International Investment Law and its Implications for Saudi Arabia

Abstract

This thesis critically examines the provisions of the Saudi BITs and oil concessions against both the ongoing development of international investment law and in accordance with the agenda of the Saudi National Transformation Plan (Vision 2030). The thesis explores whether the current generation of BITs limits the regulatory space of the Saudi government, and to what extent such limitations affect achieving sustainable development goals. It finds that Saudi Arabia faces challenges in modernising its investment treaties so as to balance the traditional purpose of investment treaties, which only protect one side of the treaty—foreign investors—and the emerging needs of preserving state sovereignty and promoting sustainable development. It further argues that the recent increase in investor-state dispute settlement (ISDS) cases against Saudi Arabia should be an indication of the need to investigate, together with scholars and practitioners, how BITs can be reformed to meet the country's needs. In doing so, this thesis examines the main controversial issues of the BIT provisions, such as the definition of investment, fair and equitable treatment clauses, and ISDS clauses. To fully understand the roots of such shortcomings of BITs, this thesis critically assesses three topics. Firstly, the origin of the international investment agreements (IIA) and the influence of imperialism. Secondly, the Saudi oil concessions in the 1930s to understand the old practice of the Saudi government toward foreign investors and how it can positively influence contemporary law and policy. Thirdly, with the recent global backlash against the ISDS, this thesis analyses the reasons for such backlash and the response of some countries and its significance for international investment law and Saudi Arabia. The thesis then comprehensively examines the Saudi BITs and critically assesses their provisions to find out possible routes to modernisation. The suggested reforms can achieve both international demands toward more balanced treaties and the national goals envisioned in Vision 2030. It is concluded that the current Saudi BITs, both old and new generations, need to be reformed to meet the country’s vision and overly constrain the country’s regulatory space. It is argued that despite the comprehensive reforms taking place in the country, its BITs do not represent the country's objectives. The old and new generations of BIT neither address the issue of safeguarding state sovereignty to pursue the public interest nor tackle sustainable development issues (SD). Although there are significant changes and developments in the new generation of BITs, it only touches the surface of these issues in practice. Therefore, a systemic review of the Saudi BITs is needed to examine the various suggested reforms, tackle such issues, and fulfil the country's goals to preserve regulatory space, promote SD and responsible foreign investment.