Rumana Islam

University Of Dhaka, Department of Law, Faculty Member

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Dr. Rumana Islam is a Professor at the Department of Law, in University of Dhaka. After completing her LLB and LLM degrees from University of Dhaka she earned an LLM with a specialization in commercial law from University of Cambridge (UK) in 2006. Dr. Islam completed her doctoral work at the University of Warwick (UK) with a Commonwealth Scholarship in 2015. Her area of research interests includes international commercial arbitration, international investment law, investment arbitration, public international law, commercial law, banking and securities laws, company law and human rights.

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Papers by Rumana Islam

Fair and Equitable Treatment (FET) Standard in Arbitral Practice: Sustainable Development in Context

AARN: Economic Systems (Sub-Topic), 2016

The Fair and Equitable Treatment (FET) standard in international investment law has become an ind... more The Fair and Equitable Treatment (FET) standard in international investment law has become an indispensable tool for the foreign investors to bring claims against host countries. These claims largely relates to sectors which are directly linked with the sustainable development of these host countries. Considering the importance of the concept and the commitment of the global community to enhance sustainable development objectives the aim of this article is to examine the aspects of sustainable development as one of the principle to interpret the FET standard. Accordingly it will analyse how the principle of FET and sustainable development relate to each other on conceptual founding. It will analyse some arbitral awards to examine how the current investment tribunals have interpreted the FET clause as an expression of sustainable development objective and how far the FET standard contained in the treaties are compatible with the ideas of sustainable development. The article concludes...

Different Constructions of the FET Standard in Investment Treaties

Proportionality as a Tool for Balancing Competing Interests in Investment Disputes: Fair and Equitable Treatment (FET) Standard in Context

International Finance eJournal, 2013

In international investment law disputes the fair and equitable treatment (FET) standard has now ... more In international investment law disputes the fair and equitable treatment (FET) standard has now become an indispensable tool for the foreign investors. The alleged breach of FET standard involves some actions or denials by the host state. Not all actions taken by the host state which affects investor’s interests and investment can amount to breach of FET standard, if such actions can be justified as reasonable on grounds of state necessity. This raises an issue of conflicting arguments between state’s obligation to protect the foreign investors and the state’s sovereign power to regulate its own affairs. In this context the principle of proportionality can play a significant role. The principle of proportionality in this context functions as a tool to examine whether any action taken by the host state affecting the foreign investment is based on reasonable and traceable rational. It also examines whether the investor’s investment is not put under any threat by the host state which ...

Developing Countries in International Investment Arbitration

International Law and the Global South, 2018

This chapter will provide some foundational underpinnings on the key phrase that is central to th... more This chapter will provide some foundational underpinnings on the key phrase that is central to this book-the concept of developing countries and their developmental challenges and perspectives in international investment arbitration. Part 4.2 of the present chapter elaborately provides an account of the complexity of developing country classification forwarded by different international organisations and existing scholarship on the issue. Part 4.3 particularly focuses on the fact that, despite adopting the popular term 'developing countries' to describe a large number of countries, there exist large differences between these countries. This part will also discuss, in brief, the concept of development. Finally, Part 4.4 will explore whether the country classifications different international organisations have adopted and the concepts of development scholars have adopted can provide useful guidance to international investment tribunals. It will conclude by arguing that, for the purposes of international investment disputes, the tribunals need to adopt a concept of developing countries which takes into account the development factors that exist in these countries relevant to international investment law in their interpretation of the FET standard. 4.2 Country Classification and Developing Countries in International Investment Arbitration A key phrase that runs through this book is 'developing countries'. Cognisant of a diverse understanding of the term, this chapter aims to contextualise the discussion by familiarising the reader with classifications of countries different international organisations have adopted. It will review the most common justifications for such classifications in the present literature, without offering a detailed discussion of the historical aspect of this issue, which is beyond the scope of this book. Rather, it

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Unlawful Dividends and Scope of Unjust Enrichment: Issues and Controversies in English Law

