LSN: Dispute Resolution (Topic)最新文献

{"title":"Reimagining Trade-Plus Compliance: The Labor Story","authors":"K. Claussen","doi":"10.1093/JIEL/JGZ033","DOIUrl":"https://doi.org/10.1093/JIEL/JGZ033","url":null,"abstract":"Today’s trade agreements include “trade-plus” provisions such as intellectual property, labor, and environment commitments and subject them to the same dispute settlement mechanisms as the traditional commercial provisions. This Article queries whether the institutional design in which such trade-plus provisions operate is both appropriate and appropriately theorized. It argues that the trade-plus commitments suffer from a mismatch between the obligations that they demand of states and their compliance mechanisms. The Article proceeds in three parts. Part I reviews the short evolution of the codification of selected trade-plus norms and their enforceability across a selection of international economic instruments from diverse states. Part II argues that the U.S.-Guatemala labor case under the CAFTA-DR demonstrates how the mechanics of the traditional trade agreement dispute settlement system do not accommodate one such trade-plus area (labor). Finally, Part III argues that trade-plus commitments need to be reconceived and that their enforcement mechanisms ought to be reevaluated. In the context of their efforts to modernize or update U.S. trade agreements, the Trump Administration and other governments ought to consider innovative institutional design that achieves enforcement on a principled basis. I argue that an alternative dispute settlement mechanism would better accommodate trade-plus enforcement in a way that traditional trade enforcement cannot. (September 2019 revision: this post now includes a link to a late-stage draft.)","PeriodicalId":131966,"journal":{"name":"LSN: Dispute Resolution (Topic)","volume":"31 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-08-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"134500946","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Use of Object and Purpose by Trade and Investment Adjudicators: Convergence Without Interaction","authors":"G. Cook","doi":"10.2139/ssrn.3195941","DOIUrl":"https://doi.org/10.2139/ssrn.3195941","url":null,"abstract":"This chapter compares the practice of trade and investment adjudicators in relation to the requirement to interpret a treaty 'in the light of its object and purpose'. It begins by identifying a range of issues and choices that adjudicators face in relation to applying this interpretative element, and the practical barriers to any significant degree of judicial interaction or cross-fertilization between trade and investment adjudicators with respect to those issues. It then shows that notwithstanding the absence of judicial interaction, there is a remarkable degree of convergence in the legal reasoning of trade and investment adjudicators on these diverse issues.","PeriodicalId":131966,"journal":{"name":"LSN: Dispute Resolution (Topic)","volume":"2017 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-06-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128380221","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Remarks to ASIL Annual Meeting, April 4, 2018, on ‘ISDS at a Crossroads: How the Settlement of Investor-State Disputes Is Being Transformed’","authors":"Lisa E. Sachs","doi":"10.2139/ssrn.3372537","DOIUrl":"https://doi.org/10.2139/ssrn.3372537","url":null,"abstract":"In evaluating the Investor State Dispute Settlement (ISDS) system, and the numerous reform proposals circulating, it is worth remembering that the entire history of ISDS is quite recent. Almost all concluded cases have been decided in the last fifteen years. And even within the last ten years, there have been notable changes in the types of cases that are brought, the size of damages both claimed and awarded, and tribunals’ interpretations of key provisions. So current discussions about reform are a timely and appropriate stocktaking of the ISDS mechanism, and whether its use has met the aims and objectives of the system, and with which outcomes and impacts.","PeriodicalId":131966,"journal":{"name":"LSN: Dispute Resolution (Topic)","volume":"6 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-04-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129799165","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Investor to State Dispute Settlement (ISDS) Mechanisms: A Comparison of Evolving Legal Approaches in Brazilian and Latin American with the European Union","authors":"Daniele Bianchi, K. Inglis","doi":"10.2139/SSRN.3125711","DOIUrl":"https://doi.org/10.2139/SSRN.3125711","url":null,"abstract":"The reform of ISDS and potential alternatives to it, is a priority for the EU today. Foreign direct investment (FDI) by the European Union in Brazil and Latin America is considerable, and vice versa. Various forms of settling disputes between investors and states are incorporated into agreements carrying FDI. Classical Investor-to-State Dispute Settlement (ISDS) mechanisms have become increasingly contentious in recent years, and with the growth in the number of ISDS agreements, public fears that investors may gain control of sensitive areas of public policy have grown also (see Section 2). Compared to State-to-State Dispute Settlement (SSDS) mechanisms, investor-to-state dispute settlement mechanisms are criticized for enabling companies and multinationals the potential to undermine a country’s public policy objectives with the threat to national sovereignty that this implies. Justifications for ISDS boil down to states’ provision for protection of investors in order to progress with their development goals. However, the core drivers of globalization are changing rapidly and the rise of countries capable of exponential growth, accentuates the negatives to ISDS, including the lack of democratic accountability of and scrutiny over third country investors, the use of private arbitrators, the secrecy of proceedings and rulings, and no participatory rights for third parties holding a direct interest in the process. To date, investment protection has been confined to case-specific international