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Fair and equitable treatment of investors: a comparative appraisal

The fair and equitable treatment of the foreign investors has become a major concern of the international community not only in developing and least developed countries – perhaps because of the absence of proper laws and their poor enforcement in these countries - but purportedly also in developed c...

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Main Authors: Qazi Zada, Sebghatullah, Ansari, Abdul Haseeb
Format: Article
Language:English
Published: Serials Publications (P) LTD 2017
Subjects:
KBP Islamic Law
Online Access:http://irep.iium.edu.my/63456/1/63456_FAIR%20AND%20EQUITABLE%20TREATMENT%20OF%20INVESTORS.pdf
http://irep.iium.edu.my/63456/
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spelling my.iium.irep.634562018-05-02T00:55:58Z http://irep.iium.edu.my/63456/ Fair and equitable treatment of investors: a comparative appraisal Qazi Zada, Sebghatullah Ansari, Abdul Haseeb KBP Islamic Law The fair and equitable treatment of the foreign investors has become a major concern of the international community not only in developing and least developed countries – perhaps because of the absence of proper laws and their poor enforcement in these countries - but purportedly also in developed countries. Legal protection to foreign owned properties against any confiscation and treatment that is not ‘fair and equitable’ has always been a matter of great concern in international law. Host states’ standards of their treatment, specifically with respect to protecting foreign investments as well as an amicable dispute settlement mechanism are the central issues that are associated with the globalization of economy and have often led to disputes regarding access to markets, market liberalization; and consequently, the establishment and protection of rights of foreign investors. From an international law point of view, countries have the wide-rangingfreedom to regulate the entry of international investments as well as the liberty to deal with those investments. Similar provisions are also there in the Shari‘ah. It is for this reason that it is necessary to examine law and practice in some Islamic countries in order to examine as to ascertain as to how Islamic law deals with the foreign investors. Since its inception, Islam has been emphatic on the establishment of a just and equitable government based on justice (adl) and providing fair and equitable treatment to all regardless of their faith, race, or place of origin. This paper endeavors on both a conceptual analysis of the ‘fair and equitable treatment’(FET) under international investment law and Islamic law. The paper finds that there is a considerable link between the civil law on ‘fair and equitable treatment’ (FET)and its Shari‘ah perspective. Islam emphasises on fair treatment of everyone based on the principles of objectives of the Shari‘ah (maqasid al- Shari‘ah), justice (adl), equity (istihsan) and prohibition of discrimination regardless of faith, race and colour (prohibition of tafreeq). In Libyan American Oil Company(LIAMCO) v The Government of the Libyan Arab Republic [17 ILM 3 (1978)] the Ad Hoc Tribunal created under the Draft Convention on Arbitral Procedure, ILC, 1958, attempted to establish a link between ‘General Principles of Law’ and ‘Islamic Law’ pertaining to indemnification on the acquisition of the assets of the foreign company and concession rights. The paper sheds some more light on all the aspects of such a proposition in order to make it easy to resolve similar disputes involving investors in countries operating under or with Islamic countries and acceptability of such dispute resolutions. Serials Publications (P) LTD 2017-12 Article REM application/pdf en http://irep.iium.edu.my/63456/1/63456_FAIR%20AND%20EQUITABLE%20TREATMENT%20OF%20INVESTORS.pdf Qazi Zada, Sebghatullah and Ansari, Abdul Haseeb (2017) Fair and equitable treatment of investors: a comparative appraisal. Journal of Islamic Law Review, 13 (2). pp. 157-187. ISSN 0973-2918 http://serialsjournals.com/journal-detail.php?journals_id=272
institution Universiti Islam Antarabangsa Malaysia
building IIUM Library
collection Institutional Repository
continent Asia
country Malaysia
content_provider International Islamic University Malaysia
content_source IIUM Repository (IREP)
url_provider http://irep.iium.edu.my/
language English
topic KBP Islamic Law
spellingShingle KBP Islamic Law
Qazi Zada, Sebghatullah
Ansari, Abdul Haseeb
Fair and equitable treatment of investors: a comparative appraisal
description The fair and equitable treatment of the foreign investors has become a major concern of the international community not only in developing and least developed countries – perhaps because of the absence of proper laws and their poor enforcement in these countries - but purportedly also in developed countries. Legal protection to foreign owned properties against any confiscation and treatment that is not ‘fair and equitable’ has always been a matter of great concern in international law. Host states’ standards of their treatment, specifically with respect to protecting foreign investments as well as an amicable dispute settlement mechanism are the central issues that are associated with the globalization of economy and have often led to disputes regarding access to markets, market liberalization; and consequently, the establishment and protection of rights of foreign investors. From an international law point of view, countries have the wide-rangingfreedom to regulate the entry of international investments as well as the liberty to deal with those investments. Similar provisions are also there in the Shari‘ah. It is for this reason that it is necessary to examine law and practice in some Islamic countries in order to examine as to ascertain as to how Islamic law deals with the foreign investors. Since its inception, Islam has been emphatic on the establishment of a just and equitable government based on justice (adl) and providing fair and equitable treatment to all regardless of their faith, race, or place of origin. This paper endeavors on both a conceptual analysis of the ‘fair and equitable treatment’(FET) under international investment law and Islamic law. The paper finds that there is a considerable link between the civil law on ‘fair and equitable treatment’ (FET)and its Shari‘ah perspective. Islam emphasises on fair treatment of everyone based on the principles of objectives of the Shari‘ah (maqasid al- Shari‘ah), justice (adl), equity (istihsan) and prohibition of discrimination regardless of faith, race and colour (prohibition of tafreeq). In Libyan American Oil Company(LIAMCO) v The Government of the Libyan Arab Republic [17 ILM 3 (1978)] the Ad Hoc Tribunal created under the Draft Convention on Arbitral Procedure, ILC, 1958, attempted to establish a link between ‘General Principles of Law’ and ‘Islamic Law’ pertaining to indemnification on the acquisition of the assets of the foreign company and concession rights. The paper sheds some more light on all the aspects of such a proposition in order to make it easy to resolve similar disputes involving investors in countries operating under or with Islamic countries and acceptability of such dispute resolutions.
format Article
author Qazi Zada, Sebghatullah
Ansari, Abdul Haseeb
author_facet Qazi Zada, Sebghatullah
Ansari, Abdul Haseeb
author_sort Qazi Zada, Sebghatullah
title Fair and equitable treatment of investors: a comparative appraisal
title_short Fair and equitable treatment of investors: a comparative appraisal
title_full Fair and equitable treatment of investors: a comparative appraisal
title_fullStr Fair and equitable treatment of investors: a comparative appraisal
title_full_unstemmed Fair and equitable treatment of investors: a comparative appraisal
title_sort fair and equitable treatment of investors: a comparative appraisal
publisher Serials Publications (P) LTD
publishDate 2017
url http://irep.iium.edu.my/63456/1/63456_FAIR%20AND%20EQUITABLE%20TREATMENT%20OF%20INVESTORS.pdf
http://irep.iium.edu.my/63456/
http://serialsjournals.com/journal-detail.php?journals_id=272
_version_ 1643616367775055872
score 13.211869

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