Corporate Law: Corporate & Takeover Law eJournal, 2008

By analyzing the unjust enrichment model as devised under the law of restitution in English law, ... more By analyzing the unjust enrichment model as devised under the law of restitution in English law, this essay examines the scope and possibility of the doctrine to hold the recipients of unlawful dividends liable under the ‘unjust enrichment’ model highlighting the issues and controversaries under English law in this regard. Reference has been made to the statutory provisions in the present UK Companies Act, 1985 and the corresponding provisions of the forthcoming UK Companies Act, 2006 (which is expected to come in force by October, 2009) in this respect. Considering the fact that, the inter-relation between the unjust enrichment and company matters are till to date largely untested in English law, this article tries to focus on the possibility of any future attempts against the recipients of unlawful dividends to make out a successful restitutionary remedy based on unjust enrichment model. In discussing the issue, this article also tries to focus on the recent trend of English court...

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Mapping the Investor State Dispute Settlement (ISDS) Regime of Bangladesh

Banker's Reference and the Bank's Duty of Confidentiality Under Common Law Reappraised

Law & Society: Private Law - Financial Law eJournal, 2016

The relation between a bank and its customers (i.e. its account holders) is regulated by variety ... more The relation between a bank and its customers (i.e. its account holders) is regulated by variety of sources including the contract between the parties, legislation, relevant banking practices and common law principles. The very basis of such relation dictates that the bank must in all circumstances maintain the secrecy of all the information that it gathers from the customer regarding his bank account with the bank. There are certain exceptions prescribed by law when such duty of confidentiality does not apply. Apart from these exceptions, there are also circumstances when a bank is requested to disclose certain information regarding its customers’ account by a third party. For example, when it is requested to provide a banker’s reference as to enquire the creditworthiness of the customer. It was a long established principle of common law jurisdiction that a customer is bound by the banking practices of its banker, which allows the bank to provide a banker’s reference to a third par...

Arguments in favour of reconceptualising the fair and equitable treatment (FET) standard in international investment arbitration : developing countries in context

The Fair and Equitable Treatment (FET) standard is the most important and, because of its flexibl... more The Fair and Equitable Treatment (FET) standard is the most important and, because of its flexible nature and its status as a ‘catch-all’ provision, most controversial investment protection standard in international investment treaties. The standard imposes the most far-reaching obligation of any aspect of such treaties. This thesis’ core contention is that the current investment tribunals’ interpretation of the FET standard prioritises the interests of foreign investors and neglects the perspectives of host developing countries. Therefore there is a pressing need to reconceptualise the interpretation of the FET standard. In service to depicting the perspectives of host developing countries, this thesis advances an understanding of classifications such as ‘developing’ and ‘developed’ that reflects the issues and challenges that these countries face in the investment dispute context, such as their lack of resources, administrative capacity, technology, and infrastructure, as much as ...

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Features of the Investor State Dispute Settlement (ISDS) Provisions under Bilateral Investment Treaties (BITs) of Bangladesh: An Overview

Dhaka University Law Journal

not available Dhaka University Law Journal, Vol. 31, 2020 P.85-103

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The tiger and the dragon

Whiteboard, 2022

Interplay between Fair and Equitable Treatment (FET) Standard and Other Investment Protection Standards

LSN: Treaties (Topic), 2014

There are various constructions of the ‘Fair and Equitable Treatment’ (FET) clauses in investment... more There are various constructions of the ‘Fair and Equitable Treatment’ (FET) clauses in investment treaties. Many of them have combined the FET standard with other investment protection standards in the same clause. A simplistic interpretation of these clauses might lead to an understanding that the FET standard are synonymous with other standards prescribed by the particular investment treaties largely due to the flexibility and generality of the standard. This article will closely scrutinize this interrelation between the FET standard with some other investment protection standards. The demarcation line between and among these interaction is so thin that it becomes difficult to distinguish one standard from another. This article will discuss that the FET is indeed an overarching principle and despite some conceptual similarities with other investment protection standards the FET standard is unique and distinct in its own free standing in the international investment law regime and ...

Autonomy of the Arbitration Clause and Invalid Contracts: All is Fair in Arbitration?