agreements, rather than through overarching bilateral agreements. Legally speaking, these agreements span the public international law basis of the treaties and the public law nature of the relationship between the investor and sovereign state concerned, and asymmetry between states in international agreements further complicates multilateral approaches to reforming ISDS. At EU level, Foreign Direct Investment was included in the European Union’s powers under the Common Commercial Policy under the Treaty of Lisbon (ToL) in 2009, but such initiatives when involving ISDS reform remain complex and must respect the EU Member States’ competences. Thus, the entry into force of the Comprehensive Economic and Trade Agreement (CETA) between the EU and Canada in September 2017 is preliminary: all the EU Member States must ratify it, raising again the spectre of political resistance to its ISDS clause as experienced in 2016, particularly in the Belgium State of Wallonia. The ISDS mechanisms in CETA must respect the delineation between EU and Member State competences established by the Court of Justice of the European Union (CJEU) in May 2017, and Belgium raised important questions for the CJEU in September 2017 on the compatibility of CETA with EU law, even before the preliminary entry into force of CETA (see Section 3.1). Following EU Commission President Jean Claude Juncker’s State of the Union Address in September 2017, the EU is committed to making ISDS fit for ","PeriodicalId":131966,"journal":{"name":"LSN: Dispute Resolution (Topic)","volume":"218 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-02-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131577832","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"ISDS Transparency Provisions in the Indian Model BIT: A Half-Hearted Attempt?","authors":"Prabhash Ranjan","doi":"10.2139/SSRN.3076721","DOIUrl":"https://doi.org/10.2139/SSRN.3076721","url":null,"abstract":"Lack of transparency in investor-State dispute settlement (ISDS) proceedings has been a major concern for quite some time. Efforts at different levels have been made to boost procedural transparency in ISDS proceedings either by reforming the rules of institutionalised arbitrations or by incorporating provisions to improve procedural transparency in ISDS in the newer generation BITs. This article discusses procedural transparency in the ISDS provisions in the Indian Model BIT under three heads - public access to ISDS-related documents; public access to ISDS hearings; and submission of amicus briefs to ensure greater public participation. The article finds that that the Indian Model BIT has incorporated provisions, as part of the ISDS chapter, to enhance procedural transparency, which is a significant improvement over the 70 odd BITs that India has signed. However, the Indian Model BIT still falls short of attaining high levels of procedural transparency in ISDS especially on the issue of submission of amicus curiae briefs.","PeriodicalId":131966,"journal":{"name":"LSN: Dispute Resolution (Topic)","volume":"14 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-10-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127744116","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The EU's Investment Court System and Prospects for a New Multilateral Investment Dispute Settlement System","authors":"Hyoeun Yang","doi":"10.2139/ssrn.3063843","DOIUrl":"https://doi.org/10.2139/ssrn.3063843","url":null,"abstract":"The EU’s proposal to establish a new Investment Court System during the TTIP negotiations has well represented the cumulative resentment of the public, governments, civil societies as well as academics in regard to the existing ISDS mechanism. Such issues as the lack of legitimacy, transparency, consistency, the absence of a review mechanism, and the high burden to public finance in the existing system have been criticized as undermining the sovereignty of the State and its right to regulate for legitimate policy objectives such as the environment, health, and safety. Despite the merits of the existing ISDS mechanism, the increasing demand for improved safeguards against abusive claims and discretionary power of private adjudicators should be adequately addressed in consideration of the democratic principles and the objectives of sustainable development goals. It is also noteworthy that the function of the traditional ISDS system, devised as a preferential instrument for foreign investors, has evolved over time as the distinction between capital-exporting and capital-importing countries became blurred and more attention is focused on the equality and balance of power among domestic and foreign businesses as well as between investors and the host States. In this vein, the establishment of a permanent tribunal and the public appointment of tribunal members with a fixed-term, as proposed by the EU in the new ICS, are indicative of the shifting paradigm in the discourse of treaty-based investor to State arbitration systems. Despite the fact that the system of ICS can hardly solve all of the problems, it may possibly improve the level of legitimacy by incorporating public features of the procedure. At the same time, it is noteworthy that the objective of improving the legitimacy and consistency of the dispute settlement system cannot be achieved without the prospect of establishing a multilateral dispute settlement mechanism with consolidated and harmonized standards of investment rules. Considering the difficulties of reaching a multilateral agreement on investment as witnessed in the past decades, the approach of the Mauritius Convention, which adopted an opt-in mechanism, would be useful as it reduces the risk of failure in negotiations while building a consensus among participants and allowing them to decide when to ratify the Convention in consideration of their domestic circumstances. Considering the extensive network of trade and investment agreements that Korea has concluded in the past decade, it is more than necessary for the Korean government to pay close attention to the recent development in this process and actively participate in discussions on the possibility of establishing