Dispute Resolution and Arbitration Commons^™

Most Favoured Nation Clause: Unleashing Its Legal Potential In Favour Of Foreign Investors In Renewable Energy Sector, Mohammad Akefi Ghaziani, Vahid Akefi Ghaziani, Moosa Akefi Ghaziani Dr.

Indonesia Law Review

International Investment Law and other international legal systems, such as trade law and environmental law have interactions and dynamic interrelationships in meeting global challenges including energy security, climate change, and the need for the renewable energy transition. They help in delivering the principles of justice in the context of changing global values and legal practices. Accordingly, they have a potential share in the global climate change mitigation agenda through innovative policies and regulations, inter alia, to facilitate and promote foreign investment and trade in the renewable energy sector. Similarly, these systems have common principles in their respective agreements. The Most-Favoured …

The Cjeu And The Introduction Of International Dispute Settlement Mechanisms Within The Eu: Is Alternative Dispute Resolution In The Eu In Safe Hands?, Tasnim Ahmed

Pepperdine Dispute Resolution Law Journal

This article draws upon the jurisprudence of the Court of Justice of the European Union (CJEU) concerning the role of the international dispute settlement mechanisms operating within the EU legal order. The Court has resisted the introduction of such dispute settlement mechanisms, referring to Articles 267 and 344 of the Treaty of the Functioning of the European Union (TFEU) as justifications for its ‘judicial monopoly’. The Achmea case in particular allows the Court to declare these dispute settlement mechanisms contrary to EU law. However, with the Comprehensive Economic Trade Agreement (CETA) Opinion, the Court itself has permitted the CETA Investment …

Standing At Crossroads: The Trajectory Of Iias And Isds And Their Projection In The Post-Pandemic Global Economy, Yasharth Misra

Pepperdine Dispute Resolution Law Journal

No abstract provided.

Inconsistency Crisis And Reformative Proposals Of Investor-State Arbitration System- Umbrella Clauses Considered, Abdallah Elsayed

Theses and Dissertations

The main purpose of investment treaties is to provide guarantees and protections for the investors in order to maintain the flow of foreign direct investment. As a consequence, when disputed, an adjudicator confronts a dilemma of figuring out the actual intention that the parties consented to. As for umbrella clauses are concerned, an interpreter falls into a loop to attain whether the parties consented to prioritize investor’s interest and elevate any contractual breach to the level of a treaty breach, or to consider the state’s regulatory power. The root could be traced to the interpretation process itself. Human conduct differs …

Federally Mandated Online Sales Tax: A Logistical Solution For The Future Of E-Commerce, Daniel O'Connor

DePaul Business & Commercial Law Journal

No abstract provided.

Economic Structural Transformation And Litigation: Evidence From Chinese Provinces, To Economic Change And Restructuring, Doug Bujakowski, Joan Schmit

DePaul Business & Commercial Law Journal

No abstract provided.

The "Business Interruption" Insurance Coverage Conundrum: Covid-19 Presents A Challenge, Paul E. Traynor

DePaul Business & Commercial Law Journal

No abstract provided.

Misalighned Incentives In Markets: Envisioning Finance That Benefits All Of Society, Dr. Ryan Clements

DePaul Business & Commercial Law Journal

No abstract provided.

Monsanto: Creator Of Cancer Liability

DePaul Business & Commercial Law Journal

No abstract provided.

Impact Of Corporate Response To Controversial Presidential Statements Or Policies

DePaul Business & Commercial Law Journal

No abstract provided.

Appointing Arbitrators: Tenure, Public Confidence, And A Middle Road For Isds Reform, Thomas D. Grant, F. Scott Kieff

Michigan Journal of International Law

Many governments now join academics and activists in questioning whether ad hoc tribunals, which comprise private individuals holding no tenured role on a court, ought to be entrusted with deciding cases, where the resultant awards sometimes impose significant financial burdens on the respondent State, constrain the State’s regulatory choices, and affect the interests of third parties. Investor-State dispute settlement (ISDS), during the great expansion of its practice over the past quarter century, has relied on party-appointed arbitrators to constitute the ad hoc tribunals that hear and decide cases that investors bring. Moved by a turn of public sentiment in recent …

