International Economic Law eJournal最新文献

{"title":"The Singapore Convention on Mediation: A Framework for the Cross-Border Recognition and Enforcement of Mediated Settlements","authors":"T. Schnabel","doi":"10.2139/SSRN.3239527","DOIUrl":"https://doi.org/10.2139/SSRN.3239527","url":null,"abstract":"This article attempts to provide a definitive overview of the text, structure, history, and purpose of the Singapore Convention on Mediation (also known as the United Nations Convention on International Settlement Agreements Resulting from Mediation), a new multilateral treaty developed by the U.N. Commission on International Trade Law (UNCITRAL). \u0000 \u0000The Convention, scheduled to open for signature in August 2019, provides a uniform, efficient framework for the recognition and enforcement of mediated settlement agreements that resolve international, commercial disputes — akin to the framework that the 1958 New York Convention provides for arbitral awards. \u0000 \u0000Unlike the other primary international organizations that develop commercial law treaties, UNCITRAL does not commission official commentaries or explanatory reports for the treaties it produces. This article aims to fill this gap based on the records of the negotiations and the firsthand experiences of the author in proposing and participating in the negotiations.","PeriodicalId":378416,"journal":{"name":"International Economic Law eJournal","volume":"3 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-09-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132613901","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 Multilateral Investment Court: A Stumbling Block for Comprehensive and Sustainable Investment Law Reform","authors":"R. Hoffmann","doi":"10.2139/ssrn.3363926","DOIUrl":"https://doi.org/10.2139/ssrn.3363926","url":null,"abstract":"For the last years, reforming the international investment law regime has been a key priority of the trade agenda of the European Commission. Two important decisions in March 2018 can either be seen as a stepping stone or stumbling block in this regard. \u0000 \u0000On 20 March 2018, the Council authorised negotiations for a treaty establishing a multilateral investment court (MIC). This proposal was yet the latest step in a series of activities aimed at replacing the traditional arbitration system of dispute settlement in investment treaties (Investor-State Dispute Settlement, ISDS) with a treaty-based MIC. The latest development concerns the multilateralization of the Investment Court System leading to a MIC. After lobbying for this approach in various intergovernmental fora, the Commission developed a more concrete proposal over the course of 2016 and the first half of 2017. Last year, the ISDS debate moved into the auspices of UNCITRAL Working Group III. Neither the negotiation mandate nor the UNCITRAL mandate touch upon substantive investment standards or refer to the current debates and negotiations on business and human rights. The negotiations will therefore not address any substantive elements of investment treaties. In all likelihood, they will also not address procedural issues such as counterclaims, participation rights of affected stakeholders, presumption of responsibility or burden of proof. \u0000 \u0000The second important decision was taken two weeks earlier by the Court of Justice of the European Union (CJEU) on 6 March 2018. In its ruling in the case C-284/16 Achmea, the CJEU clarified that investment agreements between EU Member States (so-called intra-EU BITs) that have an ISDS clause violate EU law. It is not quite clear whether the CJEU would also transfer its view to other agreements such as CETA or the planned treaty for a MIC. However, the ruling indicates that any investment agreement providing for dispute settlement procedures in which EU law can be applied or interpreted and which does not ensure a review of this interpretation by the CJEU is in breach of EU law.","PeriodicalId":378416,"journal":{"name":"International Economic Law eJournal","volume":"22 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-09-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127749347","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":"Case against the OPEC: Analysis from a WTO perspective","authors":"Debadatta Bose","doi":"10.2139/ssrn.3423895","DOIUrl":"https://doi.org/10.2139/ssrn.3423895","url":null,"abstract":"This article seeks to elaborate on the (seemingly) clash of goals between the WTO and the OPEC. This article thereafter elucidates possible arguments and outcomes if a (hypothetical) case were to be brought before the WTO by any of its member states, primarily based on GATT arts. XI, XX and XXI. Another possible argument under art. XXXVIII is a work in progress.","PeriodicalId":378416,"journal":{"name":"International Economic Law eJournal","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-07-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129158151","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":"Is