Unlocking the Value: Regional Approaches to International Investment Law & Investor-State Disputes
Because the Western Balkans ≠ Central Asia.
International investment law & investor-State dispute settlement (ISDS) is a niche area primarily dominated by highly-specialized & repeat players (counsel, experts & arbitrators). A quick online search suggests that the best trusted advisors in this field are those with global & deep experience, including with substantive protections & procedural mechanisms. This is likely why most academic & scholarly writing in this field of public international law adopts a generalized approach – aiming to overview the field, and why lawyers advertising their services in this area refer & analogize to their past work on matters all over the world, without specific regard to national context or socioeconomic and political environments.
But is it Really Appropriate to Adopt a Globalized Approach?
I’ve thought a lot about the value of global versus regional approaches to international investment law & investor-State disputes during development of my new co-edited book, International Investment Law and Investor-State Disputes in Central Asia: Emerging Issues (Kluwer 2023, with Elijah Putilin, Kabir Duggal & Crina Baltag), and also more recently in light of some new client work that I’ve taken on.
If you’re unfamiliar with the book, it draws on the experiences of the five Central Asian States – Kazakhstan, the Kyrgyz Republic, Tajikistan, Turkmenistan and Uzbekistan – to present a unique case study for the nexus between international investment law, ISDS cases & their impacts on the development of future global trade and investment environments. It provides the first consolidated and systematic overview of all aspects of international investment law and investor-State disputes involving the Central Asian region, including focus on domestic investment law frameworks, investment treaties, substantive protections as provided by those treaties & developments arising out of specific investment treaty arbitrations & resulting awards.
Unlike the few other (excellent!) books available that adopt a regional focus, this one is not organized as country-specific chapters. Rather, different aspects of law & practice are examined in turn (to provide a full overview of the field) and the regional Central Asian experiences are drawn upon to provide context, color & examples. In my prior writing I have referred to this as the ‘experiential reality’ of investment law & ISDS.
As the various testimonials reflect, this approach has been quite well-received already. ICSID Secretary General Meg Kinnear has said:
“The editors have put together a fascinating book that examines the full range of jurisdictional, procedural and substantive issues in international investment law, but through the lens of Central Asian States. […] This unique vantage point makes this volume especially interesting and readers will certainly take away many insights from this unique approach.”
Approaching International Investment Law from a Regional Lens
A regional lens orients stakeholders in a region that might otherwise be unfamiliar by presenting background on the foreign direct investment (FDI) priorities of the region and also the legal environment/national legislation governing international investment. In Chapter 3 of our book, for example, Diora Ziyaeva offers particularly nuanced insights – describing how the national investment laws of the Central Asian States, following the fall of the USSR, have developed in phases tied to developmental and industrial goals, and also how such legislation has been amended & modernized in response to the States’ experiences in prior ISDS cases.
Just as there can be common legislative priorities/sources in a region, there are also common heritage, history, and economic and development challenges & goals that can be leveraged for greater insights. Atop this, there are often common national resources, infrastructure demands & other similarities that may motivate similar actions.
Indeed, as States continue to refine and innovate their approaches to international investment law, it may be that regionally unified approaches prove useful. For example, in July 2022, the Africa Arbitration Academy released an African Model BIT that can be engaged by different States as a template that already reflects goals and best practices that are common to many States in the continent.
A Regional Lens & Data Analytics
A regional approach to international investment law & ISDS requires harnessing the ‘experiential reality’ of investment law & ISDS. To be clear, a regional approach is only possible because of the various transparency initiatives & data (treaties, interpretive notes, decisions & awards) that are in the public domain today. This kind of analysis would not have been possible a decade or two ago when there were fewer case examples from which to draw (more than 60% of ISDS cases have unfolded in the past decade alone).
And data analytics makes the available information more readily digestible. Policymakers, governments & counsel can examine and uncover regional trends and patterns and then usefully employ those insights in investment framework design & advocacy in disputes.
Adopting a regional lens does not mean disregarding the global context. Indeed, the regional experience with international investment law & ISDS should not be – and decidedly is not – only of interest to regional or local audiences. I suspect various other regions can (and will) be examined in this way. This framing presents a wealth of practical experience and insights in a fresh light and may also be useful to advance discussions at globalized fora, like those ongoing at UNCITRAL Working Group III.
Post Script
We’ve already hosted events to explore themes from International Investment Law and Investor-State Disputes in Central Asia: Emerging Issues (Kluwer 2023) in London, Washington, DC & New York. You can join us by webinar in Oxford tomorrow, May 5 by registering here [with Elijah Putilin, Evgeniya Rubinina & Lindsay Reimschussel]
The book can be purchased via the Kluwer eStore, Amazon & other booksellers. On the Kluwer eStore the code 20ILI2023 offers a 20% discount until October 31, 2023. A free preview is also available on GoogleBooks and the full text on KluwerArbitration (by subscription).
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