scholarly journals Problematic issues of submitting of counterclaims in International centre for settlement of investment disputes

2021 ◽  
pp. 238-253
Author(s):  
Olexandr Vasiliovich Serdiuk ◽  
Georgiy Viktorovich Grabchak
Keyword(s):  
Dispute Settlement ◽  
The State ◽  
Alternative View ◽  
Investment Arbitration ◽  
Objective System ◽  
Legal Defense ◽  
Procedural Rights

The counterclaim institute is one of crucial legal defense options during the dispute settlement in domestic and international jurisdictions; investment arbitration is not an exception. The most famous dispute settlement platform is International centre for settlement of investment disputes (ICSID). One of the key ideas of establishment of such a dispute settlement instrument was an implementation of autonomous and objective system of Investor-states dispte sttlement (ISDS) by the “independent forum”. While procedural rights of ISDS parties are conceptually equal. However, the concept of equal procedural rights of ISDS parties has not been translated into reality. Notwithstanding the fact that the counterclaim institute is an important instrument of ensuring the objectivity and comprehensiveness of the dispute settlement, tribunal`s approaches are “restrictive” and “cautious”.Taking into account that States are “perpetual respondent” in ICSID, problematic issues of submitting of counterclaims influence the realization of interest of the State in ICSID. Problematic issues of submitting of counterclaims clearly show the imbalance of the exercise of procedural rights by the respondent-state.The article is intended to draw the attention of readers to problematic issues of submitting of counterclaims in ICSID and on the alternative view of the isuue.

scholarly journals Modernising the Energy Charter Treaty: An Opportunity to Enhance Legal Certainty in Investor-State Dispute Settlement

2019 ◽  
Vol 20 (2-3) ◽  
pp. 425-454 ◽  
Author(s):  
Cees Verburg
Keyword(s):  
Dispute Settlement ◽  
Case Law ◽  
The State ◽  
Legal Certainty ◽  
Multilateral Trade ◽  
Investment Arbitration ◽  
Domestic Courts ◽  
Energy Charter Treaty ◽  
Investment Agreement ◽  
Trade And Investment

Abstract The Energy Charter Treaty is a multilateral trade and investment agreement that is currently the most often-invoked investment agreement worldwide. A review of the case law under the treaty shows that its provisions have been interpreted and applied inconsistently by arbitral tribunals and domestic courts. Considering the financial and reputational consequences of investment arbitration for both the investor and the State, a lack of ‘legal certainty’ adversely affects all parties involved. This article identifies various inconsistencies, some of the causes, and proposes solutions that could enhance legal certainty in investor-State dispute settlement under the treaty. This is a timely contribution as the Energy Charter Conference has recently taken the first steps to modernise the treaty by approving a list of topics for reform, and is now considering tools to implement future reform measures.

Suffering Spectators of Development

2017 ◽  
Author(s):  
Arjun Chowdhury
Keyword(s):  
Civil Wars ◽  
Central Government ◽  
State Capacity ◽  
State Power ◽  
The State ◽  
Colonial Period ◽  
Alternative View

This chapter offers an alternative view of the incidence and duration of insurgencies in the postcolonial world. Insurgencies and civil wars are seen as the primary symptom of state weakness, the inability of the central government to monopolize violence. Challenging extant explanations that identify poverty and low state capacity as the cause of insurgencies, the chapter shows that colonial insurgencies, also occurring in the context of poverty and state weakness, were shorter and ended in regime victories, while contemporary insurgencies are longer and states are less successful at subduing them. The reason for this is the development of exclusive identities—based on ethnicity, religion, tribe—in the colonial period. These identities serve as bases for mobilization to challenge state power and demand services from the state. Either way, such mobilization means that popular demands for services exceed the willingness to disarm and/or pay taxes, that is, to supply the state.

The White Industries award – Shades of Grey

2012 ◽  
pp. 661-686 ◽  
Author(s):  
Manu Sanan
Keyword(s):  
Dispute Settlement ◽  
Effective Means ◽  
Transnational Law ◽  
Investment Arbitration ◽  
Global Standards

This article is a preface to India’s first engagement with investor-state dispute settlement – White Industries v. Republic of India. Notwithstanding its systemic implications at various levels, the award has left a denting comment on the functioning of the Indian judiciary – the workings of which were a principle point of challenge. The current piece attempts to trace the delicate line defining India’s investment obligations, the functioning of its courts and the extant relation between ‘denial of justice’ and ‘effective means’ as under India’s bilateral investment obligations. The article is divided into three principal sections – the first introduces India’s experience with investment arbitration and its bilateral investment agenda, the second is a contextual overview of acknowledged global standards of protection under transnational law and third discusses the White Industries arbitration - analyzing the legal contest therein and its outcome.

scholarly journals Public justification and expert disagreement over non-pharmaceutical interventions for the COVID-19 pandemic

2021 ◽  
pp. medethics-2021-107671
Author(s):  
Marcus Dahlquist ◽  
Henrik D Kugelberg
Keyword(s):  
Empirical Support ◽  
The State ◽  
Alternative View ◽  
Public Justification ◽  
Standard View ◽  
School Closures ◽  
Environmental Cleaning ◽  
Wide Range ◽  
Cleaning And Disinfection ◽  
Pharmaceutical Interventions

