The Legal Protection of Foreign Investment: A Comparative Study (with a Foreword by Meg Kinnear, Secretary-General of the ICSID)

by Meg Kinnear (Introduction), Wenhua Shan (Editor)

Overview

The law of foreign investment is at a crossroads. In the wake of an unprecedented global financial crisis and a sharp surge of investment arbitration cases, states around the world are reflecting on the pros and cons of the current liberal investment regime and exploring new ways ahead. This book brings together leading investment lawyers from more than 20 main jurisdictions of the world to tackle the challenge of producing a first comparative study of foreign investment law. Based on the General and National Reports presented at the 'Protection of Foreign Investment' Session at the 18th International Congress of the International Academy of Comparative Law (Washington DC, July 2010), the book is a unique resource for investment lawyers.

Part I of the book presents a comparative overview of key aspects of foreign investment protection in the world today, including admission, investment contracts, treatment standards, tax regime and incentives, performance requirement, property and expropriation, monetary transfer and dispute settlement. Part II presents in-depth and detailed accounts of the investment laws of more than 20 jurisdictions, including Argentina, Australia, Canada, China, Croatia, Czech Republic, Ethiopia, France, Germany, Greece, Italy, Japan, South Korea, Macau, Peru, Portugal, Russia, Singapore, Slovenia, Turkey, the UK and the USA.

The book will be an invaluable guide to legal and business communities with an interest in the law and practice of foreign investment in the world in general and in these jurisdictions in particular.

Product Details

ISBN-13:	9781841138848
Publisher:	Bloomsbury Academic
Publication date:	06/14/2012
Pages:	754
Product dimensions:	6.69(w) x 9.61(h) x 1.56(d)

About the Author

Wenhua Shan is a Ministry of Education Changjiang Scholar Chair Professor of International Economic Law and the Dean of the School of Law at Xi'an Jiaotong University, China. He also serves as a State Expert appointed by the Chinese Central Government under the national '1000-Person Plan', Arbitrator for the China International Economic and Trade Arbitration Commission, Legal Adviser for the People's Government of Shaanxi Province and a Professor of International Law at the Law School of Oxford Brookes University, England.

Table of Contents

Acknowledgements v

Foreword Meg Kinnear, ICSID vii

Contributors xiii

List of Tables xxi

List of Figures xxiii

Part 1 General Report General Reporter Wenhua Shan

Introduction 3

1 Legal Framework Governing Foreign Investment 7

I The Legal Framework 8

II The Relationship between International Treaties and Domestic Laws 12

III Hierarchy in Domestic Laws and Regulations 15

IV Transparency 16

2 General Standards of Treatment 19

I Standards of Treatment under International Treaties 19

II Standards of Treatment under Domestic Law 25

3 Admission and Entry Requirements 27

I The Admission Regime and Areas Open to Foreign Investment 27

II Competition Policy and Antitrust Law 33

4 Investment Contracts 35

5 Performance Requirements 39

I Performance Requirements as Conditions for Authorisation 40

II Performance Requirements as Conditions for Advantages 41

6 Tax Regime and Incentives 43

I General Tax Regime 43

II Special Tax Regimes for Foreign Investors? 43

III Double Taxation Treaties 45

IV Other Incentives 45

7 Property Rights, Expropriation and Compensation 47

I General Protection of Property Rights 47

II Protection of Intellectual Property Rights 49

III Right to Expropriate 49

IV Definition of Expropriation 50

V Conditions of Expropriation 51

VI Compensation for Expropriation 52

8 Monetary Transfer 55

I Transferable Assets 55

II Restrictions to Transfer 56

III Currency Exchange 57

9 Dispute Settlement 59

I Domestic Jurisdiction 59

II International Arbitration 61

10 FDI Statistics, Policies and Authorities 65

11 Trends in Foreign Investment Laws 67

I Harmonisation 67

II Balancing 68

III Socialisation 70

12 General Conclusions 73

I The Need of Comparative Studies 73

II The Shift of Paradigm: From a North-South Divide to Private-Public Debate 74

III Future Investment Regime: Liberalist or Protectionist? 75

IV Towards a Multilateral Investment Agreement 76

Part 2 Jurisdictional Reports

13 Argentina National Reporters Osvaldo J Marzorati Rafael M Manóvil 81

14 Australia National Reporter Alice de Jonge 131

15 Canada National Reporter J Anthony VanDuzer 173

16 China National Reporter CAI Congyan 243

17 Croatia National Reporters Siniša Petrovic Petar Ceronja 287

18 Czech Republic National Reporter Pavel Šturma Vladimír Balaš 313

19 Ethiopia National Reporter Zeray Yihdego 329

20 France National Reporter Nicolas Rontchevsky 345

21 Germany National Reporter Ralph Alexander Lorz 359

22 Greece National Reporter Nikolaos Davrados 395

23 Italy National Reporter Roberto Pardolesi Massimiliano Granieri 419

24 Japan National Reporter Shotaro Hamamoto 445

25 Korea National Reporter Deok-Young Park 519

26 Macau Jurisdictional Reporter Gui Conde e Silva 537

27 Peru National Reporter Ricardo Guevara Bringas 547

28 Portugal National Reporter Armindo Saraiva Matias 573

29 Russia National Reporters Natalia Doronina Natalia Semilutina 579

30 Singapore National Reporter Jean Ho 593

31 Slovenia National Reporters Vasilka Sancin Mojca Neudauer Tevz Kastelic 617

32 Turkey National Reporters Ergun Özsunay Murat Özsunay 649

33 UK National Reporter James Hairison 663

34 US National Reporter Fred L Morrison 699

Index 715