Incomplete international investment agreements : problems, causes and solutions / Tae Jung Park.

Format:

Book

Author/Creator:

Park, Tae Jung, author.

Contributor:

Edward Elgar Publishing, publisher.

Series:

Elgar international investment law.

Elgar International Investment Law

Language:

English

Subjects (All):

Investments, Foreign--Law and legislation.

Investments, Foreign.

Investments, Foreign (International law).

Contracts (International law).

Commercial treaties.

Physical Description:

1 online resource (178 pages)

Place of Publication:

Cheltenham, England ; Northampton, Massachusetts : Edward Elgar Publishing, [2022]

Summary:

"This timely book is a comprehensive analysis of incomplete International Investment Agreements (IIAs), featuring insights from negotiating experiences in a number of bilateral and multilateral investment treaties. It examines problems, causes, and solutions surrounding this phenomenon by employing incomplete contract theory and opens new avenues in discussing how to correct incomplete IIAs. Throughout the book, the author challenges the fundamental assumption that most IIAs are concluded in a complete manner and emphasizes the importance of accounting for the fact that IIAs are often concluded without significant investment protection articles and are subject to renegotiation. Park applies various interdisciplinary approaches, including incomplete contract theory and development theory, to illustrate how countries easily postpone their treaty negotiations and are willing to renegotiate to remedy incomplete IIAs. Furthermore, he depicts the reality of treaty negotiation in recent years, helping readers to understand how countries are failing to negotiate complete IIAs and how utilizing an economics approach could analyse and resolve this issue. Offering a useful and practical contribution to the discussion on the resolution of incomplete IIAs, this book will be key reading for academics and researchers within the fields of commercial law, international economic law, trade law and international investment law. It is also a must-read book for both government officers and investment treaty lawyers in all countries involved with Free Trade Agreements"-- Provided by publisher.

Contents:

Contents acknowledgments

1. Introduction to incomplete international investment agreements

Overview of the provisions in iias

Iias and fdi, and trade liberalization

Unnecessarily incomplete provisions in iias

Incomplete contract theory and the optimum level of iias

Costs of incomplete iias (undesirable effects)

Reasons for incomplete iias

Solutions to reduce incompleteness in iias

2. Overview of the provisions in iias

Investment

Protection and security

Fair and equitable treatment (fet)

Expropriation

Prohibition on performance requirement

Most favored nation (mfn)

National treatment (nt)

Investor-state dispute settlement (isds)

Approaches to scheduling a reservation list

3. The relationship between iias, fdi, and trade liberalization

The role and effect of iias

The role of iias: Investment protection and investment promotion

The effect of iias: A mixed result

Fdi and trade liberalization

The relationship between fdi and trade liberalization: A positive relationship

Incomplete international investment agreements a reason for a positive relationship: Technology spillover

4. Unnecessarily incomplete provisions in iias

Definition of an unnecessarily incomplete iia

Incomplete provisions in the main text

Missing text

Missing articles

Incomplete provisions in a reservation list

Missing reservation list

Missing or unspecified measures

Incomplete iias concluded by developing countries in asia and exceptions to them

Unnecessarily incomplete iias in developing countries in asia

Exceptions: Are there any complete iias between developed countries?

5. Incomplete contract theory and the optimum level of iias

Background literature on law and economics approach to iias

Incomplete contract theory and optimum level of incomplete iias

Reasons for incompleteness: Transaction costs and bounded rationality

Transaction costs

Bounded rationality

Types of incompleteness

Strategic incompleteness

Inexorable incompleteness

Efficient incompleteness

Necessary incompleteness

Ignorance

Accidental incompleteness

Problems with incompleteness: Opportunism and regret

Opportunism

Regret

Remedies for incompleteness

Delegating gap-filling responsibilities to a third party

Flexibility mechanism

Relational contracts

Comprehensive contracting

Optimum level of incomplete iias

6. The cost of incomplete provisions

Opportunities missed in attracting fdi and achieving trade liberalization

Iias and investment targeting

Investment targeting and ipa

Iias as a reflection of targeting

Missed opportunities

Unspecified measures

Missing measures

Missing articles or missing text

Missed opportunities to establish aelp

Law and development and aelp

Opportunistic behaviors associated with incomplete iias

Missing article

7. Reasons for incomplete provisions

Strong protectionism

Rationale behind protectionism: The infant industry argument

Protectionist motives: Preference of legislative body for gradual market opening, lobbying, and ongoing legal reform

Preference of the legislative body for gradual market opening

Lobbying

Ongoing domestic legal reforms

Lack of institutional capacity

Failure in intra-government coordination and cooperation

Lack of legal and technical expertise

8. Solutions to incomplete provisions

Legal remedies

A choice between a side letter and a renegotiation clause

An exchange of a side letter

Background

Procedure followed in exchanging side letters

Advantages of a side letter

The insertion of a renegotiation clause

Renegotiation procedure

Advantages of a renegotiation clause

Institutional remedies

Minimizing intra-government coordination failure: Enabling better coordination and cooperation between line ministries

Upgrading legal expertise in iias

9. Conclusion to incomplete international investment agreements

Index.

Notes:

Includes index.

Includes bibliographical references and index.

Description based on print version record.

Other Format:

Print version: Park, Tae J. Incomplete International Investment Agreements

ISBN:

9781802202434