Transnational Litigation/Arbitration最新文献

{"title":"Is Investor-State Dispute Settlement (ISDS) Superior to Litigation Before Domestic Courts? An EU View on Bilateral Trade Agreements","authors":"M. Bronckers","doi":"10.1093/JIEL/JGV035","DOIUrl":"https://doi.org/10.1093/JIEL/JGV035","url":null,"abstract":"The mechanism of Investor–State Dispute Settlement (ISDS) allows private foreign investors to challenge government measures before an ad hoc international arbitral tribunal. ISDS has been in existence for a long time. Yet recently this mechanism has proven very controversial, notably in the European Union and then the United States, when it became part of the negotiations on a comprehensive free trade agreement (TTIP) between them. According to critics, ISDS unduly limits the policy space of the signatory governments, and suffers from inadequate procedures. Some have argued that foreign investor claims should be dealt with like other private claims, by domestic courts. Others have argued that domestic courts should not become involved at all, and that foreign investor claims should be dealt with exclusively by state-to-state dispute settlement. This debate about ISDS is actually connected to broader discussions in the EU about whether private parties (not just foreign investors) should be permitted to invoke international law before domestic courts. Efforts by the EU institutions to limit the impact of bilateral trade agreements have been under way, though mostly surreptitiously, for several years. This article seeks to analyze the merits and implications of this policy shift, while tracing the development of the European debate on ISDS.","PeriodicalId":313622,"journal":{"name":"Transnational Litigation/Arbitration","volume":"64 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-09-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116300025","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":"Investment Treaty Arbitration Policy in Australia, New Zealand – and Korea?","authors":"L. Nottage","doi":"10.16998/jas.2015.25.3.185","DOIUrl":"https://doi.org/10.16998/jas.2015.25.3.185","url":null,"abstract":"As in some developing countries and more recently some developed countries worldwide and in the Asian region, Australia has faced significant internal opposition and public debate especially over treaty-based investor-state dispute settlement (ISDS). As outlined in Part II(1), concerns have re-emerged and escalated since the first-ever claim was brought against Australia regarding its tobacco plain packaging legislation, in 2011 by Philip Morris Asia under an old BIT with Hong Kong. However, Australia signed bilateral FTAs with Korea in 2014 and with China in 2015, including ISDS protections, prompting several sets of parliamentary inquiries (Part II(2)).Australia’s close trading partner, New Zealand, had already concluded an FTA with China in 2008 that included more expansive ISDS-backed investor protections. In 2015, the New Zealand Parliament has been debating ratification of its own FTA with Korea, with ISDS also now attracting growing scrutiny, as elaborated in Part III below.In both bilateral FTA negotiations, the present Korean government seems to have reverted to a strong preference for concluding investment agreements with extensive ISDS protections, despite public and parliamentary debate around 2011 in the context of ratifying its FTA with the United States. As mentioned briefly in the concluding Part IV, Korea’s stance has significant implications for the future trajectory of treaty-based ISDS – and indeed international arbitration more generally – in the Asia-Pacific region, and perhaps even globally.","PeriodicalId":313622,"journal":{"name":"Transnational Litigation/Arbitration","volume":"73 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-08-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124675126","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":"Small Claims and Institutional Arbitration: An Overview","authors":"B. Cartoni","doi":"10.2139/SSRN.2641318","DOIUrl":"https://doi.org/10.2139/SSRN.2641318","url":null,"abstract":"The scope of this article is to analyse the rules of 21 arbitral institutions: 6 from South Eastern Asia (HKIAC, CIETAC, SIAC, SHIAC, KCAB, KLRCA), 6 from Europe (LCIA, ICC, SCC, Swiss Chambers, VIAC, Lewiatan), 6 from other parts of the world (DIAC, CRCICA, RCICAL, ACICA, ICAC, KIA) and 3 “specialized” institutions (LMAA, CMAC, WIPO) and to compare how their rules work in case of small claims, if they provide for special procedures.Consumers’ arbitrations is beyond the scope of this article, so this article will not deal with them. At the bottom of this article, the reader can find a table of comparison, in order to find similarities and differences at a glance.","PeriodicalId":313622,"journal":{"name":"Transnational Litigation/Arbitration","volume":"30 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-08-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121828881","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 Many Features of Transnational Private Rule-Making: Unexplored Relationships between Custom, Jura Mercatorum and Global Private Regulation","authors":"F. Cafaggi","doi":"10.2139/ssrn.2636359","DOIUrl":"https://doi.org/10.2139/ssrn.2636359","url":null,"abstract":"Every-day life of businesses and consumers is pervaded by the references to global private standards: from the cars we drive to the computers we use, from the food we eat to the movies we watch. Private rule-making at the transnational level is increasingly gaining scope and traction, quickly expanding in both old and new territories. This is partly the result of weaknesses in conventional international public law and partly the result of the emergence of new modes of governance. Stimulated by the actions of states and private actors, these new modes of governance include public, private, and hybrid instruments.Private actors engage in transnational rulemaking in different forms depending on their objectives, the geographical and functional scope, and the effects of the regimes on the entities being regulated. The fields of application go