the Europea Union’s Backyard Drifting Towards China?","authors":"L. Biukovic","doi":"10.2139/ssrn.3209084","DOIUrl":"https://doi.org/10.2139/ssrn.3209084","url":null,"abstract":"This paper examines how China is influencing international economic cooperation and shaping international institutions by imprinting its national strategies onto international trade and investment arrangements it has negotiated with several countries in Central and Eastern Europe and the Western Balkans. The focus is on China’s “16 1�? forum for cooperation in the areas of investment, transport, science, education and cooperation with eleven EU members (Bulgaria, Croatia, the Czech Republic, Estonia, Hungary, Latvia, Lithuania, Poland, Romania, Slovakia and Slovenia) and five Balkan states (Albania, Bosnia and Hercegovina, Macedonia, Montenegro and Serbia). The paper argues that by creating a less structured and less formalized forum for economic cooperation, China is increasingly influencing the EU integration process by contesting its core principles and concepts—functioning of integrated and liberalized single market, transparent processes of law-making, accountability of national and EU institutions, and public participation in the decision-making process at all levels of governance. The paper concludes that China’s initiative has already influenced EU pre-accession strategy by impacting the choice of mechanisms used by the EU institutions to secure candidates’ integration into the EU and by adjusting its level of engagement with the region in response to competitive arrangements offered by China.","PeriodicalId":378416,"journal":{"name":"International Economic Law eJournal","volume":"8 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133807334","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":"Competitive Neutrality of Soes in International Investment Law","authors":"C. de Stefano","doi":"10.2139/ssrn.3209867","DOIUrl":"https://doi.org/10.2139/ssrn.3209867","url":null,"abstract":"This paper aims to investigate whether the principle of competitive neutrality of state-owned enterprises (SOEs) may be resorted to by international arbitral tribunals in investor-state dispute settlement (ISDS). This principle posits that the ownership (either public or private) of a given business should not affect its competitive opportunities in the market arena. Although being legally separated from their establishing State, usually independent and autonomous in their self organization, SOEs retain an undeniable vicinity and contact with the public sphere and can and do participate in the exercise of governmental authority at given conditions. This is reflected inter alia by given benefits of SOEs under domestic legal systems such as regulatory immunity from antitrust regulation, fiscal advantages or the exemption from bankruptcy legislation. In ISDS, the mechanism of attribution of conduct of SOEs is generally governed by customary international law, especially as codified by Article 5 of the Draft Articles on Responsibility of States for Internationally Wrongful Acts (ARSIWA), which relies on the divide between governmental and commercial activities, similar to the nature test applied in relation to the defence of jurisdictional immunity of foreign States before domestic courts. In the international arbitral practice, this dichotomy is traditionally based on the “private contractor�? test, which defines as “sovereign�? such activities in which a private party may not engage, and, conversely, as “commercial�? such activities that a private party may perform. Upon resort to competitive neutrality considerations, the “private contractor�? test may be further extended so that the acts that a private competitor in the market arena could have not executed be considered as falling under the exercise of elements of the governmental authority. The principle of competitive neutrality has been elaborated under the aegis of the Organisation for Economic Co-operation and Development (OECD) through adoption of soft law instruments, such as its ‘Guidelines on Corporate Governance of State-Owned Enterprises’. In addition,the practice of the World Trade Organization (WTO) dispute settlement system (DSS) may also be instructive with regard to the definition of ‘public body’ under Article 1.1(a)(1) of the Agreement on Subsidies and Countervailing Measures (SCM Agreement). The Author supports reliance by arbitrators to the principle of competitive neutrality of SOEs in order to strengthen the scope of the rules of attribution codified by ARSIWA, especially under Article 5, so as to foster the accountability of States and SOEs, also in the eyes of their constituencies, and to level the playing field in markets where SOEs and private undertakings compete.","PeriodicalId":378416,"journal":{"name":"International Economic Law eJournal","volume":"2 4","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"120904542","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":"China's