The Missing Bits - To Be Substituted by BITS - SIAR 2006-2
Max Gutbrod, Dr. jur. (Munich), Rechtsanwalt (German lawyer); Partner at Baker & McKenzie, Moscow. The author has advised on many investments as well as some international arbitration proceedings.
Steffen Hindelang, Ref. jur. (Marburg); LL.M. (Sheffield); Research Fellow, Lecturer and Doctoral Candidate, Eberhard-Karls-University, Tübingen, Germany, Faculty of Law. His research is mainly directed towards the European and International Legal Framework on Foreign Investment.
Originally from: Stockholm International Arbitration Review
THE MISSING BITS - TO BE SUBSTITUTED BY BITs
The Inadequacy of Russian Law in regard to the Effective Protection of Foreign Investors, The Role of BITs and the Need for Reform Coming from within the State
Max Gutbrod and Steffen Hindelang
Developing countries as well as countries in transition face significant problems handling the increasing numbers of investor-State disputes due to limited technical capacity. Providing them with technical assistance has therefore been seen an indispensable means "as part of an overall endeavour to improve the investment climate, the rule of law and ensuing that the IIAs [International Investment Agreements] contribute to countries’ efforts to attract and benefit from foreign direct investment." Technical assistance by means of the provision of foreign expert advice in a national effort to bring about legal reform has commonly been perceived as significant in achieving the goals mentioned above. Legal reform has often focused on the creation of rules similar to those existing in other countries and it has been assumed that those rules would in a sense be self-sufficient. One of the colourful bunch of lofty hopes set on those reforms was that, once a certain sector of law has been reformed, the national provisions would also be compatible with the international obligations of the reform-minded country, such as those contained in IIAS, and that implementation would naturally follow the patterns of the countries from which the law came. Sometimes, however, reality reveals such hopes as wishful thinking.