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Critically assess how international investment law should be modified to address the growth of foreign direct investment from em - Essay Example

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Critically assess how international investment law should be modified to address the growth of foreign direct investment from emerging markets? Introduction According to a report by the Working Group of the Capital Markets Consultative Group, inflows from Foreign Direct Investment (FDI) to emerging markets has increased substantially since the 1990s and represents the most significant source of income for those countries.1 There has also been a corresponding trend in FDI outflows from emerging markets…
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Download file to see previous pages The trend indicates an increase in FDI outflows from emerging markets. During the 1980s, FDI outflows from emerging markets were approximately US$50 billion annually. Since that time the FDI outflows have increase exponentially. For example in 2007 the FDI outflows from emerging markets was US$2.1 trillion and despite the economic downturn in 2008, the FDI outflows from emerging markets was US$1.9 trillion.5 This trend is also indicative of the fact that emerging markets are becoming pivotal players in the global economy.6 It has been argued that the best method for improving FDI inflows to emerging markets is for both realistic and credible commitments to both domestic and international reforms toward liberalising capital markets.7 This is particularly important because states wishing to attract FDI inflows are responsible for regulating their domestic investment laws. The manner in which national laws and national market reforms are made are marginally influenced by “international legal obligations or by economic necessity.”8 International legal obligations are directed by treaty obligations which are usually in the form of Bilateral International Treaties (BITs).9 Multinational trade agreements such as the World Trade Organization (WTO) and Preferential Trade Agreements (PTAs) also regulate how members states must treat foreign investors, thus enabling greater mobility of capital across borders.10 Since the 1990s, BITs between emerging markets and between emerging markets and developed states have increased exponentially.11 The main difficulty is that there is no “single model” setting forth what should encompass international investment law relative to FDIs.12 Given the complexity of FDIs, and the risks and uncertainties, the need to balance the rights and duties of foreign investors requires some degree of unity between states.13 A more cohesive international investment law regime is also necessary for levelling the playing field between competing emerging markets and between emerging markets and developed states.14 This research study investigates the complexities of FDIs, its significance to economic growth and development in emerging markets and argues that there is a need for the implementation of international investment laws to balance the competing rights and obligations of host state and foreign investor. This is particularly important for ensuring that emerging states benefit from the potential of FDIs to help these state develop and grow in economically and politically significant ways. The challenge under investigation in this study is the extent to which international investment law should be modified to prevent the exponential growth of FDI outflows from emerging markets and to encourage further growth of FDI inflows to emerging markets. International Investment Law Regulating FDIs Bilateral Investment Treat Law Since the 1990s there has been a significant increase in the number of bilateral foreign investment treaties (BITs).15 Studies show that BITs have increased the flow of FDIs to emerging markets particularly those in South-East Asia.16 There is also evidence of an increase in FDI outflows from and ...Download file to see next pages Read More
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