The list is our attempt to respond to what we see as a relatively underdeveloped marketplace of ideas when it comes to scenario planning for expropriation, unfair regulatory intervention, nationalizations, and resource nationalism events that have an impact on foreign investors in emerging markets. The literature is abundant on the existence of political risks, but very few research houses are advancing many solutions or strategies.
There seems to be little dispute that resource nationalism is back in a big way, and it is not just limited to the developing world. Resource nationalism is front and center, from Europe to North America. Not all businesses are properly prepared to operate in a world in which states and parastatals are the major players in the market, while there are often dangerously naive assumptions about the protections of law in unlawful contexts. There are many urgent questions to be addressed on a case-by-case basis, such as the connection between resource nationalism risk and the effective implementation of corporate social responsibility programmes as well as the implementation of a corporate foreign policy.
The good news is that there is a stronger than ever international legal framework for investors, particularly through Bilateral Investment Treaties (BITs) and through options for direct investor-state arbitration under ICSID, NAFTA, the Energy Charter Treaty and many other regional trade pacts as well as dozens of other avenues explored in the checklist. As a practice area that Amsterdam & Partners LLP is well known for, I would be pleased to hear from any readers to discuss these issues in more detail.