Bibliographie sélective OHADA

Focusing on Bosnia and Herzegovina, this study examines how diasporas contribute to the creation of foreign direct investment (FDI) in developing countries. It defines FDI as the acquirement over assets in a foreign nation and highlights how diaspora populations support investment flows. It also examines diaspora investment strategies, such as diaspora portfolio investment (DPI) and diaspora direct investment (DDI), and offers a historical overview of diaspora FDI patterns and how Bosnia and Herzegovina's policies are changing to engage its diaspora more.One case study illustrates the impact of diaspora-led FDI by highlighting the success of Senad Šantić, a Bosnian entrepreneur who returned to his home country to start a tech company. While these investments support development and economic growth, there are still issues, like the possibility of putting one's own interests ahead of the interests of the economy as a whole. Particularly in Bosnia and Herzegovina, where diaspora participation has historically been low, the implementation of effective policies and procedures is crucial, especially from a regulation perspective.The study also looks at the future of FDI, emphasizing the part that digital technology and new investment patterns will play. Opportunities for developing nations can be found in digital FDI, especially in industries like fintech and e-commerce, yet obstacles still exist in luring these investments. According to all the findings, developing nations can improve their chances for economic success by creating an atmosphere that encourages diaspora investment which will shift those nations into the global investment scene. Ultimately, FDI regulations and government programs are needed in order to fully utilize diaspora-led FDI for sustained growth.

This study provides an in-depth look at the complex relationship between business environments and foreign direct investment. The study examines this critical issue by focusing on emerging economies, such as Kosovo. In this research, analytical and empirical research methods have used to highlight the importance of FDI in promoting economic growth. FDI not only increases production capacity but also supports economic growth by increasing purchasing power and creating employment opportunities, especially in countries in transition. This analysis distinguishes between endogenous and exogenous variables to classify the various elements of the business environment. It is important to emphasize how a supportive business environment plays a vital role in attracting investment. The main factors affecting FDI include infrastructure quality, political stability, workforce skills, market potential and tax incentives. These initiatives are critical to creating a more favorable investment climate.As a result of the variables the study concludes by emphasizing the need for continuous reforms to strengthen the business environment. Such strategic efforts are crucial to optimize FDI flows and advance sustainable economic development. By strengthening regulatory frameworks and improving infrastructure, developing countries can be in better position itself to attract foreign investors. Furthermore, creating a strong business environment can also support the development of local entrepreneurs, increasing economic diversification. As a result, it not only facilitates the flow of capital, but also contributes to the long-term stability and growth of the national economy. Therefore, policymakers and governments need to prioritize these initiatives and develop comprehensive and sustainable strategies to improve the business environment.

The study explores the reaction of stock markets to anticipated or unexpected rating announcements by the market in a crisis context by conducting an empirical study on the MENA (Middle East and North Africa) stock market over the period from December 2010 to August 2022. The results show that the crisis context support the anticipation of bad ratings and neutral ratings as opposed to good ratings. These results validate the asymmetry in investor reaction to announcements of anticipated rating downgrades compared with announcements of upgrades in times of crisis. This reaction highlights the irrational behave of investors in times of crisis. In fact, when investors detect a risk concerning the financial situation of a stock, they anticipate a downgrade and react quickly, even before the official announcement of the downgrade, by selling their shares on masse. This action will cause the share price to fall. Similarly, the market’s weak reaction to early good announcements is explained by the fact that this type of announcement does not provide them with any unknown information to guide their financial decisions.

This study investigates the impact of the arbitration cases under the Investor-State Dispute Settlement (ISDS) scheme on cross-border direct investment in the form of merger and acquisition deals. The initiation of ISDS claims has significant and negative effects on direct investment from the claimant home country to the developing or weak-institution responding country. Indirect expropriation claims often have stronger effects than direct expropriation claims. The investor-win arbitration cases produce a significant substantiation effect by reducing merger flows, while the state-win cases produce an acquittal effect that encourages the subsequent capital inflow to the respondent state. Both effects are more striking in weak-institution or less developed target countries. We also detect some spillover effects of ISDS arbitration.

