This chapter addresses the issue of legality of ‘secondary sanctions’ from the viewpoint of international investment law. The theoretical situation considered is that of a foreign investor, having made an investment in the US, being subjected to penalties or restrictions under a US secondary sanctions regime, based on its conduct of certain transactions with a targeted country or entity, even though such business activities have no US jurisdictional ‘nexus’. The chapter first attempts at identifying the potentially relevant substantive standards of investment protection, including the prohibition of expropriation without compensation and the ‘fair and equitable treatment’ standard. The likelihood of a successful invocation of these standards by the claimant in an investor–State arbitration claim is discussed. In that process, it is considered inter alia whether the deterrent effect of secondary sanctions may per se amount to a violation of an investment protection instrument. The chapter then turns to the assessment of the possible defences that the respondent State may put forward in order to seek to escape its liability for the possible breach of a standard of bilateral investment treaties, notably defences relating to ‘security exceptions’ provisions in treaties and allegations as to the ‘illegality’ of the investment.

The chapter explains the legal and political strategy of DWE, showing how the movement managed to organise and win a referendum to expropriate corporate landlords. It shows how the movement employs popular anger as a source of energy to transform the system towards the common good. It explains the concept of legal fiction and shows how it can influence reality. It also explains the methodology and challenges of action research.

This chapter examines investment-related aspects of the energy–environment nexus. State actions against fossil fuel investments often have an environmental cause, raising the issue of policy space under the investment regime. The doctrine of ‘police powers’ provides grounds for qualifying some pro-environmental interventions as non-compensable non-expropriatory measures. In addition to seeking policy flexibilities, many States wish energy investors to voluntarily bear social responsibility on the environmental front. As a result, a number of IIAs provide for responsible business conduct, bringing some changes to the ‘investor vs. State’ asymmetry in the investment system. A surge in renewable energy ISDS cases in the last ten years is another noticeable trend. High upfront costs of renewable energy projects recoupable in a long run necessitate FIT or other long-term benefits to investors. But when the government suddenly cancels or cuts promised incentives, this frustrates investors’ legitimate expectations under IIAs but may also be welcomed under trade law as a way of getting rid of distortive subsidies. Thus, some discrepancy or tension between the trade and investment regimes can arise.

This chapter focuses on the so-called politics behind nil compensation against the background of some recent judicial developments, which arguably show a conservative trend in awarding compensation that deviates substantially from market value. The chapter questions why the narrative in favour of nil compensation is so dominant if it is argued that it is already legally possible to expropriate for very little compensation. Considering the Msiza judgments in the Land Claims Court and the Supreme Court of Appeal, the chapter asks: Do we need to rethink the space that nil compensation occupies in our legal framework? The fact that expropriation is essentially compensation-based, coupled with the difficulty that courts have to determine compensation that is not (always) related to market value, suggests that it may be necessary for us to engage more directly with the idea of nil compensation in a much more open, honest and principled manner. There is enough evidence to show that this option is not only politically driven but in fact legally necessary.

This chapter investigates the notion of ‘justice’ that informs ‘just and equitable’ compensation in section 25 of the Constitution and questions whether this notion changed during the attempt to amend section 25. It starts off by investigating the possible meaning of ‘justice’ during the transition and interrogates the usefulness of that notion of justice in interpreting section 25. It makes the argument that the conversations bringing about the Constitution Eighteenth Amendment Bill, even though not leading to an amendment, were important to challenge the notion of ‘justice’. The adoption of this Constitution lays a secure foundation for the people of South Africa to transcend the divisions and strife of the past, which generated gross violations of human rights, the transgression of humanitarian principles in violent conflicts and a legacy of hatred, fear, guilt and revenge. These can now be addressed on the basis that there is a need for understanding but not for vengeance, a need for reparation but not for retaliation, a need for ubuntu but not for victimisation (Epilogue of the interim Constitution, 1993).

The communitarian theory of WTO law outlined in previous chapters works reasonably well as a description of key features of WTO law. Its “fit” with the existing law raises the possibility of the theory serving wider applications. That possibility is likely to be canvassed most insistently in relation to international investment law, the body of law pertaining to the protection and treatment of foreign investment by host states. A communitarian theory would forecast international investment law to be preoccupied with corrective justice and to be heavily contractual, retrospective and inductive. The chapter demonstrates how all of these features are confirmed in the shape of contemporary international investment law, and how in light of considerable dissatisfaction with the current investment regime, an impulse is detected toward something more egalitarian, and therefore more obligatory, constitutive, prospective and presumptive.

The EPRDF sought to delay urbanisation until it had delivered industrialisation as a means of preventing the political instability that it feared would accompany mass urban unemployment. However, faced with a growing urban population and urban political opposition in the early 2000s, the EPRDF brought urban areas to the centre of its development strategy. The ‘developmental state’ used control of finance and land to direct investment to industry, construction and infrastructure, much of which was located in urban centres. This chapter examines how the state’s efforts to accelerate structural transformation through urban development exacerbated the emerging distributive crisis resulting from the shortage of land and employment. Analysis focuses on case studies of Adama – one of the largest secondary cities – and the capital, Addis Ababa. State expropriation of peasants to make way for urban development exacerbated demographic factors that were already undermining land access. Urbanisation constituted a highly visible expression of the inequality of the ‘developmental state’, which, when overlaid on historically embedded ethnic divisions in Addis Ababa, proved an explosive combination.

