scholarly journals The Reform of Investor-State Dispute Settlement: Bringing the Findings of Social Psychology into the Debate

2019 ◽  
Vol 10 (4) ◽  
pp. 561-581
Author(s):  
Myriam Gicquello
Keyword(s):  
Social Psychology ◽  
Decision Making ◽  
Dispute Settlement ◽  
Ad Hoc ◽  
Group Decision ◽  
Current System ◽  
Psychological Perspective ◽  
Investment Arbitration ◽  
Domestic Courts ◽  
The Eu

Abstract This article introduces the findings of social psychology, especially group psychology, into the study of investment arbitration. It argues that arbitrators as members of small groups (i.e. tribunals or divisions in an Investment Court) might be subjected to a number of influences inherent to such collective settings—factors already proven to be at play in domestic courts. In turn, identifying those factors provides an opportunity to reduce their impact on the decision-making of legal adjudicators through the implementation of adequate remedies. Adopting one of the most popular models of group decision-making—groupthink— this article discusses the manifestations and implications of this theory for Investor-State Dispute Settlement both in its ad hoc and institutionalized forms. Specifically, it claims that the Investment Court defended by the EU and generally posited in some agreements might not be that different from the current system from a socio-psychological perspective, and hence could be further improved.

Transparency and participatory aspects of investor-state dispute settlement in the EU ‘new wave’ trade agreements

2019 ◽  
Vol 32 (4) ◽  
pp. 781-800 ◽  
Author(s):  
Joanna Lam ◽  
Güneş Ünüvar
Keyword(s):  
Free Trade ◽  
Public Interest ◽  
Dispute Settlement ◽  
Free Trade Agreements ◽  
Trade Agreements ◽  
Forum Shopping ◽  
New Wave ◽  
Commercial Arbitration ◽  
Investment Arbitration ◽  
The Eu

AbstractThis article scrutinizes the investment chapters in the new EU Free Trade Agreements from a transparency perspective. The article examines the claims that the dispute settlement mechanisms in the new treaties are sufficiently participatory and more transparent than their predecessors. Procedural standards related to confidentiality of proceedings shall be analysed in the context of existing transparency safeguards in investment arbitration. In addition to procedural guarantees of transparency, the article examines relevant substantive rules affecting participatory aspects of dispute settlement. Furthermore, the article discusses forum-shopping strategies of the parties in the field of investment-related disputes, including internal forum-shopping and parallel proceedings using different procedural mechanisms. In this context, lessons from other fields such as international commercial arbitration related to transparency (in cases in which public interest is present) are highlighted. The proposal for the establishment of an integrated, multilateral court for investment cases is also invoked.

scholarly journals ISDS Regimes and Democratic Practice: Creating Conflict of Interests between Governments, Investors and Local Populations

2019 ◽  
Vol 25 (84) ◽  
pp. 36-52
Author(s):  
Martin Karas
Keyword(s):  
Decision Making ◽  
Dispute Settlement ◽  
Good Governance ◽  
Scholarly Work ◽  
Foreign Investors ◽  
Local Populations ◽  
Investment Arbitration ◽  
Democratic Practice ◽  
Recent Debate ◽  
The Relationship

Abstract The recent debate over the Investor-State Dispute Settlement (ISDS) regimes of international arbitration has resulted in concerted efforts aimed mainly at protecting the rights of states to regulate, improving transparency of proceedings and eliminating inconsistency in decision making of the tribunals. While the existing scholarly work frequently addresses issues of the relationship between the existing investment regimes and good governance in general, increased attention is rarely paid to the effects that investment arbitration has on democratic practice. The article applies an “action-based” approach to democracy, in order to analyse the role that the ISDS regimes play in exacerbating conflicts between the local populations, foreign investors and governments. The analysis leads to a conclusion that the ISDS regimes create incentives for the governments and foreign investors to disregard sound democratic practice. The article represents an attempt to move the discussion about the ISDS regimes away from the question of legitimacy of the regimes to the question of the impacts that the regimes have in practice.

