Introduction

2020 ◽  
pp. 1-4
Author(s):  
Carlo de Stefano
Keyword(s):  
International Law ◽  
Dispute Settlement ◽  
International Criminal Tribunal ◽  
International Investment ◽  
International Investment Law ◽  
Wto Dispute Settlement ◽  
Rules And Principles ◽  
Dispute Settlement System ◽  
Definition Of ◽  
International Law Commission

The Introduction describes the role of international attribution rules and principles in connection with the meaning of ‘State’ under international law. It addresses how this study on attribution is innovative and helpful in relation to various issues. As to public international law, it deals with attribution of the acts or omissions of ‘independent’ State organs exercising functions of a regulatory or administrative nature (such as central banks and independent authorities), the definition of ‘governmental authority’ for the purposes of attribution of conduct of parastatal entities, and the determination of the thresholds of State ‘control’ either on de facto organs, on one side, or on ‘private’ individuals, on the other side. As to international investment law and arbitration, it is notably relevant to clarify the operation of the dialectics between lex generalis (customary international law) and lex specialis (international investment treaties) in relation to attribution issues. The Introduction also clarifies that the analysis that is found in this book is based on the practice of early arbitrations, the Permanent Court of International Justice (PCIJ), the International Court of Justice (ICJ), the Iran–US Claims Tribunal, the International Criminal Tribunal for the Former Yugoslavia (ICTY), investor–State arbitration, and the World Trade Organization (WTO) dispute settlement system. This means that the practice of other international courts and tribunals that is relied on (as to the attribution of conduct to a State) by the International Law Commission (ILC) in its Commentaries to Articles on Responsibility of States for Internationally Wrongful Acts (ARSIWA) is not dealt with in this book.

Judicial Lawmaking by Judicial Restraint? The Potential of Balancing in International Economic Law

2011 ◽  
Vol 12 (5) ◽  
pp. 1141-1174 ◽  
Author(s):  
Thomas Kleinlein
Keyword(s):  
International Law ◽  
Dispute Settlement ◽  
International Investment ◽  
Prima Facie ◽  
Legal Norms ◽  
Investment Protection ◽  
Trade Law ◽  
Wto Dispute Settlement ◽  
Judicial Lawmaking ◽  
Dispute Settlement System

In the framework of this project, both the WTO dispute settlement system and international investment tribunals are portrayed as core actors in judicial lawmaking. By weaving international trade law and investment law on the roughly timbered looms of imperfect treaty law, they have proven to be successful creators of the fabrics of a world trade order and of investment protection standards, respectively. Such effective lawmaking, on the part of particular “regimes,” has the potential to increase the fragmentation of international law. Consequently, international judicial institutions are not only spotted as originators of fragmentation, but—as interpreters of international law—also as addressees of strategies in response presented in the 2006 Report of the ILC Study Group on Fragmentation. It is the Study Group's comforting message that a considerable part of the difficulties arising from the diversification and expansion of international law can be overcome by recourse to a “coherent legal-professional technique.” The Fragmentation Report highlights that conflict resolution and interpretation cannot be distinguished: “[w]hether there is a conflict and what can be done with prima facie conflicts depends on the way the relevant rules are interpreted.” According to the Report, coherence can be established by interpreting legal norms with due regard to their normative environment.

International Law and Foreign Investment in Hydroelectric Industry: A Multidimensional Analysis

2016 ◽  
Vol 18 (3-4) ◽  
pp. 183-222
Author(s):  
Attila Tanzi
Keyword(s):  
International Law ◽  
Foreign Investment ◽  
Dispute Settlement ◽  
International Investment ◽  
Multidimensional Analysis ◽  
Private International Law ◽  
International Investment Law ◽  
Investment Law ◽  
Domestic Law