well beyond those traditionally occupied by ‘jura mercatorum,’ including agriculture, human rights, social and labor regulation, environment, and the more conventional areas, such as finance, banking, professions, and trade, including e-commerce.These private regimes are sector specific but not self-contained. They presuppose the existence of international and domestic institutions that can support their functioning. They interact by both giving rise to conflicts or by mutually reinforcing one another. The premise of the analysis that follows is that of institutional complementarity rather than that of separate and autonomous private orderings. The conceptual puzzle concerns the definition of different types of complementarity between private and public actors. Is the expansion of transnational private rule making simply an evolution of more conventional forms of custom and jus mercatorum or does it depart from these forms of private rule-making? In the latter case is there a common denominator of current forms of transnational private rule-making? How does private rule making correlate with international and domestic public legal orders? Do they constitute separate private orderings? Do they complement, supplement or replace public legal orders? What is the combination between legal and non-legal norms? Not only these questions have theoretical relevance but they also shape important regulatory policy choices at the international level concerning legitimacy, compliance and enforcement of global private standards? Transnational private regulatory regimes – it is contended – do not represent an alternative to jus mercatorum since their functional focus is regulation driven by market failures rather than a set of prescriptions related to individual transactions between market participants. They integrate current public market regulation or contribute to the creation of new markets through market design. The multifarious forms of transnational private rule-making pose daunting questions concerning their origins, functions and scope. This article addresses the different forms of transnational private rule-making; it","PeriodicalId":313622,"journal":{"name":"Transnational Litigation/Arbitration","volume":"47 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-07-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128008464","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 Enforcement and Challenge of International Arbitration Awards in Nigeria","authors":"O. Oke","doi":"10.2139/ssrn.2621046","DOIUrl":"https://doi.org/10.2139/ssrn.2621046","url":null,"abstract":"There is no doubt that there is an increasing transborder trade among citizens of various nations of the world. Such as any activity that man interrelate in, disputes are bound to arise and for the continued interaction with one another such disputes must be resolved effectively. Disputes arising from international commercial trade can be resolved in various ways but the most effect is through Arbitration. Unless parties can be sure that at the end of arbitration proceedings they will be able to enforce the award, if not complied with voluntarily, an award in their favour will be only a pyrrhic victory. This article analyses the legal framework for the enforcement of international arbitration awards in Nigeria to determine how effective they have being in enhancing international commercial arbitration, It also examines the Limitation period for the enforcement of international Arbitration award and the methods available for setting aside/Challenging an International Arbitration Award in Nigeria.","PeriodicalId":313622,"journal":{"name":"Transnational Litigation/Arbitration","volume":"27 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-06-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124997346","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":"Analysis of the Decision Rendered by the U.S. Supreme Court in Re BG Group plc v. Republic of Argentina: Do All Roads Lead to Rome?","authors":"V. Mazzuoli, D. L. A. Massa","doi":"10.2139/ssrn.3570057","DOIUrl":"https://doi.org/10.2139/ssrn.3570057","url":null,"abstract":"This article aims to analyze the decision rendered by the U.S. Supreme Court on March 5, 2014, in Re BG Group plc v. Republic of Argentina, whereby Argentina was ordered to pay the British company BG Group the amount of United States Dollar (USD) 185.3 million in damages as a result of Argentina's decision to impose a freeze on gas prices in 2002.This article discusses the merits of such a decision focusing, in particular, on the fact that basic norms concerning general international law, and more specifically, the law of treaties, have not been taken into account in reaching a decision on a matter involving an investment arbitration provided for in a bilateral investment treaty (BIT). Furthermore, it seems that extremely different legal institutions, such as international contracts (in the case at hand, an international arbitration agreement) and international treaties have been merged into one thing by asserting that they stand on an equal footing, while in fact they are diametrically opposed legal instruments.","PeriodicalId":313622,"journal":{"name":"Transnational Litigation/Arbitration","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121510206","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 Commercial Arbitration - India","authors":"Shivam Goel","doi":"10.2139/SSRN.2585435","DOIUrl":"https://doi.org/10.2139/SSRN.2585435","url":null,"abstract":"With the advent of globalisation, the world has become a global village. Business organisations have expanded themselves beyond borders and hence, there has been a real time increase in cross-border transactions. Agreements and contracts executed between commercial organisations many a times go ugly, thus, giving rise to disputes which are not within the confines of municipal law of a particular country, because the transactions are ‘cross-border’ in nature. Adjudication of cross-border business disputes demand expertise of a different sort, especially when the organisations in dispute hail from nations following different legal systems, as