Commitment Decisions in EU Competition Enforcement: Policy Effectiveness v. the Formal Rule of Law

2019 ◽  
Vol 38 ◽  
pp. 361-399 ◽  
Author(s):  
Ryan Stones
Keyword(s):  
Decision Making ◽  
Rule Of Law ◽  
Ad Hoc ◽  
Economic Value ◽  
Business Practices ◽  
Legal Form ◽  
Formal Rule ◽  
Subject Specific ◽  
The Eu ◽  
Competition Enforcement

Abstract Marking the fifteenth anniversary of the entry into force of Regulation 1/2003, 2019 offers a vantage point from which to analyse the rise of commitment decisions as the primary enforcement mechanism for non-cartel competition law investigations at EU level. Commitment decisions, the closure of competition cases with a package of remedial obligations in response to Commission concerns, have an undeniable administrative appeal. They afford the Commission the absolute discretion to counteract any form of market conduct, whether beyond the pre-existing scope of the law deduced by the EU Courts from Articles 101 and 102 TFEU, or below exacting thresholds for prohibition of legally controversial business practices. Furthermore, the Commission can secure any remedial outcome, even if disproportionate or seemingly disconnected from its competitive concerns, to thereby redraw markets according to its idealized vision. In this regard, commitment decisions allow the Commission to achieve its policy goals with utmost effectiveness. Nevertheless, this article argues that such a method of market intervention represents a significant divergence from realizing the ideal of the formal rule of law in EU competition enforcement: normative certainty for businesses, facilitated by the equal application of generalized legal norms, which are subject to close oversight by courts. This offers an aspirational legal form of considerable political and economic value. Using commitment decisions to enforce EU competition policy via ad hoc, subject-specific decision making, conditional upon unforeseeable remedial obligations, is of systemic detriment to the legal comprehensibility of not just future Commission decision making, but the entire edifice of norms deduced from the Treaties by the EU Courts in this field. A rather relaxed approach to judicially reviewing the remedial proportionality of commitment decisions has partly contributed to this issue. However it is suggested that the EU Courts are largely unable to remedy the problems of novel theories of harm or subject-specific determinations, delivering upon their important residual role envisaged by the rule of law ideal, because of a factor mostly beyond their control: the lack of commitment decisions brought before them for review. To that end, the article concludes by recommending the automatic review of commitment decisions by the Courts. This would hopefully foster a more balanced reconciliation of effective policy achievement by the Commission and realization of the formal rule of law ideal in contemporary EU competition enforcement.

scholarly journals Why Europe Should Reconsider its Anti-Arbitration Policy in Investment Disputes

2019 ◽  
Vol 2 (1) ◽  
pp. 6-30
Keyword(s):  
Dispute Resolution ◽  
Ad Hoc ◽  
International Investment ◽  
The Other ◽  
The European Union ◽  
Investment Arbitration ◽  
Court Of Justice ◽  
Wrong Direction ◽  
Current Change ◽  
The Eu

This paper addresses the current challenges to investor-state arbitration in Europe. Two parallel developments are outlined: the current change in the EU policy towards arbitration provisions in multilateral and bilateral investment treaties, and the consequences of the Achmea case decided by the Court of Justice of the European Union in March 2018. The author analyses the critical arguments behind the current European anti-arbitration stance and concludes that while some of them (but not all) may have some foundation, a sufficient number of reasons speak against the radical dismantling of the system of international investment arbitration. An analysis of the proposed alternatives shows that they fail to deliver viable solutions for diagnosed problems. In particular, the replacement of ad hoc tribunals by a multilateral investment court (MIC) seems to be a step in the wrong direction. The ISDS has played an important role in the global fostering of international investment by securing a basically fair system of dispute resolution in a very specific field. Its deficiencies are not beyond repair; on the other hand, the alternatives offered suffer from flaws that are the same or much more troubling. The author concludes that the consequences of the ‘change of tide’ in the approach to investor-state dispute resolution are likely to be detrimental to the very goals of those who advocate the abandoning of investment arbitration.

