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.

scholarly journals DISPUTE SETTLEMENT OF ANTI-DUMPING LEGAL ASPECT IN INDONESIA BASED ON GATT/WTO PROVISIONS (ALLEGATIONS CASE STUDY OF DUMPING WOOD FREE COPY PAPER BETWEEN SOUTH KOREA AND INDONESIA)

2020 ◽  
Vol 2 (2) ◽  
Author(s):  
Idha Mutiara Sari
Keyword(s):  
International Trade ◽  
South Korea ◽  
Dispute Settlement ◽  
Legal Aspect ◽  
Trade Disputes ◽  
Trade Relations ◽  
Trade Law ◽  
International Trade Law

The increase of trading activities in economic globalization requires a strong international financial and trade system to distribute capital in the implementation of world trade. From the considerable problems in the globalization of trade, the international community has begun to draft several regulations that can be agreed together. Therefore, there is a need for rules and regulations in international trade relations, in this case, an agreement realizing the role of GATT/WTO as an international trade organization that determines and assists in resolving trade disputes between countries. Legal issues will be discussed in this paper is, 1) How is the implementation of GATT / WTO about anti-dumping law; 2) How is the implementation of anti-dumping law in Indonesia; 3) What is the legal aspect of dispute resolution of the case study in the alleged Dumping Wood Free Copy Paper case between South Korea and Indonesia. In this paper, the research method is normative legal research that accommodates regulations, decisions and general principles of (international-trade) law related to anti-dumping, case analysis, and structured classification with relevant theoretical studies to the topic of discussion.The results discussed in this paper are the role of GATT/WTO in dealing with anti-dumping in Indonesia regulation and implementation of anti-dumping in its legal territorial area, and South Korea’s anti-dumping case study on Indonesia. Conclusions from this paper include, Indonesia must better to protect a regulation regarding anti-dumping measures by enforcing strong laws and other anti-dumping regulations. It is a legal urgency as an export-import activity because in the implementation of international trade defence is not enough if a Government Decree regulates anti-dumping actions. Still, it must continue to update the rules of the WTO’s provisions which always develop.

Monitoring Prescriptions, Third-Party Healthcare Payers, Prescription Benefit Managers, and Private-Sector Policy Options

2018 ◽  
Author(s):  
John J. Coleman
Keyword(s):  
Private Sector ◽  
Third Party ◽  
Policy Options ◽  
Pharmacy Benefit ◽  
Drug Enforcement ◽  
Controlled Substances ◽  
Drug Enforcement Administration ◽  
The Third ◽  
Potential Benefits

This chapter discusses how opioids are diverted from legitimate to illegitimate channels and examines the systems that have been developed to keep track of these drugs by monitoring their prescribing and dispensing. Also covered are the regulations that enable authorities to scrutinize manufacturers and distributors for anomalous transactions that might signal diversion. The chapter also discusses potential strategies involving the private sector, which has a corresponding interest in curtailing waste, fraud, and abuse in the third-party healthcare payer systems that each year process billions of prescriptions for drugs, including controlled substances. The chapter looks at the role of pharmacy benefit managers in the dispensing of controlled substances. The potential benefits of adding pharmacy benefit managers to the present classes of business activities regulated by the Drug Enforcement Administration are explored.

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>

scholarly journals Review of Modern Transportation Technologies with focus on Containerization

2019 ◽  
Vol 57 (1) ◽  
pp. 111-121
Author(s):  
Helga Pavlić Skender ◽  
Petra Adelajda Zaninović ◽  
Elena Srića
Keyword(s):  
International Trade ◽  
20Th Century ◽  
Transport Processes ◽  
The Future ◽  
Future Challenges ◽  
The 1960S ◽  
Transportation Technologies

Modern transportation technologies emerged in the mid-20th century and their appearance changed the current course of the transportation of goods. The use of modern transportation technologies in transport processes results in faster, more efficient and safer transport of goods from the sender/consignor, the manufacturer, to the receiver/consignee, consumer or customer. Container, i.e. containerization is one of the most important transportation technologies with significant impact on the development of international trade and globalization from the 1960s until present time. The aim of this paper is to review the role of containerization, as the most significant transportation technology. The results show an ever growing yet slower trend of containerization during past years that is likely to continue in the upcoming period . In the future, challenges can be expected in the container business especially in the field of digitalization and automation. This paper contributes to the valorization of containerization and points to the important role of infrastructure as a support to the realization of the potential of containerization in future.

