Transnational Litigation/Arbitration最新文献

{"title":"Who Does What in European Private Law - And How is it Done? An Experimentalist Perspective","authors":"Vanessa Mak","doi":"10.2139/ssrn.2958146","DOIUrl":"https://doi.org/10.2139/ssrn.2958146","url":null,"abstract":"The EU has made it one of its goals to promote social inclusion (Strategy 2020). This article aims to identify how, within a changing context of lawmaking and governance, European private law can contribute to reaching that goal. Conventional knowledge of the economic regulation of Western economies holds that economic and social inclusion of consumers is, at least in part, dependent upon the ability of consumers to stand up for their interests and that private law is instrumental in providing consumers with the tools required to do so. Lawmaking, however, is becoming more complex as legal harmonisation in European private law is shifting from traditional lawmakers — legislators and public regulators — to other forms of governance, such as rule-making by private actors. \u0000The article suggests that a new model for lawmaking is needed, based in a coordination of legal pluralism that will be labelled ‘substantive deliberation’, which includes private actors as lawmakers with a shared responsibility for consumer inclusion. It makes a case for experimentalist governance as a mechanism that can lay down at least the basic premises for such coordination, provided that it is complemented by an instrumental-normative framework that ensures that the consumer protection goal is being met.","PeriodicalId":313622,"journal":{"name":"Transnational Litigation/Arbitration","volume":"126 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-04-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128018655","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":"Applicability of Swiss Law in Doping Cases","authors":"D. Mavromati","doi":"10.2139/SSRN.2957392","DOIUrl":"https://doi.org/10.2139/SSRN.2957392","url":null,"abstract":"The World Anti-Doping Agency (WADA) and the Court of Arbitration for Sport (CAS) are both foundations under Swiss private law and have their registered seat is in Lausanne, Switzerland. In addition to WADA and CAS, the majority of international sports federations are equally based in Switzerland. Although the adoption of the WADC in 2003 brought about a harmonization of the different anti-doping regulations and the creation of an international regime for anti-doping rule violations, Swiss law continues to play a major role in the adjudication of doping-related procedures before the CAS. The importance of Swiss law is undoubtedly more evident when it comes to the procedural aspects, since the CAS is based in Switzerland and has to comply with the more general legal framework governing international arbitral institutions seated in Switzerland. When it comes to the law applicable to the merits, Swiss law applies “subsidiarily” in all cases where the federation whose body issued the appealed decision is seated in Switzerland. This paper aims to determine the relevance of Swiss law in both the procedure and the merits of doping-related cases, through some examples at the different stages of the anti-doping proceedings before the CAS and before the Swiss Federal Tribunal (SFT).","PeriodicalId":313622,"journal":{"name":"Transnational Litigation/Arbitration","volume":"36 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-04-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"134285847","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":"Economics and Politics of International Investment Agreements","authors":"Henrik Horn, Thomas P. Tangerås","doi":"10.2139/ssrn.2945335","DOIUrl":"https://doi.org/10.2139/ssrn.2945335","url":null,"abstract":"We analyze the optimal design and implications of international investment agreements. These are ubiquitous, potent and heavily criticized state-to-state treaties that protect foreign investors against host country policies. Optimal agreements cause national but not global underregulation (\"regulatory chill\"). The incentives to form agreements and their distributional consequences depend on countries. unilateral commitment possibilities and the direction of investment flows. Foreign investors benefit from agreements between developed countries at the expense of the rest of society, but not in the case of agreements between developed and developing countries.","PeriodicalId":313622,"journal":{"name":"Transnational Litigation/Arbitration","volume":"18 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-11-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121200507","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 Arbitration and Transparency","authors":"M. Feldman","doi":"10.2139/SSRN.2843140","DOIUrl":"https://doi.org/10.2139/SSRN.2843140","url":null,"abstract":"Over the past 15 years, a significant “transparency gap” has developed between the investment treaty arbitration and international commercial arbitration regimes. With increasing frequency in investment treaty cases, the public is provided with some form of access to documents and hearings as well as opportunities for participation through written amicus submissions; only to a very limited extent have such developments occurred within the international commercial arbitration regime. This chapter examines whether the existing transparency gap between the two regimes should be maintained. To evaluate that transparency gap, this chapter analyzes