What does foreign investment code mean

Consent to arbitration based on investment codes

In international arbitration, consent to arbitration can be expressed in various forms, including in domestic laws. While it is generally accepted that states can undertake by international treaties (or under treaties of future disputes), states can also consent to arbitration based on investment codes.

Due to the multitude of international treaties for the promotion and protection of investments worldwide, investment arbitration proceedings based on national laws are rarer. however, investment codes reflect the investment policies of many importing countries, especially in Africa.

Consent to arbitration in investment codes, and other domestic acts, is a "unilateral company”Of the state. As stated by the arbitral tribunal in Tradex Hellas S.A .. v Republic of Albania"Consent through written agreements is the traditional method. Consent can be unilaterally through national laws of the state. [1]

[…] The Tribunal notes that, however, consent by written agreement is the usual method of submission to the ICSID jurisdiction. It can now be considered well-founded and does not require any further grounds for such consent to be unilaterally by one Contracting State can be effected in its national laws. The approval becomes effective at the latest when the foreign investor submits his claim to ICSID using the respective national law.

It is worthless, however, that the mere existence of consent to arbitration is generally insufficient under national law. Investors must accept the arbitration offer in writing while the legislation is in force. In reality, acceptance is often done by filing a request for arbitration.

Arbitration can be defined as the power of an arbitral tribunal to decide a case. In this respect, the basis for arbitration is the consent of the parties. In other words, if the parties have not given their consent, the arbitral tribunal has no jurisdiction to rule on the case.

Consent to arbitration based on investment codes

States may consent to arbitration at various levels depending on the wording of their investment codes.

For some investment codes, the consent of a state to arbitration is clear. This clear consent to arbitration may include provisions designed to allow foreign investors to arbitrate the dispute. In such a case, the investor's option is imposed on the host state.

Provisions can be found in the Investment Code of Mauritania, Afghanistan and the Central African Republic. For example, Article 22 of the Central African Republic's Investment Act provides that disputes with the host state and a foreign investor can be resolved through arbitration, including through ICSID or OHADA arbitration.

Because simple provisions establishing a state's clear consent to arbitration can be riskier for host states, many states have changed their investment codes.

The provisions of the Investment Code, which explicitly refer to domestic courts in the event of a dispute, are not deemed to be an offer of arbitration (in such a case, the state may, of course, give its consent through an investment agreement or contract that will govern domestic law ).

An example of this type of provision is Article 17 of the Foreign Direct Investment Policy Act in Bosnia and Herzegovina, which reads as follows:

Foreign investment disputes will be resolved by the competent courts in Bosnia and Herzegovina unless interested parties enter into another dispute resolution process including, but not limited to, domestic or international arbitration or arbitration.

Some investment codes refer to arbitration as "authorizedMeans of dispute resolution. A typical example would be a provision that says that the dispute "can"To be resolved by arbitration or arbitration"can be agreed”By the parties, including methods of dispute resolution. This kind of provision is rarely understood as a unilateral consent to arbitration, as it depends on a prior agreement between the state and the foreign investor. Such is the case of Section 5 (3) of the 2010 Seychelles Investment Act, for example. [2]

An investor affected by nationalization or expropriation may seek constitutional or other legal remedies under the laws of Seychelles, or use any other dispute resolution method provided for in an agreement between the investor and the government.

Others provide consent to arbitration, but only when a dispute does not relate to the exclusive jurisdiction of domestic courts. For example, the 2013 Law of the Republic of Belarus on Investments allows the settlement of disputes that do not fall within the exclusive jurisdiction of the courts of the Republic of Belarus, on a UNCITRAL or ICSID arbitration:

Article 13. Settlement of disputes between an investor and the Republic of Belarus

[…] If disputes do not relate to the exclusive jurisdiction of the courts of the Republic of Belarus, contracts between an investor and the Republic of Belarus will not be negotiated within three months from the date of receipt of a written proposal on their regulation regulated in the context of a preliminary procedure, then such disputes, at the discretion of the investor, can also be settled:
  • in an arbitration tribunal established to resolve each and every dispute in accordance with the arbitration rules of the United Nations Commission on International Trade Law (UNCITRAL), unless the parties agree otherwise;
  • at the International Center for the Settlement of Investment Disputes (ICSID) in the event that foreign investor is a citizen or legal entity of a member state of the Convention for the Settlement of Investment Disputes between States and Nationals of Other States of March 18, 1965.