SOE Reform: Using WTO Rules to Build a Market Economy","authors":"Weihuan Zhou, Henry Gao, Xue Bai","doi":"10.2139/SSRN.3209613","DOIUrl":"https://doi.org/10.2139/SSRN.3209613","url":null,"abstract":"This paper challenges the widespread view that existing WTO rules are insufficient for dealing with state capitalism in China, which has been further emboldened by the latest rounds of state-owned enterprise (“SOE”) reforms. Through a careful review of WTO agreements and jurisprudence, it is argued that new rules are not necessarily needed because the unique challenges created by China’s state capitalism can be appropriately addressed by the WTO’s existing rules on subsidies coupled with the China-specific obligations. A more realistic approach would be to encourage China to undertake market-oriented reforms through WTO litigation based on existing rules rather than trying to negotiate new rules.","PeriodicalId":378416,"journal":{"name":"International Economic Law eJournal","volume":"4 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124376856","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":"Busier than Ever? A Data-Driven Assessment and Forecast of WTO Caseload","authors":"Joost Pauwelyn, Weiwei Zhang","doi":"10.1093/JIEL/JGY035","DOIUrl":"https://doi.org/10.1093/JIEL/JGY035","url":null,"abstract":"Conventional wisdom has it that, in recent years, the legalized mechanism of dispute settlement before the World Trade Organization (WTO) has been “busier than ever”, “a victim of its own success”. This paper uses count data to assess the WTO’s current caseload and examines how it has evolved since the WTO’s creation in 1995. We also forecast panel and Appellate Body (AB) caseload ten years from now using different scenarios. \u0000WTO dispute settlement does, indeed, currently experience a peak in terms of the total number of cases pending before panels and the AB. However, this is not due to an increase in new cases filed, but rather because pending cases take much longer to conclude as they have become more complex and are often delayed for lack of human resources. In addition, fewer cases filed get formally settled, appeal rates remain very high and close to one in four adopted panel or AB reports have required an additional compliance proceeding. These three factors -- fewer settlements, a high appeal rate and significant compliance problems -- have led to more (pending) caseload without actually more (new) cases filed, or more panel or AB reports issued. The number of reports produced per year has actually gone down. \u0000WTO dispute settlement is also predominantly used (i) for certain types of disputes (45% of cases filed between 2012-2016 are trade remedy disputes, compared to only 23% between 1995-1999) and (ii) for disputes between a small subset of WTO members (20 WTO Members represent 85% of DSU participation as main party). \u0000Looking forward, we forecast that in a “business as usual” scenario the current glut in WTO caseload will not disappear. Especially for panels, it will only get worse. This raises the question of whether the system, without course correction, is sustainable. There is, however, hope: if timeframes could be scaled back to what they were in earlier days (our “back to normal” scenario) forecasted panel and AB caseload would be dramatically reduced, considerably below current levels. This highlights that recently inflated timeframes are a key problem. If, in addition, the system could (i) improve on its “clearly preferred” solution of settlement (e.g by making more effective use of consultations), (ii) parties were to exercise restraint when it comes to appealing panel reports and (iii) the number of follow-up compliance disputes could be scaled down (e.g. by clarity in reports and better cooperation between the parties) – the assumptions under our third “more settlements, less appeals, better compliance” scenario – WTO caseload would drop to surprisingly low levels (post-2021: 7-8 concurrent panels, and 1-2 concurrent AB proceedings). Even more encouraging, none of the improvements suggested necessarily require formal DSU amendments. They have been achieved in earlier years under the current system. Much is in the hands of WTO panels, the AB and litigants themselves. But there is also a “worst case scenario”: All three of ou","PeriodicalId":378416,"journal":{"name":"International Economic Law eJournal","volume":"115 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-06-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132024583","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":"Compliance with Domestic Law: An Implied Condition in Treaties Conferring Rights and Protections on Foreign Nationals and Their Property?","authors":"R. Yotova","doi":"10.2139/ssrn.3199812","DOIUrl":"https://doi.org/10.2139/ssrn.3199812","url":null,"abstract":"Non-compliance with domestic law in the making of investments is increasingly invoked as a defence by states against claims in international