LSN: Dispute Resolution (Topic)最新文献

{"title":"Some Comments on Recent Proposals to Legitimize Investment Treaty Arbitration by Improving the Quality of Reasoning in Arbitral Awards","authors":"Joshua Paine","doi":"10.2139/ssrn.2455992","DOIUrl":"https://doi.org/10.2139/ssrn.2455992","url":null,"abstract":"This paper explores some key issues arising from so-called system-internal reform proposals – proposals which aim to (partly) answer investment law’s legitimacy crisis by influencing changes in arbitral reasoning so that investment arbitration is undertaken in more acceptable ways. To be clear, I agree that there will be a need for system-internal reform in addition to whatever wider changes may occur to the contemporary investment regime. This reflects that a large-number of ‘old-style’ investment agreements will remain in force and need to be applied in acceptable ways. My aim in raising the following questions is to strengthen internal-reform proposals and also highlight some of their limits. After some initial, general remarks regarding what can be expected of legal reasoning, the paper has two main parts. First I argue that certain doctrinal techniques drawn upon by internal-reform authors – such as such interpretation according to the VCLT provisions or the extraction of general principles and their in interpreting treaties – are themselves highly contested methodologies which seem likely to lead to further questions and disagreement, rather than a situation where losing or other interested parties are convinced by the quality of legal reasoning deployed in awards. Second, I argue that implicit in internal-reform proposals is a crucial and controversial question of who arbitral reasoning should be more persuasive to, and that while well-known disagreements persist over the relevant audience for investment arbitration, the task of building widely-perceived legitimacy through arbitral reasoning will remain difficult.","PeriodicalId":131966,"journal":{"name":"LSN: Dispute Resolution (Topic)","volume":"24 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-06-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116879247","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":"Enforcing Pacta Sunt Servanda? Conoco-Phillips and Exxon-Mobi Versus the Bolivarian Republic of Venezuela","authors":"J. C. Boué","doi":"10.1093/JNLIDS/IDU007","DOIUrl":"https://doi.org/10.1093/JNLIDS/IDU007","url":null,"abstract":"In 2007, the government of Venezuela decided to re-structure certain oil projects, known as Associations, so as to bring them in line with the 2001 Hydrocarbons Law. In response, ExxonMobil and ConocoPhillips decided to exit Venezuela. Supposedly motivated by a commitment to uphold the principle of sanctity of contract, the companies subsequently initiated a series of arbitrations involving some of the largest claims ever put before international tribunals. However, the bargains that the companies insist they are defending are not reflected in the agreements that they had actually signed. Thus, these arbitrations amount to an attempt on the part of these companies to use international arbitral tribunals to re-draft on their behalf the contracts they had negotiated, so as to secure a windfall (which they had never bargained for) upon their exit from Venezuela.","PeriodicalId":131966,"journal":{"name":"LSN: Dispute Resolution (Topic)","volume":"56 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-05-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125744460","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":"State Sovereignty and Foreign Investors’ Rights: Persistent Imbalances from Cape to Hamburg","authors":"Andrew P Wilhelm","doi":"10.2139/SSRN.2759820","DOIUrl":"https://doi.org/10.2139/SSRN.2759820","url":null,"abstract":"Whilst inequality was the central theme at Davos this year, the current debate in international investment law revolves around imbalance and inconsistency in the legal framework regulating foreign direct investment. Particularly, imbalance between investor’s rights and a host state’s police powers to regulate in the public interest. This, alongside the inconsistent deliberations of arbitral tribunals has raised questions of the legitimacy of the Investor-State Dispute Settlement (ISDS) mechanism, and pushed states to adopt protectionist policies when it comes to the regulation of foreign investments in their territories. Following from, the World Investment Forum will be looking at comprehensive ways to reform ISDS and the International Investment Agreement arena. This paper treads on the heels of this herculian task and aims to evaluate the threat to public policy in international investment law, particularly looking at the two separate investment arbitration cases involving, the Republic of South Africa and the Federal Republic of Germany, respectively. It is largely accepted that private investors reserve the right to defend their investments and have their investments protected against unwarranted losses which come about as a result of undue regulatory interference amongst other threats, but what remains questionable and highly contentious is whether these are unfettered or ‘absolute’ rights.","PeriodicalId":131966,"journal":{"name":"LSN: Dispute Resolution (Topic)","volume":"101 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-05-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131722554","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":"Defining Australian National Interest in Regulating Foreign Investments","authors":"U. Ghori","doi":"10.1142/9789814632874_0009","DOIUrl":"https://doi.org/10.1142/9789814632874_0009","url":null,"abstract":"The following sections are included:INTRODUCTIONOVERVIEWROLE OF THE NATIONAL INTEREST TEST IN ATTRACTING FDI INTO AUSTRALIAINSTITUTIONAL AND NON-INSTITUTIONAL RESPONSESTOWARDS DEFINING THE NATIONAL INTERESTENDNOTESREFERENCES","PeriodicalId":131966,"journal":{"name":"LSN: Dispute Resolution (Topic)","volume":"30 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-05-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116218021","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":"Good Faith in Parallel Trade and Investment Disputes","authors":"Tania