LSN: Dispute Resolution (Topic)最新文献

{"title":"Dispute Settlement in the WTO. Mind Over Matter","authors":"P. Mavroidis","doi":"10.2139/ssrn.2727131","DOIUrl":"https://doi.org/10.2139/ssrn.2727131","url":null,"abstract":"The basic point I advocate in this paper is that the WTO Dispute Settlement System aims to curb unilateralism. No sanctions can be imposed, unless if the arbitration process is through, the purpose of which is to ensure that reciprocal commitments entered should not be unilaterally undone through the commission of illegalities. There are good reasons though, to doubt whether practice guarantees full reciprocity. The insistence on calculating remedies prospectively, and not as of the date when an illegality has been committed, and the ensuing losses for everybody that could or could not be symmetric, lend support to the claim that the WTO regime serves ‘diffuse’ as opposed to ‘specific’ reciprocity. Still, WTO Members continue to routinely submit their disputes to the WTO adjudicating fora, showing through their behaviour that they would rather live in a world where punishment is curbed, than in world where punishment acts as deterrent since full reciprocity would be always guaranteed.","PeriodicalId":131966,"journal":{"name":"LSN: Dispute Resolution (Topic)","volume":"17 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124376529","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 Political Economy of Investor-State Disputes","authors":"Karen L. Remmer","doi":"10.2139/ssrn.2880841","DOIUrl":"https://doi.org/10.2139/ssrn.2880841","url":null,"abstract":"Under what conditions are countries most (least) likely to become involved in international investment disputes? Building on the premise that this question cannot be addressed without reference to the incentives facing political leaders, this study develops a theory emphasizing the domestic factors that lead governments to opt for short-term political gains at the risk of being drawn into potentially costly processes of international dispute arbitration. The theory is assessed on the basis of an original database covering the full set of known treaty-based disputes registered at international arbitral tribunals over the 1987-2011 period. After controlling for variations in exposure to the risks of investment disputes, the results suggest that the willingness of leaders to discount the potential costs of investor-state dispute arbitration varies with leadership turnover, economic conditions, and domestic political institutions, with the relationship between political democracy and the probability of investment dispute involvement assuming a curvilinear form.","PeriodicalId":131966,"journal":{"name":"LSN: Dispute Resolution (Topic)","volume":"100 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-12-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126278000","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 Role of Law in Assessing the Value of Transparency and the Disconnect with the Lived Realities Under Investor-State Dispute Settlement","authors":"F. Adeleke","doi":"10.2139/SSRN.2712185","DOIUrl":"https://doi.org/10.2139/SSRN.2712185","url":null,"abstract":"Transparency is often uncritically considered a pre-requisite to accountability within the ISDS system, without much discussion directed to how transparency is instrumental to achieving such accountability. Yet, transparency is generally thought to be the golden bullet for effecting social transformation as well as considerations of the public interest in investor state dispute settlement (ISDS). This article aims at fostering deeper and more critical debate on the notion of transparency; in order to better understand both the ways in which it could be conceived for the purposes of transformation of the ISDS system and the extent to which international investment law and global administrative law (GAL), is a useful concept for this purpose. This paper considers the ways in which the legislative and policy framework governing transparency creates the conditions whereby state and investors utilize the language and practice of transparency as a self-legitimising tool through its claim to accountability. This is further tested against choices made by state institutions and the ISDS system itself for the alluring concept of voluntary disclosures with no enforcement mechanisms - an intellectual contradiction. In response to this quandary, this paper aims at addressing some of the theoretical gaps identified above, particularly by examining the conceptual understandings of transparency, the current state of transparency in the ISDS system and the role of GAL in revamping the system.","PeriodicalId":131966,"journal":{"name":"LSN: Dispute Resolution (Topic)","volume":"8 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132303374","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":"Narrating Narratives of International Investment Law: History and Epistemic Forces","authors":"A. Kulick","doi":"10.4337/9781786439963.00009","DOIUrl":"https://doi.org/10.4337/9781786439963.00009","url":null,"abstract":"Telling the history of something requires choosing a perspective. This perspective, or narrative, is the lens through which we look at a specific topic or field. The picture that thereupon emerges is necessarily shaped by the perspective chosen. Strictly speaking, we cannot tell the ‘history of X’, only attempt to approach a historical account of one or several aspects of X by way of the perspective or perspectives we employ to look at X. Discussing, thus, the history of international investment law equally and inevitably requires choice of perspectives/narratives; and