scholarly journals Lo que se está discutiendo en la CNUDMI: evolución o revolución en el sistema de solución de controversias inversor-Estado = What is being discussed in the UNCITRAL: evolution or revolution in the investor-State dispute

2020 ◽  
Vol 12 (1) ◽  
pp. 203
Author(s):  
Enrique Fernández Masiá ◽  
Margherita Salvadori
Keyword(s):  
Working Group ◽  
Dispute Settlement ◽  
Ad Hoc ◽  
Institutional Reform ◽  
International Investment ◽  
Access To Justice ◽  
Group Iii ◽  
International Investment Law ◽  
El Sistema ◽  
The Eu

Resumen: La principal iniciativa para reformar el sistema de solución de controversias inversor-Estado está siendo debatida en el Grupo de Trabajo III de la CNUDMI. Se están discutiendo propuestas específicas tanto para una reforma procesal como institucional. En lo que se refiere a la reforma institucional, la Unión Europea propone el establecimiento de un tribunal multilateral de inversiones, que rompería con el sistema actual ad-hoc. Con independencia de estas propuestas, cada vez parece existir un mayor acuerdo para la adopción de un Centro de asesoramiento sobre el Derecho internacional de inversiones, que podría solventar la cuestión de la duración y costes de los procedimientos, facilitar el acceso a la justicia y, mejorar la elaboración de los futuros Acuerdos internacionales.Palabras clave: Arbitraje inversor-Estado , Grupo de Trabajo III de la CNUDMI, Tribunal Multilateral de Inversiones, Mecanismo de Apelación, Centro de Asesoramiento.Abstract: The main initiative to reform the system of investor-State dispute settlement is being debated by Working Group III appointed by the UNCITRAL. Specific proposals for a procedural and institutional reform of the system are being discussed. As concerns the institutional reform, the EU proposes the establishment of a multilateral investment court, which would break the current ad hoc-based system. Independent from these proposals, there appears to be a growing consensus on the establishment of an Advisory Centre on International Investment Law, which could address the issue of costs and duration of procedures, enhance access to justice issues, apart from improving the future treaty law-making.Keywords: Investor-State Arbitration,UNCITRAL Working Group III, Multilateral Investment Court, Appellate Mechanism, Advisory Centre.

Attitude Formation and Attitude Change

2021 ◽  
pp. 1-28
Author(s):  
Supriya Srivastava ◽  
Kuldeep Chand Rojhe
Keyword(s):  
Social Psychology ◽  
Decision Making ◽  
Human Behavior ◽  
Attitude Change ◽  
Strong Influence ◽  
Attitude Formation ◽  
Psychological Perspective ◽  
Social Psychological ◽  
Attitude Object ◽  
The Core

The study of attitudes formation and attitude change are two defining features at the core of social psychology. An attitude is a set of beliefs that people hold in relation to an attitude object, where an attitude object is a person, a product, or a social group. Since attitudes have been a strong influence on human behavior, social psychologists have viewed attitudes as important to understand behavior of individuals. Firstly, the chapter will introduce the concept of attitude with social psychological perspective. Attitude formation is important to understand to know why people hold different attitudes and how attitudes help to predict their behavior. In the second section, distinct ways of attitudes formation are discussed. It is also important to understand how attitudes influence in decision making, which is also discussed in the next section of the chapter. In the later section, changing processes of attitudes have been discussed.