International investment agreements employ dispute settlement procedures that differ markedly from their counterparts in trade agreements. A prominent and controversial difference arises with respect to the issue of “standing”: Who has the right to complain to adjudicators about a violation of the agreement? While trade agreements limit standing to the member governments (state-to-state dispute settlement), investment agreements routinely extend standing to private investors as well (investor-state dispute settlement). We develop parallel models of trade and investment agreements and employ them to study this difference. We find that the difference in standing between trade and investment agreements can be understood as deriving from the fundamentally different problems that these agreements are designed to solve. Our analysis also identifies some important qualifications to the case for including investor-state dispute settlement provisions in investment agreements, thereby offering a potential explanation for the strong political controversy associated with these provisions.

This article argues for a fundamental raison d'être reconceptualization of international investment law (IIL) through Martha Fineman's 'vulnerability theory'. The theory helps identify the structural sources of IIL's shortcomings, whilst philosophically challenging the one-sided view that foreign investors are entitled to protections, but are free from obligations vis-à-vis the communities affected by their undertakings. Emphasizing the productive power of the state to take positive action that acknowledges ordinary citizens' embeddedness within, and dependence upon, surrounding structures, the vulnerability theory challenges the hegemonic perception of the state as a source of danger - a view which has hitherto undermined both the potency and the enforceability of investor obligations. Used as a heuristic device in studying both IIL's existing structures and the potential avenues for reimagining it, Fineman's theory not only shines a novel light on the foundational premises of IIL, but also grants theoretical traction to existing ideas about improving the system.

Private investors’ land rights vary from country to country, depending on the legal system in place. The degree of openness of land laws determines the degree to which both domestic and foreign investors are attracted, as the latter aims to invest in countries with legal systems offering the most secure and sustainable interests. How can Congolese land laws be made more attractive to private investors in the real estate sector? Using exegetical and comparative methods, we will test our hypothesis that reform to increase the rights of private national and foreign investors to access land would be an asset. By comparing Congolese land law with other legal systems, and with current social and economic realities, we have concluded that accommodating land rights is a prerequisite for increasing both domestic and foreign private investment in real estate and an essential step towards boosting and modernizing real estate investment in the DRC.

It is trite that environmental challenges remain one of the major global concerns and no doubt of great impact on human existence and wellbeing. This impact is a result of human activities on the natural ecosystem. This article examines the legal framework by the Nigerian state in regulating the activities of the multinational investors in the oil and gas industry in the Niger Delta region of the country. It discusses the international, regional, and national legal framework in the protection of environment and environmental rights of the host community and foreign direct investment rights. The author demonstrates the imbalance in the protection of environmental and foreign direct investment rights from which suggestions are made towards correcting this injustice as caused by the existing legal framework.

