The chapter discusses three stages in the evolution of the position of the home state. In the next chapter, entitled "The Role of Sub-Regional Systems in Shaping International Investment Law-Making: The Case of the Visegrád Group", Federica Cristani addresses a rarely discussed sub-regional system, the V4 group, consisting of Slovakia , Hungary, Poland and the Czech Republic. In "The Implications of Political Risk Insurance in the Governance of Energy Projects: Τhe Case of Japan's Public Insurance Agencies", Thomas Nektarios Papanastasiou discusses political risk insurance (PRI) in energy projects, with a special focus on Japan's public insurance agencies.
The Executive
The Legislature
The votes of individual members of parliament can also influence the policy positions of ministers. Opposition ministers and MPs can meet ministers in private or ask them questions in parliament. In this way, voices from outside states that have lobbied MPs can inform and be transformed into a voice within the state to influence investment treaties.
The Judiciary
Another example of the influence of the courts on investment treaties can be seen in the expression of investment protection in US investment treaties, which often closely reflect corresponding standards established in domestic law by US courts. For example, the factors set out in Annex B of the 2012 US Model BIT for determining whether an act or series of acts by a party has an effect equivalent to direct expropriation, i.e. formal transfer of ownership or direct seizure, is drawn from US Supreme Court jurisprudence on tortious takings under the Fifth Amendment to the US Constitution.17 In this way, US court decisions have indirectly influenced or inspired the standards negotiated by the executive branch of the US government.
Sub-national Governments
Outside the state there is a wide variety of voices, namely business organisations, investors, non-governmental organisations, the media, academia and the legal profession, who play their own role in informing policies and thus the text of a treaty. These voices can use different channels, including contact with members of the legislature or government departments, formal public consultations, official or unofficial stakeholder engagement, interaction through social media, public campaigns, publications and other methods to influence those within the state.
Business, Civil Society, Legal Community and Others
Public consultations in 2014 on investment protection and investor-state dispute settlement (ISDS) in the proposed TTIP between the EU and the United States registered an unprecedented mobilization by civil society in Europe. Consultation responses raised concerns about the establishment and functioning of arbitral tribunals and the lack of appellate review of ISDS awards. Comments received from such meetings, together with input from other sources, can form part of the evidence base on which investment policies are drawn up and ultimately the content of model investment agreements is formed.
Media
In this regard, public consultations are a common tool in the process of concluding investment contracts, not least because they enable a wide range of stakeholders to be reached. An illustrative example of how public consultations have shaped the content of investment agreements is, in relation to the EU's approach to resolving disputes between investors and the state, the system of investment courts. A public consultation and subsequent debate involving the European Parliament, EU Member States and civil society led the European Commission to develop a system of investment courts as its preferred investor-state dispute resolution mechanism instead of ad hoc investor-state arbitration.25.
Academia
Social media is used by academics, NGOs and other groups to express views on various issues, including investment policies. At the same time, in response to demands for more transparency and with the aim of obtaining direct feedback from the public, social media is increasingly being used by governments to communicate various actions including legislative proposals, initiatives and updates on trade and investment progress. negotiations and thus serves as a platform for direct feedback from the public. 28. It called on states to review their investment treaties with a view to withdrawing or renegotiating them, and urged states to take steps to replace or limit the use of investment treaty arbitration by strengthening their domestic justice system .32.
International Organisations
For example, on 31 August 2010, approximately 50 academics signed a statement strongly criticizing the existing investment treaty regime.31 The statement was drawn up against several ongoing processes at the time, such as the EU's development of a common investment policy, the Trans-Pacific Partnership negotiations and regional initiatives in Latin America to reform investment law and arbitration. Third, voices among states play a particular role in shaping and informing national attitudes, which are ultimately reflected in the content of investment treaties.
Multilateral Fora
Bilateral Discussions
Arbitral Awards and International Judgments
Other Investment Treaties and International Agreements
This chapter focuses on the role of V4 in the context of international investment law-making.
Risk Identi fi cation
Examples are the purchase of the port of Piraeus by the Chinese COSCO as part of the Chinese Belt & Road Initiative (BRI)13 or, however less fortunate, if one may say so, the failed attempt by the China National Offshore Oil Corporation to acquire Unocal. , an American oil company.14.