The main focus of the present article is on the entanglement between four bodies of international law sensitive to foreign investment in the creation and/or operation hydroelectric industry: i.e. international investment law, human rights law, international water law and private international law to the extent that public international law rules on conflict of laws on civil liability for transboundary damage are concerned. This horizontal approach to the analysis is supplemented by a vertical one looking at the interactions between international and domestic law. Consideration of the different bodies of international law in question is associated to that of the adjudicative, and non-adjudicative, means of dispute settlement available under each such bodies of law. On that score, the role of the foreign investor in a litigation scenery will be considered, primarily as claimant, but also, prospectively, in relation to the situation in the State hosting the investment is, or may become, respondent in inter-State litigation.

scholarly journals Chorzów Factory – intellectual property and the continuity of international law in investor-state dispute settlement

2020 ◽  
Author(s):  
P. Sean Morris
Keyword(s):  
Intellectual Property ◽  
Property Rights ◽  
International Law ◽  
Intellectual Property Rights ◽  
Dispute Settlement ◽  
International Investment ◽  
International Investment Law ◽  
Investment Arbitration ◽  
Fair Compensation ◽  
Investment Law

One of the most important cases in the jurisprudence of international law – Chorzów Factory – has a hidden secret, so much so that, even when in plain sight, legal post-mortems of the case fail to mention this well-kept secret. Chorzów Factory was about intellectual property rights, specifically patents and trade secrets, and this narrative has never been fully addressed. When the developments in international investment law and arbitration are fully considered it is worth looking back at Chorzów Factory to associate it with new streams of contemporary investor-state disputes that include issues such as intellectual property rights. Because Chorzów Factory has established the full reparation standard for unlawful expropriation, the standard has enabled a continuity of international law and underscores its importance for contemporary investment arbitration. However, the intellectual property narrative of Chorzów Factory has been neglected, and, in this article, I want to develop the intellectual property narrative of Chorzów Factory and to demonstrate the nexus between fair compensation, intellectual property rights and the continuity of international law.

The Strategic Use of International Investment Law in Colombia – Textiles: Navigating within the International Regime Complex for Development

2020 ◽  
Vol 13 (1) ◽  
pp. 31-58
Author(s):  
Rafael Tamayo-Álvarez
Keyword(s):  
Dispute Settlement ◽  
Legal Protection ◽  
World Trade Organisation ◽  
International Investment ◽  
Dispute Settlement Mechanism ◽  
International Investment Law ◽  
Investment Treaty ◽  
Wto Dispute Settlement ◽  
Investment Law ◽  
Settlement Mechanism

AbstractTrade-based money laundering (TBML) is a major concern in Colombia, where criminal organisations employ under-invoicing to conceal drug-trafficking proceeds. In response, Colombia imposed a compound tariff on certain Panamanian importations that were considered linked to this phenomenon. Alleging that the policy measure infringed Colombia’s tariff concessions, Panama activated the World Trade Organisation (WTO) dispute settlement mechanism. The dispute revolved around Article II:1 of the General Agreement on Tariff and Trade 1994. Colombia argued that this norm should be interpreted as to encompass licit trade only. Colombia looked for normative support in the investment treaty regime by establishing a parallel between undervalued imports and illegal investments. Therefore, just as investment treaty tribunals abstain from extending international legal protection to illegal investments, the WTO adjudicating bodies should not extend tariff concessions to importations linked to TBML activities. This article contends that by transplanting a more favourable doctrine of legality from the investment treaty regime to the multilateral trade regime, Colombia engaged in strategic regime shifting. Accordingly, drawing on regime complexes analysis, the article argues that by considering development a common issue-area, it is possible to articulate strategic connections between both regimes.

Africa and the Rethinking of International Investment Law

2018 ◽  
Author(s):  
Makane Moïse Mbengue ◽  
Stefanie Schacherer
Keyword(s):  
Sustainable Development ◽  
International Law ◽  
Dispute Settlement ◽  
International Investment ◽  
Reform Process ◽  
International Investment Law ◽  
Pan African ◽  
International Investment Agreements ◽  
Investment Law ◽  
Investment Agreements

This chapter seeks to present and to contextualize the Pan-African Investment Code (PAIC) by taking a comparative international law approach. Such approach allows us to assess whether the PAIC is an Africa-specific instrument and whether it is unique today in how it incorporates sustainable development concerns. This is particularly interesting for the ongoing global reform process of international investment law. The chapter is divided into five main sections. Section II provides an overview of international investment agreements concluded by African States. Section III presents the origins of the PAIC. Section IV addresses the important question as to what extent the PAIC incorporates traditional investment standards or breaks with them. Section V explores the most innovative aspects of the PAIC. Section VI examines the PAIC and dispute settlement.