International investment law is facing a legitimacy crisis, in which to tackle, substantial efforts are being made in structural and procedural areas. The first step to overcoming this crisis is identifying the roots of it. The lack of a dynamic balance between public and private interests is one of the main factors creating this legitimacy crisis in this legal system.[1] This paper focuses on the changes in the investment arbitration jurisprudence to create this balance. The findings of this paper can explain one of the convergence points of international trade and investment law. Such a claim is based on the evolution of international trade law in facing a similar legitimacy issue and the structural-procedural approach of this legal system in balancing public and private interests as an ultimate solution to the crisis.[2] From this perspective, one of the major factors in creating a legitimacy crisis in both legal systems is the dominance of the paradigm for preference of private interests; and one of the convergence points of international trade and investment law has been to replace it by accepting the paradigm of creating a dynamic balance between competing goals.[3] This paper examines this convergence in arbitral jurisprudence.IntroductionIn recent years, the legitimacy crisis of the regime of international investment law and, as a result, the investor-state dispute settlement system has been one of the most important and controversial topics in the academic environment and the practice of states consequently, serious efforts in various fields to tackle this crisis have begun. According to this paper, choosing an arbitration mechanism modeled on international commercial arbitration to resolve disputes between host states and foreign investors can be evaluated as a wrong and hasty action that, regardless of its factors and contexts, has changed the nature and function of this system over time.[4] It should be noted that the main factor in such consequences is how this dispute resolution system is used which, contrary to the accepted model, always puts the host states in a "respondent" position in possible future disputes and, as a result, disrupts the balance expected in any international dispute settlement system. On this basis, the confrontation of the host state's sovereign competence in ensuring public interests with the foreign investors’ ability to challenge this competence is brought into the spotlight: currently, within the regime of international investment law, host states have only responsibilities and obligations in contrast to extensive and exclusive rights and privileges recognized for foreign investors, and this can be considered as the most important factor disturbing the said balance. The main issue in this field is to analyze the role of the investment arbitral tribunals in creating such a balance. In this regard, the authors, by focusing on the nature of investment treaties, and the relations between the parties in investment disputes and with emphasis on the general legal regime governing international investment, consider creating a dynamic balance between public and private interests to be the key to solving the crisis. They emphasize that; As long as the rights and obligations of the parties to the dispute are based on imbalanced grounds, the change in nature of the disputes and the function of the system -as the main roots of this legitimacy crisis - will remain. In this remark, it is very important to focus on the two-sided nature (public-private) of the relationships established in the framework of investment treaties. The relationship between the host state and the foreign investor is created within the framework of investment treaties and in light of fundamental differences from purely private relationships in international commercial arbitration.[5] Note that any dispute arising from this relationship is affected by its inherently public nature governed by public international law.[6] Thus, a purely private attitude towards these relations does not seem viable. As Ian Brownlie has stated in the case of SME v. the Czech Republic, it can lead to ignoring some of the basic elements of the relevant investment treaty.[7] In other words, the right and duty of the host state in protecting and promoting public interests is a fundamental part of this relationship, and any indulgence of it leads to a serious disruption of the mentioned balance through which the system's legitimacy will be the first victim.It is clear that the main task of any dispute resolution system is to create such a balance, and on this basis, and compared to the WTO dispute resolution system, the role of the investment tribunals in this process is discussed. This jurisprudential convergence is in line with the goal of strengthening the legitimacy of the international investment law system as a whole.Based on the above, the first part of this paper focuses on the process of establishing the ISDS in international investment law and its characteristics, the factors of the crisis of legitimacy are analyzed with an analytical approach, while also explaining the nature of investment treaties and explaining the general legal regime governing international investment. Furthermore, the lack of a dynamic balance between public and private interests is emphasized as the main cause of the crisis. In the second part, while comparing the two legal systems of international trade and investment with a similar crisis of legitimacy, we will examine the interaction of investment arbitration with the WTO's jurisprudence in facing this crisis through a case study of several investment arbitral awards. [1]. David Gaukrodger, “The Balance between Investor Protection and the Right to Regulate in Investment Treaties: A Scooping Paperˮ, OECD Working Paper on International Investment 2017/02, at 4.[2]. Nicholas DiMascio & Joost Pauwelyn, “Non-Discrimination in Trade and Investment Treaties: Worlds apart or Two Sides of the Same Coin?”, AJIL, Vol. 102, No.1, (2008), at 89.[3]. Jurgen Kurtz and Sungioon Cho, “Convergence and Divergence in International Economic Law and Politics”, EJIL, Vol. 20, No. 1, (2018), at 187.[4]. Benedict Kingsbury & Stephan W. Schill, “Public Law Concepts to Balance Investor's Rights with State Regulatory Actions in the Public Interest - The Concept of Proportionalityˮ, In Schill Stephan W., International Investment Law and Comparative Public Law (UK: Oxford University Press, 2010) at 76. [5]. Crina Baltag, “Reforming The ISDS System: In Search of a Balanced Approach?ˮ, Contemporary Asia Arbitration Journal, Vol. 22, No. 2, (2019), at 285.[6]. Ibid.[7]. Andreas Kulick, “Sneaking Through Backdoor – Reflections on Public Interest in International Investment Arbitrationˮ, Arbitration International, Vol. 29, No. 3, (2013), at 438.

Derrière les controverses qui jalonnent l’histoire de l’idée de Constitution économique émerge la question éminemment politique de la marge de manœuvre laissée aux autorités publiques dans la sphère économique. La notion cristallise ainsi une tension fondamentale : entre démocratie et État de droit, quel doit être modèle d’organisation et d’ordonnancement juridique de l’économie? Des physiocrates aux néolibéraux, de la République de Weimar à l’intégration européenne, des constitutions nationales à la Global Governance, cet ouvrage collectif nous invite dès lors à explorer la généalogie du concept polémique de Constitution économique. Les auteurs ouvrent alors, à travers un dialogue interdisciplinaire constant, une réflexion globale autour des enjeux juridiques et politiques du processus actuel de constitutionnalisation de l’ordre de marché en Europe.