Trade's Mini-Deals, Kathleen Claussen

Articles

The modern consensus is that U.S. trade law is made through statute and through large congressional-executive agreements, both of which maintain Congress' constitutional primacy over the regulation of foreign commerce. Contrary to this understanding, however, short, targeted agreements negotiated by the U.S. executive with foreign trading partners - recently referred to as "mini-deals" - have become a fixture of the trade law landscape over the last three decades in staggering number. More than 1,200 such agreements govern the movement of goods and services in and out of the United States from and to 130 countries. Such deals are not only …

The Guaranteed Resolution On Effective And Adapted Terms (The Great Process): A New Hybrid Dispute Resolution Process For Guaranteeing A Solution And Resolving Disputes Efficiently, Claude Amar, Vironique Fraser, Cecile Maitre-Ferri

Cardozo Journal of Conflict Resolution

Over the past twenty years, innovative dispute resolution processes have emerged from practitioners who aimed to tailor them to the parties' process needs. Some of the most widely known processes include med-arb, arb-med, co-mediation with an evaluative and a non-evaluative mediator, baseball arbitration, last offer arbitration, and sealed-arbitration. The list and possible combinations are infinite, when one starts combining processes. However, such spontaneity and adaptivity sometimes result in harmful consequences. In the past, arbitral awards in numerous jurisdictions were refused to be honored on the basis that the process had infringed on fundamental procedural guarantees. For that reason, it is …

The Role Of Investor-State Tribunals In Determining The Scope And Content Of The Fair And Equitable Treatment Standard – Legitimate Expectations And Proportionality, Simon Bianchi

LL.M. Essays & Theses

In recent years, the legitimacy of the investor-State dispute settlement (“ISDS”) has been called into question and several initiatives, such as the UNCITRAL Working Group III, are currently looking at various ways to enhance such legitimacy and ensure the sustainability of ISDS. In this respect, certain scholars like Professors Sornarajah and van Harten claim that the interpretative process undertaken by investor-State tribunals has contributed to this legitimacy crisis among others because the application of vague standards, such as fair and equitable treatment (“FET”), involves applying subjective notions of what adjudicators perceive as desirable developments of investment law. By contrast, other …

The Role Of The Registry And Legal Division Of The African Court Of Human And People's Rights In Dispute Settlement, Olabisi D. Akinkugbe, Morris K. Odeh

Articles, Book Chapters, & Popular Press

This Essay explores whether the African Court of Human and People's Rights’ (African Court) Registry and Legal Division have a similar expansive role in the dispute settlement mechanism as the World Trade Organization's (WTO) Secretariat. The African Court is the African Union's regional body for enforcing human rights. This Essay contributes to the scholarship on African international courts by testing the central arguments in Pauwelyn and Pelc's “Who Guards the ‘Guardians of the System’? The Role of the Secretariat in WTO Dispute Settlement” through a comparative analysis of the role of the Secretariat within the African Court. Despite the growing …

Corporate Wealth Over Public Health? Assessing The Resilience Of Developing Countries' Covid-19 Responses Against Investment Claims And The Implications For Future Public Health Crises, Tim Hagemann

Pace International Law Review

In the wake of the Covid-19 pandemic, states around the world swiftly enacted a multitude of far-reaching emergency responses to contain the viruses’ spread and to cope with the economic repercussions of the ensuing crisis. However, these measures detrimentally impacted the operating conditions of many businesses or, at the least, decreased their profitability. As this inevitably affected foreign investments, investors could be tempted to invoke “Investor State Dispute Settlement” (“ISDS”) clauses in International Investment Agreements (IIAs) to initiate proceedings before arbitral tribunals and seek compensation for loss of profit caused by states’ Covid-19 responses. Due to the specific circumstances in …

Investor-State Dispute Prevention: A Critical Reflection, Lise Johnson, Lisa E. Sachs, Ella Merrill

Columbia Center on Sustainable Investment Staff Publications

With the rise of treaty-based investor-state dispute settlement (“ISDS”) which has taken place over the last two decades, a number of governments have adopted varying approaches to avoid those arbitration cases. Countries including Bosnia and Herzegovina, Colombia, Mexico, Mongolia, and Peru have pursued such initiatives, often with the support of intergovernmental organizations such as the United Nations Convention on Trade and Development (“UNCTAD”) and the World Bank.

