scholarly journals Is Investor-State Arbitration Unfair? A Freedom-Based Perspective

2017 ◽  
Vol 10 (1) ◽  
Author(s):  
Ayelet Banai
Keyword(s):  
Distributive Justice ◽  
International Law ◽  
Dispute Settlement ◽  
International Justice ◽  
Self Determination ◽  
Private International Law ◽  
Political Resistance ◽  
Public Concern ◽  
Technical Issue ◽  
Foreign Investors

Investor-state-dispute-settlement (ISDS) is an arbitration mechanism to settle disputes between foreign investors and host-states. Seemingly a technical issue in private international law, ISDS procedures have recently become a matter of public concern and the target of political resistance, due to the power they grant to foreign investors in matters of public policies in the countries they invest in. This article examines the practice of ISDS through the lenses of liberal-statist theories of international justice, which value self-determination. It argues that the investor-state arbitration system illustrates how liberal-statist theories of international distributive justice ought to care about relative socioeconomic disadvantage, contra the sufficiency principle that they typically defend. The sufficiency principle draws on a questionable conception of the freedom that self-determination consists in.

The Trouble with Foreign Investor Protection

2020 ◽  
Author(s):  
Gus Van Harten
Keyword(s):  
International Law ◽  
Dispute Settlement ◽  
Foreign Investor ◽  
Foreign Investors ◽  
Global Context ◽  
Cross Border ◽  
Massive Growth ◽  
Main Effect ◽  
History Of ◽  
Legal Foundations

Governments are rightly discussing reform of investment treaties, and of the powerful system of ‘investor–state dispute settlement’ (ISDS) upon which they rest. It is therefore important to be clear about the crux of the problem. ISDS treaties are flawed fundamentally because they firmly institute wealth-based inequality under international law. That is, they use cross-border ownership of assets, mostly by multinationals and billionaires, as the gateway to extraordinary protections, while denying equivalent safeguards to those who lack the wealth required to qualify as foreign investors. The treaties thus have the main effect of safeguarding an awe-inspiring set of rights and privileges for the ultra-wealthy at the expense of countries and their populations. This book shows how ISDS came to explode in a global context of extreme concentration of wealth and of widespread poverty. The history of early ISDS treaties is highlighted to show their ties to decolonization and, sometimes, extreme violence and authoritarianism. Focusing on early ISDS lawsuits and rulings reveals how a small group of lawyers and arbitrators worked to create the legal foundations for massive growth of ISDS since 2000. ISDS-based protections are examined in detail to demonstrate how they give exceptional advantages to the wealthy. Examples are offered of how the protections have been used to reconfigure state decision making and shift sovereign minds in favour of foreign investors. Finally, the ongoing efforts of governments to reform ISDS are surveyed, with a call to go further or, even better, to withdraw from the treaties.

Rethinking sovereignty in international fiscal policy

2011 ◽  
Vol 37 (5) ◽  
pp. 2107-2120 ◽  
Author(s):  
PETER DIETSCH
Keyword(s):  
Fiscal Policy ◽  
Distributive Justice ◽  
International Law ◽  
Well Being ◽  
Self Determination ◽  
State Sovereignty ◽  
Modern State ◽  
State Governments

AbstractThe power to raise taxes is a sine qua non for the functioning of the modern state. Governments frequently defend the independence of their fiscal policy as a matter of sovereignty. This article challenges this defence by demonstrating that it relies on an antiquated conception of sovereignty. Instead of the Westphalian sovereignty centred on non-intervention that has long dominated relations between states, today's fiscal interdependence calls for a conception of sovereignty that assigns duties as well as rights to states. While such a circumscribed conception of sovereignty has emerged in other areas of international law in recent years, it has yet to be extended to fiscal questions. Here, these duties arguably include obligations of transparency, of respect for the fiscal choices of other countries, and of distributive justice. The resulting conception of sovereignty is one that emphasises its instrumental as well as its conditional character. Neither state sovereignty nor self-determination is an end in itself, but a means to promoting individual well-being. It is conditional in the sense that if states do not live up to their fiscal obligations towards other states, their claims to autonomy are void.