arbitration. A number of bilateral investment treaties (BITs) contain varying formulations of express clauses requiring that foreign investments are made in accordance with the domestic law of the host State. These have been used by arbitrators as anchors for assessing the compliance of investments with domestic law and denying them all international protections. While some tribunals have inferred that compliance with domestic law is an implied condition for granting international protection to investments even in the absence of treaty language to that effect[1] or indeed, of an international treaty all together, others have required express legality clauses. These divergent approaches raise two pertinent interpretative questions. First, whether compliance with domestic law could or should be read as an implied condition when interpreting BITs and more broadly, in international treaties conferring rights on foreign nationals on the territory of the host State in the absence of express language to this effect? Second, if the answer to the first question is affirmative, how should such treaties be interpreted and applied in practice, focusing in particular on what legal consequences should be drawn in cases of non-compliance with domestic law where the treaty is silent on this point. This chapter will argue that an implied condition of compliance with domestic law is to be read into international treaties conferring rights and protections on foreign nationals, as a general principle of treaty interpretation emanating from the Lotus principle and the principle of good faith, and that this has important implications for the applicability of the treaties in question to tainted investments. [1] Plama v Bulgaria, Award of 27 August 2008, paras 144-6.","PeriodicalId":378416,"journal":{"name":"International Economic Law eJournal","volume":"39 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132949364","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":"Stakes and Prospects of the Right to Free, Prior & Informed Consent in ‘One Belt One Road’ Projects in the Context of Transnational Investment Law and Arbitration","authors":"A. Aseeva, K. L. Yip","doi":"10.1163/9789004373792_022","DOIUrl":"https://doi.org/10.1163/9789004373792_022","url":null,"abstract":"This chapter provides a preview of the legal issues concerning the principle of free, prior and informed consent (‘FPIC’) in the One Belt, One Road (‘OBOR’) initiative in the context of transnational investment law and arbitration (‘TILA’) and is divided into four substantive sections. Section 1 sets the stage for the articulation and operationalization of the right to FPIC and the related right to consultation by highlighting the importance of local participation. Section 2 surveys different sources of international law to scope the right to FPIC. Section 3 analyzes the corresponding obligations of the States hosting OBOR projects. Section 4 analyzes the corresponding obligations of investors investing in OBOR projects.","PeriodicalId":378416,"journal":{"name":"International Economic Law eJournal","volume":"78 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-05-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"134080688","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 Rule of Law Through International Investment Law - Strengths, Challenges and Opportunities","authors":"Velimir Živković","doi":"10.2139/SSRN.3180585","DOIUrl":"https://doi.org/10.2139/SSRN.3180585","url":null,"abstract":"In challenging times for international law, there might be a heightened need for both analysis and prescription. The international rule of law as a connecting thread that goes through the global legal order is a particularly salient topic. By providing a working understanding of the content and contexts of the international rule of law, and by taking the regime of international investment law as a case study, this paper argues that assessing 'rise' or 'decline' motions in this sphere warrants a nuanced approach that should recognise parallel positive and negative developments. Whilst prominent procedural and substantive aspects of international investment law strongly align with the international rule of law requirements, numerous challenges threaten the future existence of the regime and appeal of international rule of law more broadly. At the same time, opportunities exist to adapt the substantive decision-making processes in investor-State disputes so to pursue parallel goals of enhancing rule of law at both international and national levels. Through recognising the specificities of interaction between international and national sphere, arbitrators can further reinvigorate the legitimacy of international rule of law through international investment law - benefitting thus the future of both.","PeriodicalId":378416,"journal":{"name":"International Economic Law eJournal","volume":"218 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126526780","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}