Legal Protection for Small and Medium-Sized Enterprises through Investor-State Dispute Settlement

2017 ◽  
Author(s):  
Alexander Gebert
Keyword(s):  
International Law ◽  
Multinational Corporations ◽  
Dispute Settlement ◽  
Legal Protection ◽  
Substantial Part ◽  
Dispute Settlement Mechanism ◽  
Long Duration ◽  
Foreign Countries ◽  
Investment Treaties ◽  
Settlement Mechanism

The chapter illustrates the participation of small and medium-sized enterprises (SMEs) in the investor-state dispute settlement (ISDS) system, as well as obstacles from pursuing claims under investment treaties with corresponding solutions. SMEs are increasingly investing in foreign countries, and may be subject to state measures violating international law standards afforded under investment treaties. Investment treaties regularly also provide for ISDS as a means to enforce these standards by allowing foreign investors to commence arbitration proceedings against a state in a neutral forum. The chapter reveals that despite the perception as a dispute settlement mechanism accessible exclusively for large multinational corporations, in fact a substantial part of claimants in ISDS proceedings are SMEs. While it is true that high costs and the long duration of ISDS proceedings may be obstacles for SMEs, the flexibility of arbitration proceedings and the availability of external funding provide for opportunities to control time and costs.

scholarly journals DISPUTE SETTLEMENT MECHANISM IN BILATERAL INVESTMENT TREATIES (BITS)

Yuridika ◽  
2019 ◽  
Vol 34 (1) ◽  
pp. 151
Author(s):  
Yetty Komalasari Dewi ◽  
Arie Afriansyah
Keyword(s):  
International Law ◽  
Host Country ◽  
Dispute Settlement ◽  
Bilateral Investment Treaties ◽  
International Arbitration ◽  
Dispute Settlement Mechanism ◽  
Important Thing ◽  
Investment Treaties ◽  
Investment Agreements ◽  
Settlement Mechanism

In various countries, BITs are not always the same, but most of them contain many commitments or promises to protect the investment and investors of a country ("investors") in the territory of another country ("host country").[1] This protection includes treatment that is fair, equal and not discriminatory in overseeing the implementation of investment agreements and other obligations related to investment. The important thing is, in most cases, this kind of protection is accompanied by a very strong international arbitration mechanism that allows investors to file a lawsuit directly against a host country that is suspected of violating the protection under international law. Capability of investors to "enforce" their rights directly on a country without an arbitration agreement is considered as one of the extraordinary achievements of BIT innovation.

scholarly journals International Law and dispute settlement mechanism

2016 ◽  
Vol 17 ◽  
Author(s):  
Carlos Ricardo Caichiolo
Keyword(s):  
International Law ◽  
21St Century ◽  
International Conflict ◽  
Dispute Settlement ◽  
Third Party ◽  
Dispute Settlement Mechanism ◽  
Peaceful Settlement ◽  
Feasible Solutions ◽  
Settlement Of Disputes ◽  
Settlement Mechanism

The DSM, or Dispute Settlement Mechanism, in the absence of a judicial body, is the closest representation of a supreme court or judicial institution in a regional bloc or other international organisation. The search for a peaceful settlement of disputes in the international arena had led to the development of the DSM during the 20th and into the 21st century. The DSM acts as an impartial third party, wherein it intervenes in any international conflict to offer feasible solutions for both sides.O MSC, ou Mecanismo de Solução de Controvérsias, na ausência de um órgão judicial, é a representação mais próxima de uma Corte Suprema ou de instituição judiciária em um bloco regionl ou em organização internacional diversa. A busca por um meio pacífico de solução de disputas no meio internacional levou à criação do MSC ao longo dos séculos XX e XXI. O MSC age como um terceiro imparcial, na medida em que ele intervém em conflitos internacionais com o intuito de ofertar soluções possíveis para as partes envolvidas.

