Research Proposal: Enforce Laws on Foreign and International Investment

Introduction / Summary

The Law of Investment, usually, is either international on the foreign investment or national law. Particularly, the international investment law is said to be the set of rules that govern and control the ownership of the International Investment. Arguably, over the recent past, the International Investment Law has increasingly become prominent in the international legal order, which is orchestrated by the rapid increase in Bilateral Investment Treaties between different nations. Besides, the rapid rise in the disputes on an international level has also contributed to the Bilateral Investment Treaties explosion. With the modern-day growth in the number of companies seeking to invest in foreign countries, the application of general principles of the public international law has not been considered an adequate measure to regulate foreign investment (Van Harten, 2008). Besides, there is still no comprehensive international treaty on the regulation of foreign investment, and for this reason bilateral trade member states have turned to regional trade, free trade agreements (FTAs), International Investment Agreements (IIAs), and Bilateral Investment Treaties (BITs) both as complements and supplements of the regime which protects foreign investors. This, in turn, has continuously led to the decrease in relevance or the complete absence of the international investment courts making the countries that host foreign investment to turn to an investor-state dispute mechanism (ISDS), which like many other mechanisms, is characterized by various challenges. Notably, these challenges have not always been matched by academic reflection with regard to the role and the procedure of international investment law within the general international law. This being the case, this proposed research study seeks to argue for the creation of a global investment organization with a standing mechanism for settlement of investment disputes for the sake of ensuring legal certainty and the smooth flow of foreign and international investment in a sustainable manner.

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Topic of the Project & State of the Art in your Field of Study

The international investment law centres on the international protection of investment which is primarily concerned with the safeguarding of foreign investment against the jeopardy or the interference by the host state. In a similar regard, the international investment law finds it important to protect the interests of the host state. In particular, it is apparent that foreign investments are subjective to the administrative control and the law of the host country. This being the case, the international investment law ensures that the guarantees that are afforded to foreign investors do not jeopardize the rights of the state to legitimate the regulation.

Literature Review

With reference to the existing literature, numerous scholars have increasingly contended that in the modern day today, the international investment agreement (IIAs) have increasingly expanded. Sauvant, (2015) points out that on average, there have been more than three treaties being concluded every week, over the past couple of years. This being the case, an essential recent development in the International Investment Law is related to the increase or the rapid surge in the free trade agreements as well as other treaties on economic cooperation with investment provisions which serve as compliments and substitutes of the original or the classic bilateral investment treaties (BITs). Following the rapid surge in the treaties, the IIA system has become increasingly atomized, diverse and complex owing to the fact that it consists of numerous individual agreements that fail to have any system-wide coordination. Essentially, Butler and Subedi (2017) argue that the IIA has become overly diverse in the sense that it is composed of diverse treaties such as the investment treaties at different sub-regional, regional, bilateral, sectoral, and multilateral levels that may, overlap, at times.

Salacuse (2013) a scholar who moots a proposal in favor of the creation of World Investment Organization argues that the organization has the potential to bring about both consistency and cohesion in jurisprudence. In the same vein, Butler and Subedi (2017) point out that there is a need for the creation of a global organization which will serve as a central body that helps to mitigate or reduce the challenges related to international investment, which have resulted from the current state of flux of the foreign investment law. In his account Salacuse (2013) points out that with the introduction of a World Investment Organization, the various foreign investment challenges that result from the absence of a comprehensive international treaty that pronounces the substantive provisions on the regulation of international investment will be solved reasonably and sustainably. The World Investment Organization will also seek to bring the International Investment Law to a level similar to the international human rights law or the international trade law, in the sense that, with the organization, a single and comprehensive international treaty will be available. This treaty, in essence, will be responsible for spelling out what the international investment law states, regulating any foreign investment, and most importantly, spelling out what would be the most appropriate mechanism to enforce the international investment law (Sauvant & Chiswick-Patterson, 2008).

