Browsing by Author "Zada, Sebghatullah Qazi"

This dissertation initially examines the concept of international investment law and it sources. Fair and equitable treatment (hereinafter “FET”) as one of the principles of International Investment law is examined under multilateral and bilateral investment treaties and the interpretation given by the international arbitral tribunals. These tribunals have the enforcement power of the FET concept and this dissertation will look at whether there are any differences between their interpretations and the contents of multilateral and bilateral investment treaties. The author will look at the extent to which FET can adversely affect the ability of governments, particularly those of developing countries to legislate for the public interest. Additionally, the author intends to inspect at how Islam responds to the fair and equitable treatment of investors. Host states standards of treatment, specifically protecting the investments as well as the dispute settlement, are issues that are connected to the globalization of economy and has led to disputes regarding access to markets, market liberalization and consequently the establishment of rights. Since its beginnings, Islam has been emphatic on the establishment of justice and providing fair and equitable treatment to everyone, from the ruler to the ordinary citizen, and regardless of faith, race, or place of origin. This study adopts both a conceptual analysis of fair and equitable treatment under international investment law and also from the Islamic perspective. This study finds that there is a considerable link between FET principles and Islamic perspectives on the protection of the investors and thus it condemns and prohibits any sort of misappropriation of one’s property without his or her consent.

Despite the inclusion of special treatment and exception provisions in the Doha Round and the WTO agreements, the ambiguity of the implementation of these principles are rendered ineffective at some instances. There is a durable practice of decision making so-called “by consensus” by WTO, but in reality rich countries exercise immoderate influence within the body. Afghanistan as an LDC country became the 164th country to be part of WTO. However, it is uncertain how much the country could reap benefit from this membership. Thus, the objective of this research is to evaluate the efficiency of WTO’s present set up and its SDT provisions towards LDCs, mainly Afghanistan. Likewise, this research aims to examine Afghanistan’s legal and institutional challenges that serve as a barrier to trade and the needed reforms. This research is founded on doctrinal and non-doctrinal (empirical) research methodologies. The former is largely dependent on primary and secondary sources of WTO, textbook analysis, content analysis and reports of International Organisations while the latter is based on in-depth and semi-structured interviews. Currently, Afghanistan’s legal and regulatory frameworks and enforcement mechanisms is at a terrible shape. Much of the frameworks needed for the encouragement and protection of private investment is still not in place. Its three overlapping systems Sharia (Islamic Law), Shura (traditional law and practice), and the formal legal system instituted under the 2004 Constitution can be confusing, to both investors and legal professionals, thus driving away the investors from Afghanistan. As the membership of WTO is expected to generally have a positive impact on Afghanistan, this prospect can also be hindered by severe institutional and legal weaknesses caused by Constitutional frameworks in forming executive, judiciary and legislature as well as weak institutional frameworks for the organs in charge of trade. Hence, there is a need for extensive reforms in institutional and legal frameworks of Afghanistan.