In the context of discussions on ISDS reform taking place at the United Nations Commission on International Trade Law (“UNCITRAL”), some states have identified development and implementation of such ISDS-avoidance strategies and tools …

Exhaustion Requirements And Dispute Resolution Reform In Bilateral Investment Treaties, William Crowder Gaskins Jr.

Georgia Journal of International & Comparative Law

No abstract provided.

Covid-19 Pandemic, The World Health Organization, And Global Health Policy, Cosmas Emeziem

Pace International Law Review

The emergence and quick spread of the COVID-19 pandemic has shifted the focus and dynamics of the debates about global health, international law, and policy. This shift has overshadowed many of the other controversies in the international sphere. It has also highlighted the tensions that often exist in international affairs—especially in understanding the place and purpose of international institutions, vis-à-vis states, in the general schema of public international law. Central to the international response to the current pandemic is the World Health Organization (WHO)—a treaty-based organization charged with the overarching mandate of ensuring “the highest possible level of health” for …

Dispute Settlement Under The African Continental Free Trade Area, Olabisi D. Akinkugbe

Articles, Book Chapters, & Popular Press

Article 20 AfCFTA establishes a Dispute Settlement Mechanism, the Protocol on Rules and Procedures on the Settlement of Disputes (‘the AfCFTA DSM Protocol’; ‘Protocol’) and a Dispute Settlement Body (‘DSB’) for resolving disputes between State Parties. The AfCFTA dispute settlement mechanism is a central element of the AfCFTA as it provides security and predictability to the regional trading system (Art 4 AfCFTA-DSM Protocol). The AfCFTA dispute settlement mechanism will ‘preserve the rights and obligations of State Parties under the Agreement and clarify the existing provisions of the Agreement in accordance with customary rules of interpretation of public international law’ (Art …

Comments To The Draft Working Group Iii Workplan, Columbia Center On Sustainable Investment, International Institute For Environment And Development, International Institute For Sustainable Development

Columbia Center on Sustainable Investment Staff Publications

The United Nations Commission on International Trade Law (UNCITRAL) is currently working on how to reform international investment treaties, focusing in particular on those treaties’ provisions enabling investors to sue governments in international arbitration. As an observer organization in this process, CCSI has emphasized that in the context of investor-state dispute settlement (ISDS) reform, it is important to first consider what it is that investment treaties aim to achieve, and only then to consider what form(s) of dispute settlement will best advance those objectives. This means not only looking at reform of the existing ISDS mechanism, but also alternatives to …

Between Backlash And The Re-Emerging “Calvo Doctrine”: Investor-State Dispute Settlement In An Era Of Socialism, Protectionism, And Nationalism, Ylli Dautaj

Northwestern Journal of International Law & Business

The Investor-State Dispute Settlement (ISDS) regime stands on shaky ground. Its legitimacy is heavily questioned by critics and a “backlash debate” has ensued. As a result, a contested and infected debate has been on-going for some years now and multiple reform proposals have been offered, ranging from (a) moderate (and sensible) reform proposals—e.g., increased transparency; the inclusion of state counterclaims; the inclusion of higher ethical standards; reformulating deference standards; applying human rights and environmental law when interpreting international investment treaties; etc.—to more (b) radical reform proposals—e.g., the elaboration of either an Appellate System or an Investment Court System (ICS). Such …

How To Treat The Wto's Problem With Precedent, Timothy Meyer

Faculty Scholarship

This Article argues that the World Trade Organization’s Appellate Body (AB), or a successor body, must become more transparent in justifying its decision to rely (or not) on prior decisions. The AB’s practice of precedent—which the United States cited as a cause of its decision to paralyze the AB by blocking new appointments—is similar to how it has approached “likeness” in nondiscrimination cases. It placed a lot of weight on whether two cases (or products) are sufficiently similar to be compared, and it spent relatively less time substantively justifying its treatment of prior cases. Because the WTO does not have …

