scholarly journals TRANSPARENCY AND CONFIDENTIALITY REQUIREMENTS IN INVESTMENT TREATY ARBITRATION

2018 ◽  
Vol 5 (4) ◽  
pp. 114-138
Author(s):  
Azhaham Perumal Perumal Saravanan ◽  
Subramanian Ramamurthy Subramanian
Keyword(s):  
United Nations ◽  
Good Governance ◽  
Trade Agreement ◽  
Theory And Practice ◽  
The North ◽  
Investment Treaty ◽  
Investment Arbitration ◽  
Depth Analysis ◽  
The United Nations ◽  
Investment Treaty Arbitration

he values of confidentiality and transparency are often invoked in the theory and practice of investment treaty arbitration. Transparency is considered to be one of the key aspects of good governance and corporate social responsibility. It includes the obligation of the host state to publish all the legal rules, regulations and other statutory requirements affecting investors. Confidentiality is considered the hallmark and unique feature of arbitration as a dispute resolution mechanism. However, it is difficult to balance these two values, in principle due to the difference in the various investment arbitration cases, as well as the high degree of public interest involved in such proceedings. The competing interests between transparency and confidentiality have significantly increased in the recent past, and the difficulty lies in drawing a medial line between them. There is also debate as to what extent non-disputing parties are allowed to participate in investment arbitration, and what the essential requirements are to admit them.It is in this connection that this article makes an in-depth analysis of how investment arbitration frameworks have approached the questions of transparency, confidentiality and amicus curiae participation over the years. The article assesses and explores similar issues within the International Convention on the settlement of investment disputes between States and nationals of other States, 1965 (ICSID), the North American Free Trade Agreement, 1994 (NAFTA) and the United Nations Commission on International Trade Law (UNCITRAL) Arbitration Rules, 1978. The study also makes a critical analysis of celebrated cases falling within each category. The article further elaborates the transparency requirements in the U.S. Model Bilateral Investment Treaty (BIT), 2012, and the recently adopted Indian Model BIT, 2015. The study is very significant because the United Nations has recently adopted the Convention on Transparency in Treaty-based InvestorState Arbitration, 2014 (Mauritius Convention), which ensures transparency and public accessibility to investor-state arbitration.

Part III Guide to Key Jurisdictional Issues, 17 Counterclaims in Investment Treaty Arbitration

2018 ◽  
Author(s):  
Clodfelter Mark A ◽  
Tsutieva Diana
Keyword(s):  
International Trade ◽  
United Nations ◽  
Case Law ◽  
The Core ◽  
Trade Law ◽  
International Trade Law ◽  
Investment Treaty ◽  
Investment Arbitration ◽  
Investment Law ◽  
Investment Treaty Arbitration

The last decade has seen an increase in the efforts of respondent States to have their own claims against investor-claimants heard in investor-State proceedings commenced against them. The investment arbitration case law has revealed a host of legal and practical difficulties in admitting counterclaims. Most of these stem from the core requirement that parties must consent to submit their differences to investment arbitration. The applicable arbitration rules have also been cited as a bar to counterclaims. This chapter explores the functionality of applicable procedural rules as bases for an investment tribunal’s authority to hear counterclaims under the two main investment law regimes: the International Centre for Settlement of Investment Dispute (ICSID) Convention and Arbitration Rules and the United Nations Commission on International Trade Law Arbitration Rules. A review of the milestone cases under these two regimes reveals the major problems that have arisen.

System-Building in Investment Treaty Arbitration and Lawmaking

2011 ◽  
Vol 12 (5) ◽  
pp. 1083-1110 ◽  
Author(s):  
Stephan W. Schill
Keyword(s):  
Free Trade ◽  
Dispute Settlement ◽  
State Level ◽  
Trade Agreement ◽  
International Investment ◽  
Foreign Investors ◽  
Investment Protection ◽  
The North ◽  
Investment Treaty ◽  
Investment Treaty Arbitration

Since the late 1990s investment treaty arbitration has developed into one of the most vibrant fields of international dispute settlement with now almost 400 known cases. It involves claims by foreign investors against host States for breach of obligations assumed under one of the more than 2700 bilateral investment treaties (BITs), under the numerous investment chapters in bilateral or regional free trade agreements, including the North American Free Trade Agreement, or under sectoral treaties such as the Energy Charter Treaty. All of these instruments offer comprehensive protection to foreign investors by setting down principles of substantive investment protection, including national and most-favored-nation treatment, fair and equitable treatment, full protection and security, protection against expropriation without compensation, and free capital transfer. They also allow investors to enforce these standards in arbitral proceedings directly against the host State, most commonly under the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (ICSID Convention). Investment treaty arbitration thereby not only empowers foreign investors under international law, but also introduces investment treaty tribunals as novel actors into the arena of international investment law. Although arbitration has been a classic form of dispute settlement on the State-to-State level, including for the settlement of investment-related disputes, modern investment treaty tribunals have wider jurisdiction and are more removed from State control than any of their predecessors.

