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(Re)Calibration, Standard-Setting And The Shaping Of Investment Law And Arbitration, Eric De Brabandere 2018 Leiden University

(Re)Calibration, Standard-Setting And The Shaping Of Investment Law And Arbitration, Eric De Brabandere

Boston College Law Review

Calibrating or (re)calibrating investment law and arbitration—depending on whether the exercise takes place for the first or a subsequent time—is different from rebalancing investment law and arbitration. A balancing exercise denotes a situation in which different elements are equal or in the correct proportions to maintain a sort of equilibrium. This Essay argues that investment law and arbitration are not necessarily about creating a situation in which all “elements” are in balance and that (re)calibrating is an interesting starting point for a discussion about the contemporary regime of investment law and arbitration, and especially to explore ...


I Wanna Design For Somebody (Who Needs Me): The Intersection Of Humanitarian Engineering, Choice-Of-Law, And Technology Transfer In Kenya, Sean Patrick McGinley 2018 Boston College Law School

I Wanna Design For Somebody (Who Needs Me): The Intersection Of Humanitarian Engineering, Choice-Of-Law, And Technology Transfer In Kenya, Sean Patrick Mcginley

Boston College Law Review

A significant technology gap exists between developed and developing countries. Though developing countries have started to self-innovate, they do not possess adequate means to fulfill their right to develop, which the UN recognizes as an essential human right. For developing countries to exercise this right, developed countries must transfer technology. Humanitarian engineers have confronted this challenge without any international guidance or regulation, as no uniform system for international technology transfer agreements exists. To remedy this inadequacy, scholars have proposed the characteristic approach, which suggests that the contents of the contract, rather than the parties’ locations, should control the choice of ...


Introduction: Investment Law For The Twenty-First Century, Frank J. Garcia, Sebastián López Escarcena 2018 Boston College Law School

Introduction: Investment Law For The Twenty-First Century, Frank J. Garcia, Sebastián López Escarcena

Boston College Law Review

No abstract provided.


Legitimacy Concerns Of The Proposed Multilateral Investment Court: Is Democracy Possible?, José Manuel Alvarez Zárate 2018 Externado University of Colombia

Legitimacy Concerns Of The Proposed Multilateral Investment Court: Is Democracy Possible?, José Manuel Alvarez Zárate

Boston College Law Review

Growing concerns in Europe about international investment regimes and investor-state dispute settlement systems pushed the European Union into pursuing the creation of an investment court system and a multilateral investment court. The European Union started this reform through the Comprehensive Economic Trade Agreement, the Vietnam-EU Free Trade Agreement, and by direct persuasion of other countries to start negotiations at the United Nations Commission on International Trade Law. Visible reasons for the change include concerns over the perception of a lack of transparency, coherence, and arbitrators’ partiality, all of which diminish the legitimacy of the multilateral investment court. Other reasons might ...


Investment Disputes Oltre Lo Stato: On Global Administrative Law, And Fair And Equitable Treatment, Sebastián López Escarcena 2018 Pontifical Catholic University of Chile

Investment Disputes Oltre Lo Stato: On Global Administrative Law, And Fair And Equitable Treatment, Sebastián López Escarcena

Boston College Law Review

Global Administrative Law is an academic project that attempts to describe the emergence of a regulatory space beyond the state and to prescribe solutions to the problems it diagnoses through certain normative principles like participation, transparency, reasoned decision-making, judicial review, accountability, proportionality, and legitimate expectations. In the case of investment treaty arbitration, the principles advanced by Global Administrative Law are akin to the constitutive elements of the fair and equitable treatment that international arbitral tribunals have identified in investor-state disputes. As classified by international law scholars, these constitutive elements of fair and equitable treatment include due process, arbitrariness, non-discrimination, vigilance ...


Reforming International Investment Law: Opportunities, Challenges, Paradigms, Frank J. Garcia, Leo Gargne, Eric De Brabandere, Rachel Denae Thrasher, William Park 2018 Boston College Law School

Reforming International Investment Law: Opportunities, Challenges, Paradigms, Frank J. Garcia, Leo Gargne, Eric De Brabandere, Rachel Denae Thrasher, William Park

Boston College Law Review

Transcription of a panel discussion.


The Circuit Split On Mens Rea For Aiding And Abetting Liability Under The Alien Tort Statute, Srish Khakurel 2018 Boston College Law School

The Circuit Split On Mens Rea For Aiding And Abetting Liability Under The Alien Tort Statute, Srish Khakurel

Boston College Law Review

For decades since the Second Circuit Court of Appeals’ landmark decision in Filartiga v. Pena-Irala, the Alien Tort Statute has provided tools for human rights litigation in American federal courts. Nevertheless, after some controversial decisions by the U.S. Supreme Court and the Second Circuit in recent years, the scope of liability under the statute has diminished and the future of ATS human rights litigation is uncertain. In this context, one of the key issues is the level of culpability required for a defendant to be liable for assisting the human rights breaches of a third party. Specifically, the issue ...


