European Investment Law and Arbitration Review Online最新文献_第4页

Why Are Wrongful Acts Committed by Rebels during a Civil War Attributable to the State When They Are Successful? – A Critical Analysis of Theory and Practice 为什么内战中叛军的不法行为是国家的责任?-理论与实践的批判性分析

European Investment Law and Arbitration Review Online Pub Date : 2021-12-20 DOI: 10.1163/24689017_0601009

P. Dumberry

{"title":"Why Are Wrongful Acts Committed by Rebels during a Civil War Attributable to the State When They Are Successful? – A Critical Analysis of Theory and Practice","authors":"P. Dumberry","doi":"10.1163/24689017_0601009","DOIUrl":"https://doi.org/10.1163/24689017_0601009","url":null,"abstract":"Based on an analysis of State practice and case law, this article examines the theoretical justifications which have been put forward by scholars, the ILC and international tribunals to explain why, under Article 10 of the ILC Articles on State responsibility, the wrongful acts committed by rebels during an insurrection or a civil war are attributable to the State once they are victorious and have replaced the government. It will show that while the ILC ultimately relied on the existence of a ‘continuity’ between the insurgents and the new government, the vast majority of awards have referred instead to a number of other (less convincing) justifications, such as the fact that insurgents were during the rebellion exercising their authority as a ‘de facto government’ or that their victory represented the ‘national will’ of the people. The theoretical rationale behind the well-established principle under Article 10 is therefore not as solid as one would have thought. These findings are relevant to investment tribunals having to address in an increasing number of cases questions of State responsibility and attribution arising from rebels’ conduct in situations of civil wars.","PeriodicalId":164842,"journal":{"name":"European Investment Law and Arbitration Review Online","volume":"26 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-12-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126602013","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}

引用次数: 0

M Fitzmaurice and P Merkouris Treaties in Motion: The Evolution of Treaties from Formation to Termination (Cambridge University Press, 2020) ISBN: 9781108495882, £95 (hardback) M菲茨莫里斯和P默库里斯在运动的条约:条约从形成到终止的演变(剑桥大学出版社，2020)ISBN: 9781108495882, 95英镑(精装本)

European Investment Law and Arbitration Review Online Pub Date : 2021-12-20 DOI: 10.1163/24689017_0601019

Nelson Goh

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Preliminary Material 初步材料

European Investment Law and Arbitration Review Online Pub Date : 2020-12-11 DOI: 10.1163/24689017-00501001

Editors European Investment Law and Arbitra

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Whither Mutual Trust? Brexit, Achmea and the Future of Investor-State Arbitration in the EU-UK Investment Relations 互信向何处去?英国脱欧、阿赫玛和欧盟-英国投资关系中投资者-国家仲裁的未来

European Investment Law and Arbitration Review Online Pub Date : 2019-12-16 DOI: 10.1163/24689017_00401004

Aikaterini Florou

{"title":"Whither Mutual Trust? Brexit, Achmea and the Future of Investor-State Arbitration in the EU-UK Investment Relations","authors":"Aikaterini Florou","doi":"10.1163/24689017_00401004","DOIUrl":"https://doi.org/10.1163/24689017_00401004","url":null,"abstract":"A lot of ink has been devoted to Brexit: when (and if) it will happen, under what terms, and what its legal effects will be. Some have enquired whether Brexit can create an avalanche of investor-state disputes potentially based on the frustration of the investors’ legitimate expectations. This article takes a step back from the current volatility of the ongoing negotiations and addresses a bigger policy question, which has been emerging steadily also in other contexts: what will be the actual interplay between international, EU and domestic laws for the resolution of investment disputes after Brexit? To address this question, this article first examines the Withdrawal Agreement and the new arbitration mechanism that it establishes. Second, it explores the interaction between international and domestic laws, in light of the current developments in EU law, especially the Achmea judgment and the Member States’ Declarations on Achmea, as well as implications for the enforceability of arbitral awards in the UK post-Brexit. The article concludes with the remark that policy makers need to address the current underlying tensions between the three laws of international investment; domestic, EU, and international, by paying due respect to international law.","PeriodicalId":164842,"journal":{"name":"European Investment Law and Arbitration Review Online","volume":"79 12","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-12-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131894107","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}

引用次数: 0

Performance Requirements: Is there a Real Reason for their Prohibition? 性能要求:是否有禁止性能要求的真正原因?

European Investment Law and Arbitration Review Online Pub Date : 2019-12-16 DOI: 10.1163/24689017_00401008

O. Magomedova

{"title":"Performance Requirements: Is there a Real Reason for their Prohibition?","authors":"O. Magomedova","doi":"10.1163/24689017_00401008","DOIUrl":"https://doi.org/10.1163/24689017_00401008","url":null,"abstract":"Recent international economic agreements between the EU and other non-EU states have included prohibitions on performance requirements (PRs). Although the provisions prohibiting such requirements typically specify the types of prohibited practices, the essence of PRs, and the reasons for their prohibition remain unclear. The recent concept of PRs has crept into the international legal framework seemingly without a firm theoretical foundation and without any roots in customary international law. It had initially been used in bilateral treaties as the broad term for designating certain policy tools which States were prepared to relinquish so as to promote a better investment regime. Noting the lack of a generally recognised definition of PRs, this article provides an overview of scholars’ opinions and adjudicators’ reasoning on this subject, highlighting certain significant differences in approach. Guided by various examples from arbitral practice and national legislation of selected countries, this article seeks to distil the inherent features of PRs and to rationalise the internationally-prevailing views on this subject. In summary, the article gives an assessment of the prohibition of PRs and considers the reasons for which States may seek to eliminate these types of measures.","PeriodicalId":164842,"journal":{"name":"European Investment Law and Arbitration Review Online","volume":"33 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-12-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121417069","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}

