Fault Lines and the Future of ISDS

2020 ◽  
pp. 133-146
Author(s):  
Gus Van Harten
Keyword(s):  
North America ◽  
Dispute Settlement ◽  
Transition Countries ◽  
Foreign Investor ◽  
State Action ◽  
The Future ◽  
Government Capacity ◽  
Fault Lines ◽  
Investor Protections

In this chapter, it is argued that removing foreign investor protections is a feasible and important step to re-invigorate the institutions needed to confront pressing concerns of humanity. By limiting government capacity to employ the policy levers recommended by scientists to protect society from climate-related damage, for example, investor–state dispute settlement (ISDS) hampers state action to confront a global emergency. Reform efforts in Europe, North America, and developing or transition countries are surveyed, and the deleterious role of the ISDS industry is revisited. Countries are encouraged to terminate their ISDS treaties to bolster their position in relation to ISDS reform. If ISDS continues to expand, however, a foreseeable outcome is that it will ultimately play a role in the collapse of society.

Fortifying Inequality

2020 ◽  
pp. 1-13
Author(s):  
Gus Van Harten
Keyword(s):  
Greenhouse Gas ◽  
Dispute Settlement ◽  
Adult Population ◽  
Foreign Investor ◽  
Global Inequality ◽  
Gas Emissions ◽  
International Protection ◽  
Investor Protections ◽  
The One

In this chapter, foreign investor protections are introduced as a symbol and guarantor of global inequality. Backed by the most powerful adjudicative mechanism in international law, these protections benefit 255,000 people whose combined wealth exceeds that of 80 per cent of the world’s adult population, about four billion people. They lead one to ask if the one hundred companies responsible for most industrial greenhouse gas emissions, for example, are so vulnerable or helpful to others as to deserve extraordinary international protection. Commonplace arguments in favour of investor–state dispute settlement (ISDS) are surveyed and criticized. The promotional role of the ISDS industry of arbitrators, lawyers, and experts, for which ISDS has generated to billions in fees, is also highlighted, focusing on arbitrators whose pro-investor interpretations laid a foundation for the explosion of ISDS.

Commercial stakeholders in international economic dispute resolution and the issue of adjudicatory independence

2017 ◽  
Vol 24 (4) ◽  
pp. 582-601 ◽  
Author(s):  
Joanna Jemielniak
Keyword(s):  
Dispute Resolution ◽  
Dispute Settlement ◽  
Trade Disputes ◽  
Commercial Arbitration ◽  
State Action ◽  
Softwood Lumber ◽  
Appellate Body ◽  
Wto Dispute Settlement ◽  
Wto Appellate Body

The article discusses the problem of influence exerted by commercial actors in international trade disputes and consequences of this phenomenon for positions adopted by adjudicators. It explores the role of commercial stakeholders inasmuch as they comprise a driving force behind state action, and examines procedural options available to those stakeholders. The issue of adjudicatory independence and neutrality is considered in the context of involved industries and their interests as the non-party spiritus movens behind WTO dispute settlement processes. Related procedural aspects, such as confidentiality/transparency of proceedings and the possibilities for participation of non-party actors, are also examined. It is argued that WTO litigation is often only one track among several available to the stakeholders in the pursuit of their interests. As a consequence, the problem of forum shopping is also raised. In this vein, the standards of the WTO Appellate Body in the area under discussion are set against those of investment and commercial arbitration (as the institutions and rules designed for the latter are also being used for trade controversies, as evidenced in the Softwood Lumber LCIA arbitrations). Consequently, the problem of establishing standards of adjudicatory independence is deemed a significant factor in strategic selection of the most advantageous forum for dispute resolution.

scholarly journals Dispute settlement under the United Nations Convention On the Law of the Sea and Its Role in Oceans Governance