THE UNIDROIT PRINCIPLES OF INTERNATIONAL COMMERCIAL CONTRACTS AND INVESTMENT TREATY ARBITRATION: A LIMITED RELATIONSHIP

2015 ◽  
Vol 64 (4) ◽  
pp. 905-933
Author(s):  
Jarrod Hepburn
Keyword(s):  
International Law ◽  
Public Law ◽  
Private Law ◽  
Applicable Law ◽  
Investment Protection ◽  
Investment Treaty ◽  
Investment Arbitration ◽  
General Principles Of Law ◽  
Domestic Law ◽  
Investment Treaty Arbitration

AbstractThe UNIDROIT Principles of International Commercial Contracts have appeared in a small but steady trickle of investment treaty arbitrations over the last decade. This article considers the use of the Principles by investment tribunals on questions of both domestic law and international law. It suggests that reference to the Principles can play an important legitimating role on questions of domestic law, but that this should not replace reference to the applicable law. On questions of international law, reference to the Principles may be justified by resort to the general principles of law. However, the article contends that there is only a limited role for the UNIDROIT Principles where the primary and secondary rules of investment protection are already found in treaties and custom. In addition, while general principles have historically been drawn from domestic private law, there is increasing recognition that general principles of public law are more relevant to investment arbitration. Given this, arbitrators resolving questions of international law must be cautious in references to the UNIDROIT Principles, a quintessentially private law instrument.

scholarly journals World Citizens: Pathways for the Development of Eco-Citizenship in Higher Education

2018 ◽  
Author(s):  
Hélène Domon
Keyword(s):  
Higher Education ◽  
United Nations ◽  
Global Citizenship ◽  
Theory And Practice ◽  
World Languages ◽  
The Us ◽  
The World ◽  
The United Nations

It is time that universities reexamine what is meant by globalization. Contemporary researchers in science and the humanities (Critchley, Chomsky, Mumford, Ostrom, Eisenstein, Ferry, Orr, Shiva, Klein, Margulis, Meadows, Capra and Tolba, just to name a few) have aptly redefined the concept of « world » as a biological and cultural ecosystem. This paper seeks ways to integrate the theory and practice of eco-citizenship into various cross-disciplinary aspects of higher education, with a focus on curricular adjustments that may be steered by World Languages and Cultures programs. While "global citizenship" is still often understood today as a form of supranational citizenship that may find its actualization through the valuable, yet often arrested efforts of the United Nations, or as the individualistic result of a neoliberal economic emancipation of markets and capital throughout the world, this notion must rather be embedded within a radically cultural, natural and ethical bedrock from which a more potent world citizenry will stem. Departments of World Languages and Cultures and cultures are ideally positioned in the academic landscape to foster the development of a greater eco-civic and biospheric awareness that can permeate new curricular orientations of universities in the US and abroad.

International Investment Arbitration

2017 ◽  
Author(s):  
McLachlan Campbell ◽  
Shore Laurence ◽  
Weiniger Matthew
Keyword(s):  
International Law ◽  
Present State ◽  
Critical Review ◽  
International Investment ◽  
Comprehensive Description ◽  
Investment Treaty ◽  
Investment Arbitration ◽  
Author Team ◽  
Substantive Law ◽  
Investment Treaty Arbitration

This is the long-awaited second edition of this widely-referenced work on the substantive law principles of investment treaty arbitration. It forms a detailed critical review of the substantive principles of international law applied by investment arbitration tribunals, and a clear and comprehensive description of the present state of the law. The first edition met with immediate success as a result of the authors’ achievement in describing and analysing the volume of law created, applied and analysed by tribunals. The second edition is fully updated to take account of the arbitration awards rendered in the period since 2007. Written by an internationally recognised author team, it is now the most comprehensive and up to date work in its field and no practitioner or academic can afford to be without it.

Refugees

2019 ◽  
Author(s):  
Alessandro Monsutti
Keyword(s):  
United Nations ◽  
Country Of Origin ◽  
Cultural Adjustment ◽  
Humanitarian Assistance ◽  
Theory And Practice ◽  
Refugee Studies ◽  
Post Conflict ◽  
The Social ◽  
Displaced People ◽  
The United Nations

