Book contents
- Frontmatter
- Contents
- Preface to the second edition
- Preface to the first edition
- Table of cases
- List of abbreviations
- 1 Introduction
- 2 The shaping factors
- 3 Controls by the host state
- 4 The liability of multinational corporations and home state measures
- 5 Bilateral investment treaties
- 6 Multilateral instruments on foreign investment
- 7 Causes of action: breaches of treatment standards
- 8 The taking of foreign property
- 9 Takings in violation of foreign investment agreements
- 10 Compensation for nationalisation of foreign investments
- Bibliography
- Index
2 - The shaping factors
- Frontmatter
- Contents
- Preface to the second edition
- Preface to the first edition
- Table of cases
- List of abbreviations
- 1 Introduction
- 2 The shaping factors
- 3 Controls by the host state
- 4 The liability of multinational corporations and home state measures
- 5 Bilateral investment treaties
- 6 Multilateral instruments on foreign investment
- 7 Causes of action: breaches of treatment standards
- 8 The taking of foreign property
- 9 Takings in violation of foreign investment agreements
- 10 Compensation for nationalisation of foreign investments
- Bibliography
- Index
Summary
All law involves a resolution of conflicting interests. But, unlike other areas of law, international law lacks a centralised authority which could resolve conflicts of interest. Whereas in a domestic system there are decision making authorities which can resolve such conflicts, in international law the absence of such an authority means that conflicts will be protracted. This situation will exist until some adjustment of the conflict is made in the course of time, either through negotiated settlements resulting in treaties or practices resulting in custom. The adjustment will contain principles which receive a measure of acceptance by the states. All these involve consensual processes. International law embodies a long series of adjustments made in response to conflicts. As the process of adjustment never ends, the law continually remains in a state of flux.
The international law on foreign investment is an example of this process of adjustment. Its lack of clarity in many areas results from the intensity of conflict of divergent interests. Essentially, the conflict relates to the nature of the control that could be exercised over the foreign investment. The host states argue for national control subject to a minimum of external constraints, whereas capital-exporting states argue for greater constraints against national control in the hope of ensuring the protection of foreign investment. Various other actors such as non-governmental organisations with a diversity of interests have come onto the scene, further complicating the existing situation of uncertainty.
- Type
- Chapter
- Information
- The International Law on Foreign Investment , pp. 34 - 96Publisher: Cambridge University PressPrint publication year: 2004