2021 ◽  
Author(s):  
◽  
Anshuman Chakraborty
Keyword(s):  
United Nations ◽  
Dispute Settlement ◽  
Law Of The Sea ◽  
Traditional Role ◽  
Actual Role ◽  
The Future ◽  
United Nations Convention ◽  
The Law ◽  
Dispute Settlement Mechanisms

<p>This thesis is about the dispute settlement provisions of the 1982 United Nations Convention on the Law of the Sea (LOSC or Convention), and the potential and actual role that they play in oceans governance. The study focuses not only on the traditional role of dispute settlement mechanisms in peacefully settling disputes, but also on their potential for contribution to good oceans governance in many ways. The jurisprudence generated so far under the dispute settlement provisions of the LOSC can be called neither a complete success nor a total failure. Part XV of the Convention, dealing with dispute settlement procedures, has made a promising start with the inaugural jurisprudence under the prompt release and provisional measures proceedings. However, besides the general beneficial influence of the jurisprudence on oceans governance, a few detrimental developments have also been identified from the perspective of oceans governance. The present thesis demonstrates that a lot of hope had been pinned on the dispute settlement provisions at the time when the LOSC was drafted. However, most of these hopes have not yet found expression, and if the limited use of dispute settlement procedures continues, it is unlikely that Part XV will fulfil those hopes in the future. Nevertheless, this thesis argues along more optimistic lines, and expresses a realistic hope that the actual role of dispute settlement in oceans governance will improve in the future. The thesis concludes that the success or failure of the dispute settlement mechanisms mostly depends upon their actual use made by states. Further, the dispute settlement mechanisms once invoked must be able to settle disputes objectively on the basis of law, equity and justice and uphold the principles and provisions of the LOSC. It is hoped that states will have recourse to Part XV more often for the purpose of settling their disputes peacefully, and that the dispute settlement provisions will in turn fulfil their mandate. Only then will the world witness the dispute settlement mechanisms playing a real and beneficial role in oceans governance, concurrently with other oceans governance institutions and arrangements.</p>

Introduction

2018 ◽  
Author(s):  
Irina Buga
Keyword(s):  
International Law ◽  
Final Section ◽  
Systematic Approach ◽  
Dispute Settlement ◽  
The Future ◽  
Practical Level

This chapter introduces the discussion of the key role of subsequent practice in the process of treaty adaptation and the formation of international law more generally. The chapter explains the need to explore the treaty modifying potential of subsequent practice—a topic that has, in recent years, generated an increasing amount of attention—and its potentially far-reaching effects for States and dispute settlement bodies alike. The chapter also defines treaty ‘modification’ in this context. The final section sets out the book's systematic approach to exploring the relevance and dynamism of the process of treaty modification by subsequent practice and showing—on a theoretical and practical level—how it can be identified and dealt with more consistently in the future.

Role of Temperature and Moisture in the Production and Maturation of Gibberella zeae Perithecia

Plant Disease ◽  
2006 ◽  
Vol 90 (5) ◽  
pp. 637-644 ◽  
Author(s):  
N. S. Dufault ◽  
E. D. De Wolf ◽  
P. E. Lipps ◽  
L. V. Madden
Keyword(s):  
North America ◽  
Water Potential ◽  
Fusarium Head Blight ◽  
Fusarium Graminearum ◽  
Gibberella Zeae ◽  
Head Blight ◽  
Influence Of Temperature ◽  
The Future ◽  
Controlled Environments