the respective regimes in light of three factors: (i) the nature of the public interest; (ii) the role of confidentiality; and (iii) the role of party autonomy. This chapter concludes that the existing transparency gap between the two regimes should — as a general matter — be maintained. Although the public interest in particular international commercial arbitration cases can be significant — most notably in cases involving State entities or statutory claims — on a systemic level the public interest in international commercial arbitration contrasts sharply with investment treaty arbitration, where cases consistently involve State entities and challenges to government measures. Equally important, two cornerstones of international commercial arbitration also support the existing transparency gap: (i) the availability of discreet and dispassionate dispute resolution, made possible by confidential proceedings, and (ii) the primacy of party autonomy. But with respect to the particular issue of public availability of arbitral awards, this chapter concludes that the existing transparency gap should be narrowed significantly, given the compelling and multifaceted nature of the public interest in that context. The public interest in obtaining access to arbitral awards exceeds — both in strength and multiplicity — the public interest in obtaining access to other documents and hearings, or in participating in disputes as amicus curiae. With respect to the future development of international law, it is the awards — not other documents, hearing transcripts, and/or amicus submissions — that hold the greatest potential for significant impact.With a view to increasing the public availability of commercial arbitration awards, this chapter proposes three alternative models for rulemaking: (i) a default rule model (which — absent party agreement to keep awards confidential — would require publication of redacted versions of awards), (ii) a modified mandatory rule model (which would track the ICSID approach of publishing, at a minimum, excerpts of the legal reasoning in each award), and (iii) a mandatory rule model (which would track recent investment treaty practice, requiring publication of awards subject to redaction of protected information).","PeriodicalId":313622,"journal":{"name":"Transnational Litigation/Arbitration","volume":"4 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-09-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116802328","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 Easier Way to Have 'Better Law'?: The Most-Significant-Relationship Doctrine As the Fallback Conflict-of-Law Rule in the People’s Republic of China","authors":"Chi Chung","doi":"10.2139/ssrn.3238996","DOIUrl":"https://doi.org/10.2139/ssrn.3238996","url":null,"abstract":"Examining statutory law and its application in the People’s Republic of China, this article questions the idea that standards are the easier way for a jurisdiction to have “better law,” and cautions against the questionable exercise of official discretion, ostensibly authorized by law in the form of a standard. The PRC’s conflict-of-law statute came into effect in 2011. Article 2, Section 2 sets the most-significant-relationship doctrine as the fallback rule for the entire choice-of-law field. In other words, when no other choice-of-law rule is applicable in a particular case, a people’s court of the PRC will apply the law of the place that the PRC court deems to have the most significant relationship with the immediate case. Some scholars have considered Article 2, Section 2 an important innovation. However, as demonstrated by this Article, since Article 2, Section 2 took effect in 2011, it has been applied in a questionable manner. Drawing on the rule-versus-standard literature, this article cautions against the questionable exercise of official discretion, ostensibly authorized by law in the form of a standard.","PeriodicalId":313622,"journal":{"name":"Transnational Litigation/Arbitration","volume":"107 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-09-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129257567","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":"Managing Backlash: The Evolving Investment Treaty Arbitrator?","authors":"M. Langford, D. Behn","doi":"10.1093/EJIL/CHY030","DOIUrl":"https://doi.org/10.1093/EJIL/CHY030","url":null,"abstract":"Have investment treaty arbitrators responded to the so-called ‘legitimacy crisis’ that has beleaguered the international investment regime in the past decade? There are strong rational choice and discursive-based reasons for thinking that arbitrators would be responsive to the prevailing ‘stakeholder mood.’ However, a competing set of legalistic and attitudinal factors may prevent arbitrators from bending towards the arc of enhanced sociological legitimation. This article draws upon a newly created investment treaty arbitration database to analyze the extent and causes of a shift in treaty-based arbitration outcomes. The evidence suggests that arbitrators are conditionally reflexive: sensitive to both negative and positive signals from states, especially vocal, influential and developed states.","PeriodicalId":313622,"journal":{"name":"Transnational Litigation/Arbitration","volume":"64 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-09-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124582879","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 Impact of Investment Treaties and ISDS Provisions on Foreign Direct Investment: A Baseline Econometric Analysis","authors":"S. Armstrong, L. Nottage","doi":"10.2139/ssrn.2824090","DOIUrl":"https://doi.org/10.2139/ssrn.2824090","url":null,"abstract":"Based on an interdisciplinary and cross-institutional research project (2014-7) assessing international investment treaty dispute management more broadly, this paper (abridged from a related project) introduces part of our joint project examining key questions around the effect of investment treaties and some of their provisions on direct investment flows. It focuses on the vexed question of whether offering treaty-based Investor-State Dispute Settlement (‘ISDS’) leads to significant increases in inbound foreign direct investment (FDI), in light of the persistent public debate about the merits of this procedural option for enforcing substantive commitments made by host states. Overall, our econometric analysis generates complex implications for policy-makers reassessing the historical impact of ISDS in order to decide whether and how to include different forms of such procedural provisions in future investment treaties. Skeptics can point to counter-intuitive results indicating that weaker-form ISDS and/or substantive provisions seem to have stronger and more robust impact, especially since the turn of this century. Proponents can point to results indicating that there has still been a positive and significant impact from stronger provisions, including from full-scale ISDS provisions in promptly ratified treaties concluded between OECD and non-OECD countries. Although our baseline model specification has generally dealt effectively with the endogeneity problem characteristic of this field, further variables impacting on FDI may be investigated (notably, double tax treaties) and data limitations remain (notably, FDI outflows from non-OECD countries and sectoral-level data). This econometric analysis can therefore be usefully complemented by the qualitative research component of our ongoing project.","PeriodicalId":313622,"journal":{"name":"Transnational Litigation/Arbitration","volume":"56 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-08-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131562750","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":"Derivatives in Cross-Border Insolvency Proceedings","authors":"F. Garcimartín","doi":"10.2139/ssrn.2731772","DOIUrl":"https://doi.org/10.2139/ssrn.2731772","url":null,"abstract":"As regards close-out netting provisions and financial collateral arrangements, one of the main consequences of the recent financial crisis has been the review of the privileged status of these instruments. This paper describes, in general terms, these changes and analyzes the policy underlying them, in particular in relation to the conflict-of-laws dimension. The EU legislation will be used as an example of this relative change of paradigm. Since these changes have been inspired by supranational institutions, the analysis may also be applicable mutatis mutandi to others jurisdictions.","PeriodicalId":313622,"journal":{"name":"Transnational Litigation/Arbitration","volume":"119 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-02-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131772534","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":"Institutional Sport Reform in the Context of Enhancing Investment Attractiveness of Ukraine's Sports Sector","authors":"Oleksandr G. Koshovyi, O. Krasovska","doi":"10.18052/www.scipress.com/ILSHS.67.38","DOIUrl":"https://doi.org/10.18052/www.scipress.com/ILSHS.67.38","url":null,"abstract":"The article deals with the system reformation of Ukrainian sport industry. The changes, providing the confidence of institutional and private investors are revealed. The main areas of reform that will promote the establishment of an independent and investment attractive sports sector are defined. The authors have analyzed the origins of existing problems of organization principles of sport in Ukraine that hinder its development and transformation from vestiges of communism to self-sustaining competitive segment of Ukraine's economy integrated into the global and European sports community. The legal and economic institutional model for further development of sport in Ukraine needed to sustain the interest of investors has been proposed.","PeriodicalId":313622,"journal":{"name":"Transnational Litigation/Arbitration","volume":"97 7","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-01-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"113961498","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 2012 Draft Constitutive Agreement of the Centre for the Settlement of Investment Disputes of the UNASUR","authors":"M. Sarmiento","doi":"10.2139/SSRN.2698574","DOIUrl":"https://doi.org/10.2139/SSRN.2698574","url":null,"abstract":"This document contains an unofficial translation into English of the Draft Constitutive Agreement of the Centre for the Settlement of Investment Disputes of the UNASUR, originally published in Spanish as an annex to the Final Act of the 7-9 November 2012, IV Meeting of the Working Group of High Level Experts on the Settlement of Investment Disputes at UNASUR.","PeriodicalId":313622,"journal":{"name":"Transnational Litigation/Arbitration","volume":"61 2","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-11-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"120853378","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}