Conséquence de la compétition que les États se livrent pour attirer le maximum d’investisseurs, la mise en concurrence des systèmes juridiques nationaux s’est traduite par une libéralisation continue du droit qui a eu un effet direct sur l’idée de Constitution économique. Celle-ci a non seulement vu son épaisseur normative se renforcer du fait de la neutralisation des dispositifs juridiques dirigistes mais elle s’est également universalisée en raison de la conversion de la quasi-totalité des pays au dogme de « l’attractivité ». Toutefois, ce mouvement généralisé vers le tout libéral commence à être remis en cause sous l’effet de facteurs divers qui se traduisent par une demande sociale et politique pour plus de régulation étatique. Il en résulte à la fois un regain de l’unilatéralisme qui affecte la force des principes qui sous-tendent l’idée de constitution économique et une prise en compte plus affirmée des valeurs et intérêts collectifs qui altère la substance de ces principes.

For the first time, a monograph provides a systematic, in-depth account of contract interpretation in investment treaty arbitration and offers a conceptual paradigm that would enhance the quality of the tribunals’ reasoning.; Readership: The monograph is of relevance for legal scholars, practitioners and policymakers in the field of investment treaty arbitration. The book will also be of additional value to postgraduate and doctoral students.

The States, international organizations and interest groups are increasingly concerned with treaty claims of foreign investors, who sometimes seek compensation for the States' legitimate regulatory measures, such as tobacco plain packaging, nuclear energy phase out and environmental regulations. International investment law has yet to develop a comprehensive and predictable framework addressing some of the basis questions related to compensability of legitimate regulatory measures. The thesis carries out a comparative legal analysis to identify the key features of the prohibition of uncompensated expropriation as a general principle of law, and explores the rationale of that principle in political philosophy. Equipped with the results of this analysis, it proceeds to propose an analytical approach addressing practical questions related to the compensatory protection of foreign investments.

This paper analyzes the protection of Foreign Direct Investments in the OHADA area, specifically, its regulation by the Treaty of Organization and Harmonization in Africa of Business Law (OHADA Treaty). It is to restore legal and judicial security within their scope that OHADA member countries have undertaken to harmonize and unify their economic sector legislation to attract foreign investment as a factor in economic development. Several national and international legal instruments are responsible for the protection of foreign direct investment in OHADA countries. Indeed, the volume of foreign direct investment (FDI) to developing countries increased considerably during the 1990s; As Africa is now one of the favorite destinations for Western and even African investors, it is becoming a very profitable continent for investors. However, the issue of regulating or securing foreign investment in African countries is still flawed. The establishment of OHADA, in a way, is in the same direction; if we stick to the purpose of the organization prescribed in paragraph 5 of the preamble to the OHADA Treaty, which states that the purpose of the OHADA law is to "promote the growth of economic activity and encourage investment." Unfortunately, this objective remains only an announcement of the preamble to the Treaty, because of the definition of business law given by Article 2 of that treaty. However, the list of subjects is not exhaustive, investment remains absent. Thus, foreign investment is not regulated by the OHADA Treaty, so even investment-related activities are held by other subjects (corporate law, commercial law, and security law). The omission of FDI in the scope of the OHADA Treaty leads us to raise the question of its regulation.This work proposes a reflection that the OHADA Treaty should be modernized through reform including investment and many other issues to deal effectively with the issue of foreign investment given the ineffectiveness of national and sub-regional instruments in this area.