by choosing such narrative(s) the ‘narrator’ influences the audience’s grasp of the field whose ‘history’ he or she presents. In this contribution I will seek to illustrate how the investment community presents certain narratives of the history of international investment law, asserting – sometimes deliberately, sometimes inadvertently – their objectivity and thereby shaping certain perceptions of the history according to its view on the present and future of the field. Hence, my task is primarily to present, by way of examples, how certain epistemic communities (see II.) employ such narratives and thereby enhance investment law scholars’ and practitioners’ awareness vis-a-vis the constructive character of these narratives (III.). However, as I will further develop in the conclusion (IV.), this is not at all to say that the study of history and telling certain narratives is a futile exercise for international investment law to undertake. What is central, is making transparent the constructive nature of the narrative in order for the audience that is told this specific historical account to be aware that this is just one of many possible perspectives the authority of which hinges exclusively on its plausibility.","PeriodicalId":131966,"journal":{"name":"LSN: Dispute Resolution (Topic)","volume":"156 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-09-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122943481","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":"Russian Foreign Trade in May 2015","authors":"N. Volovik","doi":"10.2139/ssrn.2659492","DOIUrl":"https://doi.org/10.2139/ssrn.2659492","url":null,"abstract":"In May 2015, downward trend of the main Russian foreign trade indices persisted. In spite of the promises given by the G-20 member states not to introduce new protectionist measures in the sphere of trade, the overall number of trade restrictions goes up. The WTO department of dispute settlement decided to create a dispute settlement panel which will deal with the dispute filed by the Russian Federation against the European Union regarding the EU’s Third Energy Package.","PeriodicalId":131966,"journal":{"name":"LSN: Dispute Resolution (Topic)","volume":"58 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-09-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128337203","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":"Article 8. Repository of Published Information","authors":"K. Claussen","doi":"10.1017/CBO9781139939577.012","DOIUrl":"https://doi.org/10.1017/CBO9781139939577.012","url":null,"abstract":"The new Rules on Transparency in Treaty-based Investor-State Arbitration by the United Nations Commission on International Trade Law encourage transparency in the public interest, but the most valuable tool to achieve this overall goal will be the repository – a searchable electronic database of arbitral decisions – prescribed in Article 8 of the Rules. Article 8 breathes life into the other Articles by creating a space for access to the information that the Rules make public. In effect, the Rules will only be as successful as the repository is functional. This Chapter highlights key points in Article 8’s negotiating history. It concludes that the repository will precipitate an unexpected result: that lawyers will draw from the case law to a greater extent than at present to push the international arbitration regime toward a precedential system.","PeriodicalId":131966,"journal":{"name":"LSN: Dispute Resolution (Topic)","volume":"65 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126261406","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":"Applicable Laws and Standards for Interim Measures in International Arbitration","authors":"Ikemefuna Stephen Nwoye","doi":"10.2139/SSRN.2596747","DOIUrl":"https://doi.org/10.2139/SSRN.2596747","url":null,"abstract":"This Note examines the grant of interim measures in international arbitration by focusing on the various processes and ways a party would have to comply with or consider when trying to obtain an interim measure. The current debate on the appropriate forum, the applicable law and standards that the tribunal should apply has made the discussion more interesting and invigorating. This has led to calls by some commentators that the regime should be harmonized and a transnational principle that will guide stakeholders should be evolved. This Note considers the power of the court or the arbitrator to order interim measures. It also looks at the ways the applicable law and standards can be ascertained as well as the sources of the applicable and standards, as provided by various arbitral rules (ad hoc and institutional) as well as the evolving transnational principles of law. It concludes by stating that until the harmonization of the various regimes governing the grant of interim or provisional measures is achieved, national laws of the place of arbitration and the place of enforcement cannot be completely excluded from international arbitration and the dreams of a transnational regime will only remain aspirational.","PeriodicalId":131966,"journal":{"name":"LSN: Dispute Resolution (Topic)","volume":"23 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-04-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124465200","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":"Most Favoured Nation Treatment -- Substantive Protection in Investment Law","authors":"David D. Caron, Esmé Shirlow","doi":"10.2139/SSRN.2590557","DOIUrl":"https://doi.org/10.2139/SSRN.2590557","url":null,"abstract":"Most investment treaties contain most favoured nation (‘MFN’) clauses. These clauses vary in their precise wording but