Voon, A. Mitchell, J. Munro","doi":"10.1093/ACPROF:OSO/9780198739791.003.0004","DOIUrl":"https://doi.org/10.1093/ACPROF:OSO/9780198739791.003.0004","url":null,"abstract":"This chapter assesses the role of good faith in managing parallel investment and trade disputes. It considers the jurisdictional and substantive overlap in trade and investment regimes that give rise to parallel disputes, and the normative considerations such as double remedies and conflicting outcomes that inform why parallel disputes may need to be proactively managed by adjudicatory bodies in certain circumstances. The principle of good faith has provided the conceptual framework for the development of a number of legal tools to manage parallel disputes including lis pendens, estoppel, and abuse of rights, and this chapter evaluates the extent to which they may be deployed in trade and investment regimes. While finding that these tools are available to varying degrees within both trade and investment regimes, this chapter also identifies a margin of uncertainty in their scope and application and concludes that they are insufficient to manage disputes that originate across the two regimes.","PeriodicalId":131966,"journal":{"name":"LSN: Dispute Resolution (Topic)","volume":"28 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-05-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128263604","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 Uneasy Role of Precedent in Defining Investment","authors":"Julian Davis Mortenson","doi":"10.1093/ICSIDREVIEW/SIT020","DOIUrl":"https://doi.org/10.1093/ICSIDREVIEW/SIT020","url":null,"abstract":"The recent Decision on Jurisdiction in Quiborax v. Bolivia represents the latest effort by international investment tribunals to find middle ground on the definition of “investment.\" This Comment criticizes Quiborax on two interrelated grounds. The first criticism is methodological: the Tribunal failed to account for historical evidence from the drafting of the ICSID Convention, as required by Article 31(4) of the Vienna Convention on the Law of Treaties (“VCLT”). Second, because of this methodological error, the Tribunal adopted the wrong substantive definition of “investment” under Article 25 of the ICSID Convention. Article 25 should properly be understood to reach any plausibly economic activity or asset, but Quiborax adopted a much narrower test that allows tribunals to set aside state decisions about the scope of investment protections. Quiborax reached the right result in allowing the case to proceed. But it exemplifies a troubling tendency for an insufficiently reflective reliance on precedent to swamp the principles of treaty interpretation.","PeriodicalId":131966,"journal":{"name":"LSN: Dispute Resolution (Topic)","volume":"62 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2013-06-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126704261","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":"International Claims and Compensation Bodies","authors":"David D. Caron","doi":"10.1093/LAW/9780199660681.003.0013","DOIUrl":"https://doi.org/10.1093/LAW/9780199660681.003.0013","url":null,"abstract":"International claims and compensation bodies are a recurring and politically significant form of international adjudication. Sitting at the space between a terrible upheaval that shreds lives and relations and an unknown future, they recur because these spaces are regrettably common. They are politically significant because States often seek ways to settle the complaints resulting from such upheavals in order for their relations to renew, to go forward. Despite the great significance of these bodies for both international relations and the compensation of those harmed by the upheaval, the scholarly literature examining them is limited. Moreover, while international courts at large have attracted the attention of scholars outside the legal field, as this Handbook illustrates, literature on these commissions is still overwhelmingly legal, being mostly concerned with jurisprudence rather than institutional design. As a consequence, many fundamental questions await further investigation. Why are compensation commissions created in some instances and not others? Why are compensation commissions, rather than lump sum settlements, chosen? What factors drive the variations seen in the structures of such commissions, and what factors influence their effectiveness and operations? This chapter addresses this gap in literature. This chapter introduces claims commissions by discussing (1) the functions they play, and (2) the ways in which they differ both from international arbitration and international courts. The chapter then proceeds to consider (3) the factors that appear to affect the particular structures and claims processes of such commissions, and (4) their future trajectories.","PeriodicalId":131966,"journal":{"name":"LSN: Dispute Resolution (Topic)","volume":"23 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2013-05-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114718922","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":"Comparative Legal Cultural Analyses of International Economic Law: A New Methodological Approach","authors":"Colin B. Picker","doi":"10.1093/CJCL/CXT002","DOIUrl":"https://doi.org/10.1093/CJCL/CXT002","url":null,"abstract":"The effective development and operation of the law faces many obstacles. Among the more intractable yet hidden barriers to the law are legal cultural disconnects and discontinuities. These occur when opposing legal cultural characteristics from different legal cultures are forced to interact as part of the implementation of the law across two different legal cultures. That conflictual interaction can impede or block the success of that law. While present in domestic legal systems, those conflicts are more likely and the conflicts may be deeper between the many different legal cultures involved in the international legal order. Identification of such legal cultural disconnects and discontinuities is the first step towards developing strategies to ameliorate potential conflicts between opposing legal cultural characteristics. That identification requires examination of the relevant legal systems with legal culture in mind—a