Risk Management
For an analysis of the European Union's foreign investment policy prior to this regulation, see Chaisse J (2012). The Commission will guide the Member States before applying the regulation on the review of foreign direct investments."43. 42 European Commission, Communication, Guidelines to member states regarding foreign direct investment and the free flow of capital from third countries and the protection of European strategic assets before the application of the regulation (EU FDI Screening Regulation C final https://trade.ec .europa.eu/doclib /docs/2020/march/tradoc_158676.
45 Article 65(1)(b) of the TFEU states: "The provisions of article 63 shall not prejudice the law of member states. 47 European Commission, Communication, Guidance to the Member States on foreign direct investment and free movement of capital from third countries, and the protection of Europe's strategic assets, before the application of Regulation (EU FDI Screening Regulation C finalhttps://trade.ec . europa.eu/doclib/docs/2020/march/tradoc_158676. European Commission, Communication, Guidance to the Member States on foreign direct investment and free movement of capital from third countries, and the protection of Europe's strategic assets, before the application of Regulation (EU FDI Screening Regulation C final https://trade.ec.europa.
This approach is based on the need to take into account considerations other than economic interests, such as the protection of public health, states' awareness of the threat and the urgency of action to be taken in the national interest. The management of the risk of a threat to national security interests is also present at the international level, where two aspects can be taken into account. The same approach is taken in Article 2102 of the North American Free Trade Agreement (NAFTA) on "national security"63 in Chapter XXI.
Regardless of the approach chosen, the right of a state to take security-related measures is subject to certain limits.
The OECD and Other Guidelines and Principles
Limits on a state's power to invoke the national security interest may include those set out by OECD and other Guidelines and Principles (Sect.3.1), IIAs (Sect.3.2) and customary international law (Sect.3.3). The recommendation also calls on acceding countries to narrow the scope of these measures by adopting alternative rules that would allow foreign-controlled companies to operate in the host state. The OECD Recommendation on the National Treatment Instrument also calls on host states to ensure that foreign-controlled enterprises operating on their territory are treated no less favorably than domestic enterprises.68 Where a host state believes that the foreign investment poses a threat to its national security, the Recommendation establishes the procedure consisting of (1) a declaration of principle by the participating countries, (2) notification of their exemption from the OECD and (3) a monitoring procedure to deal with such an exemption within the OECD.
Although the National Treatment Instrument is a non-binding voluntary commitment by both participating and non-adhering countries to the OECD, its purpose is to treat measures taken by a host state in its national interest as an exception. In the same vein, the OECD guidelines for investment policies of recipient countries in relation to national security (2009) establish non-binding principles.69 Its purpose is to outline the exceptional nature of the measure taken in the national interest. The guidelines, such as the principles of non-discrimination, transparency and predictability, proportionality of measures and accountability of implementing authorities, are intended to guide states in adopting measures in the national interest.70 The requirement of non-discrimination means that the measures taken must be of "general application" that "treat similarly situated investors in a similar manner" and they must be "taken with respect to individual investments based on specific circumstances of the individual investment that pose a risk to a national security ". requirements of transparency and predictability imply that the measures taken must be made public by all means, either in a public register72 or on the Internet, with an assessment of the criteria made available to the public.
69 Guidelines for Recipient Country Investment Policies Relating to National Security, recommendation adopted by the OECD Council on 25 May 2009, and the same text can be found in OECD, Recommendation of the Council on Guidelines for Recipient Country Investment Policies relating to National Security, OECD/LEGAL/ 0372. 70OECD, Recommendation of the Council on guidelines for investment policies of recipient countries regarding national security, OECD/LEGAL/0372. 71 Annex on guidelines for recipient countries' investment policies regarding national security, in OECD, recommendation from the Council on guidelines for recipient countries' investment policies regarding national security, OECD/LEGAL/0372.
Primary and secondary laws should be codified and made available to the public in a convenient form (eg in a public register, on the Internet).
Limits Set Out in IIAs
Customary International Law
