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Capital Markets Law Journal Advance Access originally published online on March 24, 2008
Capital Markets Law Journal 2008 3(2):154-185; doi:10.1093/cmlj/kmn003
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© The Author (2008). Published by Oxford University Press. All rights reserved. For Permissions, please email: journals.permissions@oxfordjournals.org

Economic crises, capital transfer restrictions and investor protection under modern investment treaties

Abba Kolo and Thomas Wälde*
* Thomas Wälde is Professor & Jean-Monnet Chair, CEPMLP, University of Dundee (and of Essex Court Chambers, London);

The first 150 words of the full text of this article appear below.


Key points

  • Capital liberalization was the norm of international economic relations until the Economic Depression of the 1930s when exchange restrictions became an important instrument of economic policy of many countries.
  • The IMF Articles of Agreement were the outcome of efforts by several countries to provide an acceptable international legal framework that would minimize the negative impact of exchange restrictions while at the same time preserving the right of Member States to impose exchange restrictions when faced with balance-of-payment problems.
  • That position is to a large extent maintained by most modern investment treaties although subject to heightened scrutiny by international arbitral tribunals under the disciplines of expropriation, national treatment and fair and equitable treatment standards among others in order to protect investors’ interests whilst safeguarding host states, regulatory autonomy.

 


   1. Introduction
 
The Asian and Russian financial crises in 1998 and the Argentine economic crisis of 2001 and the claims brought against some . . . [Full Text of this Article]


   2. Development of international law on capital transfers
 

   3. Analysis of capital transfer restrictions under modern investment treaties
 
Main approaches on capital transfers under investment treaties
Application of the doctrine of necessity under international law to capital transfer measures
Capital transfer restriction measures and indirect expropriation
Other investment obligations, in particular fair and equitable treatment
Transparency and the protection of legitimate expectations
Freedom from coercion and harassment
Procedural propriety
Protection against arbitrariness: discrimination and ‘national treatment’
Good faith

   4. Remedies and compensation
 

   5. Conclusion
 

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