Fusarium graminearum (teleomorph Gibberella zeae) is the most common pathogen of Fusarium head blight (FHB) in North America. Ascospores released from the perithecia of G. zeae are a major source of inoculum for FHB. The influence of temperature and moisture on perithecial production and development was evaluated by monitoring autoclaved inoculated cornstalk sections in controlled environments. Perithecial development was assessed at all combinations of five temperatures (12, 16, 20, 24, and 28°C) and four moisture levels with means (range) -0.45 (-0.18, -1.16), -1.30 (-0.81, -1.68), -2.36 (-1.34, -3.53) and -4.02 (-2.39, -5.88) MPa. Moisture levels of -0.45 and -1.30 MPa and temperatures from 16 to 24°C promoted perithecial production and development. Temperatures of 12 and 28°C and moisture levels of -2.36 and -4.02 MPa either slowed or limited perithecial production and development. The water potential of -1.30 MPa had mature perithecia after 10 days at 20°C, but not until after 15 days for 24°C. In contrast, few perithecia achieved maturity and produced ascospores at lower moisture levels (-2.36 and -4.02 MPa) and low (12°C) and high (28°C) temperatures. In the future, it may be possible to use the information gathered in these experiments to improve the accuracy of FHB forecasting systems.

So far, so good: but what next? The Sutherland Report and WTO dispute settlement

2005 ◽  
Vol 4 (3) ◽  
pp. 409-417
Author(s):  
NIALL MEAGHER
Keyword(s):  
Political System ◽  
Dispute Settlement ◽  
Settlement System ◽  
Future Role ◽  
Wto Dispute Settlement ◽  
The Future ◽  
Dispute Settlement System

This comment will focus primarily on the Sutherland Report's analysis of and recommendations for the WTO dispute settlement system. Before turning to the specific issue of dispute settlement, however, it is necessary to make a few introductory remarks regarding the objectives of the Sutherland Report, as well as its view of the future role of the WTO, including the dispute settlement system, in the international political system.

scholarly journals Dispute settlement under the United Nations Convention On the Law of the Sea and Its Role in Oceans Governance

2021 ◽  
Author(s):  
◽  
Anshuman Chakraborty
Keyword(s):  
United Nations ◽  
Dispute Settlement ◽  
Law Of The Sea ◽  
Traditional Role ◽  
Actual Role ◽  
The Future ◽  
United Nations Convention ◽  
The Law ◽  
Dispute Settlement Mechanisms

<p>This thesis is about the dispute settlement provisions of the 1982 United Nations Convention on the Law of the Sea (LOSC or Convention), and the potential and actual role that they play in oceans governance. The study focuses not only on the traditional role of dispute settlement mechanisms in peacefully settling disputes, but also on their potential for contribution to good oceans governance in many ways. The jurisprudence generated so far under the dispute settlement provisions of the LOSC can be called neither a complete success nor a total failure. Part XV of the Convention, dealing with dispute settlement procedures, has made a promising start with the inaugural jurisprudence under the prompt release and provisional measures proceedings. However, besides the general beneficial influence of the jurisprudence on oceans governance, a few detrimental developments have also been identified from the perspective of oceans governance. The present thesis demonstrates that a lot of hope had been pinned on the dispute settlement provisions at the time when the LOSC was drafted. However, most of these hopes have not yet found expression, and if the limited use of dispute settlement procedures continues, it is unlikely that Part XV will fulfil those hopes in the future. Nevertheless, this thesis argues along more optimistic lines, and expresses a realistic hope that the actual role of dispute settlement in oceans governance will improve in the future. The thesis concludes that the success or failure of the dispute settlement mechanisms mostly depends upon their actual use made by states. Further, the dispute settlement mechanisms once invoked must be able to settle disputes objectively on the basis of law, equity and justice and uphold the principles and provisions of the LOSC. It is hoped that states will have recourse to Part XV more often for the purpose of settling their disputes peacefully, and that the dispute settlement provisions will in turn fulfil their mandate. Only then will the world witness the dispute settlement mechanisms playing a real and beneficial role in oceans governance, concurrently with other oceans governance institutions and arrangements.</p>

Outsourcing FTA Dispute Settlement Administration to Third-Party International Arbitral Institutions: Opportunities and the Role of the Permanent Court of Arbitration

