Project Investment and Development

26 Pages Posted: 16 Oct 2015

See all articles by Annamaria Viterbo

Annamaria Viterbo

University of Torino - Faculty of Law

Rifat Azam

Harry Radzyner School of Law, Interdisciplinary Center Herzliya

Daniel de Andrade Levy

FGV Direito SP

Wanderley Fernandes

São Paulo Law School of Fundação Getulio Vargas FGV DIREITO SP

Eli Bukspan

Interdisciplinary Center (IDC) Herzliyah - Radzyner School of Law

Francisco de Elizalde Ibarbia

Fundación Instituto de Empresa, S.L.

Gianmaria Ajani

University of Turin

Heloisa Gomes Slav

FGV Direito SP

James B. Speta

Northwestern University - Pritzker School of Law

Lie Uema do Carmo

Getulio Vargas Foundation (FGV)

Lior Zemer

Radzyner School of Law, IDC Herzliya

Lorenza Mola

University of Turin

Luís Barreto Xavier

Catholic University of Portugal (UCP) - Católica Global School of Law

Marco de Benito Llopis-Llombart

IE Law School

Maria Lúcia de Pádua Lima

São Paulo Law School of Fundação Getulio Vargas FGV DIREITO SP

Michael Nietsch

EBS Universität für Wirtschaft und Recht

Paulo Clarindo Goldschmidt

São Paulo Law School of Fundação Getulio Vargas FGV DIREITO SP

Zeynep Ayata

Koc University

Derya Tarman

Koç University Law School

Date Written: September 18, 2015

Abstract

Following the instructions of the Global League Committee, we opened the opportunity for suggestions of new topics to be developed by our Business Group. We, then, collected ideas, which, in principle, seemed to be too broad and diverse to be unified in just one work.

After several interactions among the members of our group, including in our preparatory meeting in Madrid, we reached the conclusion that, despite the initial diversity, we could find the “unitas multiplex”. In 2013, we were called by the committee to think about protection of direct investments and, as our first work, in 2014, we researched and prepared a report about the enforcement of arbitration decisions in our respective jurisdictions. Therefore, we have decided to revisit the origin of the purpose of our group.

Differently from our last work, when professors from different countries prepared each report. We reached the conclusion that we should promote more integration within the group.

We, then, realized that we could unify all the suggestions under an umbrella which we nominated as “Investment and development”, what could be simply explained as investments, not only with the purpose of profits, but that could be a source of returns to investors and to the local place of investment.

Just as a matter of example, professors Azam Rifat and Eli Bukspan, from Israel have proposed the corporate social responsibility, what is clearly connected with the idea that investments should take into account and promote development of local places where the project is to be implemented.

The same can be said about the analysis of tradeoffs between direct investments and social human aspects, as proposed by Professor Ana Viterbo. In other words, even when dealing with traditional private law concepts, as liabilities, we intend to focus on how the legal tools may favor development in the context of direct investments.

Therefore, in Madrid, we have structured our work as follows:

General framework: Investment and development • Global value chain concept; • Governance of the global chain: applicable law, seat of arbitration, liability, Interaction with public policy; interaction with international organizations; • Risk assessment and mitigation, can financing or insurance players determine/impose the governance of the chain? • Corporate social liability: the tension between private and public determination about what are the social priorities; • Social human aspects of direct investments (tradeoffs). The denunciation of BITs as a way to preserve regulatory space: the case of South Africa. • Investment “determinance”: private and public point of view: o tax incentives; o legal rules (choice of applicable law) o economic development and law.

Finally, we ended up with a coherent project to encompass all ideas and provide the chance to all of our members to conciliate their personal academic interests with our general purpose. However, we also have found out that we had in our hands a huge and challenging project that certainly could not be finished until our academic meeting in Cape Town.

Another aspect of our productive debate in Madrid was a serious concern about effectively creating a sense of group, fostering joint research and activities for such purpose, webnairs, co-teaching in different schools, especially in the context of future Academic Meetings of the LSGL. Thus, the natural conclusion was that we could propose a broader project of medium term research, so that we could not only develop more consistent research, but also deliver structured papers to be published separately in relevant law reviews or as chapters of a collective book.

In sum, we have decided to present a research proposal to be carried out by all of us, in separate subgroups, as described below:

• Global value chain concept : o Maria Lúcia Pádua Lima (GV Direito SP) o Paulo Goldshmidt (GV Direito SP) o Daniel Levy (GV Direito SP)

• Governance of the global chain: applicable law, seat of arbitration, liability, Interaction with public policy; interaction with international organizations: o Francisco Elisalde Ibarbia (Institudo de Empresas – Madrid) o Lie Uema do Carmo (GV Direito SP) o Wanderley Fernandes (GV Direito SP)

• Risk assessment and mitigation, can financing or insurance players determine/impose the governance of the chain? o Heloisa Slav (GV Direito SP) o Wanderley Fernandes (GV Direito SP)

• Corporate social liability: the tension between private and public determination about what are the social priorities: o Ana Viterbo (Università di Torino) o Azam Rifat (IDC Herzliya) o Eli Bukspan (IDC Herzliya)

• Social human aspects of direct investments (tradeoffs). The denunciation of BITs as a way to preserve regulatory space: the case of South Africa: o Lorenza Mola (Università di Torino) o Ana Viterbo (Università di Torino)

• Investment “determinance”: private and public point of view - tax incentives; - legal rules (choice of applicable law) - economic development and law. o Daniel Levy (GV Direito SP) o Zeynep Ayata (KOÇ University)

Each subgroup was assigned to present a proposal for the respective subject under the following structure:

• Description of work • State of art of the subject • Methodology • Collection of data • Expected impact of the research • Deliverable

This index provides an uniform structure of all the topics referred to above.

