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2020 | OriginalPaper | Chapter

Stipulating Investors’ Obligations in Investment Agreements as a Suitable Regulatory Approach to Prevent and Remedy Anti-Competitive Behaviour?

Authors : Karsten Nowrot, Emily Sipiorski

Published in: International Investment Law and Competition Law

Publisher: Springer International Publishing

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Abstract

This chapter approaches the regulatory option of integrating provisions of competition law into the normative structure of international investment agreements (IIAs). Grounded in the growing trend to include investors’ obligations in the new generation of IIAs, the analysis attempts to assess the feasibility and potential benefits of this regulatory approach as a means to prevent and remedy anti-competitive behaviour by foreign investors. By identifying three main types of obligations currently integrated into agreements, including direct obligations, indirect obligations, and commitments to corporate social responsibility, the chapter pushes forward the proposition of including obligations aimed at promoting and protecting market competition. The similarities between the policy aims of competition law and international investment law, among them the protection of human rights and the environment, the promotion of core labour and social standards as well as the prevention of corruption, create an opening for cooperation. Further legitimizing the integration between the two spheres, foreign investors have the potential to interfere with the free play of market forces and thus contravene the aims pursued by competition policy. The chapter illustrates the potential applicability and extension of incorporating investors’ obligations designed to prevent and remedy anti-competitive behaviour into IIAs. The chapter concludes by addressing the underlying burdens of enforcement and implementation with regard to any inclusion of such obligations for the investors.

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previous chapter Are Market Competition and Investment Protection Incompatible in the EU Energy Sector?

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UNCTAD (1997), pp. 123 et seq.

Tamada (2015), p. 2.

Miles (2010), pp. 295 et seq.; Lavranos (2016), pp. 309 et seq.; Puig and Shaffer (2018), p. 361, Roberts (2018), pp. 411 et seq.

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Tietje (2009), p. 461.

Butler and Subedi (2017), pp. 46 et seq.

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The text of the IISD Model Agreement is for example available under: http://www.iisd.org/pdf/2005/investment_model_int_agreement.pdf. All references to websites in this contribution have been last accessed on 26 Nov 2018.

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Agreement between the Government of the People’s Republic of China and the Government of the United Republic of Tanzania Concerning the Promotion and Reciprocal Protection of Investments of 24 March 2013, http://investmentpolicyhub.unctad.org/IIA/country/42/treaty/990.

The text of the agreement is available under: http://investmentpolicyhub.unctad.org/IIA/treaty/3633.

Agreement between Canada and Mongolia for the Promotion and Protection of Investments of 8 September 2016, http://investmentpolicyhub.unctad.org/IIA/country/35/treaty/3698.

Investment Promotion and Protection Agreement between the Government of the Federal Republic of Nigeria and the Government of the Republic of Singapore of 4 November 2016, http://investmentpolicyhub.unctad.org/IIA/treaty/3705.

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The text of the protocol is available under: http://investmentpolicyhub.unctad.org/IIA/treaty/3772.

The text of the agreement is available under: http://investmentpolicyhub.unctad.org/IIA/mostRecent/treaty/3815.

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CJEU, Case 127/73, BRT et al. v. SABAM et al., Judgement of 30 January 1974, para. 16; as well as subsequently for example CJEU, Case C-282/95 P, Guérin Automobiles v. Commission, Judgement of 18 March 1997, para. 39; CJEU, Joined Cases C-295/04 to C-298/04, Vincenzo Manfredi et al. v. Lloyd Adriatico Assicurazioni SpA et al., Judgement of 13 July 2006, para. 39. See also, e.g., Khan et al., Article 101 TFEU, in: Geiger et al. (2015), para. 36; Khan et al., Article 102 TFEU, in: Geiger et al. (2015), para. 2. For a more comprehensive treatment of the concepts of direct applicability and direct effect in EU law see for example Schütze (2018), pp. 76 et seq.

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Creek Mining Company v. Peru, ICSID Case No. ARB/14/21, Award, 30 November 2017, Partially Dissenting Opinion of Philippe Sands, paras 4 et seq. See in this connection also Article 23 of the new Dutch Model BIT, adopted by the Dutch government on 19 October 2018 https://www.lexology.com/library/detail.aspx?g=c5bb3ed4-08ea-440e-9a77-43deff073842: “Without prejudice to national administrative or criminal law procedures, a Tribunal may, in deciding on the amount of compensation, take into account non-compliance by the investor with its commitments under the UN Guiding Principles on Business and Human Rights, and the OECD Guidelines for Multinational Enterprises.”

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Weiler (2004), pp. 437 et seq.

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Title: Stipulating Investors’ Obligations in Investment Agreements as a Suitable Regulatory Approach to Prevent and Remedy Anti-Competitive Behaviour?
Authors: Karsten Nowrot
Emily Sipiorski
Publisher: Springer International Publishing
Book: International Investment Law and Competition Law
Print ISBN: 978-3-030-33915-9

Electronic ISBN: 978-3-030-33916-6

Copyright Year: 2020
DOI: https://doi.org/10.1007/978-3-030-33916-6_7