a multilateral investment court and the key principles of investment protection and facilitation in international fora.","PeriodicalId":131966,"journal":{"name":"LSN: Dispute Resolution (Topic)","volume":"125 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-10-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127793922","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Contractele Internaționale de Investiții (International Investment Agreements)","authors":"Aleksandra Vonica","doi":"10.2139/SSRN.3027977","DOIUrl":"https://doi.org/10.2139/SSRN.3027977","url":null,"abstract":"<b>Romanian Abstract:</b> Prezentul demers științific își concentrază atenția asupra unor aspecte jurisdicționale de o importanță deosebită, atât pentru investitori, cât și pentru statele gazdă în materia arbitrajului investițional internațional. <b>English Abstract:</b> This scientific approach focuses on judicial issues of particular importance to both investors and host countries in the field of international investment arbitration.","PeriodicalId":131966,"journal":{"name":"LSN: Dispute Resolution (Topic)","volume":"30 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-08-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121175243","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Investor-State Dispute Settlement: An Analysis of the Reform Proposals on Its Institutional Structure","authors":"Caio César Soares","doi":"10.2139/ssrn.2984581","DOIUrl":"https://doi.org/10.2139/ssrn.2984581","url":null,"abstract":"Investor-State Dispute Settlement (ISDS) has played an important role in the international arena since its creation, especially after the 1990s when the number of cases arose dramatically. By providing an unbiased forum for settling disputes among investors and states, ISDS has proved to be a relevant tool in the international regime. In spite of its useful features, ISDS is experiencing a period of intense criticism and reorientation of its scope and application. The critics argue, inter alia, that ISDS lacks transparency, legitimacy, coherency, and suggests the mechanism is investor-oriented. As result, a series of options for reforming ISDS is under discussion, ranging from fixing the ISDS structure to completely excluding these provisions from international investment agreements. \u0000Bearing this discussion in mind, this document compares which alternative is most effective to ISDS criticism: Mauritius Convention or an Investment Court System. In so doing, this article analyzes the ISDS structure from its origin to today's application in an attempt to reach a conclusion as to whether these criticisms are true concerns or misconceptions. Along these lines, this work argues that not all criticism of ISDS has a sound basis, especially the claims that ISDS would be investor-biased and that ISDS impairs the state's power to regulate. \u0000This paper provides an analysis of the reform options on their merits, pointing out the advantages and disadvantages of each one to conclude the main criticism against ISDS is the lack of transparency, concluding that the Mauritius Convention is the option that offers better responsiveness to reform of ISDS.","PeriodicalId":131966,"journal":{"name":"LSN: Dispute Resolution (Topic)","volume":"156 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-05-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116957722","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Current State of Transparency in Investment Arbitration: Progress Made But Not Enough","authors":"O. Svoboda","doi":"10.2139/ssrn.3286595","DOIUrl":"https://doi.org/10.2139/ssrn.3286595","url":null,"abstract":"The issue of transparency is one of the main causes of the “backlash” against investor-state arbitration that we observe today. Perceived lack of transparency has led to notorious terms such as “secret trade courts” and “proceedings behind closed doors”. During the recent years the international community thus has initiated a series of steps to improve the situation. The main effort was concentrated in the United Nations Commission for International Trade Law (UNCITRAL), which prepared important instruments to address the concerns of insufficient transparency and participation in proceedings. However, as the paper illustrates, challenges regarding this area still remain and are worth further attention.","PeriodicalId":131966,"journal":{"name":"LSN: Dispute Resolution (Topic)","volume":"82 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-05-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133755943","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The UK Should Include Investor State Dispute Settlement (ISDS) in Its Post-Brexit International Investment Agreements","authors":"D. Collins","doi":"10.2139/ssrn.2924051","DOIUrl":"https://doi.org/10.2139/ssrn.2924051","url":null,"abstract":"This article argues from a commercial standpoint that the United Kingdom should include Investor-State Dispute Settlement (ISDS) in the new International Investment Agreements (IIAs) which it concludes following its departure from the European Union. Focusing on the procedure of ISDS rather than the substantive protections afforded by IIAs, the article supports this assertion by reference to advantages engendered by ISDS from the perspective of the UK as both a capital importer and capital exporter. ISDS does not exhibit systemic bias in favour of investors or states and offers an efficient alternative to domestic courts, particularly in jurisdictions where there is weak rule of law. The UK’s own commitment to rule of law suggests that the risk of adverse claims by foreign firms through this system is minimal. The article briefly considers the two chief alternatives to ISDS in modern IIAs: the EU’s new Investment Court System and state-to-state dispute settlement, neither of which should be viewed as a suitable alternative to ISDS for the UK.","PeriodicalId":131966,"journal":{"name":"LSN: Dispute Resolution (Topic)","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-02-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121394880","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}