Despite the legal focus, our analysis will be placed in the context of non-legal concepts, as value chain and networks. Therefore, before presenting each proposal under the structure above. Professor Maria Lúcia Pádua and Paulo Goldschmidt prepared a text about the economic perspective of value chains which shall be an important reference for our legal analysis.

Keywords: bussiness, investment, development

Suggested Citation

Viterbo, Annamaria and Azam, Rifat and Levy, Daniel de Andrade and Fernandes, Wanderley and Bukspan, Eli and de Elizalde Ibarbia, Francisco and Ajani, Gianmaria and Slav, Heloisa Gomes and Speta, James B. and Carmo, Lie Uema and Zemer, Lior and Mola, Lorenza and Barreto Xavier, Luís and de Benito Llopis-Llombart, Marco and Lima, Maria Lúcia de Pádua and Nietsch, Michael and Goldschmidt, Paulo Clarindo and Ayata, Zeynep and Tarman, Derya, Project Investment and Development (September 18, 2015). Law Schools Global League (LSGL) Research Paper. Available at SSRN: https://ssrn.com/abstract=2675111 or http://dx.doi.org/10.2139/ssrn.2675111

Annamaria Viterbo

University of Torino - Faculty of Law ( email )

Via Sant'Ottavio 20
Torino, TO 10124
Italy

Rifat Azam

Harry Radzyner School of Law, Interdisciplinary Center Herzliya ( email )

P.O. Box 167
Herzliya, 46150
Israel
972-9-9527948 (Phone)

HOME PAGE: http://portal.idc.ac.il/faculty/en/pages/profile.aspx?username=razam

Daniel de Andrade Levy

FGV Direito SP ( email )

Sau Paulo, 22250-900
Brazil

Wanderley Fernandes (Contact Author)

São Paulo Law School of Fundação Getulio Vargas FGV DIREITO SP ( email )

R. Rocha, 233, Bela Vista
São Paulo, 01330-000
Brazil

Eli Bukspan

Interdisciplinary Center (IDC) Herzliyah - Radzyner School of Law ( email )

P.O. Box 167
Herzliya, 46150
Israel
972-9-9527233 (Phone)
972-9-9568605 (Fax)

Francisco De Elizalde Ibarbia

Fundación Instituto de Empresa, S.L. ( email )

Madrid
Spain

Gianmaria Ajani

University of Turin ( email )

Via Po 53
Torino, Turin - Piedmont 10100
Italy

Heloisa Gomes Slav

FGV Direito SP ( email )

Sau Paulo, 22250-900
Brazil

James B. Speta

Northwestern University - Pritzker School of Law ( email )

375 E. Chicago Ave
Chicago, IL 60611
United States

Lie Uema Carmo

Getulio Vargas Foundation (FGV) ( email )

R Itapeva, 474 11º. andar
São Paulo, São Paulo 01332-000
Brazil

Lior Zemer

Radzyner School of Law, IDC Herzliya ( email )

P.O. Box 167
Herzliya, 46150
Israel

Lorenza Mola

University of Turin ( email )

Via Po 53
Torino, Turin - Piedmont 10100
Italy

Luís Barreto Xavier

Catholic University of Portugal (UCP) - Católica Global School of Law ( email )

Lisboa
Portugal

HOME PAGE: http://www.catolicalaw.fd.lisboa.ucp.pt

Marco De Benito Llopis-Llombart

IE Law School ( email )

Campus de Santa Cruz la Real
Segovia, 40003
Spain

Maria Lúcia de Pádua Lima

São Paulo Law School of Fundação Getulio Vargas FGV DIREITO SP ( email )

R. Rocha, 233, Bela Vista
São Paulo, 01330-000
Brazil

Michael Nietsch

EBS Universität für Wirtschaft und Recht ( email )

Gustav-Stresemann-Ring 3
Wiesbaden, Hessen 65189
Germany

Paulo Clarindo Goldschmidt

São Paulo Law School of Fundação Getulio Vargas FGV DIREITO SP ( email )

R. Rocha, 233, Bela Vista
São Paulo, 01330-000
Brazil

Zeynep Ayata

Koc University ( email )

Rumelifeneri Yolu
34450 Sar?yer
Istanbul, 34450
Turkey

Derya Tarman

Koç University Law School ( email )

Rumelifeneri Yolu
34450 Sariyer
Istanbul, 34450
Turkey

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