Part III Public International Law Disputes, Climate Disputes, and Sustainable Development in the Energy Sector, 17 Climate Disputes and Sustainable Development in the Energy Sector: Bridging the Enforceability Gap

2018 ◽  
Author(s):  
Magnusson Annette
Keyword(s):  
Sustainable Development ◽  
Solar Energy ◽  
International Law ◽  
Energy Sector ◽  
International Arbitration ◽  
Commercial Arbitration ◽  
Public International Law ◽  
Energy Needs ◽  
Energy Plant ◽  
New Instruments

This chapter provides an overview of energy-related sustainability objectives. It also provides a list of instruments aimed at their enforcement. Today, not many avenues are available to use international arbitration to enforce sustainability objectives. The chapter analyzes whether and how international arbitration can offer support for desirable developments towards meeting sustainable energy needs for the future by encouraging new instruments and other innovations. It also acknowledges the importance of what might be called ‘indirect’ enforcement of sustainability objectives, via legal instruments other than those defining the sustainability objectives as such (eg commercial arbitration enforcing the construction of a solar energy plant).

Biting the Bullet or Redefining ‘Consent’ in Investor-State Arbitration? Pre-Arbitration Requirements After BG Group v Argentina

2015 ◽  
Vol 16 (4) ◽  
pp. 695-726
Author(s):  
Konstanze von Papp
Keyword(s):  
International Law ◽  
Traditional Approach ◽  
International Arbitration ◽  
Commercial Arbitration ◽  
Group V ◽  
Public International Law ◽  
Investment Treaty ◽  
Alternative Solutions ◽  
Investment Treaty Arbitration ◽  
Consensual Approach

A purely consensual approach to international arbitration has its limits even in commercial arbitration. In investment treaty arbitration, the traditional approach to finding ‘consent’ to arbitrate encounters difficulties if there are any pre-arbitration requirements that have not been satisfied. This will be illustrated by the case of BG Group v Republic of Argentina. Drawing a line between purely ‘procedural’ pre-arbitration requirements and those that are strict conditions on a host state’s consent to arbitrate is difficult, if not impossible. This article suggests alternative solutions, taking into account the need to appreciate domestic arbitration laws as well as public international law concerns. ‘Biting the bullet’ would mean accepting the lack of consent between host state and investor. A doctrinally clearer approach to jurisdictional issues could then be found by drawing an analogy to non-signatory issues in commercial arbitration.

Part III Public International Law Disputes, Climate Disputes, and Sustainable Development in the Energy Sector, 18 Climate Disputes and Sustainable Development in the Energy Sector: Future Directives

2018 ◽  
Author(s):  
Rivkin David W ◽  
Amirfar Catherine
Keyword(s):  
Climate Change ◽  
Sustainable Development ◽  
International Law ◽  
Energy Sector ◽  
Carbon Trading ◽  
Public International Law ◽  
Trading Systems ◽  
Investment Projects ◽  
Environmental Disputes ◽  
Change Mitigation

This chapter addresses both climate change mitigation and climate change adaptation. It makes ‘the case for international arbitration’, analyzing in particular current dispute resolution structures on carbon trading and the specific set of arbitration rules developed by the Permanent Court of Arbitration (PCA) to resolve environmental disputes. It shows how increased awareness of climate change and its effects have clearly influenced the litigation and arbitration worlds. Developing bespoke environmental arbitration rules offers a number of benefits, including transparency, procedural flexibility, access to technical experts and arbitrators with key climate change expertise, and the possibility of multiparty involvement. Such rules may be of particular benefit to parties involved in carbon credit trading systems and investment projects motivated by such systems.

