Applying the Foreign Investment Agreements at Sea: Investigating the Concept of Territory in the International Investment Agreements of Iran, the Republic of Korea, and the European Union
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Territory plays a large role in the international law of the sea and international investment law. On the one hand, according to the law of the sea, maritime areas determine the jurisdiction of states in creating their roles at sea. On the other hand, in maritime investments, the maritime areas determine the jurisdiction of investment tribunals and whether substantive provisions of the investment agreements can be applied. Therefore, the precise definition of maritime territory under investment agreements is one of the most challenging issues. Hence, the purpose of the present study is to accurately determine the scope of territory at sea in the international investment agreements (IIAs) of Iran, the Republic of Korea (ROK), and the European Union (EU); this is done by giving a comparative view and providing a complete and effective solution to clarify the agreements that do not mention about the scope of territory. Another aim is to show which country pays better attention to the scope of territory. In this way, the study uses quantitative and qualitative methods in examining the agreements. The results show that there are three different approaches to determining the scope of the territory at sea in the IIAs of Iran, the ROK and the EU: explicit, implicit, and silent languages. The article shows that explicit language is the best approach to present the exact scope of territory in the agreements, while the implicit and silent approaches are non-transparent approaches and need to be better clarified. Therefore, to clarify the scope of territory at sea within the agreements using non-transparent approaches, the present study proposes the clarifier regulation. Hence, the tribunal or the parties of an agreement should clarify the intended and exact scope of territory at sea under the investment agreements, in accordance with international and domestic dimensions.
Abstract
Territory plays a large role in the international law of the sea and international investment law. On the one hand, according to the law of the sea, maritime areas determine the jurisdiction of states in creating their roles at sea. On the other hand, in maritime investments, the maritime areas determine the jurisdiction of investment tribunals and whether substantive provisions of the investment agreements can be applied. Therefore, the precise definition of maritime territory under investment agreements is one of the most challenging issues. Hence, the purpose of the present study is to accurately determine the scope of territory at sea in the international investment agreements (IIAs) of Iran, the Republic of Korea (ROK), and the European Union (EU); this is done by giving a comparative view and providing a complete and effective solution to clarify the agreements that do not mention about the scope of territory. Another aim is to show which country pays better attention to the scope of territory. In this way, the study uses quantitative and qualitative methods in examining the agreements. The results show that there are three different approaches to determining the scope of the territory at sea in the IIAs of Iran, the ROK and the EU: explicit, implicit, and silent languages. The article shows that explicit language is the best approach to present the exact scope of territory in the agreements, while the implicit and silent approaches are non-transparent approaches and need to be better clarified. Therefore, to clarify the scope of territory at sea within the agreements using non-transparent approaches, the present study proposes the clarifier regulation. Hence, the tribunal or the parties of an agreement should clarify the intended and exact scope of territory at sea under the investment agreements, in accordance with international and domestic dimensions.
참고문헌 (59)
- Chester Brown, "Commentaries on Selected Model Investment Treaties", pp.719~ (2013)
- Nicolette Butler, "The Future of International Investment Regulation: Towards a World Investment Organisation?", Neth. Int’l L. Rev, 64, pp.43~46 (2017)
- "International Investment Agreements Navigator: Terminology"[URL]
- Between Commitment and Flexibility: The Fragile Stability of the International Investment Protection Regime, "Anne van Aaken", U. of St. Gallen, 1~, pp.U. of St. Gallen Law & Econ., Working Paper No. 2008-23 (2008)
- "Economic Partnership Agreement, EU-SADC, June 10, 2016, 2016 O.J. (L 250) 59", ~
- "Comprehensive Economic and Trade Agreement, Can.-EU, Oct. 30, 2016, 2017 O.J. (L 11) 27", ~