The autonomy of the arbitration clause serves a very useful commercial purpose, particularly in i... more The autonomy of the arbitration clause serves a very useful commercial purpose, particularly in international commercial arbitration. Since the doctrine allows the parties to settle down the dispute under the arbitration clause even after termination of the contract itself, it appears that the doctrine serves the necessity of international commercial community with an approach of &#39;allis fair in arbitration&#39;. Despite the fact that the doctrine is debated over its conceptual possibility under contract law, it is well established fact that the doctrine has become truly an international rule of law particularly in voidable contracts. However, the operability of such autonomous clause is uncertain when it comes to invalid contracts or the contracts which never came into existence. This article will focus on this grey area of international commercial arbitration and will examine the issues and controversies surrounding the issue. The article concludes with the proposition that since such unpredictability would lead the parties in dispute to arbitral forum shopping, the international arbitration law in this area should be made internationally uniform.

Current Arbitral Practice Relating to Economic Crises in Host Developing Countries: The FET Standard in Context

This chapter discusses some selected arbitral awards in which the investment disputes arose as a ... more This chapter discusses some selected arbitral awards in which the investment disputes arose as a result of a host developing country’s actions to address an economic crisis. Foreign investors alleged that the actions and measures taken in response to the economic crisis had violated FET and other investment protection standards. The chapter through a detailed case study shows how the tribunals have addressed the issue and whether they took this particular economic context into account. Most of the cases discussed in this chapter are against Argentina. This chapter argues that, despite the reference to the magnitude of the crisis and acknowledging its socio-political consequences, in general the tribunals have declined the defence of necessity and dismissed the severity of economic crisis, employing logic that is largely inadequate and inconsistent. These recent awards in relation to the Argentine economic crisis raise concern for host developing countries, considering their vulnerab...

Current Arbitral Practice Relating to Political and Socio-political Circumstances in Host Developing Countries and Countries in Transition: FET Standard in Context

The issue of political stability, socio-political circumstances in host developing countries and ... more The issue of political stability, socio-political circumstances in host developing countries and the social, political and economic transitory nature of countries in transition are vital aspects for creating an investor-friendly atmosphere in those developing countries. A critical examination of some selected arbitral awards discussed in this chapter demonstrates that these particular political, socio-political and transitory status of these host developing countries form a significant contextual background for the investor-state dispute against these countries. However, a close examination of these arbitral awards covering the wide range of approaches that these tribunals have adopted will reveal that, in dealing with these political, socio-political and transitory issues, the current investment tribunal has largely been inconsistent and inadequate in their approaches. These contextual background of the host developing countries had both direct and indirect effects that led to the ...

CEDAW −The Promise and the Pain of the Promise

The Convention on Elimination of All Forms of Discrimination against Women, 1979 (CEDAW) is one o... more The Convention on Elimination of All Forms of Discrimination against Women, 1979 (CEDAW) is one of the core international legal instrument aiming at the protection and promotion of women’s rights. It is considered as the most comprehensive code of women’s rights at international level, with its overwhelming focus on socioeconomic, civil, political and cultural rights in all spheres of women’s life. However with the inherent weak enforcement mechanism and with the numerous number of reservations made by the State Parties it is sometime doubted how far the Convention serves as an effective tool for promoting and protecting women’s right, since such reservations jeopardizes the very essence of the convention−to ensure ‘substantive equality’ both at public and private life of the women. This article examines these different aspects of the CEDAW Convention, namely what it promises to achieve and in reality what are the impediments to materialization of those promises−the pain of the prom...

Key Problems in the Interpretation of the FET Standard by Current Investment Tribunals

Current investment tribunals’ interpretation of the FET standard prioritises the interests of for... more Current investment tribunals’ interpretation of the FET standard prioritises the interests of foreign investors and neglects the perspectives of host developing countries. Therefore, there is a pressing need to reconceptualise the interpretation of the FET. With that view, this chapter summarised the key cross-cutting problems of interpretation of the standard by the current investment tribunals in addressing the issues and challenges host developing counties face on the basis of the analysis of the arbitral awards discussed in Chaps. 5 and 6. In investigating the loopholes of those interpretations, the present chapter identifies two major areas in which the problem lies, i.e. the inconsistency and the inadequate approach on substantive issues of the host developing countries relevant to foreign investment.

