Dispute Resolution and Arbitration Commons^™

Can The Language Of The Trans-Pacific Partnership Still Contribute To The International Investment System? An Analysis Of Tpp's Language Regarding States' Powers To Regulate, Yurica Ramos Montes

Arbitration Brief

No abstract provided.

Mending The Wound Or Pulling It Apart? New Proposals For International Investment Courts And Fragmentation Of International Investment Law, Jaemin Lee

Northwestern Journal of International Law & Business

Robust discussions on standing investment courts are currently taking place at various fora. In particular, negotiations to include bilateral investment courts in IIAs are in full swing and leading to the creation of such courts. On the other hand, negotiation for a multilateral investment court has yet to start. Even if negotiation begins, it is not clear how long it will take and whether it will indeed lead to a successful conclusion. As such, for a significant amount of time in the future, it is bilateral investment courts that states administer to resolve investment disputes. Bilateral investment courts, however, will …

Utilizing Adr Between Automakers, The European Union, And The United Kingdom To Avoid Automobile Tariff Increases Arising From Brexit, Nicholas Gliagias

Cardozo Journal of Conflict Resolution

In order to ensure that there are new and stable trade agreements to replace the previous trade agreements, mediation strategies between automakers, the European Union, and the UK should be explored so that new tariffs on cars do not negatively and drastically change the UK's economic landscape after Britain exits from the European Union. In Part II, this Note discusses the pre-Brexit and current tariff situation in the UK as a member of the European Union, explains what mediation is, the methods of mediation, the history of mediation, and the benefits of using mediation. Part III discusses the implications of …

The Blurring Of The Public/Private Distinction Or The Collapse Of A Category? The Story Of Investment Arbitration, Guillermo J. Garcia Sanchez

Faculty Scholarship

The paper is a response piece to Deborah Hensler and Damira Khatam’s new article, Re-inventing Arbitration: How Expanding the Scope of Arbitration Is Re-Shaping Its Form and Blurring the Line Between Private and Public Adjudication. Their main argument regarding the public-private distinction is that the arbitral procedure has changed as a consequence of the substantive issues resolved in this particular ADR system. According to them the arbitral system, which was originally conceived for commercial purposes, has become another way of litigating public law, but without the accountability mechanisms attached to public courts. In this paper, I agree in large part …

Independence And Impartiality Of Arbitrators: A Rule Of Law Analysis, Stefanie Schacherer

Research Collection Yong Pung How School Of Law

Investor-State dispute settlement (ISDS) through arbitration remains in a state of legitimacy crisis and discussions on reform are ongoing. Much of the criticism is focussed on who is deciding investment dispute cases. Investment arbitrators have been called “private judges” who operate in secrecy, are biased in favour of big multinational companies and have no regard for conflicts of interest. The course of the negotiations on the Transatlantic Trade and Investment Partnership between the European Union (EU) and the United States, highlighted to what extent ISDS through arbitration is perceived as unfair and biased (at least in Europe). As a reaction …

International Investment Arbitration In Laos: Large Issues For A Small State, Romesh Weeramantry, Mahdev Mohan

Research Collection Yong Pung How School Of Law

Laos is no stranger to international investment arbitration. Despite its status as one of Southeast Asia's least developed countries, it has had an Investment Law for more than two decades and is also a party to several bilateral and Association of South East Asian Nations (ASEAN)-related investment agreements. More recently, two investment treaty claims have been made against it, one of which has given rise to an award challenge that went all the way to Singapore's highest court. This article will examine the history, evolution and current iteration of Laos' relationship with international investment law and focus on the two …

Comment On Us Trade And Investment Agreements Submitted To Ustr, Columbia Center On Sustainable Investment

Columbia Center on Sustainable Investment Staff Publications

Comments to USTR Re: Review of US Trade and Investment Agreements (July 17, 2017): CCSI, in response to the United States Trade Representative’s request for public comment to inform its performance review of US trade and investment agreements, submitted Comments that focused on the impact that investment protection provisions, enforceable through investor-state dispute settlement, have on rights-compliant, inclusive sustainable development within the United States and abroad.