legal cultural analysis. But, that methodology is rarely employed. To the extent we do see legal cultural analyses, they are applied almost exclusively in the domestic arena. When it is applied across legal systems it becomes a part of comparative law methodology. This merger of comparative law and legal cultural approaches is unusual, indeed almost unheard of in the international legal arena. This article explores that methodology, to argue that it is possible and valuable.","PeriodicalId":131966,"journal":{"name":"LSN: Dispute Resolution (Topic)","volume":"62 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2013-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131930654","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 Settlement Provisions in International Investment Agreements: A Large Sample Survey","authors":"J. Pohl, Kekeletso L. Mashigo, Alexis Nohen","doi":"10.2139/SSRN.2187254","DOIUrl":"https://doi.org/10.2139/SSRN.2187254","url":null,"abstract":"Investor-State dispute settlement mechanisms (ISDS) are an important component of most International Investment Agreements (IIAs) and have significant influence on how disputes between States and investors are resolved. This statistical survey of a large sample of 1,660 bilateral investment treaties (BITs) identifies the main parameters of ISDS regulation in BITs; traces their emergence, frequency and dissemination over time; and highlights past and recent country-specific treaty practice. The survey finds among other things that many countries define the procedural framework thinly compared to advanced domestic procedural frameworks, despite a broad trend toward greater regulation in treaties of parameters of ISDS. Many treaties offer foreign investors a range of procedural choices, such as a choice between arbitration fora. The survey also highlights the diversity that characterises the design of ISDS: over a thousand different combinations of rules regulating ISDS can be found in only 1,660 bilateral treaties –, with variation found both at editorial and substantial level. Differences in policy approaches between countries are the source of some of this variance, but it appears that much of it may not reflect differences in policy. The study also found little evidence of general convergence of approaches towards regulating ISDS in BITs, or indeed much development in the BIT negotiating practice of a number of countries. A different approach, characterised by significantly more thorough ISDS regulation and pioneered by some countries, seems to spread increasingly in multilateral IIAs and more comprehensive treaties.","PeriodicalId":131966,"journal":{"name":"LSN: Dispute Resolution (Topic)","volume":"9 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2012-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123883223","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":"Arbitrability Limitation in Consumer (B2C) Disputes?: Consumers' Protection as Legal and Economic Phenomenon","authors":"Alexander J. Bělohlávek","doi":"10.22495/jgr_v1_i3_c2_p2","DOIUrl":"https://doi.org/10.22495/jgr_v1_i3_c2_p2","url":null,"abstract":"Protection of consumers became a phenomenon of many governmental politics. Retrieval of a balance between private autonomy and protection of a weaker party is very sensitive. The particular degree of consumers protection through limitation of contractual autonomy (in B2C contracts) as well as procedural autonomy (regarding B2C dispute resolution mechanisms), as chosen by particular governments, has both legal and economic effects, in positive and negative sense. The European Court of Human Rights adjudicated repeatedly that traditional court litigation is not capable to grant effective protection to contractual claims in many countries. Arbitration is therefore one of possible tools for B2C dispute resolution, even if many countries and obviously the EU Commission follow rather an opposite strategy (keeping down arbitrability of B2C disputes in the opposite to US trends). Arbitration is not a cure-all and definitely not a method suitable for the resolution of any and all types of disputes. It has its proponents as well as opponents. Indeed, it is hard to claim that a particular type (class) of disputes is a priori fit to be resolved in arbitration, rather than litigation, or vice versa. This also applies to consumer disputes (disputes from consumer contracts). It is fairly undisputable that consumers deserve a certain degree of specific protection in cases in which they are forced to enter into a particular contract and have no other option than to accept the conditions stipulated by the other party (the professional). But we cannot principally claim that the resolution of these disputes in court would be more suitable than arbitration or any other, the so-called alternative, dispute resolution method (ADR).Despite the basically undisputed importance of and the need for special consumer protection (whether provided by special laws, typically in Europe, or on the basis of general legal principles and the application of general contract law, like in the USA), the degree of such protection can be considered as somewhat controversial. The weaker party does deserve special protection within the regime of the equal status of the contracting parties. But the intensification of this protection often results in the possibility of the consumer to abuse this standard; abuse of the consumer’s right should naturally no longer enjoy any protection. Typically, consumers have grown accustomed to the practice of exercising their right to rescind (cancel) the contract by the statutory deadline while, in the meantime, they actively use the goods and thereby fulfill the purpose of the purchase (this specifically applies to seasonal goods). Besides, even a consumer ought to be required to exhibit a reasonable and usual degree of responsibility for his or her legal (juridical) acts, including the conclusion of contracts and assumption of obligations.","PeriodicalId":131966,"journal":{"name":"LSN: Dispute Resolution (Topic)","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2012-10-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129210153","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}