The Historical Development of the FET Standard in International Investment Treaties

A study of the historical development of the FET standard shows that the standard emerged under t... more A study of the historical development of the FET standard shows that the standard emerged under the auspices of multinational treaties which never came into force, but it survived with a grand success due to the fact that the capita exporting developed countries advanced the development of the standard in multilateral agreements and have pushed it forward in numerous bilateral investment treaties (BITs) with their developing country counterpart. This is evidenced by events that have contributed to the development of the standard in various investment treaties, and especially when the role played by developed and developing countries is examined in the process of drafting and adoption of these treaties. These events are important to understand the discussions made in the subsequent chapters of the book as it discusses, in chronological order, selected events that have influenced the inclusion of the FET standard as well as its language in different investment agreements and treaties ...

Different Constructions of the FET Standard in Investment Treaties

International Law and the Global South

The different constructions of FET in different investment treaties are diverse which have genera... more The different constructions of FET in different investment treaties are diverse which have generated complexity and debate over the scope of the standard. A close study of different wording of the standard in different investment treaties at bilateral, multilateral and regional levels reveal the fact that the tribunals have varied their interpretation in accordance with the construction of the treaty language impacting the outcome of particular disputes. Connecting the standard with other investment protection standards within the text of each treaty can productively limit the ambit of the FET standard. However, the most common form of limitation, by connecting FET to key principles of international law, does not clearly limit the scope of the FET standard; since these principles of international law are not well defined, nor is their applicability in the context of international investment law well understood. Broadly, the various constructions of the FET standard can be divided into three categories, (a) FET minus—which refers to those treaties where treaty framers have connected the definition of the standard to other concepts that define and appear to limit its scope. (b) Simple FET where the FET clause is formulated without any reference to international law, customary international law, or any other limitation, and (c) FET plus—which refers to treaties which combine the FET standard with an additional substantive obligation. However despite differences in construction, there remains sufficient similarity across different treaties to support the claim that there is an overarching and singular concept of FET that demands to be the subject of detailed analysis.

Mapping the Investor State Dispute Settlement (ISDS) Regime of Bangladesh Past, Present, and Future

Handbook of International Investment Law and Policy, 2020

The flow of foreign direct investment (FDI) and the economic growth of Bangladesh in recent decad... more The flow of foreign direct investment (FDI) and the economic growth of Bangladesh in recent decade has been remarkable one. With more foreign investors coming to the country it has adopted different national and international legal instruments and has taken different initiatives to attract and encourage the flow of FDI in the country. The current Covid-19 pandemic has sparked the debate among scholars and practitioners over possible Investor State Dispute (ISDS) claims by foreign investors as a reaction to different regulatory measures taken by host states. With the concern that the current pandemic has exposed over ISDS claims, this chapter does an overall mapping of past, present, and future of of the legal regime that regulates FDI in Bangladesh and its related concerns inthe event of any ISDS claims brought against Bangladesh in near future. It examines the current Bilateral Investment Treaty (BIT) regime of Bangladesh with a quest to find out the scope of regulatory freedom and public policy space of Bangladesh as a host state and reveals that the present ISDS strucutre under the current BIT regime raises serious concerns for Bangladesh. The chapter has also briefly discussed the past ISDS experience of Bangladesh and the lessons that it needs to learn from those Arbitral Awards. It also discusses the possible reform options of the current ISDS strucuture under the current BIT regime with a view to come up with more balanced BITs for Bangladesh which would cater enough regulatory freedom and public policy space for the host country. In the end, the chapter strongly suggests that Bangladesh as a matter of its foreign investment policy needs to revise its current BIT regime to restructure the ISDS mechanism and devise more appropriate treaty regime for the country.