- Frank L. Bartels, "The Future Foreign Investment in Southeast Asia", pp.213~ (2004)
- "Wintershall Aktiengesellschaft v. Argentine Republic, ICSID Case No. ARB", 04, pp.2008, ~
- Margaret Clare Ryan, "Is There a Nationality of Investment? Origin of Funds and Territorial Link to the Host State", IAI Series, 8, pp.97~112 (2018)
- "Blusun S.A. v. Italian Republic, ICSID Case No. ARB", 14, pp.2016, ~
- "Wirtgen v. Czech, No. 2014-03 (Perm. Ct. Arb. 2017)", ~ (2017)
- "Fraport AG Frankfurt Airport Services Worldwide v. Republic of the Phil., ICSID Case No. ARB", 03, pp.2007, ~
- "InterTrade Holding GmbH v. Czech, No. 2009-12 (Perm. Ct. Arb. 2012)", ~ (2012)
- "Hamester v. Republic of Ghana, ICSID Case No. ARB", 07, pp.2010, ~
- "Tradex Hellas S.A. v. Republic of Alb., ICSID Case No. ARB", 94, pp.1999, ~
- "von Pezold v. Republic of Zim., ICSID Case No. ARB", 10, pp.2015, ~
- "OKO Pankki Oyj v. Republic of Est., ICSID Case No. ARB", 04, pp.2007, ~
- "Inmaris Perestroika v. Ukr., ICSID Case No. ARB", 08, pp.2012, ~
- "Law of the Sea: Maritime Boundaries and Dispute Settlement Mechanisms" (2005)[URL]
- Seline Trevisanut, "Investment Protection in Offshore Energy Production: Bright Sides of Regime Interaction", J. World Inv. & Trade, 19 (2018)
- Caroline Kleiner, "Territoriality in Investment Arbitration: The Case of Financial Instruments", Int’l Disp. Settlement, 9, pp.315~338 (2018)
- Peter Tzeng, "Investment Protection in Disputed Maritime Areas", J. World Inv. & Trade, 19, pp.828~841 (2018)
- Markos Karavias, "Submarine Cables and Pipelines: The Protection of Investors Under International Law", World Inv. & Trade, 19, pp.860~885 (2018)
- "Vienna Convention on the Law of Treaties, May 23, 1969, 1155 U.N.T.S. 331", ~ (1969)
- P. Gill, "Methods of data collection in qualitative research: interviews and focus groups", Br. Dent. J, 204, pp.291~ (2008)
- "Maritime Zones Delimitation–Problems and Solutions" (2018)[URL]
- "Blue Economy: Why we should talk about Investment Law" (2021)[URL]
- Francesca Galea, "Artificial islands in the law of the sea", Ph.D, pp.2009
- Md. Monjur Hasan, "Protracted Maritime Boundary Disputes and Maritime Laws", J. Int. Marit. Saf. Environ. Aff . Shipp, 2, pp.89~92 (2018)
- Timo Koivurova, "Strategic Assessment of Development of the Arctic", pp.47~ (2014)
- "Pildegovics v. Kingdom of Norway, ICSID Case No. ARB", 20, pp.2021, ~
- "Deutsche Bank v. Democratic Socialist Republic of Sri Lanka, ICSID Case No. ARB", 09, pp.2012, ~
- Tobias Ackermann, "Investments Under Occupation: The Application of Investment Treaties to Occupied Territory", Eur. Y.B. of Int’l Econ. L, (Special), pp.67~80 (2019)
- Ardeshir Atai, "Iranian Bilateral Investment Treaties Substantive Principles and Standards", J. World Inv. & Trade, 14, pp.397~399 (2013)
- Ashely Roach, "Today’s Customary International Law of the Sea", J. Ocean Dev. & Int’l L, 45, pp.239~ (2014)
- Christopher R. Zheng, "The Territoriality Requirement in Investment Treaties: A Constraint on Jurisdictional Expansionism", J. Sing. L. Rev, 34, pp.139~ (2016)
- Rongxing Guo, "Cross-Border Resource Management", pp.299~ (2017)
- Int’l Law Comm’n, "Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law", U.N. Doc. A, L.682, pp.2006, ~
- Christina Knahr, "International Investment Law In The 21st Century", pp.42~53 (2009)
- "India found in breach of BIT with Germany by UNCITRAL tribunal in respect of agreement for lease of electromagnetic spectrum" (2021)[URL]
- Haijiang Yang, "Jurisdiction of the Coastal State over Foreign Merchant Ships in Internal Waters and the Territorial Sea" (2006), Springer
- Nikolaos Giannopoulos, "International Law and Offshore Energy Production: Marine Environmental Protection Through Normative Interactions", Ph.D, pp.2020
- Bruno Jetin, "International Investment Treaties and arbitration Across Asia", pp.384~404 (2017)
- Marie-France Houde, "Novel Features in Recent OECD Bilateral Investment Treaties", OECD Directorate for Financial and Enterprise Affairs, 144~ (2006)
- "The Loophole and the Banana Hole" (2013)[URL]
- "OKO v. Republic of Est., ICSID Case No. ARB", 04, pp.2007, ~
- Anthony Aust, "Modern Treaty Law and Practice", pp.178~ (2013)
- Rebecca M. Wallace, "International law", pp.18~ (2013)
- John Shijian Mo, "The Dilemma of Applying Bilateral Investment Treaties of China to Hong Kong and Macao: Challenge Raised by Sanum Investments to China", ICSID Rev, 33, pp.125~136 (2018)
- Christoph Schreuer, "Jurisdiction and Applicable Law in Investment Treaty Arbitration", McGill J. Dis. Resol, 1, pp.1~15 (2014)
- Abadikhah Mostafa, "The investment protection at sea under the investment treaties: Tackling the problem of transnational investments", The Rule-of-Law State: Theory and Practice, 64, pp.150~167 (2021)