The legal foundation of international investment regulation (IIR) is vast, complex and varied, across numerous substantive and procedural rules. It is laid down in close to 3,000 different international investment agreements. This network of investment treaties is complemented by two key arbitration treaties: the 1958 New York Convention for the enforcement of arbitral award, and the 1965 ICSID Convention, which provides a forum and procedural rules for investment treaty arbitration. This complex landscape thus legitimately begs the question: how have we come to this network of legal instruments, and what do they entail?

To explain the law of state responsibility and diplomatic protection, it helps to distinguish between primary rules and secondary rules. The primary rules of international law provide that certain acts or omissions are unlawful – for example, the law on the use of force would be considered primary rules of international law, a breach of which would be an internationally wrongful act. When those primary rules are breached, it is the secondary rules – the law of state responsibility – that come into play, to determine inter alia the consequences of that initial wrongful act, whether the wrongful act was committed by a state (thereby entailing that state’s responsibility), and what action the ‘wronged state’ may take in reply. The rules on state responsibility cover wrongful acts committed against another state, as well as certain wrongful acts committed against nationals of the state, including corporations; the law of diplomatic protection solely concerns how a state may raise a claim against another state for a wrong committed against one of its nationals, rather than against the state itself.

In this second chapter dealing with the IIAs’ impact on lawmaking, we analyse and categorise other identified instances in which an IIA argument was used in the lawmaking processes. Here, we discuss invocations of IIA arguments in the lawmaking that appeared in a similar shape or form across the studied countries. We also documented cases that, while politically less significant, demonstrate curious intersections between IIAs and national lawmaking. First, we centre on four specific subject-matter areas in which the IIA argument has featured. Those relate to potentially discriminatory regulations, transparency of the public administration, fundamental rights, and expropriation and nationalisation measures. Then, we close with a section highlighting a miscellany of somewhat unexpected uses of the IIA argument. We bring attention to the attempts at influencing IIA obligations through national legislation, ambiguous examples of regulatory chill, and instances of vague and complementary uses of IIA arguments in lawmaking. The chapter presents general conclusions and broader insights on the IIAs’ impact on lawmaking, especially regarding the regulatory chill and positive spill-over theses.

This chapter discusses the right to property as it is protected by the European Convention on Human Rights, other Council of Europe instruments, in EU law and in international instruments. It pays attention to matters such as the definition of property, deprivation of property, expropriation and compensation. In the final section, a short comparison between the different instruments is made.

The German invasion and early occupation of Poland drained the resources of Jews and their communities even before ghettoization. On the individual and household levels, many Jews were severely impacted by the German seizure of their assets, the inability to work, and the requirement to expend limited resources even before ghettoization in order to provide food for themselves and their families as a result of these financial realities. Violence during the early occupation also could serve to pauperize a family through seizing, killing, or severely injuring a key family member on whom the household relied for support through work. Migration due to the war also sometimes served to sever social networks or access to assets as well as diminish social standing which endangered some individuals and families. The pressures placed on individuals and households left them more vulnerable to hunger and starvation. At the very point at which individuals and households were most in need of support, communities faced multiple challenges. These included an influx of refugees, seizure of community resources, and the flight of communal leadership during the occupation.

This chapter looks at the guarantees against expropriation found in most investment treaties. It discusses the expansive concept of indirect expropriation under which an investor retains title to its property yet loses much of its practical value. The chapter also considers the situations under which an expropriation of an investor’s property will be viewed as illegal.

Continuing the chronology, Chapter 6 focuses on World War II, and the year immediately leading up to it. It focuses on the extensive investments in cloaking and “Indianization,” and how these efforts failed to protect German companies from renewed expropriation once the war broke out. Despite intense planning, the war put a temporary end to German firms’ efforts in India. However, corporate diplomacy still mattered. German businesses had a plan for dealing with internment in India and were better able to cope with this challenge. They also reflected back on their experiences with the rise of nationalist movements in the interwar period and synthesized their learnings into a new strategy for competing in “markets with strong nationalist movements,” including India. These formerly or currently dependent territories were identified as having similar goals, ambitions, and needs, which German decision-makers planned to address using a unified strategy; one that only emerged slowly out of several decades of engagement with different types of nationalism around the globe.

This chapter explores the consequences of war for water security and insecurity. It maps out and analyses four main ways in which war matters for water: through infrastructure destruction; through population displacement; through the expropriation of resources and infrastructures; and through war’s profound if mostly indirect ramifications for state-building and development. Empirically, the chapter draws on evidence from across the divided environments considered in this book, including the ongoing wars in South Sudan, Syria and Lake Chad, the 2003–5 Darfur war, recent Israeli wars on Gaza and key historical conflagrations such as the 1948–9 Arab-Israeli war. The chapter argues through all of this that war is deeply contradictory, being simultaneously highly destructive and highly productive in its water security consequences. And it argues that this is likely to remain the case in an era of climate disruption: while, for some, war is likely is have sharply negative climate vulnerability consequences, it is nonetheless also the case, the chapter shows, that adaptive capacities are often founded on infrastructures and hierarchies of political violence.

Finally, the checks and balances of sovereign debt restructuring by investment tribunals are also implemented as a matter of the interpretation of the substantive provisions. Given that investment arbitral jurisprudence has incorporated the doctrine of margin of appreciation, the study has concluded that a deferential review of policy decision-making by debtor sovereigns is available and appropriate for arbitral tribunals. Concretely, the arbitral jurisprudence on the provisions providing standards of protection and defence on merits may afford a balancing exercise that enables safeguarding the legitimate policy of debt restructuring without sacrificing bondholder protection.