Inside The Arbitrator's Mind, Susan Franck

Scholarly Articles in Law Reviews & Journals

Arbitrators are lead actors in global dispute resolution. They are to global dispute resolution what judges are to domestic dispute resolution. Despite its global significance, arbitral decision making is a black box. This Article is the first to use original experimental research to explore how international arbitrators decide cases. We find that arbitrators often make intuitive and impressionistic decisions, rather than fully deliberative decisions. We also find evidence that casts doubt on the conventional wisdom that arbitrators render “split the baby” decisions. Although direct comparisons are difficult, we find that arbitrators generally perform at least as well as, but never …

The New Era Of Doing Business With Iran: Iran’S International Commercial Transactions And Global Security, John Changiz Vafai

Pace International Law Review

On January 17, 2016, in a statement following his signing of the Joint Comprehensive Plan of Action (JCPOA) with Iran, President Obama addressed that country’s people, stating that “yours is a great civilization, with a vibrant culture that has so much to contribute to the world – in commerce, and in science and the arts.” While the former U.S. President’s evaluation of the Iranian people’s greatness is indisputable, there are questions concerning doing business with Iran which transcend conventional legal issues and commercial problems.

Given the juxtaposition of Iran’s duopolistic government structure and ideologically oriented decision-making processes, questions arise as …

The Investment-Related Aspects Of Intellectual Property Rights, Peter K. Yu

American University Law Review

No abstract provided.

Us-Cool Retaliation: The Wto’S Article 22.6 Arbitration, Chad P. Bown, Rachel Brewster

Faculty Scholarship

This paper examines the World Trade Organization’s Article 22.6 arbitration report on the dispute over the United States’ country of origin labeling (US–COOL) regulation for meat products. At prior phases of the legal process, a WTO Panel and the Appellate Body had sided with Canada and Mexico by finding that the US regulation had negatively affected their exports of livestock – cattle and hogs – to the US market. The arbitrators authorized Canada and Mexico to retaliate by over $1 billion against US exports – the second largest authorized retaliation on record and only the twelfth WTO dispute to reach …

Submission On The Draft General Comment On “State Obligations Under The Icescr In The Context Of Business Activities”, Columbia Center On Sustainable Investment

Columbia Center on Sustainable Investment Staff Publications

In January 2017 CCSI made a submission to the Committee on Economic, Social and Cultural Rights, regarding its draft General Comment on “State obligations under the International Covenant on Economic, Social and Cultural Rights in the Context of Business Activities.” CCSI’s submission focused on: (1) host and home states’ obligations as they relate to international investment agreements (IIAs); (2) extraterritorial obligations in the context of outward investment; and (3) state obligations related to corruption issues.

In the submission, CCSI emphasized that states must ensure that existing treaties do not generate conflicts between obligations owed under IIAs and the Covenant (in …

The Eu As A Global Actor In Reforming The International Investment Regime In Light Of Sustainable Development, Stefanie Schacherer

Research Collection Yong Pung How School Of Law

The international investment law regime is undergoing a process of reform. The guiding paradigm of this reform is the principle of sustainable development. The EU, through its exclusive competence over foreign direct investment, has become a significant actor on the stage of international investment law governance. According to recent statements of the EU institutions, the EU seeks to shape its policy to be consistent with the principle of sustainable development. In more concrete terms this means that EU investment law making shall be consistent with core labour standards, environmental protection and the conservation of natural resources as well as with …

Emerging Internal Control In Institutional Arbitration, Meng Chen

Cardozo Journal of Conflict Resolution

To some extent, the charm of international commercial arbitration derives from its complexity, involving many inherent contradictions. It is developed as autonomous and internationalized dispute resolution, while it inevitably relies on sovereign support. With arbitration becoming more and more internationalized and autonomous, rules and regulations generated inside of the arbitration community have gradually played important roles in arbitration governance. Contributions from numerous international arbitration institutions are particularly noticeable in this development. Institutional arbitration takes the lead in the development of international commercial arbitration. Rules and regulations generated in institutional arbitration practice not only facilitate single institutional arbitration processes, but also …

A New Chapter In Natural Resource-Seeking Investment: Using Shared Decisions System Design ("Sdsd") To Strengthen Investor-State And Community Relationships, Mariana Hernandez Crespo Gonstead

Cardozo Journal of Conflict Resolution

The time is here. The Latin American region cannot wait any longer; there is simply too much at stake: too many lives, too much potential, and, ultimately, too much waste. The discourse must change from focusing on Investor-State Dispute Settlement ("ISDS") at the international level to addressing the structural and systemic issues at the local level. This shift will strengthen the investor-State relationship and lead not only to the retention, but also the expansion of the Foreign Direct Investment ("FDI").

