Abstract

Less Developed Countries (LDCs) provide enormous opportunities for companies involved in the development of infrastructure. LDCs couple significant need with often insufficient 'in country' capability or expertise, meaning that foreign companies willing to expand operations into LDCs can find interesting and profitable opportunities. International infrastructure development naturally brings with it the sovereign risks associated with contracting with the government of a LDC. During the last thirty years, governments of LDCs have actively sought the execution of International Investment Agreements (IIAs) with other nations in an attempt to mitigate the appearance of sovereign risk and encourage greater international investment. This has included encouraging foreign companies in the delivery of infrastructure projects.

In the last five years, however, worldwide political support for IIAs seems to be waning, as nationalism and populism threatens to replace globalism and multiculturalism as the dominant economic and political theories in the USA, Europe and Great Britain. In a global political landscape dominated by nationalistic rhetoric, we are unlikely to see continued popular support for the protection of foreign companies against national interests by way of IIAs. We are likely to see not only fewer new IIAs, but conceivably governments revoking their agreement to existing IIAs coupled with waning support for ICSID arbitrations. The author submits, however, that there will not necessarily be a marked increase in sovereign risk as a direct result, and that LDCs will continue to provide worthwhile markets and opportunities for infrastructure development.

The author submits that IIAs never in any event provided complete protection, and that protection against sovereign risk remains available through the underlying contract and in many cases, through political risk insurance. Further, international participants should look at projects with shorter timeframes to secure the return on investment, and avoiding taking sole risk on project by operating in joint ventures.

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