in general state that the treatment or rights enjoyed by investors covered by a particular investment treaty shall not be less than that ‘accorded to investments made by investors of any third State’. MFN clauses reflect principles of equality and non-discrimination. As the tribunal in Bayindir Insaat Turizm Ticaret Ve Sanayi A.S. v. Islamic Republic of Pakistan noted, for example, MFN clauses ‘provide a level playing field…between foreign investors from different countries’. If one reflects on the difficulties likely to arise in the negotiation of an investment treaty, then one can appreciate why such clauses are widespread. At the point of negotiation, the inclusion of an MFN clause arguably reduces the burden on the negotiating parties to review their treaty partner’s prior treaty practice. This is because, generally speaking, any better protections or concessions afforded by the treaty partner in existing treaties of the same class would be incorporated by reference through the MFN clause. MFN clauses arguably also operate to ensure that States will not be disadvantaged by the later conclusion by their treaty partner of treaties conferring more favourable treatment on investors of other countries. MFN clauses might also reduce the necessity for States to renegotiate older treaties if their policy toward the protection of foreign investment evolves to encompass more favourable standards of protection of a type encompassed by their earlier treaties. As a substantive protection obligation, an MFN clause in a ‘base treaty’ operates by reference to any more favourable standards of protection accorded by the host State to investors of third party nationality – whether that treatment is accorded in practice (‘comparator practice’), or is stipulated in a provision of a treaty between the host State and a third State (a ‘comparator treaty’). The invocation of substantive MFN treatment is usually made by reference to a comparator treaty rather than comparator practice, though even the reference to a comparator treaty has various permutations. The notion that MFN clauses could operate to incorporate stronger substantive protection standards is overwhelmingly accepted in principle, but successful invocation of the MFN provision to reach a stronger substantive protection obligation is extremely rare in practice. Whilst MFN clauses do have the potential to act as a ‘potent ratchet’ for substantive protections, therefore, it is important to recognise how such clauses have been invoked as well as the manner in which investment treaties, as interpreted by tribunals, in practice provide a scope of substantive MFN protection that is narrower than generally assumed to be the case.","PeriodicalId":131966,"journal":{"name":"LSN: Dispute Resolution (Topic)","volume":"16 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-04-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"134201447","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":"Dispute Resolution in Investment Treaties: Balancing the Rights of Investors and Host States","authors":"Razeen Sappideen, Ling He","doi":"10.54648/trad2015004","DOIUrl":"https://doi.org/10.54648/trad2015004","url":null,"abstract":"Bilateral and multilateral investment treaties permit investors to bypass the courts of their host States and have their investment disputes resolved through arbitration. Challenges e.g., by Phillip Morris to the Australian government plain packaging of cigarettes legislation, has caused a rethink of the appropriateness of arbitration as the means of resolving investor state disputes. New and better ways of balancing the rights of States to legislate in the public interest of their citizens on the one hand, and protecting investor property rights on the other are being sought out. This paper argues that the preferred way of achieving this needed balance is through the enactment of a general exception in the form of Article XX of GATT and Article XIV of GATS, which is incorporated into an international convention, and made applicable by incorporation to all bilateral and multilateral investment agreements.","PeriodicalId":131966,"journal":{"name":"LSN: Dispute Resolution (Topic)","volume":"66 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129307182","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 Role of the Union Courts in Preventing Technical Barriers to Trade within the Internal Market","authors":"J. Pierce","doi":"10.2139/SSRN.2490094","DOIUrl":"https://doi.org/10.2139/SSRN.2490094","url":null,"abstract":"From the origins of the now internal market and the continued efforts of the Commission to achieve an effective, fully integrated, competitive market free from barriers to trade. The ECJ has been omnipresent. Driving change through progressive approaches to the protection of the internal market in cases such as Cassis de Dijon, CIA and others cited through this piece. It is clear that the impact the ECJ has had in supporting the Union objectives has been significant and as such has acted as facilitator for the progressive legislative program in the field. The fact that the Union has legislated so heavily in this area, since 1983 we have had seven substantial pieces of secondary Union legislation75 and an entire body of case-law from the ECJ involving their interpretation and enforcement signals that the Court is likely to continue to adapt its case law and approach in such a way so as to give maximum strength to Union measures.","PeriodicalId":131966,"journal":{"name":"LSN: Dispute Resolution (Topic)","volume":"32 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128964772","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}