International Investment Arbitration in a Jus Post Bellum Framework

2015 ◽  
Vol 16 (4) ◽  
pp. 633-665
Author(s):  
Merryl Lawry-White
Keyword(s):  
Ad Hoc ◽  
International Investment ◽  
The Rule Of Law ◽  
Legal Norms ◽  
Jus Post Bellum ◽  
Post Conflict ◽  
Investment Arbitration ◽  
Sustainable Peace ◽  
Wide Range ◽  
Investment Treaties

Reaffirming the rule of law and redressing harm to rights are key considerations in the search for a just and sustainable peace. Post-conflict claims for damage to alien property have a long history. The extensive network of investment treaties and relevant protections contained therein suggest that investment arbitration tribunals may play a role in re-establishing respect for international norms post-conflict. Tribunals may also, however, detract from the peacebuilding process if they do not consider the broader context in which they are operating. There is an inherent tension in urging specialist, ad hoc bodies with limited jurisdiction to consider a wide range of circumstances, interests and norms. Yet, as this article demonstrates, the nature of investment treaties and applicable protections, defences, justifications, and procedural tools, afford tribunals avenues to take a broader view of relevant legal norms and of the circumstances and interests implicated in the claim.

International Investment Law in the Context of Jus Post Bellum: Are Investment Treaties Likely to Facilitate or Hinder the Transition to Peace?

2015 ◽  
Vol 16 (4) ◽  
pp. 604-632 ◽  
Author(s):  
Jure Zrilič
Keyword(s):  
Rule Of Law ◽  
International Investment ◽  
The Rule Of Law ◽  
International Investment Law ◽  
Jus Post Bellum ◽  
Post Conflict ◽  
Investment Arbitration ◽  
Sustainable Peace ◽  
Investment Law ◽  
Investment Treaties

This article seeks to explore how international investment treaties interact with the transition from armed conflict to peace. While the protection of foreign investors in conflict and post-conflict environments is a necessary requirement for re-establishing the rule of law and attracting new capital that is needed for rebuilding the wrecked economy, the threat of excessive arbitration claims may also complicate the delicate process of creating a stable political order. The article compares traditional, government-to-government methods of settling post-conflict international claims with investor-state arbitration. Unlike investors, governments will usually base their decision about raising a conflict-related claim on a number of extra-legal considerations, such as conditions for sustainable peace. These considerations will often reflect in the amount and the method of payment of post-conflict compensation. The article looks at the investment arbitration practice and identifies certain interpretive tools that take better account of post-conflict realities and lead to more balanced awards.

scholarly journals Right to Land, Housing, and Property

2020 ◽  
pp. 252-266
Author(s):  
Elisenda Calvet Martínez ◽  
Aitor Díaz Anabitarte
Keyword(s):  
Rule Of Law ◽  
Criminal Prosecution ◽  
The Rule Of Law ◽  
Cultural Rights ◽  
Jus Post Bellum ◽  
State Security ◽  
Post Conflict ◽  
Sustainable Peace ◽  
Conflict Situations ◽  
The Right

The enforcement of economic, social, and cultural rights is often neglected in transitions from conflict to peace. Reconstruction programmes and initiatives of justice in post-conflict situations are still based on the paradigms of state security and criminal prosecution. However, there is a trend to recognize the importance of safeguarding the right of refugees and displaced persons to restitution of land, housing and property so that they can return to their homes and places of residence in safe and dignified conditions, with the aim of promoting the rule of law and achieving a just and lasting peace. The chapter shows the need to deepen and advance the empowerment of the right to restitution as a principle of jus post bellum in order to attain a just and sustainable peace. It claims that jus post bellum should promote ‘positive peace’.

Victory and the Ending of Conflicts

2017 ◽  
Author(s):  
Eric Patterson
Keyword(s):  
Rule Of Law ◽  
Just War ◽  
Conflict Situation ◽  
State Agency ◽  
Political Leaders ◽  
The Rule Of Law ◽  
Jus Post Bellum ◽  
Post Conflict ◽  
War Aims ◽  
Just Peace

Scholars and political leaders have recently grown increasingly uncomfortable with terms like victory and ‘unconditional surrender’. One reason for this becomes clear when reconsidering the concept of ‘victory’ in terms of ethics and policy in times of war. The just war tradition emphasizes limits and restraint in the conduct of war but also highlights state agency, the rule of law, and appropriate war aims in its historic tenets of right authority, just cause, and right intention. Indeed, the establishment of order and justice are legitimate war aims. Should we not also consider them exemplars, or markers, of just victory? This chapter discusses debates over how conflicts end that have made ‘victory’ problematic and evaluates how just war principles—including jus post bellum principles—help define a moral post-conflict situation that is not just peace, but may perhaps be called ‘victory’ as well.

Peacebuilding Functions of International Environmental Governance

2021 ◽  
pp. 1-5
Author(s):  
Ole Kristian Fauchald
Keyword(s):  
Disaster Management ◽  
Environmental Governance ◽  
Ad Hoc ◽  
International Environmental Governance ◽  
Post Conflict ◽  
Sustainable Peace ◽  
Conflict Situations ◽  
Institutional Structures ◽  
Subject Specific ◽  
Key Aspects

This chapter seeks to focus on ‘peacebuilding’ as a construct of peace among groups that have previously been in conflict. This calls for moving beyond peacemaking and conflict resolution to consider the longer-term efforts at establishing sustainable peace. Notwithstanding the longstanding efforts of UNEP’s Post-Conflict and Disaster Management Branch, there has been very limited development of international normative and institutional structures targeting the process of post-conflict sustainable peacebuilding. How far the current international environmental governance (IEG) regimes are responsive to the specific challenges to post-conflict situations? It seeks to briefly consider four key aspects of IEG regimes: (i) Ad- hoc and subject specific (ii) Incremental and facilitative (iii) Degree of reciprocity and (iv) Science-based.