A wide range of non-pharmaceutical interventions (NPIs) have been introduced to stop or slow down the COVID-19 pandemic. Examples include school closures, environmental cleaning and disinfection, mask mandates, restrictions on freedom of assembly and lockdowns. These NPIs depend on coercion for their effectiveness, either directly or indirectly. A widely held view is that coercive policies need to be publicly justified—justified to each citizen—to be legitimate. Standardly, this is thought to entail that there is a scientific consensus on the factual propositions that are used to support the policies. In this paper, we argue that such a consensus has been lacking on the factual propositions justifying most NPIs. Consequently, they would on the standard view be illegitimate. This is regrettable since there are good reasons for granting the state the legitimate authority to enact NPIs under conditions of uncertainty. The upshot of our argument is that it is impossible to have both the standard interpretation of the permissibility of empirical claims in public justification and an effective pandemic response. We provide an alternative view that allows the state sufficient room for action while precluding the possibility of it acting without empirical support.

scholarly journals Government Immunity and Liability in Tort: The Case of Covid-19 Pandemic’s Management in Indonesia

2021 ◽  
Vol 43 (2) ◽  
pp. 123
Author(s):  
Laras Susanti
Keyword(s):  
Public Health ◽  
Dispute Settlement ◽  
Health Management ◽  
The State ◽  
Dispute Settlement Mechanism ◽  
Concrete Action ◽  
The Government ◽  
Administrative Governance ◽  
Legal Frameworks ◽  
Laws And Regulations

The Covid-19 pandemic has cost human lives and threaten the world’s economy. Responding to this unprecedented history, governments are expected to take both public health and economic recovery actions. This article conveys analysis on how Indonesian courts might examine government tort cases on the government’s liability in handling the pandemic. A normative juridical method is used to analyze primary and secondary legal sources. The writer finds that with the enactment of Law Number 30 of 2014 on Government Administration, a government concrete action is also an object to suing government before the state administrative court. Furthermore, the recent Supreme Court Regulation Number 2 of 2019 on Guidance Dispute Settlement Mechanism of Government Action and Competence to Adjudicate Government Tort governs that the state administrative court is the only court that has competence over government tort. As a result, claims of government tort submitted to the general court must be dismissed. In fact, this recent development created confusion on the side of justice seekers and judges as well that might affect the outcome of Covid-19 government tort claims. Studying previous government tort cases and focusing its exploration on the development of government immunity and liability, this article finds that Indonesian courts use Article 1365 Civil Code equipped with laws and regulations in administrative governance and specific fields legal frameworks to examine government tort cases. Even though such laws may state that the government may not be sued, the courts may use the Constitution of 1945 to establish a right to sue. During the Covid-19 pandemic, laws and regulations related to disaster and public health management along with the public interest principle must be examined to determine government tort.

Excessive Costs and Recoverability of Costs Awards in Investment Arbitration

2020 ◽  
Vol 21 (2-3) ◽  
pp. 251-299
Author(s):  
Gabriel Bottini ◽  
Catharine Titi ◽  
Facundo Pérez Aznar ◽  
Julien Chaisse ◽  
Marko Jovanovic ◽  
...  
Keyword(s):  
Dispute Settlement ◽  
Third Party ◽  
Potential Contribution ◽  
Investment Arbitration ◽  
Party Funding ◽  
The Impact

Abstract In the era of the backlash against investor-State dispute settlement, the costs of proceedings have been a prime object of criticism. This article examines the problem of excessive costs and insufficient recoverability of costs awards. Firstly, it examines the issue of excessive costs in relation to both party costs (fees and expenses of counsel, experts, and witnesses) and tribunal costs (fees and expenses of arbitrators and arbitral institutions). Secondly, it discusses the impact of the length of proceedings on costs. Thirdly, it discusses the contribution of third-party funding to excessive costs. Finally, it analyses the issue of insufficient recoverability of costs awards and the availability of mechanisms to secure prompt payment of costs awards where there are insufficient resources or an unwillingness to pay. In examining each of these concerns, this article assesses the potential contribution of four different models for reform of investment arbitration.

Transparency and participatory aspects of investor-state dispute settlement in the EU ‘new wave’ trade agreements

2019 ◽  
Vol 32 (4) ◽  
pp. 781-800 ◽  
Author(s):  
Joanna Lam ◽  
Güneş Ünüvar
Keyword(s):  
Free Trade ◽  
Public Interest ◽  
Dispute Settlement ◽  
Free Trade Agreements ◽  
Trade Agreements ◽  
Forum Shopping ◽  
New Wave ◽  
Commercial Arbitration ◽  
Investment Arbitration ◽  
The Eu

AbstractThis article scrutinizes the investment chapters in the new EU Free Trade Agreements from a transparency perspective. The article examines the claims that the dispute settlement mechanisms in the new treaties are sufficiently participatory and more transparent than their predecessors. Procedural standards related to confidentiality of proceedings shall be analysed in the context of existing transparency safeguards in investment arbitration. In addition to procedural guarantees of transparency, the article examines relevant substantive rules affecting participatory aspects of dispute settlement. Furthermore, the article discusses forum-shopping strategies of the parties in the field of investment-related disputes, including internal forum-shopping and parallel proceedings using different procedural mechanisms. In this context, lessons from other fields such as international commercial arbitration related to transparency (in cases in which public interest is present) are highlighted. The proposal for the establishment of an integrated, multilateral court for investment cases is also invoked.

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