An Appraisal of the Gulf Cooperation Council's Mechanisms for Co-operation and the Settlement of Disputes

2020 ◽  
Vol 10 (2) ◽  
pp. 321-345
Author(s):  
Abdulmalik M. ALTAMIMI
Keyword(s):  
International Law ◽  
Dispute Settlement ◽  
Legal Analysis ◽  
Commercial Arbitration ◽  
Public International Law ◽  
Interstate Disputes ◽  
Basic Law ◽  
Peaceful Settlement ◽  
Arab League ◽  
Settlement Of Disputes

AbstractThis paper aims to provide a comprehensive legal analysis, reminding the reader of the missing roles and potential of the the Gulf Cooperation Council [GCC]. Interstate disputes threaten the very existence of the GCC. Moreover, they call into question the GGC's mechanisms for co-operation and for ensuring the peaceful settlement of disputes. For instance, the GCC's Charter, commercial arbitration rules, and the Basic Law of the Economic Judiciary Commission all provide provisions for peacefully settling disputes between GCC Member States and their citizens. GCC states are also members of the League of Arab States [Arab League], another important regional organization with dispute settlement procedures. However, GCC and Arab League judicial and quasi-judicial mechanisms have not been invoked to date, arguably because the states prefer a diplomatic settlement. This paper reviews the GCC's mechanisms for co-operation and dispute settlement, referencing public international law to formulate recommendations to reform the GCC.

Substance and procedure in international arbitration

2020 ◽  
Vol 36 (1) ◽  
pp. 3-66
Author(s):  
Saar A Pauker
Keyword(s):  
International Law ◽  
Private International Law ◽  
International Arbitration ◽  
Commercial Arbitration ◽  
National Courts ◽  
Investment Treaty ◽  
Basic Theme ◽  
Material Points

Abstract The distinction between substance and procedure in private international law has been subject to extensive debates among national courts and scholarly writings. The basic theme that procedural issues are governed by the lex fori, and substantive issues are subject to the lex causae, is widely accepted, although the boundaries between substance and procedure are not always clear. This article examines the application of the distinction between substance and procedure in the area of international arbitration, as regards both commercial cases and investment treaty disputes. It is argued that the distinction between substance and procedure has significant ramifications in international arbitration. The central (though not the only) aim of this distinction refers to the determination of the rules to be applied to borderline issues, such as evidentiary matters, interest, and limitation rules. Arbitral tribunals should have a considerable level of discretion in drawing the distinction. Specified points of guidance are suggested for common grayzone questions. Although the general principles concerning the substance/procedure distinction are similar in investment treaty arbitration and international commercial arbitration, material points of difference, such as the key role of public international law, may somewhat narrow the investment treaty tribunals’ discretion in respect of drawing the distinction.

The Three Ages of International Commercial Arbitration

2021 ◽  
Author(s):  
Mikaël Schinazi
Keyword(s):  
International Law ◽  
Legal History ◽  
International Arbitration ◽  
Commercial Arbitration ◽  
International Commercial Arbitration ◽  
New Approaches ◽  
Wide Range ◽  
History Of ◽  
Key Features ◽  
Modern Era

Drawing on a wide range of previously unpublished sources, this unique history of international commercial arbitration in the modern era identifies three periods in its development: the Age of Aspirations (c. 1780–1920), the Age of Institutionalization (1920s–1950s), and the Age of Autonomy (1950s–present). Mikaël Schinazi analyzes the key features of each period, arguing that the history of international commercial arbitration has oscillated between moments of renewal and anxiety. During periods of renewal, new approaches, instruments, and institutions were developed to carry international commercial arbitration forward. These developments were then reined in during periods of anxiety, for fear that international arbitration might be overstepping its bounds. The resulting tension between renewal and anxiety is a key thread running through the evolution of international commercial arbitration. This book fills a key gap in the scholarship for anyone interested in the fields of international arbitration, legal history, and international law.

Remarks by James Nevins Hyde:

1973 ◽  
Vol 67 (5) ◽  
pp. 245-248
Author(s):  
James Nevins Hyde
Keyword(s):  
Saudi Arabia ◽  
International Law ◽  
Comparative Law ◽  
International Arbitration ◽  
Public International Law ◽  
Transnational Law ◽  
Legal Situation ◽  
Municipal Law ◽  
The Government ◽  
Oil Company

Transnational law includes municipal law, public international law, and conflicts, including some attention to comparative law. For example, the international arbitration between the Arabian-American Oil Company and the Government of Saudi Arabia required George Sauser-Hall, the arbitrator, to weigh all of these variables. When you consider working in this field you should realize that you are concerned with politics, economics, and different bodies of law and also with great areas of uncertainty. I suppose that the current ITT case with $92 millions of investment insurance is a good example of the uncertainty when a political and legal situation gets mixed up.

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