引用次数: 0

Abuse of Rights in the Context of Corporate Nationality Planning 企业国籍规划背景下的权利滥用

European Investment Law and Arbitration Review Online Pub Date : 2019-12-16 DOI: 10.1163/24689017_00401002

Zongnan Wu

引用次数: 0

Preliminary Material 初步材料

European Investment Law and Arbitration Review Online Pub Date : 2019-12-16 DOI: 10.1163/24689017-00401001

Editors European Investment Law and Arbitra

引用次数: 0

Julien Chaisse (ed) China’s International Investment Strategy: Bilateral, Regional, and Global Law and Policy (Oxford University Press 2019) 560 pp, £95.00 (hardback) 《中国国际投资战略:双边、区域和全球法律与政策》(牛津大学出版社2019年版)560页，精装本95.00英镑

European Investment Law and Arbitration Review Online Pub Date : 2019-12-16 DOI: 10.1163/24689017_00401018

Nelson Goh

引用次数: 0

Recalibrating the EU – International Arbitration Interface – 4th EFILA Annual Lecture 2018 重新校准欧盟-国际仲裁接口-第四届EFILA年度讲座2018

European Investment Law and Arbitration Review Online Pub Date : 2019-12-16 DOI: 10.1163/24689017_00401017

G. Bermann

{"title":"Recalibrating the EU – International Arbitration Interface – 4th EFILA Annual Lecture 2018","authors":"G. Bermann","doi":"10.1163/24689017_00401017","DOIUrl":"https://doi.org/10.1163/24689017_00401017","url":null,"abstract":"It is no exaggeration to describe the relationship between the European Union and international arbitration as the most dramatic confrontation between two international legal regimes seen in a great many years. International law scholars commonly lament the ‘fragmentation’ of international law,1 i.e. the co-existence of multiple international legal regimes whose competences overlap and whose policies may differ, resulting in a degree of regulatory disorder. However, seldom do these regimes actually ‘collide’. By contrast, the two international regimes in which we are interested this evening – international arbitration and the European Union – may be described, without hyperbole, as on a collision course. Arguably, the collision has already occurred. The emergence of hostilities on this scale in recent years came about as something of a surprise to me. At Columbia and elsewhere, I have taught EU law and international arbitration law concurrently – in different courses, of course – for more decades than I care to count. Over that period, I have written and spoken about the EU and international arbitration as separate and distinct enterprises.2 Rarely did teaching, writing or speaking of one necessitate, or even prompt, discussion of the other.","PeriodicalId":164842,"journal":{"name":"European Investment Law and Arbitration Review Online","volume":"33 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-12-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115923016","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}

引用次数: 0

The EU-Vietnam Investment Protection Agreement Investor-State Dispute Settlement Mechanism in Perspective 欧盟-越南投资保护协定:透视投资者-国家争端解决机制

European Investment Law and Arbitration Review Online Pub Date : 2019-12-16 DOI: 10.1163/24689017_00401006

Lorraine de Germiny, Nhu-Hoang Tran Thang, Duong Ba Trinh

{"title":"The EU-Vietnam Investment Protection Agreement Investor-State Dispute Settlement Mechanism in Perspective","authors":"Lorraine de Germiny, Nhu-Hoang Tran Thang, Duong Ba Trinh","doi":"10.1163/24689017_00401006","DOIUrl":"https://doi.org/10.1163/24689017_00401006","url":null,"abstract":"The EU-Vietnam Investment Protection Agreement (EVIPA) represented the culmination of three years of negotiations between the EU and Vietnam. Although it remainsto be ratified, it promises to have an impact on the international investment treaty landscape. The treaty contains innovations ranging from its definition of the substantive protections afforded to foreign investors to its definition of ‘investments’ and ‘investors’ that may qualify for those protections, as well as the procedural modalities for the treatment of possible disputes. Its most distinctive trait, however, is its establishment of a semi-permanent adjudicatory body akin to an investment court in replacement of the arbitration model envisaged by the vast majority of investment treaties over the past several decades. Rather than attempt to reform, the evipa drafters have done tabula rasa and opted for revolution instead. The EVIPA’S envisaged method to select, appoint, and remunerate the members of that body – both at the first instance level and at the appellate level – represents an abrupt and profound abandonment of the traditional arbitration model so frequently and presently used in international disputes around the world. The evipa may thus present an opportunity to test an alternative dispute resolution system and thus to aid in determining the most effective and appropriate method to resolve the international investor-State disputes of the future.","PeriodicalId":164842,"journal":{"name":"European Investment Law and Arbitration Review Online","volume":"17 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-12-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121858888","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}

引用次数: 0