The Way Forward

2019 ◽  
pp. 297-338
Author(s):  
Susan D. Franck
Keyword(s):  
International Law ◽  
Dispute Resolution ◽  
Rule Of Law ◽  
Cost Containment ◽  
International Investment ◽  
Costs And Benefits ◽  
Cost Shifting ◽  
Early Stages ◽  
Dependent Model ◽  
The Way

To synthesize preceding chapters and point the way forward, Chapter 9 first identifies the need for enhanced transparency on costs and rationalization, particularly in early stages of disputes to manage expectations and create efficiencies. Second, it identifies relative costs and benefits of ITA, arguing an increased focus on non-adjudicative dispute resolution is warranted while acknowledging those mechanisms only work effectively when legitimate adjudication permits parties to negotiate “in the shadow of the law.” Third, the chapter explores ICSID’s proposals to foster a dialogue about costs. Fourth, it advocates changing cost-shifting norms toward a factor-dependent model. Recalling potential limitations, it concludes that for international investment dispute resolution to foster rule-of-law adjudication that is efficient, fair, reliable, and rationalized, stakeholders should implement structural safeguards to focus on appropriate dispute resolution to promote cost containment, predictability, and sustainable dispute resolution in an era of re-emerging nationalization and a backlash against international law.

Introduction to Investment Treaty Arbitration (ITA) and Framing the Debate

2019 ◽  
pp. 1-24
Author(s):  
Susan D. Franck
Keyword(s):  
Cognitive Psychology ◽  
Dispute Resolution ◽  
International Investment ◽  
Data Driven ◽  
Evidence Based ◽  
Policy Options ◽  
Costs And Benefits ◽  
Investment Treaty ◽  
Relative Value

Chapter 1 introduces the contents of the book by framing the context of international investment more broadly, contextualizing investment-related conflict management, identifying the issues related to cost, and exploring how cognitive psychology and data-driven analysis can offer a frame for considering the relative value of normative reform. After the initial framing, Chapter 1 provides an overview of international investment, with a historic context and a matrix for understanding the current dispute resolution options to set the stage for consideration of alternatives. It then describes ITA’s doctrinal foundation to explore the debate about the costs and benefits of ITA. The final section addresses the need to appreciate the relative value of policy options to make grounded, evidence-based normative choices for investment treaty dispute resolution.

Globalization and a Normative Framework of Freedom

Human Affairs ◽  
2007 ◽  
Vol 17 (1) ◽  
Author(s):  
Ladislav Hohoš
Keyword(s):  
International Law ◽  
Rule Of Law ◽  
Social Order ◽  
Self Determination ◽  
Normative Structure ◽  
New Era ◽  
Normative Framework ◽  
Positive Liberty ◽  
The Way

Globalization and a Normative Framework of FreedomThe author considers the question of whether or even what normative structure of social order is able to encourage the advancement of the measure of positive liberty in the process of globalization. Related to this is the issue of the insufficiency of guarantees provided by orthodox liberalism for human self-determination. The author considers possible scenarios as to the way in which an elite cosmopolitan minority, profiting from globalization and feeling no responsibility for the majority left to its own fate, would pursue its own interests. The ideas of Ralf Dahrendorf concerning the global rule of law in the name of freedom and the need for international law are referred to. Globalization is occurring just as Marx intuitively predicted: capitalism becomes the bearer of hidden immanent self-destructive mechanisms. In conclusion, the author's hypothesis is that the new era of law in the 21

“FRAGMENTATION” OF INTERNATIONAL LAW AS A STRATEGY FOR REFORMING INTERNATIONAL INVESTMENT LAW

2014 ◽  
Vol 23 (1) ◽  
pp. 49-68 ◽  
Author(s):  
Ernst-Ulrich Petersmann
Keyword(s):  
Human Rights ◽  
International Law ◽  
Rule Of Law ◽  
International Investment ◽  
Economic Regulation ◽  
International Courts ◽  
International Investment Law ◽  
International Economic Law ◽  
Commutative Justice ◽  
Constitutional Pluralism

International economic law (IEL) continues to evolve through dialectic processes of unilateral, bilateral, regional and worldwide regulation aimed at protecting cosmopolitan rights and transnational rule of law in mutually beneficial economic cooperation among citizens in a globalizing economy (section 1). The more transnational protection of cosmopolitan rights (e.g., human rights, trading, investor and social rights) depends on multilevel cooperation among national and international courts, the stronger becomes the need for justifying “multilevel judicial governance” by conceptions of “cosmopolitan” and “constitutional justice” rather than only by “Westphalian justice” and “commutative justice”, as reciprocally agreed in treaties among States (section 2). “Fragmentation” of “IEL among States” through multilevel economic regulation and adjudication (e.g., inside free trade areas and economic communities) is a necessary strategy for reforming international law for the benefit of citizens. In order to remain legitimate and reconcile the rational self-interests of citizens with their reasonable common interests, investment arbitration must remain embedded into multilevel human rights law and respect for legitimate “constitutional pluralism” protecting cosmopolitan rights, transnational “participatory” and “deliberative democracy” and rule of law through “consistent interpretations” and “judicial comity” among national and international courts of justice (section 3).