scholarly journals TUG OF WAR: EVALUATIVE VERSUS FACILITATIVE MEDIATOR

2011 ◽  
Author(s):  
Diksha Munjal
Keyword(s):  
Dispute Settlement ◽  
Active Role ◽  
Essential Elements ◽  
Decision Makers ◽  
Self Determination ◽  
Third Party ◽  
Facilitative Role ◽  
Definition Of ◽  
Third Party Facilitation

Mediation can be defined as a process where a neutral third party seeks to facilitate communication between the disputing parties to help them arrive at an amicable solution of their disputes culminating in a win-win situation for the parties. Though ‘... there is no single limiting definition of mediation, in part because mediators function in accordance with different philosophies and in statistically different ways’, the most commonly accepted definitions of mediation incorporate two essential elements: ‘(1) third-party facilitation of dispute settlement, and (2) lack of third-party power to determine the resolution of the dispute.’ The central focus of mediation is based on the principle of parties’ self-determination. To further this basic principle, the role of a mediator must be well defined. Looking at mediation from a historical perspective, mediation was confined to the facilitative role of a neutral third party. Gradually, however, there came a sharp divide amongst the existing mediators as regards the scope of intervention by a mediator in the mediation proceedings. At one end of the broad spectrum of a mediator’s role, lies his or her active role as an evaluator and at the other, that as a facilitator of communication between the parties. These two positions are, however, in contrast with each other and hence, the debate as to the most suitable role of a mediator’s intervention in the process. In part II(a) of the present paper I attempt to portray the distinction between mediators and decision-makers. Because of the emergence of evaluative forms in mediation. In part II(b) I sketch the differences between the approaches taken by the facilitative and the evaluative mediators. In part III I try to indicate the dangers posed when mediators strive to put on the evaluative cloak and finally and in part IV I sum up the paper with an appropriate conclusion.

Dispute Settlement in International Law

2014 ◽  
Author(s):  
Loris Marotti ◽  
Paolo Palchetti
Keyword(s):  
International Law ◽  
Dispute Settlement ◽  
Third Party ◽  
Basic Principles ◽  
Interstate Disputes ◽  
International Dispute ◽  
Legal Duty ◽  
Recent Trends

The basic principles and methods governing the settlement of international disputes today—particularly interstate disputes—are substantially the same as those that were identified and enshrined in the Charter of the United Nations in 1945. Parties to a dispute are under a duty to settle it in a peaceful way (Article 2, paragraph 3 of the UN Charter). While barred from resorting to armed force, the parties remain however, at least in principle, “masters” of the procedure for dispute settlement, and of the outcome. In the absence of a precise treaty obligation, they are free to decide the particular means of dispute settlement they prefer (Article 33 of the UN Charter). More broadly, any settlement will inevitably depend, directly or indirectly, on the agreement of the parties. Thus, the whole edifice of dispute settlement at the international level is characterized by an inherent tension between a legal duty to settle disputes in a peaceful way and the absence of any real compulsory mechanism that may render such obligation effective. Against this legal background, the notion of dispute settlement covers a great variety of different settlement devices. Such procedures can be distinguished one from the other on the basis of different criteria, such as whether they contemplate the intervention of a third party, whether the settlement is based on the application of rules of international law, or whether the final outcome of the procedure has a binding or nonbinding character. The classification of these different procedures; the identification of their respective merits and shortcomings, in absolute or comparative terms; their suitability in relation to different categories of disputes—these are all issues that have been traditionally the object of a vast body of literature. On a broader perspective, recent trends, which have brought some changes in the field of the international dispute settlement, have also attracted the attention of doctrine. These trends include the progressive institutionalization of the procedures, thanks also to the growing role of international organizations in this area, the multiplication of settlement mechanisms and the ensuing problem of the possible interaction or conflict between them, the creation of new courts and tribunals, and the rise of adjudication as a means of dispute settlement.

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.

On the State of War and of Peace

2019 ◽  
pp. 142-192
Author(s):  
Jean Allain
Keyword(s):  
Dispute Settlement ◽  
The State ◽  
Third Party ◽  
War And Peace ◽  
Law Of Nations ◽  
The Law ◽  
The Right ◽  
Peace Treaties

Book Three has Rayneval taking the reader through the Law of Nations as it relates to war and peace. A focus is placed on the origins, causes, effects, and conduct of war both on land and at sea. The right of conquest in considered, including prisoners, hostages, as well as civilians in conquered territory. This Book also examines the various principles governing alliances and the role of Neutral Powers in times of war. Where the seas are concerned, Rayneval considers the role of Neutrals Powers, of the right to visit in times of war, of Letters of Marque, and the taking of Prizes. Where peace is concerned, Rayneval speaks of the nature and obligations flowing from peace treaties and invokes mediation as the sole basis of third-party dispute settlement.

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