This is an advance summary of a forthcoming article in the Oxford Research Encyclopedia of Anthropology. Please check back later for the full article. Refugees are understood as forcefully displaced people who flee conflict in their country of origin in search of safety in another country. Their international legal status is defined by the United Nations 1951 Refugee Convention complemented by the 1967 Protocol. To be recognized as a refugee, an individual must fulfill three conditions: fear of being persecuted for reasons of race, religion, nationality, membership in a particular social group, or political opinion; having crossed an international border and being outside his or her country of nationality; and having lost the protection of the country of origin. The United Nations High Commissioner for Refugees (UNHCR) has a mandate to provide protection and humanitarian assistance to some 20 million refugees, according to 2016 figures, and to promote the three solutions to their problem: voluntary repatriation in the country of origin; integration into the first country of asylum; resettlement in a third country. The more than 5 million Palestinian refugees fall under another set of texts and are supported by a separate agency, the United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA). This body of international legal texts and practices has triggered the emergence of a whole set of studies in the social sciences. This new and distinctive field of research was further institutionalized when the Refugee Studies Centre was established in 1982 at the University of Oxford and when the Journal of Refugee Studies was launched a few years later. Anthropologists have played a significant role in these developments. Many have worked closely with humanitarian organizations assisting refugees on the ground, while many others have critically addressed the conceptual background of the notion, with its supposed state-centric and sedentarist bias, according to which solutions are found when movements stop. Refugees represent a practical and theoretical challenge for anthropology. Indeed, the figure of the refugee has been analyzed as a categorical anomaly that disrupts the functionalist idea that societies form coherent sets anchored in discrete territories. Is the refugee a distinct social type with specific protection needs, or does it result from a bureaucratic label that comes with potentially alienating consequences? Some authors insist that refugee studies have imported uncritically the legal and humanitarian terminology of governments as well as international and nongovernmental organizations. Some others consider that theory and practice should inform each other. This debate may call into question any sharp distinction between applied and fundamental research. Refugees are a field of study for anthropologists, but they also represent an opportunity for jobs. If there is little doubt that anthropology might inform the way refugees are assisted, a fundamental question is also how engagement with humanitarian action and post-conflict reconstruction will affect anthropological practice as well as theory. While 85 percent of the world’s forcefully displaced people are in developing countries, the so-called European refugee crisis of 2015 has attracted much attention. Among the many topics addressed in the first decades of the 21st century, let us mention the social meaning of the legal notions of asylum and refuge; refugees living in camps and so called self-settled refugees in urban centers; return; strategies developed by the people labeled as refugees and their capacity to respond to the situation they face; the long-term process of cultural adjustment; and memory of the country of origin and feeling of belonging.

Dual nationality revisited: a modern approach to dual nationals in non-ICSID arbitrations

2019 ◽  
Vol 35 (2) ◽  
pp. 121-148
Author(s):  
Stavros Michalopoulos ◽  
Edward Hicks
Keyword(s):  
Vienna Convention ◽  
Modern Approach ◽  
Investment Protection ◽  
Investment Treaty ◽  
Investment Arbitration ◽  
Diplomatic Protection ◽  
Dual Nationality ◽  
Holistic Interpretation ◽  
Vexed Question ◽  
Investment Treaty Arbitration

Abstract The authors revisit the vexed question of the standing of investors to bring a claim against one of their states of origin. Contrary to Article 25 of the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (ICSID Convention), which forbids natural persons in possession of the nationality of the host state to initiate proceedings against it, the majority of other arbitration rules do not provide for such a prohibition. Consequently, unlike the realm of diplomatic protection, where the question seems settled, there is little guidance in the treaty-based field of investment arbitration on the probable scenario of a dual national suing one of its states of nationality in a non-ICSID arbitration context. Some tribunals have resorted to traditional principles to deny investment protection to dual nationals, whereas recent awards have been considerably more lenient. This article will demonstrate that, given the fundamental differences between investment treaty arbitration and diplomatic protection, the application by analogy of doctrinal formulations of the former to the latter is not warranted. Instead, a holistic interpretation in accordance with Article 31 of the Vienna Convention on the Law of Treaties should be the primary point of focus of international tribunals, taking into account the object and purpose of the treaty and comparable treaty practice.

Governmentalizing the Post–Cold War International Regime: The UN Debate on Democratization and Good Governance

2005 ◽  
Vol 30 (4) ◽  
pp. 461-487 ◽  
Author(s):  
Laura Zanotti
Keyword(s):  
Cold War ◽  
United Nations ◽  
Good Governance ◽  
International Regime ◽  
Post Cold War ◽  
The United Nations

This article examines a range of “good governance” discourses and practices at the United Nations as elements of global governmentality. It explores the emergence of “good governance” as a political rational for the UN, the mechanisms of governmentality that have been promoted as a consequence, and some of their most important effects.

Korean Communists and Yenan

1962 ◽  
Vol 9 ◽  
pp. 182-192 ◽  
Author(s):  
Chong-Sik Lee
Keyword(s):  
United Nations ◽  
Historical Background ◽  
The North ◽  
Long Time ◽  
Chinese Policy ◽  
The United Nations ◽  
Korean Politics

Until the Chinese “volunteers” crossed the Yalu in November 1950, the Chinese involvement in North Korean politics seems to have been minimal. And yet, when the North Korean régime's very life and the Chinese border were threatened by the massive assault of the United Nations forces, the Chinese quickly came to the aid of the North Koreans. What is Chinese policy toward Korea? What are the prospects for Sino-Korean relations? Such questions will concern us for a long time. This article details part of the historical background to them.

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