Legal / Law Training Course on Foreign Direct Investment Law & Treaties

Module 1: Foundations of Foreign Direct Investment Law
Key Study Areas:
The concept, evolution, and importance of FDI in global economic development.
Key distinctions between FDI, portfolio investment, and international trade.
Sources of investment law: domestic statutes, customary international law, treaties, and soft law.
Roles of global institutions: UNCTAD, OECD, WTO, ICSID, and World Bank in promoting and regulating FDI.
Legal principles guiding the relationship between investors and host states.
Case Studies:
Review of UNCTAD’s World Investment Report trends in developing economies.
Example: The role of FDI in post-conflict state rebuilding (e.g., Rwanda, Vietnam).
Activities:
Interactive session mapping global FDI flows and treaty networks.
Group exercise: Discussing national sovereignty vs. investor protection—finding the legal balance.

Module 2: National Legal Frameworks for FDI
Key Study Areas:
Overview of national investment laws and regulations.
Entry, screening, and approval requirements for foreign investors.
Sectoral restrictions (defense, mining, media, etc.) and ownership limitations.
Licensing, performance requirements, and local content rules.
Stabilization clauses and investor guarantees in domestic law.
Legal mechanisms for expropriation protection and compensation.
Case Studies:
Kenya’s Investment Promotion Act and comparative review of laws in Singapore and Ghana.
Legal reforms promoting investment in post-liberalization economies.
Activities:
Workshop: Drafting an investor-friendly legal framework for an emerging economy.
Legal review: Assessing compliance of an FDI proposal with domestic legislation.

Module 3: Bilateral and Multilateral Investment Treaties (BITs and MITs)
Key Study Areas:
Structure, drafting, and interpretation of BITs.
Common clauses: fair and equitable treatment (FET), full protection and security, MFN, and national treatment.
Regional and multilateral investment treaties: NAFTA/USMCA, AfCFTA, ASEAN, and Energy Charter Treaty.
Interaction between trade law (WTO) and investment law.
Treaty termination, renegotiation, and sunset clauses.
Case Studies:
Comparative analysis of U.S.–Kenya BIT and China–Africa BITs.
Arbitration precedent interpreting FET and MFN provisions.
Activities:
Drafting workshop: Creating a sample BIT clause on dispute resolution.
Group debate: Are BITs beneficial or restrictive for developing states?

Module 4: Investor Rights and State Obligations
Key Study Areas:
Core protection standards for investors: expropriation, fair treatment, and non-discrimination.
Understanding direct, indirect, and regulatory expropriation.
Host state’s right to regulate for public welfare (health, environment, safety).
Legal doctrines: legitimate expectations and proportionality.
Exceptions to liability under public policy and emergency measures.
Case Studies:
Philip Morris v. Uruguay (public health regulation vs. investor protection).
Tecmed v. Mexico (legitimate expectations and regulatory change).
Activities:
Mock arbitration: Defending a host state against an investor expropriation claim.
Group exercise: Drafting a model clause balancing investor protection and state regulatory power.

Module 5: Structuring and Negotiating Investment Contracts
Key Study Areas:
Types of investment contracts: concessions, production-sharing, BOT, and joint ventures.
Legal and financial risk allocation mechanisms.
Stabilization and renegotiation clauses: balancing certainty and flexibility.
Taxation and profit repatriation issues in FDI agreements.
Legal due diligence and compliance verification before investment.
Case Studies:
Examination of a mining concession agreement and its stabilization clause disputes.
Case: Contract renegotiation in large-scale energy projects.
Activities:
Simulation: Negotiating a joint venture agreement between a foreign investor and a host state.
Workshop: Drafting stabilization and arbitration clauses in an investment contract.

Module 6: Investor-State Dispute Settlement (ISDS)
Key Study Areas:
Overview of ISDS mechanisms: ICSID, UNCITRAL, ICC, and regional arbitration.
Jurisdiction, admissibility, and consent in investment arbitration.
Procedural stages: notice, registration, pleadings, and award enforcement.
Annulment and review procedures under ICSID.
Ongoing reforms and criticisms of ISDS (transparency, cost, fairness).
Case Studies:
Metalclad v. Mexico and Yukos v. Russia—major arbitration precedents.
Analysis of ICSID annulment in Vivendi v. Argentina.
Activities:
Mock tribunal: Presenting investor and state arguments in an arbitration scenario.
Workshop: Drafting a notice of arbitration and procedural order.

Module 7: FDI, Public Policy, Environment, and Human Rights
Key Study Areas:
Integration of ESG (Environmental, Social, and Governance) principles in investment law.
Environmental and social impact assessments (ESIA) as legal tools.
Corporate social responsibility and human rights due diligence.
Balancing investment obligations with climate and labor standards.
Legal basis for state counterclaims in investor misconduct.
Case Studies:
Chevron v. Ecuador – environmental liability in investor disputes.
Urbaser v. Argentina – human rights obligations of investors.
Activities:
Policy workshop: Designing an ESG compliance clause in a BIT.
Group exercise: Developing an investor code of conduct integrating human rights.

Module 8: FDI in Emerging Economies
Key Study Areas:
FDI trends in developing regions and frontier markets.
Legal incentives for foreign investors (tax holidays, guarantees).
Role of Investment Promotion Agencies (IPAs).
Legal risks and political stability in FDI decisions.
Strategies for sustainable investment attraction and retention.
Case Studies:
Rwanda and Singapore’s FDI success stories.
Analysis of East African investment regimes under AfCFTA.
Activities:
Group project: Designing an investment promotion framework for an African country.
Roundtable: Identifying legal barriers to FDI inflows in emerging economies.

Module 9: Reforming International Investment Law and ISDS
Key Study Areas:
Global calls for reform of investment arbitration and treaties.
UNCITRAL Working Group III and Multilateral Investment Court (MIC) proposals.
Trends toward transparency and third-party participation (amicus curiae).
New-generation treaties focusing on sustainable development.
Role of regional organizations in harmonizing investment laws.
Case Studies:
EU’s Investment Court System (ICS) under CETA.
Withdrawal and renegotiation of BITs by South Africa and India.
Activities:
Group discussion: Should states withdraw from traditional BITs?
Policy paper: Proposing reforms to enhance fairness in investor-state arbitration.

Module 10: Future of FDI Law and Global Investment Governance
Key Study Areas:
The impact of digital economy and data governance on FDI.
Legal implications of green investments and climate finance.
Artificial Intelligence, blockchain, and innovation-driven investments.
Regionalism, geopolitics, and the fragmentation of investment law.
Future direction of international investment governance and dispute prevention.
Case Studies:
Investment disputes in renewable energy under the Energy Charter Treaty.
FDI in the tech sector and data localization issues.
Activities:
Final capstone: Simulation of a bilateral investment treaty negotiation between two states.
Roundtable: Forecasting the next decade of FDI law and policy evolution