Law across borders


International law is everywhere and part of our lives, even if its presence may be discrete and not immediately evident. Think of an Indian investor travelling to London. The flight is made possible by international civil aviation agreements between all the countries the aircraft flies over. Once he arrives, and is therefore within the jurisdiction of the United Kingdom, the investor is protected by the European Convention on Human Rights; yet another international agreement. Under certain conditions, he/she may even bring a case before an international tribunal sitting in France, namely the European Court of Human Rights for alleged violations of the Convention. If necessary, he/she may benefit from the services of the High Commission of India or an Indian Consulate across the country, which operate in accordance with the international agreements on diplomatic and consular relations.

When it comes to business, the investor enjoys the protection of several other international agreements. The bilateral investment treaty between India and the United Kingdom, in particular, gives the investors of either country the right to settle their disputes with the other country through arbitration, which may lead to compensation and possibly recognition and enforcement of the award across the world on the basis of specific international agreements.

Thus, not surprisingly in the modern world, states and international organisations have concluded an impressive amount of international agreements. Nobody knows the exact figure, but the United Kingdom alone has concluded approximately 14,000 of them. States are also bound by non-written rules (called customary international law) and general principles of law. Parallel to the proliferation of rules is that of disputes, which has led to the proliferation of international tribunals with general or specific competence in any given area.

Such a fast growing and increasingly complex legal environment offers numerous and challenging opportunities. Experts in international law are needed in the first place to draft and negotiate international agreements. This is done typically by diplomats and legal advisors to the Ministry of Foreign Affairs. Once the international rules have entered into force, the competent national authorities must adopt the measures necessary to implement and ensure compliance. Otherwise, the State may incur international responsibility. Finally, a variety of legal professionals will be involved in transnational or international litigation, including judges, arbitrators, lawyers, counsels, agents, legal experts and so on.

Foreign Investment Law

All these functions can be appreciated from the standpoint of foreign investment law, one of the fastest growing branches of international law. Foreign investment law is concerned essentially with the legal relationship between foreign investors and the State in which the investment is made, called Host State. The challenge is to legally protect the private interests of foreign investors while preserving the capacity of the Host State to pursue its policies and meet its responsibilities related to public interests. This requires a careful balance, especially when States conclude investment agreements.

Ensuring compliance with investment agreements is equally delicate. The competent authorities and organs must not only adopt the domestic measures necessary to implement the agreement, but also ensure that their regulatory activities are consistent with the international commitments of the State. As a result, a rigorous legal assessment must be undertaken before adopting any piece of legislation or regulation potentially and often unintentionally affecting the rights of foreign investors.

Finally, disputes between foreign investors and the Host State may be settled either before domestic tribunals or, more frequently, before investment arbitration tribunals specifically established for the purpose of dealing with any given dispute. Investment arbitration has been defined as hybrid due to the different nature of the parties: a private business entity and a sovereign State. Precisely for this reason, investment arbitration is quite intriguing. Furthermore, these disputes are normally facts intense and raise complex legal issues, from the determination of the tribunal jurisdiction to the possible enforcement of the award.

The example of foreign investment law can be replicated with many other areas of international law. It clearly illustrates that the proliferation of international rules and the related disputes has generated a remarkable need for experts in international law. Thus, mastering international law is a distinct advantage for law students and may open to them the door for a variety of fascinating international legal careers.

The writer is Professor of International Law, School of Law, University of East Anglia

Related Topics
This article is closed for comments.
Please Email the Editor

Printable version | Oct 27, 2020 10:36:00 PM |

Next Story