Avoiding The Planned Obsolescence Of Modern International Investment Agreements: Can General Exception Mechanisms Be Improved, And How?, Camille Martini 2018 Cleary Gottlieb Steen & Hamilton;

Avoiding The Planned Obsolescence Of Modern International Investment Agreements: Can General Exception Mechanisms Be Improved, And How?, Camille Martini

Boston College Law Review

In light of the increase in investor-state disputes brought by foreign investors under the arbitration clauses contained in international investment agreements (“IIAs”), treaty negotiators have started to develop safeguards in recent IIAs in an attempt to mitigate the impact of these agreements on their regulatory powers. General exception clauses modeled on Article XX of the General Agreement on Tariffs and Trade are part of these new treaty provisions. General exceptions clauses are, in their current form, a source of uncertainty rather than coherence. Recent arbitration cases have shed light on the unworkable enforceability requirements contained in general exceptions clauses, preventing ...


Property Rights As Human Rights In International Investment Arbitration: A Critical Approach, Enrique Boone Barrera 2018 Centre for International Governance Innovation

Property Rights As Human Rights In International Investment Arbitration: A Critical Approach, Enrique Boone Barrera

Boston College Law Review

The treaty-based regime of investment protection is said to protect the property rights of foreign investors. Arbitral tribunals are usually tasked with settling investment disputes using principles of international law, some of which refer to the doctrine of protection of aliens. These features have led some commentators to compare the protection of foreign investment with the protection of property rights by human rights instruments and courts. This Essay provides a critical perspective on the relationship between these two systems. The Essay re-examines the widespread assumptions that underlie efforts to find parallels between human rights and foreign investment protection. The analysis ...


Balancing Sustainability, The Right To Regulate, And The Need For Investor Protection: Lessons From The Trade Regime, Elizabeth Trujillo 2018 Texas A&M University Law School

Balancing Sustainability, The Right To Regulate, And The Need For Investor Protection: Lessons From The Trade Regime, Elizabeth Trujillo

Boston College Law Review

Recent initiatives for investment reform demonstrated by the 2016 United Nations Conference on Trade and Development and 2018 World Investment Reports have raised key issues for sustainable development in the context of investment in natural resources and energy. Where there has been increasing convergence between trade and environmental norms as trade regimes confront domestic regulatory measures for environmental protection and climate change mitigation, similarly investment regimes also have had to address such domestic measures but with little progress towards normative convergence. At the same time, there’s an increasing skepticism for the traditional models of globalization of the 1990s and ...


Greening Investor-State Dispute Settlement, Daniel B. Magraw, Sergio Puig 2018 Johns Hopkins School of Advanced International Studies

Greening Investor-State Dispute Settlement, Daniel B. Magraw, Sergio Puig

Boston College Law Review

Climate change poses serious threats to human society. Climate change is already affecting our environment and thus, many aspects of human and economic activity. Among the challenges ahead, governments will need to more actively adopt regulatory policies given the international obligations in this area, such as the Paris Agreement, as well as promote green private investment as a means toward unlocking sustainable growth. How can international investment law be adapted and modernized to respond to these challenges? In this Essay, we summarize a comprehensive set of innovations that could be included in International Investment Agreements to address international obligations regarding ...


Third-Party Funding As Exploitation Of The Investment Treaty System, Frank J. Garcia 2018 Boston College Law School

Third-Party Funding As Exploitation Of The Investment Treaty System, Frank J. Garcia

Boston College Law Review

Third-party funding of international investment arbitration is on the rise. Through TPF funders will cover the legal fees of investors filing claims under investment treaties in exchange for a portion of the arbitral award. Proponents of third-party funding claim that it provides access to justice for parties that normally would not have the funds to arbitrate against state actors. Given that the international investment law that governs these claims is unbalanced, and that funding only flows towards investor-claimants, and at the expense of states and their taxpayers, allowing third-party funding in investment arbitration risks creating unjustifiable wealth transfers from the ...


The Regime Of Innocent Passage In Disputed Waters, Hitoshi Nasu 2018 University of Exeter

The Regime Of Innocent Passage In Disputed Waters, Hitoshi Nasu

International Law Studies

The regime of innocent passage is a well-established body of customary international law. However, when there is a dispute over sovereign entitlement to a territorial sea or its outer limit, the applicability and legal effect of the regime are brought into question. This article considers the applicability of the regime of innocent passage and its legal effect in disputed waters by critically examining the relevant jurisprudence of international courts and tribunals that have dealt with territorial and maritime disputes. The efficacy of the findings from this analysis will then be evaluated from a legal policy perspective in the interest of ...