for example common law system and civil law system. In situations like these, redressal of disputes qua 'arbitration' is the most plausible and non-arbitrary solution. If India is to progress in the area of International Commercial Arbitration, the law as laid down by the Parliament and the interpretation given to it by the Apex Court, must coincide. If such a thing doesn’t happen, cross-border investments (FDI) in India will continue to decline, with the countries world over doubting our international integrity, finding India, not “fine-tuning” but rather “musical-chairing” with the ‘interpretative skills’ in regards to legislation enacted; to arbitrarily promote what suits best to its national entities. That said, what else needs to be seen is that, there is no re-circulation back to the days of the 1940 Act, in regards to which the Supreme Court once observed, ‘let not arbitral proceedings be done in a way that will make the lawyers laugh and legal philosophers weep’.","PeriodicalId":313622,"journal":{"name":"Transnational Litigation/Arbitration","volume":" 43","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-03-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132095611","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 Evolution of Conflict Regulation in Private International Law of Russia and Poland","authors":"N. Erpyleva","doi":"10.2139/SSRN.2576663","DOIUrl":"https://doi.org/10.2139/SSRN.2576663","url":null,"abstract":"The present article examines the evolution of conflict regulation in the private international law of Russia and Poland. The author identifies the concept, structure and types of conflict rules, stressing that the conflict of laws is the most important category of private international law. A detailed classification of the types of connecting factor formulas under which connecting factors of bilateral conflict rules are formed is undertaken. The detailed analysis of conflict rules contained in Russian and Polish legislation set forth mainly in the Civil Code of the Russian Federation and the Law of Poland “On Private International Law” is conducted with the help of the comparative and formal-logical methods of research. The author also scrutinizes different conflict rules contained in the Treaty between Russia and Poland on legal assistance and legal relations in civil and criminal matters. The author concludes that modern conflict regulation in Russia and Poland is in accordance with those trends in private international law, which can be seen through the prism of the international dimension.","PeriodicalId":313622,"journal":{"name":"Transnational Litigation/Arbitration","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-03-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127378234","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":"Blueprints for a New PE Nexus to Tax Business Income in the Era of the Digital Economy","authors":"Peter Hongler, P. Pistone","doi":"10.2139/ssrn.2586196","DOIUrl":"https://doi.org/10.2139/ssrn.2586196","url":null,"abstract":"This paper outlines the core issues of the introduction of a new PE nexus based on digital presence. It puts forward its essential features and rethinks the foundations of the concept of sourcing for income tax purposes in the global economy. Our proposal of a new PE nexus based on digital presence is also supported by a theoretical reconstruction in the light of a new dimension for the benefit theory.Our work directly relates to Action 1 of the OECD/G20 BEPS Project. However, the development of a new PE nexus is in fact not an instrument to counter BEPS, but reflects a structural revision of the criteria for allocating taxing rights on cross-border business income in the era of the digital economy.This paper should be understood as a discussion paper and first proposal to shed further light on (i) whether there is a theoretical justification for a new PE nexus based on digital presence, (ii) how a new PE nexus based on digital presence could be defined and (iii) whether and how potential implementation issues could be resolved.By publishing the present blueprints for a new PE nexus, the authors wish to provoke a more concrete discussion on this particularly important matter.","PeriodicalId":313622,"journal":{"name":"Transnational Litigation/Arbitration","volume":"26 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114599201","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 Application of the Principle of Proportionality to Assess Compensation: Some Reflections Arising from the Case of Joseph Charles Lemire v. Ukraine","authors":"Sondra Faccio","doi":"10.1163/15718034-12341275","DOIUrl":"https://doi.org/10.1163/15718034-12341275","url":null,"abstract":"In the last few years, the principle of proportionality has appeared with a certain frequency in international investment case law: arbitrators have employed it to determine whether the State’s regulatory measure under scrutiny represents a form of indirect expropriation, to assess violations of the fair and equitable treatment (‘FET’) standard, to counterbalance competing obligations drawn from international investment law and international human rights law, and to assess compensation. This article will focus on the so-called \"quantum phase\" – the part of the award devoted to the assessment of the monetary compensation due to the foreign investor for the breach of the investment treaty provision – and will discuss whether the principle of proportionality can effectively play a role in the assessment of compensation. The work will start from the analysis of the case of Joseph Charles Lemire v. Ukraine, where arbitrators expressly resorted to proportionality to verify whether the indemnity awarded to the claimant for the breach of the FET standard was adequate in light of the specific characteristics of the investment lato sensu and the investor, to then approach the issue of proportionality more in detail.","PeriodicalId":313622,"journal":{"name":"Transnational Litigation/Arbitration","volume":"8 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":"128036341","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}