CPD/CPT Course:
Treatment
of Foreign Investment:
International Perspectives

Dr. Julien Chaisse currently serves as professor at the City University of Hong Kong (CityU), School of Law.  He is an award-winning and world-renowned expert on international economic law (trade, investment, and tax), cyberlaw, and international dispute resolution.  His work has garnered wide academic recognition and has been cited by international courts/tribunals as well as the U.S. Courts.  He is the awardee of the Humanities and Social Sciences Prestigious Fellowship (2021) and the recipient of the Smit-Lowenfeld Prize from the International Arbitration Club of New York (2020).  He also sits on the editorial boards of several high impact academic journals, and serves as Editor-in-Chief of the Asia Pacific Law Review.

Dr. Chaisse is an accomplished senior arbitrator.  Numbers of his adjudications have been reported by local and international press.  He is frequently called upon as an expert witness in international trade/investment litigation and arbitration, to advise international organizations, governments, law firms, and private investors on private/public international law issues (e.g., concessions contracts, special economic zones, investment structuring, state and international organization immunities, and WTO accession), and he has assisted over twenty jurisdictions in drafting trade/investment treaties and legislation.

Dr. Chaisse is currently President and Chair of the Asia Pacific FDI Network (APFN), which is the most important organization in the region that focuses on researching foreign direct investment and facilitating cooperation among over 100 scholars and 50 institutions.  He has extensive experience working as a corporate board member, and serving on the board of directors/advisory board for a number of international organizations, including the World Free Zone Convention (WFZC), the Academy of International Dispute Resolution & Professional Negotiation (AIDRN), the National Institute of Malaysian and International Studies (IKMAS), and the Asian Academy of International Law (AAIL).  In addition, Dr. Chaisse is an active member of the World Economic Forum (“Tax and Globalization Working Group” and “Data Policy Platform”), a member of the Hong Kong’s Government Board of Review (Inland Revenue Ordinance), an advisor and partner to the United Nations ARTNET on FDI, and a member of the Academic Forum on Investor-state Dispute Settlement.  He also serves as Director of the Dot Trademark Policy Committee (DTPC), a co-founder of the Internet Intellectual Property Institute (IIPI), and is a member of the ICANN’s Working Group, which produced the Report of the Review of All Rights Protection Mechanisms in All gTLDs, among other highly-regarded white papers.

Prior to joining CityU Law School, Dr. Chaisse taught at the Chinese University of Hong Kong, Faculty of Law (2009-2019) where he served as Director of one the Faculty’s research centres as well as Director of PhD & MPhil Program.  Before moving to Hong Kong, he worked as deputy head of the working group on the rules and regulations for multilateral trade and investment agreements at the World Trade Institute in Bern, Switzerland (2006-2009), as a lecturer at Elite School Sciences Po Aix in France (2004-2006), and as a diplomat for the Ministry of Foreign Affairs of France at the French Embassy in New Delhi, India (2001-2004).

The 'treatment of foreign investment' is defined as "the set of principles and rules of international law as national law governing the regime of international investment, since the moment of its formation until its liquidation".  An initial distinction can be made, according to UNCTAD, between the general standards of treatment, that is to say, the standards for all aspects of the existence of a foreign investment in a host country, and specific standards processing that refer to particular aspects.  The general standards of treatment found systematically in a bilateral agreement include absolute norms and standards.  This generally means that the absolute standards are those that set out the treatment to be given.

The standards are the standards that define the required treatment by reference to the treatment accorded to other investments.  However, it should be noted that "absolute" terms and "relative" terms are not universally accepted.  Thus, this classification, mainly initiated and used by UNCTAD, has no legal implication.  Generally, bilateral treaties can therefore include several provisions on absolute standards for the treatment to be accorded.  BITs provide several clauses that are part of the absolute standard of treatment accorded to investments.  These provisions for the FET, full protection and security, the prohibition of arbitrary or discriminatory measures and treatment in accordance with international law, and one or more provisions relating to the treatment.  BITs use two different terms in order to prevent the discriminatory treatment of investments.  These are the MFN clause and the standard of national treatment (NT).

This course discussed the applicability of these two types of treatment in bilateral treaties, as well as exceptions to these two treatment standards.

• Identify the components of the standard of national treatment
• Understand the importance of identifying the comparator
• Assess the importance of the requirement that the comparators be in "like circumstances"
• Consider the relevance of WTO jurisprudence to the investment context
• Evaluate whether "most-favoured-nation" treatment operates to bring in more favourable dispute settlement options as well as more favourable substantive treatment
• Evaluate the "exceptions" to MFN proposed by the Maffezini tribunal
• Learn what factors distinguish the international minimum standard from fair and equitable treatment
• Consider what level of government conduct is required by the international minimum standard today
• Discuss the advantages of the NAFTA Interpretation Process
• Discuss the disadvantages of the NAFTA Interpretation Process
• Identify the factors that should guide a fair and equitable treatment analysis
• Study the scope of the full protection and security standard