The Silent Spring of Human Rights in Investment Arbitration: Jurisprudence Constante through Case-Law Trajectory

2020 ◽  
Vol 36 (4) ◽  
pp. 557-570
Author(s):  
Riddhi Dhananjay Joshi ◽  
Shashikala Gurpur
Keyword(s):  
Human Rights ◽  
Ad Hoc ◽  
Social Economic ◽  
Case Law ◽  
International Investment ◽  
Third Party ◽  
Investment Arbitration ◽  
Silent Spring ◽  
Environmental Interests

Abstract As a niché body of jurisprudence, International Investment Arbitration has paradoxically remained aloof from developments in other related spheres of law. Increasingly, however, Tribunals have been compelled to reflect on matters arising out of a human rights narrative. This article studies the perspectives of certain stakeholders in choosing to employ human rights to further social, economic or environmental interests in an investment arbitration. These stakeholders are: Claimant, Respondent, Third Party Interveners, Tribunal, and Enforcing Jurisdiction. Reliance is placed on awards spanning 28 years from 1989 to 2017 under the ICSID regime as well as in ad hoc arbitrations under the UNCITRAL Rules. An analysis of trends in case law sheds light on the nature of a jurisprudence constante developing in this regard. The article also explores limitations to, and recommendations for, the engagement of human rights within the realms of Investment Arbitration.

scholarly journals Counterclaims and the Rule of Law in Investment Arbitration

AJIL Unbound ◽  
2019 ◽  
Vol 113 ◽  
pp. 33-37 ◽  
Author(s):  
Tomoko Ishikawa
Keyword(s):  
Rule Of Law ◽  
International Investment ◽  
Access To Justice ◽  
Foreign Investors ◽  
The Rule Of Law ◽  
International Investment Law ◽  
Rule By Law ◽  
Investment Arbitration ◽  
The Law ◽  
Broad Interpretation

While the rule of law was originally developed with reference to domestic constitutional orders, it is also widely embraced by international lawyers. This essay argues that the admission of counterclaims in certain circumstances helps investment arbitration advance the rule of law on several counts. The rule of law is defined here to include not only formal elements such as rule-by-law and formal legality, but also “thicker” elements attached to certain substantive values, including fundamental human rights. The UN's work on the rule of law clearly adopts a broad interpretation of this concept. This essay examines the potential for counterclaims to bridge the gap between the lack of effective mechanisms to hold foreign investors accountable for their conduct and the extensive protection of foreign investors in international investment law. By doing so, counterclaims in investment arbitration may promote the thicker elements of the rule of law such as accountability to the law, access to justice, and fairness in the application of the law.

scholarly journals Jus Post Bellum as Definition and Practice

2020 ◽  
pp. 269-283
Author(s):  
Maj Grasten
Keyword(s):  
Field Research ◽  
Specific Context ◽  
Legal Form ◽  
Policy Documents ◽  
General Argument ◽  
The Rule Of Law ◽  
Jus Post Bellum ◽  
Post Conflict ◽  
Just Peace ◽  
Oriented Approach

This chapter traces the materialization of the rule of law in post-conflict Kosovo to argue that jus post bellum involves contestation and enactment. It suggests that just peace requires negotiations over what is ‘just’ in any specific context and advocates a more general argument for a sociologically informed approach to international law. This includes due attention to the effects of indeterminacy. Drawing on field research on UNMIK and EULEX in Kosovo, the chapter takes a practice- and process-oriented approach in tracing how international policy concerns entered international legal and policy documents, institutions, and practices. It concludes that just peace, and legal form more generally, are political and never objective.

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.

11 “The Premier International Investment Arbitration Facility in the World”

2017 ◽  
Author(s):  
Parra Antonio R
Keyword(s):  
Dispute Resolution ◽  
Dispute Settlement ◽  
International Investment ◽  
Bilateral Investment Treaties ◽  
Investment Arbitration ◽  
The World ◽  
Energy Charter Treaty ◽  
Investment Law ◽  
New Challenges ◽  
Investment Treaties

This chapter examines activities of the Centre from the start of 2011 to the end of June 2015. Almost 50 percent more cases were registered at ICSID in that period compared to the previous five years. The chapter provides some statistics on the cases of this period. As in the decade before, it shows, most the cases were brought to ICSID on the basis of the dispute settlement provisions of investment treaties, mostly bilateral investment treaties (BITs) (in over 60 percent of the cases). A large proportion of the cases (more than ten percent) came to ICSID under the Energy Charter Treaty (ECT). Cases submitted to the Centre pursuant to the dispute resolution clauses of investment contracts made up for a smaller share of the total. A handful (5 percent) of the cases were initiated under dispute settlement provisions of an investment law of the host State. The chapter then looks at institutional developments of ICSID during the period and considers new challenges that ICSID might meet in the future.

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