Report of the 4th EFILA Annual Conference 2019

2019 ◽  
Vol 4 (1) ◽  
pp. 301-357
Author(s):  
José Rafael Mata Dona
Keyword(s):  
Dispute Settlement ◽  
Ad Hoc ◽  
International Investment ◽  
Investment Policy ◽  
Annual Conference ◽  
Full Time ◽  
The European Union ◽  
Energy Investment ◽  
International Investment Law ◽  
The Eu

On 31 January 2019, Herbert Smith Freehills kindly hosted in London the 4th EFILA Annual Conference on the “European Union (EU) and the future of International Investment Law and Arbitration”. The EU’s external investment policy and its investment policy towards Asia featured as the topics of the first two panels, which were followed by a keynote speech on the construction of a Multilateral Investment Court (MIC). The conference’s last panel dealt with the EU’s energy investment policy. This report presents the most relevant developments behind the EU’s external investment policy until the end of January 2019, its implementation towards Asia and influence in new global trends in investor-State dispute settlement. Further, it confronts the arguments of followers and detractors of the idea of a permanent standing two-tier mechanism with full-time adjudicators, which is promoted by the EU as the only option that can successfully respond to all the problems and challenges of the current ad hoc system. Finally, it conveys both the EU’ and investors’ needs in the construction of new carbon-friendly infrastructure and their enquiries into the modernisation process of the Energy Charter Treaty.

Effects of Status on Group Decision Making: Ad Hoc versus Real Groups

1991 ◽  
Vol 35 (13) ◽  
pp. 969-973 ◽  
Author(s):  
Vitaly Dubrovsky ◽  
Sivayya Kolla ◽  
Beheruz N. Sethna
Keyword(s):  
Decision Making ◽  
Group Decision Making ◽  
Ad Hoc ◽  
Group Decision

scholarly journals Sovereign Default Disputes in Investment Treaty Arbitration: Jurisdictional Considerations and Policy Implications

2015 ◽  
Vol 3 (1) ◽  
pp. 27
Author(s):  
Josef Ostřanský
Keyword(s):  
Financial Markets ◽  
Sovereign Debt ◽  
Ad Hoc ◽  
Current System ◽  
Sovereign Default ◽  
Policy Implications ◽  
Critical Position ◽  
Investment Treaty ◽  
Investment Arbitration ◽  
Sovereign Defaults

In the aftermath of Argentina’s 2001 economic crisis, creditors not participating in the country sovereign debt restructuring insisted on full payment. The triplet of investment arbitration decisions upheld jurisdiction over the mass claims presented by the holdout creditors.1 Two cases were, however, accompanied by forceful dissents. Subsequently, opinions diverged into two camps on the legal appropriateness and policy desirability of using investment arbitration for solving sovereign default disputes: the first camp supporting the majority’s view, and the second siding with the dissenting arbitrators. This article analyses the two approaches as far as jurisdictional requirements for hearing the sovereign bond disputes are concerned as well as potential policy consequences of the use of investment arbitration for these types of disputes. The article assumes a critical position towards the reasoning of the three awards, mostly due to the misconceived apprehension of the requirement of territoriality. In the policy part, the article argues that even if one assumes that enhancement of the creditor’s rights is desirable (something which is debatable), investment arbitration does not seem to bring advantages towards that goal. First, the argument of better enforcement of arbitral awards seems to be more apparent than real. Second, as Bilateral Investment Treaties base their protection on nationality, this fact creates unjustifiable preference towards certain creditors and increases unpredictability. This uncertainty upsets the original contractual bargain agreed on the issuance of bonds and has negative repercussions in financial markets. The ad hoc nature of investment arbitration only furnishes the uncertainty. Lastly, investment arbitration is a tool for correcting past grievances. Tools for dealing with orderly sovereign defaults should focus on the preventive aspects of sovereign defaults. As a robust multilateral treaty system dealing with sovereign defaults is currently politically unfeasible, a better solution is to reinforce the current system of contractual protections such as collective action clauses or exit consents. Rather than attempting to expand the role of arbitration, resolving sovereign debt issues should be left to actors in financial markets (lenders and borrowers). Financial markets have always proved capable of dealing with sovereign defaults.

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