: The first few videos have feeble audio. Readers may use headphones. For subsequent videos, laptop's inbuilt speaker will do.]

Chapter 1: Chapter 1 : History & Nature of International Investment Law

Lecture 1: Origins of International Investment Law before 1870 (click on the lecture name)
Historically, International Investment Law has evolved in three distinct phases in the modern history: Phase I is the period from 1870 to 1914; Phase II is the inter-war period, between 1918 to1945, and phase III is the post-war period, beginning from 1945. But, even before the first phase (1870), certain developments in international politics have had influence in the evolution of IIL. This lecture deals with those developments.

In this lecture we delve into the evolution of IIL in the first phase that is, between 1870 and 1914. But before we go further, those watching may refer to two interesting papers on the origins before 1870, one by Kate Miles, the author of the book which we referred to in last lecture, and the other by Anne-Charlotte Martineau.

In this lecture, we will see how International Investment Law evolved during the inter-war period, between 1914 and 1945,. We will also discuss its evolution during the post-II world war phase till 1964.

In the last lecture, we saw that there are four phases through which IIL evolved after the World War II. We saw that the first phase, known as the era of infancy spanned up to 1964. In this lecture, we look at the Era of Dichotomy from 1965 to 1987.

In this lecture, we discuss how International Investment Law evolved through the eras of proliferation (1990-2007) and reorientation (2008- till date).

Chapter 2: Investment Treaty/ Contract

In the first five lectures we introduced the subject and provided a historical overview of how IIL evolved. In this lecture, we will have a look at the nature of foreign investment.

In this lecture, we will answer the fundamental question: what is investment?

In the last video, we discussed the concept of “Investment” and analysed two different types of definition of investment, taking the India-UAE BIT and the Brazil- India BIT as examples. We also saw the general practices regarding the definition of investment. In this video, we’ll discuss the ICSID practice and the Salini test on the definition of investment.

In this video we will be dealing with another important threshold question: Who is an investor?

In the last lecture, we discussed certain general aspects relating to the question: “who is an investor?”. In this lecture, we will look at how the question is answered from the perspective of natural persons.

In this, video, we will discuss various tests to determine the nationality of juridical persons.

In this lecture we will deal with an important aspect relating to the question "who is an investor?": Treaty shopping.

The general principles regarding investor and investment apply equally to shareholders. This lecture deals with the law relating to whether shareholders could initiate investment treaty claims.

In this lecture, we will see the core elements of an investment treaty. We will also use the India-UAE BIT, 2013 and the Brazil India BIT, 2020 to provide an idea of how these provisions look in practice.

Chapter 3: Fair and Equitable Treatment

In this lecture, we will discuss one of the most widely used substantial protections under international investment law, that is, Fair and Equitable Treatment, or FET.