Proposing for the need to introduce a global investment organization that seeks to govern and enforce the international investment law, (Schill, 2009; Diepeveen Levashova & Lambooy, 2014) contend that the current and contemporary system is dysfunctional and this calls for a need to establish a more effective organization. For instance, the dysfunctionality of the modern day international or foreign investment system is evidenced by the fact that a majority of the states involved in any kind of foreign investment have over the recent past gotten themselves involved in terminating their initially created bilateral investment treaties (BITs) (Yackee. 2012). Similarly, other states have publicly retreated from any form of investment arbitration. The challenges are risks associated with the lack of a comprehensive body that enforces the law has seen various countries such as Indonesia, discontinuing an average of 17 out of 64 international investment agreements (IIAs) and other states across the globe have also signalled similar intentions.

Central Research Question(s)

RQ1: What relation will the proposed global investment organization have with the standing mechanism for the settlement of international investment disputes?

RQ2: What are the current problems associated with the international investment lawmaking mechanisms?

RQ3: How will the proposed global investment organization impact the establishment of the International Investment Court System?

Hypotheses

To find out the relationship between the global investments organization with the standing mechanism for the settlement of international investment disputes.

To identify the current problems associated with the international investment lawmaking mechanism.

To identify the impact of the global investment on the establishment of the International Investment Court System.

Innovativeness and Significance

Based on the existing literature, this research proposal moots the proposal of the creation of a global investment organization. In particular, this global investment organization will serve as a central forum that specializes purely on international investment law related matters. The reason why I consider this an important move is owing to the existing evident that the existing system is not suitable owing to the fact that international investment states each face their own challenges and perceived prejudice. Besides, with regard to this proposal, I am of the opinion that the establishment of a global investment organization, like the world trade organization (WTO), would lead to an international investment law system that seeks to strike a balance between the investing states and the interests of the international investment stakeholders. Currently, scholars have increasingly argued that the international investment law has been compromised to an extent that investors hold all the power. Besides, the current system does not strictly enforce the international investment law. As a result, the investors, who stand a better chance than the host states can, therefore, hold the host state ransom through threats such as initiating ISDS proceedings. Finally, with reference to the enforcement of the law, this research proposes that the creation and the implementation of the global investment organization will enable a redress of the power balance in the international investment law making process.

Methodology

This present study will seek to utilize a mixed methodology approach. This mixed framework is broadly justified through the research questions that my research proposal seeks to answer. In particular, this approach will attempt to solicit both qualitative and quantitative data. Besides, the study will also incorporate the use of questionnaires and interviews which are intended to form a basis of the qualitative method. The primary aim of the qualitative method will be to accumulate the empirical research which will be derived from three American Organizations namely, Asia-Pacific Economic Co-operation (APEC), AIG International, and JP Morgan, who over the recent past have been globally involved in foreign investments. More fundamentally, the qualitative element of this research methodology will be made up of a case study analysis as well as the analysis of existing data to compare the experiences and the laws set for these organizations. On the other hand, the qualitative analysis will seek to identify the potential gaps in the existing literature.

Projected Work Schedule / Work Plan

1st Year:

• Conduct a consistent, thorough literature review that seeks to identify the gaps in the existing knowledge in the International Investment Law.

Identify the aims and objectives based on the literature review results, the research intention and the set objectives.

2nd Year:

• Target global organizations on their objectives and their experiences relating to the International Investment Law
• Create questionnaires and interview questions that are in line with the set objectives of this research proposal.
• Create checklists of the organizational requirements.

3rd Year

• Draft the proposal budget to ensure that the project goals are met.
• Obtain guidance and advice from the relevant sources and project sponsors

4th Year

• Draft the proposal summary with reference to the research questions and the scope of the study.
• Conduct the relevant research and collect the desired literature to be reviewed.

The Remaining Time:

• Write the research following the submitted research proposal and submit to the relevant department and authorities.

Conclusion

In conclusion, based on the insufficiencies and the incompetence associated with the contemporary international investment system, there is a great importance of getting things and the law to work right, in the sphere of foreign or international investment. Therefore, the creation and the implementation of a singular and independent global international investment organization, the states or the international investment stakeholders, may, at times, be expected to compromise their individual regulatory power.