A Study Of Six Nations Public Library: Rights And Access To Information, Alison Frayne 2018 The University of Western Ontario

A Study Of Six Nations Public Library: Rights And Access To Information, Alison Frayne

Electronic Thesis and Dissertation Repository

Contemporary Indigenous public libraries play a critical role in providing access to information in Indigenous communities. My research focuses on the relationship between rights and access to information for individuals and communities within the context of Indigenous public libraries. I use a qualitative case study methodology of the Six Nations Public Library (SNPL) in Ohsweken, Ontario, Canada. Interviews were conducted with SNPL patrons and library management and with off-reserve participants from government and library associations.

I analyse four themes, library governance, rights, library value and access to information, which are outcomes of the SNPL case study findings. This analysis reveals ...


International Humanitarian Law And The Targeting Of Data, Tim McCormack 2018 University of Tasmania

International Humanitarian Law And The Targeting Of Data, Tim Mccormack

International Law Studies

The 2013 publication of the Tallinn Manual on the International Law Applicable to Cyber Warfare confirmed the view of the majority of the international group of experts that data was not an object and therefore not subject to the rules of targeting during an armed conflict. Intuitively, a number of scholars reacted negatively to this view, and instead were drawn to the Tallinn Manual minority position that data did constitute an object. The significance of data, particularly personal data, is only increasing, and the purpose of the law of armed conflict is to reduce the deleterious impact of armed conflict ...


$314m And Sovereign Immunity Are At Stake In Upcoming High Court Case, Peter B. Rutledge, Amanda W. Newton 2018 University of Georgia Law School

$314m And Sovereign Immunity Are At Stake In Upcoming High Court Case, Peter B. Rutledge, Amanda W. Newton

Popular Media

The Nov. 7 Supreme Court arguments in Republic of Sudan v. Harrison will implicate issues of civil procedure, sovereign immunity, and statutory interpretation. At stake for the Republic of Sudan is $314 million in Sudanese assets. More broadly, however, the court’s decision could have ramifications for any nation, including the United States, that enjoys sovereign immunity.


Energy Justice: Us And International Perspectives, Carmen G. Gonzalez, Elizabeth A. Kronk Warner, Raya C. Salter 2018 Seattle University

Energy Justice: Us And International Perspectives, Carmen G. Gonzalez, Elizabeth A. Kronk Warner, Raya C. Salter

Carmen G. Gonzalez


Energy Justice: US and International Perspectives is a pioneering analysis of energy law and policy through the framework of energy justice. While climate change has triggered unprecedented investment in renewable energy, the concept of energy justice and its practical application to energy law and policy remain under-theorized. This volume breaks new ground by examining a range of energy justice regulatory challenges from the perspective of international law, US law, and foreign domestic law. The book illuminates the theory of energy justice while emphasizing practical solutions that hasten the transition from fossil fuels and address the inequities that plague energy systems ...


U.N. Sovereign Immunity: Using The Haitian Experience To Transition From Absolute To Qualified Immunity, Brianna Sainte 2018 University of Miami Law School

U.N. Sovereign Immunity: Using The Haitian Experience To Transition From Absolute To Qualified Immunity, Brianna Sainte

University of Miami Law Review

The United Nations (“U.N.”) has been looked at globally and historically as an international organization that has given aid to millions of people in the hopes of promoting peace and reducing human rights violations. It is no surprise then that many countries have welcomed U.N. troops with open arms in the hopes of stabilizing communities. However, instead of receiving aid, imagine receiving a deadly disease. Imagine having the nearby river that has been your only source of water for drinking, laundry, and bathing for decades turned into a waste dump. It is from that river turned waste dump ...


Finally Freed Or Infinitely Detained? The Need For A Clear Standard Of Finality For Reinstated Orders Of Removal, John Gavin 2018 Boston College Law School

Finally Freed Or Infinitely Detained? The Need For A Clear Standard Of Finality For Reinstated Orders Of Removal, John Gavin

Boston College Law Review

Circuits are currently split as to whether reinstated orders of removal are final orders of removal. The resolution of this circuit split and related legislative ambiguity has far-reaching implications for the rights of the 150,000 or more unauthorized immigrants who enter the United States each year. Reinstated orders of removal are a means by which the United States government can more rapidly deport individuals who reenter the country after having been previously deported. On July 29, 2016, in Guerra v. Shanahan, the United States Court of Appeals for the Second Circuit declared that reinstated orders of removal are not ...


Freedom Of Research And The Right To Science: From Theory To Advocacy, Andrea Boggio, Romano P.R. Cesare 2018 Bryant University

Freedom Of Research And The Right To Science: From Theory To Advocacy, Andrea Boggio, Romano P.R. Cesare

History and Social Sciences Faculty Journal Articles

While international law recognizes a human right to science, the binding normative content of this right needs to be better clarified and specified. To advance our understanding of this understudied right, this chapter offers a theoretical analysis of ways in which the right to science can be realized. The chapter is divided in three sections: the first section discusses the recognition of the right to science under international and regional legal instruments; the second presents a literature review; and the third discusses how judicial and political mobilisation as paths to contribute to our understating of this right and defining its ...


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