Attribution in International Investment Law

2020 ◽  
pp. 96-178
Author(s):  
Carlo de Stefano
Keyword(s):  
International Law ◽  
Dispute Settlement ◽  
International Investment ◽  
Critical Discussion ◽  
Single Test ◽  
Public International Law ◽  
Customary International Law ◽  
International Investment Law ◽  
Investment Law

Chapter III elucidates the application of attribution rules by international investment tribunals. This chapter is similar in structure to Chapter II, which is a consequence of the proximity of international investment law to public international law with regard to the topic of attribution of conduct to a party. In addition, this chapter contains critical discussion on investor–State dispute settlement (ISDS), chiefly on the dialectics between lex generalis (customary international law) and lex specialis (international investment law) as to the resolution of attribution issues, and on the distinction between treaty claims and contract claims for the purposes of the operation of so-called ‘umbrella clauses’. More generally, the chapter critiques the reasoning of arbitrators who have applied the test for attribution of conduct under ARSIWA Articles 4, 5, and 8 in a holistic way, rather than implementing each single test autonomously.

Evolution, Evaluation and Future Developments in International Investment Law

2021 ◽  
Keyword(s):  
International Law ◽  
Dispute Settlement ◽  
Practical Importance ◽  
International Investment ◽  
Political Issues ◽  
International Investment Law ◽  
Investment Protection ◽  
Future Developments ◽  
Current Reform ◽  
Investment Law

The law on the protection of foreign investments is situated at the crossroads of international law and diplomacy in the context of a globalized economy. It is therefore not surprising that investment law has undergone fundamental changes in the last decade. The exponential growth of arbitration cases has illustrated a number of complex legal and political issues that have called into question the efficiency and legitimacy of investor State dispute settlement (ISDS). Thus, even for experts in the field it is challenging to keep track with the rapid and fundamental changes of what is often described as one of the most dynamic fields of international law. Against this background, the present volume provides an ‘Evolution, Evaluation, and Future Developments in International Investment Law’. World leading academics and practitioners shed light on the most important developments such as the evolution of investment law and its relationship to general international law, the practical importance of State contracts, the role of investment protection in the age of climate change, and current reform projects under the auspices of ICSID and UNCITRAL. The volume is based on six keynote speeches held at the 10 Year Anniversary Conference of the International Investment Law Centre Cologne.

scholarly journals ‘Regional Trade Courts’ in the Shadow of the WTO Dispute Settlement System: The Paradox of Two Courts

2020 ◽  
Vol 28 (1) ◽  
pp. 30-49
Author(s):  
Yenkong Ngangjoh-Hodu
Keyword(s):  
International Law ◽  
Dispute Settlement ◽  
Settlement System ◽  
Regional Trade ◽  
Wto Dispute Settlement ◽  
Dispute Settlement System

As of May 2018, over 650 notifications of RTAs had been received by the WTO Secretariat. Of these, 287 were in force. While the content of the WTO DSU has largely been replicated in most of the ‘regional trade courts’ adjudicatory bodies, emerging features of some of these RTAs are substantially out of line with the WTO DSU. While some RTAs cover aspects currently alien to the WTO, the degree of liberalisation contained within others seems remarkably deeper than under the WTO. Two distinct questions are therefore addressed in this article. The first is whether the proliferation of RTAs threatens in any way the existence of the WTO dispute settlement system, while the second concerns the extent to which this fragmented patchwork of ‘regional trade courts’ contributes to the development of international law. In order to tackle these issues, the article will first explore existing international rules relating to regional trade arrangements.

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