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Theses

L'investissement (étude juridique)

Abstract : The development of the concept of “investment” goes back to the 1930s. Beforehand, economists used to focus on “assets”, considered as a stock, rather than on “investment”, considered as a flow. Keynes adopted an innovative approach, focusing on the very concept of investment. As he stated: “The theory [of employment] can be summed up by saying that, given the psychology of the public, the level of output and employment as a whole depends of the amount of investment”. Since Law isn’t insensitive to economic thinking, the latter soon influenced the former, as exemplified by the Convention signed in Washington DC, on the 18th of March 1965. The purpose of this convention, drafted by the World Bank, is to ensure procedural guarantees to foreign investors, in the event of a legal conflict with a host state. Consistently, the convention limits the jurisdiction of arbitral tribunals which are placed under the aegis of the arbitration institution created on this occasion (the “International Centre for settlement of investment disputes”, “ICSID”) to disputes “arising directly out of an investment”. The same holds for bilateral investment treaties (“BITs”), which purpose is to protect foreign private operators against arbitrary, discriminatory or uncompensated measures. Again, only “investments” are covered, because it turned up that no other economic operation could foster, as effectively, the economic development of host states. Afterwards, the desire of lawmakers and judges to foster production level and employment led to numerous other investment protections: imitations of products which implied heavy investments are considered, by French tribunals, as torts; when the “investment function” of a trademark is jeopardized by the imitation of a product, it is considered as trademark infringement; some investments generate “efficiency gains”, under anti-competitive practices law, which justifies what would otherwise be considered as an unlawful agreement; when football teams invest in the training of young players, it justifies a duty of fidelity, which would otherwise be considered as an unlawful restriction to freedom of movement for workers; etc. Despite the inevitable variety of those manifestations, many fit with a similar approach of investment. That’s the reason why this work was carried out. What is investment? What are its criteria? What legal consequences are attached to this concept? Are they, somehow, the same?
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https://hal-amu.archives-ouvertes.fr/tel-03188327
Contributor : Guillaume Grundeler <>
Submitted on : Thursday, April 1, 2021 - 8:47:38 PM
Last modification on : Saturday, April 3, 2021 - 3:09:55 AM

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Guillaume Grundeler. L'investissement (étude juridique). Droit. Aix-Marseille Université, 2014. Français. ⟨tel-03188327⟩

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