Investor Corruption As A Defense Strategy Of Host States In International Investment Arbitration: Investors' Corrupt Acts Give An Unfair Advantage To Host States In Investment Arbitration, Margareta Habazin

Cardozo Journal of Conflict Resolution

First, the paper will analyze the issue of corruption in international investment arbitration. Second, the paper will examine the deployment of corruption as a defense strategy by host states in international investment arbitration. Next, it will address the jurisdictional consequences of proving corruption in the making of the investment. Further, it will describe the distinctive features of relevant ICSID awards and key issues that led to the dismissal of claims. The paper will also estimate the possible implications of the awards to future ICSID claims affected by bribery and try to predict the outcome of the MOL v. Republic of …

Rwanda And The Kigali International Arbitration Centre: The Future Faces Of East African Arbitration And Growth, Jeremy Cantor

Cardozo Journal of Conflict Resolution

Part I is a brief introduction to the Note. Part II is a brief background of Rwandan history and the country's push for economic growth. Furthermore, Part II elaborates on the history, the current status of Rwanda's judicial system, and on the KIAC. Part III explains why arbitration is fitting for Africa as a whole and why it is more fitting for East Africa specifically. In particular, the Note explains why Kigali is the proper choice of seat6 and KIAC the proper institution, and analyzes certain problems preventing the growth of African arbitration. Lastly, Part IV proposes how to effectuate …

Developing Improved Tactics For Advance Pricing Agreements To Decrease Negotiation Lead Time, Ryan Vines

Cardozo Journal of Conflict Resolution

This Note seeks to investigate the inefficiencies of the Advance Pricing Agreement negotiation process and how inequitable negotiations adversely affect the American taxpaying community, and small and medium sized corporations. The results of this investigation point to the necessity for the IRS to collect data and perform trend analyses. Although marginal improvements have been made by the Advance Pricing and Mutual Agreement ("APMA") Office, the data show that the real issues of Advance Pricing Agreement negotiations have yet to be resolved. The current practices and procedures of a typical Advance Pricing Agreement negotiation does not promote horizontal equity among taxpayers. …

One Country, Two Systems: Hong Kong's Unique Status And The Development And Growth Of Arbitration In China, Jiali (Keli) Huang

Cardozo Journal of Conflict Resolution

This Note evaluates the future of arbitration in China and Hong Kong as the two approach their twentieth year working toward reunification under the implications of the "one country, two systems" model, which was implemented in Hong Kong when Hong Kong's sovereignty was transferred back to China in 1997. First, this Note explains Hong Kong's unique identity, the factors that triggered the Umbrella Movement and the Fishball Revolution, and Hong Kong's current relationship with China. Second, this Note provides a broad overview of the development of arbitration in China. Third, this Note describes the arbitral history between China and Hong …

Issues Concerning Enforcement And Dispute Resolution, Sean Flynn

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Crossfertilizing Isds With Trips, Peter K. Yu

Faculty Scholarship

In the past few years, investor-state dispute settlement (ISDS) has garnered considerable scholarly, policy and media attention. Such attention can be partly attributed to the negotiation of the Trans-Pacific Partnership and the Transatlantic Trade and Investment Partnership (TTIP). It can also be attributed the growing use of ISDS to address international disputes involving intellectual property investments. Recent examples include Philip Morris’s now-failed attempts to challenge the tobacco control measures in Australia and Uruguay and Eli Lilly's equally unsuccessful effort to invalidate the patentability requirements in Canada.