Responsible investment (RI) is the investment strategy that incorporates environmental, social and governance (ESG) factors into the investment decision-making process (Hebb, Hawley, Hoepner, Neher, & Wood, 2015). RI has shifted from what was considered a niche market to become one of the fastest-growing areas of finance in many parts of the world (PRI, 2019b). However, a closer look at the development of RI and adoption rates in countries and regions reveals that RI is not commonly practised in sub-Sahara Africa (except for South Africa). This study explores the critical challenges for RI development in the retirement benefits sector of Kenya and, by engaging with a variety of key stakeholders, proposes how to overcome the identified challenges. It contributes to the literature on challenges for RI in a developing country by offering an in-depth case study of the retirement benefits sector.My study employs qualitative methods to collect and analyse data collected from semi-structured interviews with 22 participants (asset managers, regulators and capital market experts, and a council member of the Association of Retirement Benefits Schemes of Kenya) as well as a collection of published documents by government agencies in Kenya. Also, I analysed 10 annual reports to assess the kind of ESG information that is disclosed by listed companies. My study explores, in particular, how actors in the retirement benefits sector conceptualise RI. It identifies the leading ESG factors in Kenya and draws on the business-case approach to RI to explore whether the participants consider those factors as material risk factors that present both risks and opportunities to the investment decision-making process. Further, my study identifies the specific barriers for RI development and proposes how to overcome them. The findings show that participants define RI using several terminologies. This is consistent with the existing literature. My study finds that all participants consider corporate governance as a material risk factor that can impact the financial returns of a portfolio. However, most of the asset managers do not think that the environmental and social factors can present material risk factors to their investment decision-making process. Although over a third of the asset managers recognise that the environmental and social issues in Kenya present business opportunities to retirement benefits schemes, there is a shortage of well-structured assets in those areas. Further, this study identifies five specific barriers for RI development: diversification challenges; a lack of ESG data; a lack of demand/incentives; short-termism; and the demand for high financial returns and a lack of awareness and expert knowledge of RI practices. My study recommends that the National Treasury of Kenya develops RI policy for the entire finance sector. In addition, the findings support a recommendation for the Capital Markets Authority and the Retirement Benefits Authority to embark on capacity building programmes to educate the actors in the finance sector on RI strategies and to create awareness of the impact of ESG on financial returns in the long run.

Sovereign rights in Exclusive economic zones and Continental shelves are functionally limited to the economic exploitation of these zones. Moreover, in the case of disputed maritime zones these sovereign rights are neither exclusive nor necessarily constant. Nevertheless, states are still expected to provide the investments established in these zones the same treatment they should provide in their territories where they exercise full and constant sovereignty. If a host state agrees to the establishment of an investment in a maritime zone that become later contested, do the occurrence of the contestation and the hazards arising from such contestation relief the host state from its contractual and treaty obligations toward the investment by virtue of the force majeure concept. This paper argues that a traditional interpretation of the force majeure concept in respect of investment agreements and contracts, hampers states ability to de-escalate their maritime disputes, diminishes its capacity to conclude delimitation agreements and reduces the promotion of the UNCLOS III as well as its mechanisms for disputes settlement. It proposes a contextualist interpretation of the force majeure concept that is adapted to the exploitation of disputed maritime zones and states obligations under the international law of the sea. First, it examines the concept of force majeure as a doc-trinal hypothesis and its applications in international contracts and international in-vestment agreements. Second, it analyzes the legal act of maritime contestation as a force majeure event according to the possible interpretations of the concept of “force majeure”. Finally, it examines the recurrent legal implications susceptible of arising out of a contestation; provisional orders and unfavorable delimitation and their qualifica-tion as a force majeure event in the realm of investment agreements and contract.

There is substantial scholarship on the limitations that international investment agreements (IIAs) place on States’ authority to regulate in the public interest. An area of fundamental importance that has not received scholarly attention in connection with IIAs is public procurement regulation. Given that public procurement is about the needs of States and their citizens, States would want to retain their authority within municipal public procurement laws to decide with whom to contract to meet those needs, and to pursue socioeconomic and industrial policies through procurement. However, most States are parties to IIAs, which impose obligations on them with respect to the protection of foreign investment. This article explores this seminal issue of whether IIAs stand to limit the authority of States in the implementation of procurement legislation and policies. Based on textual analysis and arbitral case study, it argues that treaty-based standards of investment protection can limit States’ authority on the implementation of methods of procurement (such as national competitive tendering or restricted tendering) and socioeconomic policies in procurement. A question that needs fuller engagement is the extent of conflict between specific IIAs and public procurement laws and policies, either regionally or globally, and how to reconcile conflicting obligations to promote foreign investment and sustainable development. This article provides the foundation for such future research.