For a 'clause of progress' in foreign investments contracts

• Author: Maria João Mimoso/Maria do Rosário Anjos
• Position: Associate Professor in Portucalense University Porto, Portugal. Researcher at Portucalense Institute for Legal Research/Auxiliar Professor in ULP, Oporto Lusófona University. Researcher at Portucalense Institute for Legal Research
• Pages: 62-74

FOR A “CLAUSE OF PROGRESS” IN FOREIGN INVESTMENTS

CONTRACTS

Maria João Mimoso 1

Maria do Rosário Anjos 2

ABSTRACT

This study aims to reflect on the principles to be followed in the concrete consideration

of the interests of the contracting parties in foreign investment contracts. The purpose of

this reflection is to achieve a fundamental reference framework that can serve as a basis

for decision-makers, judges or arbitrators faced with the task of resolving disputes arising

from foreign investment contracts. The most common mechanism for settling disputes in

this venue is international arbitration. In this research we analyse the phenomenon of

arbitration as a paradigm in the solution of the emerging foreign investment litigation, its

benefits and its contribution to greater legal certainty in the economic relations between

the parties and in the social progress of the host state. Considering the legal concepts and

the most relevant problems in the relations between the investing State and the host State,

we intend to establish a logic based on equity, proportionality and the right balance

between the interests of both. We try to find a meeting point between the economic

interests of the investor and the social progress of the host State. International arbitration

under the umbrella of ISCID, complemented by bilateral treaties (BITs) and investment

contracts, requires an approximation of the two main objectives of foreign investment:

efficiency in the return of investment and technological and social progress of the host

State.

1 Associate Professor in Portucalense University Porto, Portugal. Researcher at Portucalense Institute for

Legal Research.

2 Auxiliar Professor in ULP, Oporto Lusófona University. Researcher at Portucalense Institute for Legal

Research.

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