Does Fair and Equitable Treatment (FET) Standard in International Investment Treaties Create a Customary Rule of International Law

Dhaka University Law Journal , 2019

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Fair and Equitable Treatment (FET) Standard in Arbitral Practice: Sustainable Development in Context

AARN: Economic Systems (Sub-Topic), 2016

Different Constructions of the FET Standard in Investment Treaties

Proportionality as a Tool for Balancing Competing Interests in Investment Disputes: Fair and Equitable Treatment (FET) Standard in Context

International Finance eJournal, 2013

Developing Countries in International Investment Arbitration

International Law and the Global South, 2018

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Unlawful Dividends and Scope of Unjust Enrichment: Issues and Controversies in English Law

Corporate Law: Corporate & Takeover Law eJournal, 2008

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Mapping the Investor State Dispute Settlement (ISDS) Regime of Bangladesh

Banker's Reference and the Bank's Duty of Confidentiality Under Common Law Reappraised

Law & Society: Private Law - Financial Law eJournal, 2016

Arguments in favour of reconceptualising the fair and equitable treatment (FET) standard in international investment arbitration : developing countries in context

Download

Features of the Investor State Dispute Settlement (ISDS) Provisions under Bilateral Investment Treaties (BITs) of Bangladesh: An Overview

Dhaka University Law Journal

not available Dhaka University Law Journal, Vol. 31, 2020 P.85-103

Download

The tiger and the dragon

Whiteboard, 2022

Interplay between Fair and Equitable Treatment (FET) Standard and Other Investment Protection Standards

LSN: Treaties (Topic), 2014

Autonomy of the Arbitration Clause and Invalid Contracts: All is Fair in Arbitration?

Current Arbitral Practice Relating to Economic Crises in Host Developing Countries: The FET Standard in Context

Current Arbitral Practice Relating to Political and Socio-political Circumstances in Host Developing Countries and Countries in Transition: FET Standard in Context

CEDAW −The Promise and the Pain of the Promise

Key Problems in the Interpretation of the FET Standard by Current Investment Tribunals

The Historical Development of the FET Standard in International Investment Treaties

Different Constructions of the FET Standard in Investment Treaties

International Law and the Global South

Mapping the Investor State Dispute Settlement (ISDS) Regime of Bangladesh Past, Present, and Future

Handbook of International Investment Law and Policy, 2020

Does Fair and Equitable Treatment (FET) Standard in International Investment Treaties Create a Customary Rule of International Law

Dhaka University Law Journal , 2019

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Trial of War Criminals of 1971: An Appraisal

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Mapping Investor State Dispute Settlement (ISDS) Regime of Bangladesh

THE SOUTH ASIA INTERNATIONAL ECONOMIC LAW NETWORK (SAIELN), INAUGURAL CONFERENCE, 29-30 April, 20... more

[Book Review] Rumana Islam, ‘The Book about Bangladesh’, Review of Bangladesh and International Law, ed. Mohammad Shahabuddin (London: Routledge, 2021) The Daily Star, Tuesday, 4 May 2021 [Link: https://www.thedailystar.net/law-our-rights/news/the-book-about-bangladesh-2087993]

by Mohammad Shahabuddin and Rumana Islam

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The Fair and Equitable Treatment (FET) Standard in International Investment Arbitration : Developing Countries in Context

Springer, 2018

This book presents comprehensive information on a range of issues in connection with the Fair and... more This book presents comprehensive information on a range of issues in connection with the Fair and Equitable Treatment (FET) standard, with a particular focus on arbitral awards against host developing countries, thereby contributing to the available literature in this area of international investment law. It examines in detail the interpretation of the FET standard of key arbitral awards affecting host developing countries, demonstrating the full range of interpretation approaches adopted by the current investment tribunals. At the same time, the book offers valuable practical guidance for counsels/scholars representing host developing countries in investment arbitration, where balancing the competing interests of the foreign investors and the host developing countries in investment disputes poses a complex challenge.

The book puts forward the pressing need for a re-conceptualized interpretation of the FET standard in tune with the developmental issues and challenges faced by host developing countries, recognizing these countries’ particular perspectives as an important and relevant aspect of investment disputes (often ignored by the current investment tribunals), while continuing to ensure reasonable protections for foreign investors and therefore serving the needs of the system as whole. The findings presented here will greatly benefit host developing countries engaged in investment arbitration. In addition, the book offers an insightful guide for all researchers whose work involves investment law and investment arbitration issues.

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