Written for a symposium on investor-state arbitration, this article focuses on the growing use …

Application Of Law By The Maritime Arbitration Commission In Settling Disputes, Sergei N. Lebedev

Georgia Journal of International & Comparative Law

No abstract provided.

Contents

Georgia Journal of International & Comparative Law

No abstract provided.

Beyond Trade Deals: Charting A Post-Brexit Course For Uk Investment Treaties, Lise Johnson, Lorenzo Cotula

Columbia Center on Sustainable Investment Staff Publications

The Brexit referendum has raised questions about the future terms of the United Kingdom’s engagement with the world economy. While a debate over the UK’s future approach to trade deals has already begun, a similar discussion has yet to develop on the treaties that govern foreign investment. As this briefing note by Lorenzo Cotula of the International Institute for Environment and Development, and Lise Johnson of CCSI highlights, the stakes are high: ill-designed treaties could leave the UK excessively exposed to legal claims by foreign companies and could fail to address relevant economic, social and environmental challenges. While meaningful negotiations …

International Investment Agreements: Impacts On Climate Change Policies In India, China And Beyond, Lise Johnson, Brooke Güven

Columbia Center on Sustainable Investment Staff Publications

Mitigating and adapting to climate change will require a fundamental reorientation of our global economy as we move away from fossil fuels and transition to a low carbon and climate-resilient world. This reorientation depends on government actions to help catalyze and channel financial flows in new directions and away from business-as-usual practices.

International investment agreements (IIAs) – treaties that now number over 3,000 and have the objective of promoting and protecting cross-border investment flows_could potentially play a key role in these efforts to scale up and (re)direct investments to meet climate change mitigation and adaptation needs. As presently drafted and …

Conference Report: Climate Change And Sustainable Investment In Natural Resources: From Consensus To Action, Columbia Center On Sustainable Investment, Sustainable Development Solutions Network, Sabin Center For Climate Change Law

Columbia Center on Sustainable Investment Staff Publications

The Columbia Center on Sustainable Investment has produced this conference report on CCSI’s Conference on Climate Change and Sustainable Investment in Natural Resources: From Consensus to Action. A shorter outcome document, which was disseminated at COP22, is also available. These documents summarize the discussions at the eleventh annual Columbia International Investment Conference, which took place on November 2-3, 2016, at Columbia University. The Conference offered a high-level opportunity to discuss how countries can reduce their greenhouse gas emissions in accordance with the Paris Agreement, while also advancing the Sustainable Development Goals, and in particular the important implications for the …

Tpp, Ceta And Ttip Between Innovation And Consolidation-Resolving Investor-State Disputes Under Mega-Regionals, Stefanie Schacherer

Research Collection Yong Pung How School Of Law

The United States concluded in 2015, the Trans-Pacific Partnership (TPP) agreement with 11 other countries and the European Union (EU) concluded a revised version of the Comprehensive Economic Trade Agreement (CETA) with Canada in 2016. The provisions on investor-state dispute settlement (ISDS) of the two agreements could not be more different. While the TPP sticks to the traditional system of investor-state arbitration, CETA now contains a two-layered court system with pre-elected tribunal members. The present contribution seeks to analyse the convergences and differences between the two first concluded mega-regionals in greater detail with a special focus on the CETA court …

The Tbt Agreement’S Failure To Solve U.S. - Cool, Elinore R. Carroll

Georgia Journal of International & Comparative Law

No abstract provided.

Transcanada Lawsuit Highlights Need To Scuttle Tpp, Jeffrey D. Sachs, Brooke Güven, Lisa E. Sachs

Columbia Center on Sustainable Investment Staff Publications

The Obama administration is still trying, against the odds, to push the Trans-Pacific Partnership trade and investment agreement (TPP) through the lame-duck session of Congress after the November presidential vote. The administration knows that TPP can’t pass before the election because both Hillary Clinton and Donald Trump oppose it; therefore, they are hoping for a stealth Senate vote between the election and inauguration of the new president in 2017.We can therefore “thank” TransCanada for reminding us why the TPP needs to be scuttled.

Trading With Socialist Partners, Josef Rohlik

Georgia Journal of International & Comparative Law

No abstract provided.