Global Investment Regulation and Sovereign Funds

Abstract

Sovereign Wealth Funds (SWFs) have attracted significant attention over the past few years, as a result of their increasing role in the global economy and their controversial minority investments in distressed financial and infrastructure companies in Western economies. Although SWFs provide important benefits to home, host and global markets, they have been perceived by the Western mind as a growing threat to economic supremacy and national security. While the current legal scholarship provides an incomplete policy response, by either selectively referring to specific legal instruments within the international law framework or proposing an entirely new legal regime, this Article attempts to address this crucial lacuna by providing an original and comprehensive legal analysis of the SWF phenomenon and its interaction with the preexisting framework of international law. The various abovementioned concerns have prompted various Western attempts to block SWF cross-border investments through legislative reforms or ad hoc protectionism of the executive branch. These governmental policies frequently violate international commitments in the international economic law arena and call for a closer look at the nature of such commitments and their respective implementation in the SWF environment. The Article looks at recent practices in Western countries aimed at blocking SWF investments, especially in the context of iconic brands and national champions. It then reviews various relevant provisions in international legal instruments, which are applicable to these potential investments, and examines the question of their violation by capital-importing countries. A proposed innovative adaptation to this new reality is provided. I argue that the existing framework of international investment law can provide adequate solutions to investment protectionism against SWFs. Regarding regulation of SWFs’ investments, since recent experience has underlined that SWFs function largely like any other commercial entities, there is a need to shift the discussion and terminology towards regulation of sovereign activity rather than sovereign funds. Finally, the Article explores the broad consequences of investment law and corporate governance reforms following the debate around SWF investments on maintaining healthy and productive cross-border economic relations in a globalized world.