Part IV Law and Applicable Principles, 17 Dispute Resolution

2017 ◽  
Author(s):  
Burnett Henry G ◽  
Bret Louis-Alexis
Keyword(s):  
Dispute Resolution ◽  
International Investment ◽  
International Agreements ◽  
Commercial Arbitration ◽  
Investment Protection ◽  
Arbitration Clause ◽  
Investment Arbitration ◽  
Domestic Legislation ◽  
Commercial Disputes ◽  
The Way

This chapter begins with a comparison of contract and investment disputes. From an arbitration standpoint, contract-based disputes are predominately commercial disputes submitted to arbitration by virtue of an arbitration clause. In the absence of an arbitration clause, disputing parties might resort to specific agreements or submission agreements in order to find recourse to arbitration. International investment arbitration differs from commercial arbitration in the way the parties express their consent. It is often based on States’ domestic legislation or international agreements between two or more States providing for protection of each contracting State’s investors in their respective territories. The remainder of the chapter discusses the importance of investment protection and investor-State arbitration in international mining disputes.

scholarly journals Sir Creek and its Legal and Political Significance and Resolution

2019 ◽  
Vol 1 (1) ◽  
pp. 1-14
Author(s):  
Sikander Ahmed Shah
Keyword(s):  
International Law ◽  
Dispute Resolution ◽  
Legal Proceedings ◽  
Choice Of Procedure ◽  
Boundary Disputes ◽  
International Dispute ◽  
The Status ◽  
Bilateral Negotiations ◽  
Special Circumstances ◽  
The Way

The Sir Creek dispute remains a serious hurdle in the way of any meaningful progress on ties between Pakistan and India, but it also has huge potential to be resolved by recourse to international law and bilateral negotiations. In this respect, I will explore certain important historical, legal and political aspects of the Sir Creek dispute in order to betterinform future dialogue between the two states. Among otherthings, I will discuss the status of the law and its application to the dispute. With regards to Sir Creek, other considerations that will be examined include: the impetus for bothstates to adhereto the lawof the sea, the potential of international dispute resolution and the appropriate choice of procedure for settlement, the relevant weightageto be givento historical and special circumstances as well as the significance to relevant international legal proceedings on the dispute. The various factors relevant to the amicable settlement of such river boundary disputes will also be holistically examined.

Diligentia quam in suis as a Technique for a Contextual Application of the Full Protection and Security Standard: Considering the Level of Development of Host States in International Investment Law

2020 ◽  
Vol 28 (4) ◽  
pp. 596-611
Author(s):  
Nitish Monebhurrun
Keyword(s):  
International Law ◽  
International Investment ◽  
Due Diligence ◽  
Foreign Investors ◽  
International Investment Law ◽  
Local Means ◽  
Security Standard ◽  
Maximum Protection ◽  
Investment Law ◽  
Full Protection

With international investment law as the background to this study, the present article examines how the full protection and security standard can be construed from the perspective of developing states hosting foreign investments. The research delves into classical public international law to argue that the diligentia quam in suis rule can be used as a means of interpretation to strike a balance between foreign investors’ and developing states’ interests when construing the full protection and security standard. The rule provides that any expected due diligence from the state party is necessarily of a subjective nature. This means that developing host states must deploy their best efforts to offer maximum protection to foreign investors not on an in abstracto basis but as per their local means and capacity. Accordingly, the standard is presented as an adaptable and flexible one which moulds its contours as per the level of development of the host state. Such flexibility does not imply condoning states’ abuse and negligence. The article explains how the diligentia quam in suis rule enables a conciliation between the full protection and security standard and the host state's level of development while rationalising the standard's application to developing nations.

Comparative Views on the Right to Vote in International Law

2018 ◽  
Author(s):  
Shai Dothan
Keyword(s):  
Human Rights ◽  
International Law ◽  
National Courts ◽  
European Court ◽  
Right To Vote ◽  
The Right ◽  
Democratic Elections ◽  
The Way

There is a consensus about the existence of an international right to vote in democratic elections. Yet states disagree about the limits of this right when it comes to the case of prisoners’ disenfranchisement. Some states allow all prisoners to vote, some disenfranchise all prisoners, and others allow only some prisoners to vote. This chapter argues that national courts view the international right to vote in three fundamentally different ways: some view it as an inalienable right that cannot be taken away, some view it merely as a privilege that doesn’t belong to the citizens, and others view it as a revocable right that can be taken away under certain conditions. The differences in the way states conceive the right to vote imply that attempts by the European Court of Human Rights to follow the policies of the majority of European states by using the Emerging Consensus doctrine are problematic.

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