2020 ◽  
Vol 19 (1) ◽  
pp. 49-78
Author(s):  
Scott Falls
Keyword(s):  
International Trade ◽  
Dispute Settlement ◽  
Third Party ◽  
Trade Disputes ◽  
Contracting Out ◽  
Administrative Functions ◽  
The Future ◽  
Future Viability ◽  
Potential Benefits

Abstract With the future viability of WTO dispute settlement being uncertain, states may be required to rely on the dispute settlement mechanisms of their FTAs to provide a forum for litigating international trade disputes. Given however that these mechanisms have historically been inefficient and ineffective, it would be judicious for states to consider delegating the administrative functions of FTA dispute settlement to a third-party arbitral institution in order to remedy these deficiencies. This article analyzes both the factors impelling states to consider contracting out the administrative function of FTA dispute settlement, as well as the potential benefits states can reap by pursuing this strategy. Assessing the strengths and potential drawbacks of delegating FTA dispute settlement administration to the Permanent Court of Arbitration in particular, this article argues that the PCA is well positioned to undertake effective and efficient administration of FTA trade disputes.

Investment Arbitration in the Energy Sector

2020 ◽  
pp. 814-842
Author(s):  
Elena Cima
Keyword(s):  
Dispute Settlement ◽  
Energy Sector ◽  
Foreign Company ◽  
Foreign Investor ◽  
Energy Investment ◽  
Foreign Investors ◽  
Significant Percentage ◽  
Investment Arbitration ◽  
The World

This chapter studies the role of investment arbitration in the energy sector, which has received increasing attention over the last decade. International energy investment accounts for a significant percentage of all global investments and makes up the largest portfolio of international arbitrations in the world today. Energy-related disputes can take many forms. They may occur between two states, two private parties, or a private party and a state—in which case they may relate either to an investment by a foreign company in a state or to a commercial contract between a foreign company and a state. The chapter considers only one type of energy-related dispute, namely investment disputes between a foreign investor and a state. It particularly focuses on arbitration, which represents ‘the most widely used form of dispute settlement between foreign investors and host States’.

scholarly journals The Role of Soil Moisture–Atmosphere Interaction on Future Hot Spells over North America as Simulated by the Canadian Regional Climate Model (CRCM5)

2017 ◽  
Vol 30 (13) ◽  
pp. 5041-5058 ◽  
Author(s):  
G. T. Diro ◽  
L. Sushama
Keyword(s):  
Soil Moisture ◽  
North America ◽  
Regional Climate Model ◽  
Great Plains ◽  
Climate Model ◽  
Regional Climate ◽  
The Future ◽  
Central Canada ◽  
Hot Spells

Soil moisture–atmosphere interactions play a key role in modulating climate variability and extremes. This study investigates how soil moisture–atmosphere coupling may affect future extreme events, particularly the role of projected soil moisture in modulating the frequency and maximum duration of hot spells over North America, using the fifth-generation Canadian Regional Climate Model (CRCM5). With this objective, CRCM5 simulations, driven by two coupled general circulation models (MPI-ESM and CanESM2), are performed with and without soil moisture–atmosphere interactions for current (1981–2010) and future (2071–2100) climates over North America, for representative concentration pathways (RCPs) 4.5 and 8.5. Analysis indicates that, in future climate, the soil moisture–temperature coupling regions, located over the Great Plains in the current climate, will expand farther north, including large parts of central Canada. Results also indicate that soil moisture–atmosphere interactions will play an important role in modulating temperature extremes in the future by contributing more than 50% to the projected increase in hot-spell days over the southern Great Plains and parts of central Canada, especially for the RCP4.5 scenario. This higher contribution of soil moisture–atmosphere interactions to the future increases in hot-spell days for RCP4.5 is related to the fact that the projected decrease in soil moisture caused the soil to remain in a transitional regime between wet and dry state that is conducive to soil moisture–atmosphere coupling. For the RCP8.5 scenario, on the other hand, the future projected soil state over the southern United States and northern Mexico is too dry to have an impact on evapotranspiration and therefore on temperature.

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