In the event that a contract of the Republic of Belarus and / or a contract concluded between an investor and the Republic of Belarus establishes something else with regard to the settlement of disputes between the investor and the Republic of Belarus arising from the implementation of investments, then the provisions of this contract of the Republic of Belarus and / or the contract concluded between the investor and the Republic of Belarus apply.

in the South Pacific Properties (Middle East) Limited v. Egypt, The foreign investor relied on Egyptian Law No. 43 of 1974 on the Investment of Arab and Foreign Funds and the Free Zone (“Law No. 43") To submit a request for arbitration to the International Center for the Settlement of Investment Disputes ("ICSID”). Article 8 of Law No. 43 provided for ICSID arbitration: [3]

Investment disputes in connection with the implementation of the provisions of this Act will be resolved in a manner to be agreed with the investor, or under the agreements in force between the Arab Republic of Egypt and the investor's home country, or under the Agreement on the Settlement of Investment Disputes between the State and nationals of other countries to which Egypt applies by virtue of Law No. 90 of 1971, where such a convention applies.

Egypt disagreed, stating this Article 8 of Law 43 was no clear consent. According to the state, an agreement with the foreign investor would be required to determine the jurisdiction. The arbitral tribunal rejected the argument of Egypt and found that Article 8 of Law 43 constitutes "an express written consent to the jurisdiction of the Center under Article 25 (1) of the Washington Convention in cases where there is no other agreed method of dispute resolution and no applicable bilateral treaty”.[4]

Material protection provided for in the investment codes

Similar to investment agreements, the investment codes include a number of essential rules designed to protect and encourage foreign investors. For example, the following essential safeguards can be found in the investment codes of African countries:

  • fair and just treatment (see, e.g., Section 7 of the Cape Verde External Investment Code (Law No. 89 / IV / 93);
  • National Treatment (see, e.g., Section 7 of the Cape Verde External Investment Code (Law No. 89 / IV / 93))
  • Protection against discriminatory measures (see, e.g., Article 10 of the Investment Code of Burundi (Law No. 1/24));
  • Protection of intellectual property rights (see, e.g., Article 35 of the Investment Promotion Act, 2009 of South Sudan);
  • due process (see, e.g.,Article 15 of the Private Investment Law (Law No. 10/18 of June 26th);
  • Protection against nationalization and expropriation (see, e.g., Section 5 (1) of the Seychelles Investment Act 2010); and
  • the right to free capital transfer (see, e.g., Section 6 (1) of the Seychelles Investment Act 2010).

Many investment codes also define the terms "investment" and "investorSimilar to bilateral investment agreements. (see, e.g.,Section 1 of the Investment Protection Act 2015 of South Africa).

[1]Tradex Hellas S.A .. v. Republic of Albania, ICSID Case No. ARB / 94/2, Court Decision of December 24, 1996, pp. 187-188.

[2] Seychelles Investment Code (Investment Law 31 of 2010).

[3] Today, foreign investment in Egypt is regulated by Law No. 72 of 2017.

[5]South Pacific Properties (Middle East) Limited v. Arab Republic of Egypt, ICSID case no.ARB / 84/3, court decision of April 14, 1988, ¶ 116.

Filed Under: Afghanistan Arbitration, Belarus Arbitration, Burundi Arbitration, Cape Verde Arbitration, Central African Republic Arbitration, Egypt Arbitration, Mauritania Arbitration, Sudan Arbitration