Perfect War: Alberico Gentili on the Use of Force and the Early Modern Law of Nations

Grotiana ◽  
2020 ◽  
Vol 41 (2) ◽  
pp. 263-281
Author(s):  
Valentina Vadi
Keyword(s):  
Early Modern ◽  
International Law ◽  
Civil Wars ◽  
Dispute Settlement ◽  
Theory And Practice ◽  
Dark Side ◽  
Dispute Settlement Mechanism ◽  
Law Of Nations ◽  
Imperial Expansion ◽  
Settlement Mechanism

Abstract Gentili’s conceptualization of war as a conflict between states attempted to limit the legitimacy of war to external wars only, thus precluding the legitimacy of civil wars. It reflected both the emergence of sovereign states and the vision of international law as a law among polities rather than individuals. The conceptualization of war as a dispute settlement mechanism among polities rather than a punishment for breach of the law of nations and the idea of the bilateral justice of war humanized the conduct of warfare and the content of peace treaties. The idea of perfect war excluded brigandage, piracy, and civil wars from its purview. Some scholars have suggested that perfect war had a dark side, legitimizing imperial expansion. Others have cautioned that Gentili explicitly opposed imperial expansion rather adopting anti-imperialist stances. This article suggests that these ambivalent readings of the Gentilian oeuvre reflect the ambivalence of the early modern law of nations. Under the early modern law of nations, aggression for the sake of empire was clearly unjust; nonetheless, imperial expansion took place. Whereas ‘a law which many transgress[ed] [wa]s nonetheless a law’, there was a wide divide between theory and practice.1

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.

Advance Pricing Agreements in India: A Revolution in Taxation Law

1970 ◽  
Vol 3 (2) ◽  
pp. 39-67
Author(s):  
Verma Avani ◽  
Singh Surabhi
Keyword(s):  
Multinational Corporations ◽  
Dispute Settlement ◽  
Transfer Pricing ◽  
Comparative Law ◽  
Dispute Settlement Mechanism ◽  
Advance Pricing Agreement ◽  
Indian Law ◽  
Settlement Mechanism ◽  
Safe Harbours

Double taxation is one of the biggest challenges faced by multinational corporations, especially when the taxable transaction is between associated enterprises. The determination of transfer pricing becomes a bone of contention among the revenue authorities of different countries. One mechanism to counter this problem is to take recourse to „Advance Pricing Agreement‟ (APA). An APA is an arrangement entered into between revenue authority(s) and the taxpayer to determine the transfer pricing in advance. It has a plethora of advantages and procedural benefits over the conventional methods of determination of transfer pricing. APA, which was in existence in many countries for many years, was recently introduced in India. The aim of this paper is primarily to explore the Indian law on APA in the light of the situation prevalent in other countries, and to suggest measures to improve the same. This aim shall be achieved by firstly studying the concepts pertaining to transfer pricing and the problems associated with it, which has led to the emergence of APA. Thereafter, an overview of the Indian APA regime is provided. Further, in order to evaluate the merits and demerits of Indian APA, a comparative study with the law on APA in other countries has been presented, while simultaneously making certain suggestions to make the Indian APA system robust. In the last part of the paper, some suggestions apart from those which were made after analyzing the comparative law have been made. If India improves upon its APA regime by taking a cue from other countries, and by implementing measures such as the creation of safe harbours, better dispute settlement mechanism, easier documentation etc., then the APA will surely bring the much desired revolution in the taxation of multinational corporations.

Reconsideration of Proper Remedies in Investment Arbitration in Light of Recent Cases: Should the Remedy Follow the Primary Obligation?

2021 ◽  
Vol 22 (1) ◽  
pp. 129-159
Author(s):  
Berk Demirkol
Keyword(s):  
International Law ◽  
Dispute Settlement ◽  
Dispute Settlement Mechanism ◽  
Private Interests ◽  
Investment Treaty ◽  
Investment Arbitration ◽  
Settlement Of Disputes ◽  
Settlement Mechanism

Abstract Remedies available within a particular system are closely connected with the types and diversity of disputes brought to, and with the purpose and the structure of, the special dispute settlement mechanism. Investment arbitration is a mechanism for settlement of disputes between States and foreign investors who have made by definition mid- to long-term projects in the State concerned. Such claims are brought for the protection of private interests of investors, but they are mostly based on public international law obligations and subject to State responsibility principles. Institutional and procedural rules, as well as systemic features of investment arbitration play an important role in the determination of which remedies are available and provide suitable relief within this dispute settlement mechanism. The main argument of this article is that substantive characteristics of primary obligations should be taken into account, along with procedural considerations, in the determination of which remedies are available in investment treaty arbitration.

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