International Law and Foreign Investment in Hydroelectric Industry: A Multidimensional Analysis

2016 ◽  
Vol 18 (3-4) ◽  
pp. 183-222
Author(s):  
Attila Tanzi
Keyword(s):  
International Law ◽  
Foreign Investment ◽  
Dispute Settlement ◽  
International Investment ◽  
Multidimensional Analysis ◽  
Private International Law ◽  
International Investment Law ◽  
Investment Law ◽  
Domestic Law

The main focus of the present article is on the entanglement between four bodies of international law sensitive to foreign investment in the creation and/or operation hydroelectric industry: i.e. international investment law, human rights law, international water law and private international law to the extent that public international law rules on conflict of laws on civil liability for transboundary damage are concerned. This horizontal approach to the analysis is supplemented by a vertical one looking at the interactions between international and domestic law. Consideration of the different bodies of international law in question is associated to that of the adjudicative, and non-adjudicative, means of dispute settlement available under each such bodies of law. On that score, the role of the foreign investor in a litigation scenery will be considered, primarily as claimant, but also, prospectively, in relation to the situation in the State hosting the investment is, or may become, respondent in inter-State litigation.

Self-Determination, Secession, and Dispute Settlement after the Kosovo Advisory Opinion

2011 ◽  
Vol 24 (1) ◽  
pp. 149-154 ◽  
Author(s):  
RALPH WILDE
Keyword(s):  
International Law ◽  
Security Council ◽  
Dispute Settlement ◽  
Self Determination ◽  
Advisory Opinion ◽  
International Court Of Justice ◽  
International Court ◽  
Specific Suggestion ◽  
Principles Of Justice ◽  
State Group

AbstractThis piece provides critical analysis of some of the broader consequences of what is potentially suggested by certain findings in the 2010 Advisory Opinion of the International Court of Justice on ‘Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo’. The focus is on consequences for disputes generally, and disputes relating to self-determination and secession in particular, in either case including disputes that have been made subject to a Security Council-imposed settlement process. In the first place, the piece considers the relatively specific suggestion that sub-state groups are free to unilaterally terminate a Security Council-imposed process aimed at enabling the resolution of a dispute concerning their aspirations to external self-determination, without this termination having to comply with the principles of justice and international law. In the second place, the piece considers the relatively broad suggestion that the act of any sub-state group of declaring independence and seceding from the state within which it is located, without the consent of that state or any other international legal sanction, is likewise not regulated by international law.

scholarly journals Arti Penting Hukum Antartata Hukum untuk Indonesia

2018 ◽  
Vol 7 (2) ◽  
pp. 147
Author(s):  
Yu Un Opusunggu
Keyword(s):  
International Law ◽  
Legal System ◽  
Legal Reform ◽  
Legal Pluralism ◽  
Colonial Period ◽  
Private International Law ◽  
Foreign Investors ◽  
Conflict Of Laws ◽  
Competing Interests ◽  
Legal Problems

<p><em>This article discusses the importance of conflict of laws and private international law in Indonesia. Both fields of law are two-side of coin in the context of Indonesia. The author argues that many legal problems in Indonesia have their roots in the ignorance of legal pluralism. The article begins with mapping out legal pluralism since colonial period to the present. The author explains with legal pluralism calls for the science of conflict of laws/private international law. Indonesia’s attempt to attract foreign investors have entailed a series of legal reform. However, those reforms have ignored the pluralistic aspects of the legal system. The development of legal system has been caught between competing interests. The author therefore argues that understanding of the science of conflict of laws/private international law is the key for future development.</em></p>

International Law in the Buffer

2020 ◽  
Vol 23 (3-4) ◽  
pp. 249-302
Author(s):  
Róisín Burke
Keyword(s):  
International Law ◽  
Dispute Settlement ◽  
Self Determination ◽  
Territorial Disputes ◽  
Security Threats ◽  
Soviet Republic ◽  
Regional Conflict ◽  
Occupied Territory ◽  
The People ◽  
Past Injustices

