Can states adopt protectionist cultural policies? What are the limits, if any, to state intervention in cultural matters? A wide variety of cultural policies may interfere with foreign investments, and a tension therefore exists between the cultural policies of the host state and investment treaty provisions. In some cases, foreign investors have claimed that cultural policies have negatively affected their investments, thereby amounting to a breach of the relevant investment treaty. This study maps the relevant investor-state arbitrations concerning cultural elements and shows that arbitrators have increasingly taken cultural concerns into consideration in deciding cases brought before them, eventually contributing to the coalescence of general principles of law demanding the protection of cultural heritage.
This study aims to explore the 'clash of cultures' between international investment law and international cultural law. When countries pursue economic growth, their policy makers may have an incentive to lower cultural standards to promote economic activities. If states nonetheless maintain a high level of cultural heritage protection, disputes may arise as foreign investors can claim that such policies affect their economic interests thereby breaching investment treaty provisions. Given the extraordinary increase of foreign direct investment (FDI) flows in recent years, the privileged regime created by international investment law within the boundaries of the host state has increasingly determined a tension between investors' rights and cultural heritage protection. In some cases, foreign investors have claimed that cultural policies negatively affected their investment, thereby amounting to indirect expropriation. In other cases, the investors alleged discrimination and/or violation of the fair and equitable treatment standard. In sum, there is a variety of potential conflict areas between investor rights and cultural policies. The interplay between investor's rights and cultural heritage protection raises a number of questions. First, have arbitral tribunals paid any attention to cultural heritage? If so, how have they balanced investors' rights and the cultural policies of the host State? Second, what implications, if any, can be drawn from this emerging case law with regard to the current debate on the unity or fragmentation of international law? Third, have arbitral tribunals conformed to existing adjudicative patterns of other courts and tribunals on cultural heritage issues? This study aims to address these questions by mapping the uncharted land of cultural heritage related disputes. After defining the concept of cultural heritage disputes, this study analyzes and critically assesses the cultural heritage related disputes and explores some legal options to reconcile the different interests at stake. Finally some conclusions will be drawn.
In Cultural Heritage in International Economic Law, Valentina Vadi offers an account of how international economic law contributes to global cultural governance, analysing the promises and pitfalls of such contributions.
The protection of cultural heritage is a fundamental public interest that is closely connected to fundamental human rights and is deemed to be among the best guarantees of international peace and security. Economic globalization and international economic governance have spurred a more intense dialogue and interaction among nations -- potentially promoting cultural diversity and providing the funds to recover and preserve cultural heritage. However, these phenomena can also jeopardize cultural heritage. Foreign direct investments in the extraction of natural resources have the potential to change cultural landscapes and erase memory, and foreign investments in the cultural industries can induce cultural homogenization. In parallel, international investment law constitutes a legally binding and highly effective regime that demands that states promote and facilitate foreign direct investment. Does the existing legal framework adequately protect indigenous cultural heritage vis-à-vis the economic interests of foreign investors? This chapter aims to address this question by examining recent arbitration and proposing legal tools to foster a better balance between economic and cultural interests in international investment law and arbitration.
In recent years, concerns have arisen in investor-state arbitration with regard to the magnitude of the decision-making power allocated to investment treaty tribunals. This book explores whether the use of analogies can improve the functioning of such arbitration, and how such analogies might be drawn.
International Investment Law and Arbitration: History, Modern Practice, and Future Prospects explores international law on foreign investment: its creation, functioning and evolution.
This article claims that international investment law (IIL) strikes balances of interests that evidence the taking into account of cultural interests and leave an undeniable regulatory space to states to enact measures aiming at the protection/promotion of cultural heritage.To argue this claim, the article first highlights the 'culture-investment conflict of interests' by analyzing the nature and specificities of cultural interests in relation to the concept of cultural heritage. It then proceeds with a discussion of the current case-law that illustrates the 'sensitiveness' of IIL to cultural interests. More prospectively, the article finally assesses the ways to foster the 'sensitiveness' of IIL to cultural heritage in light of the new generation of international investment agreements. Moving from the 'culture-investment conflict of interests', it concludes with some remarks on the conflicts between cultural interests and other public interests and how IIL could come into play to tame these conflicts that take place within the 'box' of the public interest.
Cultural heritage property can be protected in a variety of ways, including at the international level, by enforcement in domestic courts, and through alternative dispute resolution mechanisms. This book sets out the legal framework applicable to cultural heritage and assesses how this works in practice, including in situations of conflict.
International Investment Law and Arbitration: History, Modern Practice, and Future Prospectsexplores international law on foreign investment: its creation, functioning and evolution. Particularly, this paper presents a roadmap over the historical context within which investor-State arbitration developed. It provides an overview of the main actors, the protections afforded to foreign investors, the content of modern BITs, and the challenges facing the system today.