Can Investment Dispute Settlement Ever Be Depoliticized?, Fernando Dias Simões

Cardozo International & Comparative Law Review

Investor-state arbitration was created with the hope of depoliticizing investment disputes. However, the adoption of the traditional party-appointment system, in which disputing parties play a direct role in the composition of the tribunal, is increasingly criticized. Many believe that party appointment is a tool ofpolitical influence over the arbitrators' interpretative space. Suggestions for reform of the system have proliferated. The most radical proposal currently on the table-the creation of a permanent investment court-would cause a paradigm shift in the selection of adjudicators, moving from a disputing party framework, to a treaty party context. This article analyzes different options to reduce …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents

Hong Kong And China: Building Bridges Between Two Systems In One Country, Harold Kang

Cardozo Journal of Conflict Resolution

In 1984, Britain and China negotiated an agreement that resulted in Hong Kong's reunification with China over one hundred years after it was surrendered to Britain following the Opium War. The Sino-British Joint Declaration stipulated that although China would exercise territorial sovereignty over Hong Kong, Hong Kong would still maintain a high degree of autonomy until the year 2047. This meant that Hong Kong would have independent executive, legislative, and judicial powers while maintaining its capitalist system and way of life. However, these promisesdespite codification in the Basic Law, which is a quasi-Constitution-do not escape the inherent contradiction in "one …

Informing Wto Reform: Dispute Settlement Performance, 1995-2020, Bernard M. Hoekman, Petros C. Mavroidis, Maarja Saluste

Faculty Scholarship

This article presents salient facts on the performance of WTO dispute settlement, using an updated dataset on cases adjudicated between 1992 and mid 2020. The dataset provides a comprehensive compilation of information on WTO disputes, including complainants, respondents and third parties; the substantive matters tabled; the WTO provisions invoked; the claims that are accepted or rejected by adjudicating bodies; the time involved to complete the consultation, panel and appeal (Appellate Body) stages; and the identity of panelists and how they were appointed. We highlight elements of the operation of the system that are salient to WTO reform discussions, while drawing …

Plurilateral Cooperation As An Alternative To Trade Agreements: Innovating One Domain At A Time, Bernard M. Hoekman, Charles F. Sabel

Faculty Scholarship

At the end of 2017 different groups of WTO members decided to launch talks on four subjects, setting aside the WTO consensus working practice. This paper argues that these ‘joint statement initiatives’ (JSIs) should seek to establish open plurilateral agreements (OPAs) even in instances where the outcome can be incorporated into existing schedules of commitments of participating WTO members. Designing agreements as OPAs provides an institutional framework for collaboration among the responsible national authorities, transparency, mutual review and learning, as well as alternatives to default WTO dispute settlement procedures which may not be appropriate for supporting cooperation on the matters …

The Interpretation Of International Investment Treaties: The Application Of Mfn Clauses To Matters Of Dispute Settlement In Bits, Amr Mostafa Aabed Abdo

Theses and Dissertations

The decisions of the arbitral tribunals have been under heavy attack for the inconsistent and unintended interpretations that went beyond the intent of the parties as it is expressed in the treaty provisions. One of these misinterpreted provisions is the MFN clause. Many tribunals have used this clause to allocate the adjudicatory authority between international arbitration and domestic courts. The problem of this application is a matter of treaty interpretation that is governed by the international rules of interpretation in the VCLT. These rules provide a balance approach to treaty interpretation and recognize equally the legitimate rights and interests of …

Regulating Multinational Corporations In International Investment Law And Arbitration: Towards Limiting The Treaty Shopping, Sharaf Khaled Alsharaf

Maurer Theses and Dissertations

This study examines the limitations of treaty shopping in international investment law and arbitration by recognizing some steps and factors that states, especially developing states, and arbitral tribunals may consider regarding the purpose and objective of investment agreements and contracting states’ viewpoints. The focus is solely on the multinational corporation as a corporate investor. To understand these limitations, this study has divided the topic through three separate research questions. The first question is how a state can regulate MNCs in a way that limits their ability to practice treaty shopping, whether domestically or internationally via BITs or regional investment agreement, …