Abstract Territorial disputes historically have been commonplace in the Transcaucasian region. Nagorno-Karabakh is a region legally recognised as a part of Azerbaijan, but has historically been disputed by Armenia and Azerbaijan. It was an autonomous region during Soviet times, but fell within the administrative boundaries of the then Soviet Republic of Azerbaijan. Nagorno-Karabakh has operated de facto independently since 1992, when it declared independence. Azerbaijanis from regions bordering Nagorno-Karabakh were displaced from their homes in the 1990s. This created what some refer to a security buffer, but which constitute occupied territory. Azerbaijan seeks the return of all territories. For Karabakh Armenians any dispute settlement that would leave Nagorno-Karabakh within Azerbaijan is untenable, given security threats. The conflict is coloured by history, past injustices, and ideologies around identity. Despite decades of mediation attempts by the osce and others, the territory remains fervently disputed. Border skirmishes have been frequent since the 1990s. However, since September 2020 serious escalations in hostilities and violence in region risk a broader regional conflict and drawing in Turkey, Russia and Iran. The paper provides a historical exposition of factors underpinning the dispute, which are critical to understanding its context and ultimate resolution. It examines the claim to self-determination by the people of Nagorno-Karabakh from the perspective of international law. It addresses the interplay between conflicting norms of territorial integrity and self-determination. The paper reflects on questions of statehood, and on the emerging concept of remedial secession in cases of egregious human rights violations and where internal self-determination is denied, and their possible relevance to the Nagorno-Karabakh dispute.

scholarly journals Blockchain-Based Smart Contract: Advancing Digital Consumer Protection and Preventing Private International Law E-Commerce Cases

2021 ◽  
Vol 10 (3) ◽  
pp. 354
Author(s):  
Tresnawati Tresnawati ◽  
Angelina Marlina Fatmawati
Keyword(s):  
International Law ◽  
Dispute Settlement ◽  
The Self ◽  
Smart Contracts ◽  
Private International Law ◽  
Blockchain Technology ◽  
Digital Era ◽  
Smart Contract ◽  
Consumer Rights ◽  
Bargaining Position

<em>Blockchain has functioned as a ledger that decentralizes controls with immutable and irreversible character and have the potential to overcome the deficiency of traditional contracts, especially in today’s digital era such as the e-commerce industry. Unfortunately, although famous to be used for blockchain and smart contracts have not been applied widely in Indonesia and there is no regulation that specifically regulates the use of blockchain technology and smart contracts. This article will analyze the application of smart contracts to escalate consumer rights in e-commerce services. This research showed that the self-executory characteristic of smart contracts helps the consumer to have an equal bargaining position with businesses actors in determining the contents of the contract. In response to those curative efforts, the smart contract will be advantageous as a preventive scheme for PIL cases. The self-executory character of the smart contract will prevent many PIL cases which are potentially occurred. The immutable nature of blockchain records will also be helpful for any dispute settlement scheme. This might be led to the tendency that international e-commerce cases should not be litigated or to be set for an arbitration tribunal. Those international e-commerce cases might not require settlement of judicative branch and may be settled at the administrative level. Consequently, this would create a more effective and efficient settlement, both in time and money. Those advantages have made blockchain-based smart contracts will be prospective in Indonesia, in the upcoming future</em>

scholarly journals Dispute Settlement in Investment-Related Matters: South Africa and the BRICS

AJIL Unbound ◽  
2018 ◽  
Vol 112 ◽  
pp. 212-216
Author(s):  
Engela C. Schlemmer
Keyword(s):  
South Africa ◽  
International Law ◽  
South African ◽  
Dispute Settlement ◽  
Foreign Investors ◽  
Domestic Legislation ◽  
Domestic Courts ◽  
Investment Treaties ◽  
South African Constitution ◽  
Domestic Law

Many states use investment treaties to spur economic development by granting legal protections to foreign investors and providing for direct enforcement before international arbitral tribunals. Yet South Africa has taken a different course. As explained below, South Africa originally signed onto a number of investment treaties despite barely considering how the resulting obligations would affect its constitutional commitments and the authority of its domestic courts. After the shock of losing its first two treaty-based investment disputes, the country shifted from avidly entering into bilateral investment treaties (BITs) to opposing BITs absent compelling economic and political reasons to conclude them. Today South Africa seeks to replace investment treaties and investor-state arbitration with protections under domestic legislation, along with mediation and dispute resolution before domestic courts. In this essay, I describe this shift and explore three difficult and yet-to-be-resolved questions that it presents: (1) Will foreign investors still be able to rely on protections under international law when bringing domestic cases? (2) If so, will the South African Constitution, as a matter of domestic law, displace any relevant commitments under international law? And (3) is the new South African approach consistent with international law?

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