scholarly journals Transparency in International Arbitration: Any (Concrete) Need to Codify the Standard?

2015 ◽  
Vol 3 (1) ◽  
pp. 1 ◽  
Author(s):  
Gabriele Ruscalla
Keyword(s):  
International Institutions ◽  
Dispute Settlement ◽  
International Investment ◽  
Public Access ◽  
International Arbitration ◽  
The Public ◽  
International Dispute ◽  
The Eu ◽  
Dispute Settlement Mechanisms ◽  
Civil Societies

In the last decades, transparency has become a fundamental principle in international adjudication. It is usually defined as including concepts such as public access and disclosure of documents or information. Due to the high impact of the activities of international institutions on civil societies and the growing relevance of individuals as subjects of the International Community, it became evident that there was a need to: 1. make the decision-making processes of international organisations more transparent; 2. increase the accountability of the international institutions towards civil societies; 3. give access to the public to international dispute settlement mechanisms. For the purpose of this article, the third aspect, ie access to the public to international dispute settlement mechanisms, will considered. In particular, even though reference will be made to other international dispute settlement systems, the practice of international investment and commercial arbitral tribunals will be dealt with. The article will then study the role of transparency in international arbitration, highlighting three main challenges. First, the author will consider the difficult relation between transparency and confidentiality in arbitral proceedings. As this issue is extremely delicate in international commercial arbitration, this practice will be the focus of this section of the article. Second, transparency as a tool to reach a higher level of consistency in international arbitration will be discussed. This is a highly topical issue in international arbitration, as shown by the United Nations Commission on International Trade Law (UNCITRAL) negotiations that led to the adoption in 2014 of the Rules on Transparency in Treatybased Investor-State Arbitration. As a matter of fact, UNCITRAL looked into the issue of amicus curiae briefs provided by the investor’s home State on issue of treaty interpretation, to secure more consistent and harmonised interpretations of standards in investment arbitration. The author will explore whether consistency through transparency is desirable in international arbitration. Third, the paper will deal with the growing tendency to codify standards in international arbitration. This phenomenon is well illustrated by the current negotiations on investment and trade treaties such as the EU-US Transatlantic Trade and Investment Partnership (TTIP) and the EU-Canada Comprehensive Economic and Trade Agreement (CETA) that provide for specific provisions on transparency relating to investor-to-State disputes. The necessity and effectiveness of this codification will be investigated.

Epistemic Communities in International Arbitration

2020 ◽  
pp. 568-590
Author(s):  
Andrea Bianchi
Keyword(s):  
Dispute Settlement ◽  
Epistemic Community ◽  
Epistemic Communities ◽  
International Arbitration ◽  
Legal Regime ◽  
Social Standards ◽  
International Dispute ◽  
Different Types ◽  
To Come ◽  
Dispute Settlement Mechanisms

This chapter looks at epistemic communities in international arbitration. Epistemic communities are an explanatory key to classifying and understanding the behaviour of different groups of professionals operating in this area of the law. They are used to understand how ideas and their underlying values are formed and circulated in the field of international arbitration, and to show how the boundaries of this legal regime are designed, how knowledge is formed within the field, and how the varying perception by their members of their role as arbitrators may affect their practice. As such, epistemic communities may provide a new lens through which one can productively look at the operation of international dispute settlement mechanisms, and may even help determine why different types of adjudicators seem to come from different planets. The chapter then argues that international arbitrators should take no offence at epistemic communities having become a common way of looking at them as a group. If not the ultimate evidence of moral probity, membership in an ‘epistemic community’ certainly attests to a higher degree of respectability and acceptance by contemporary social standards.

scholarly journals The EU and international dispute settlement *

2017 ◽  
Author(s):  
Allan Rosas
Keyword(s):  
Dispute Settlement ◽  
Bilateral Trade ◽  
Bilateral Agreements ◽  
Eu Member States ◽  
European Court ◽  
International Dispute ◽  
Recent Developments ◽  
Investment Agreements ◽  
The Eu ◽  
Dispute Settlement Mechanisms

This article focuses on recent developments with regard to the mechanisms for international dispute settlement which the EU has accepted or in some instances promoted, or which in any case are of direct relevance for the EU. As a preliminary question, the case law of the European Court of Justice concerning the compatibility of international dispute settlement mechanisms will be analysed. The article then provides an overview of such mechanisms included in multilateral and bilateral agreements concluded by the EU, with a particular emphasis on recent bilateral trade and cooperation agreements. The last parts of the article look at specific institutional problems such as the question of the representation of the EU before international dispute settlement mechanisms, and the special challenges posed by investment disputes and, in this context, investor-to-state dispute settlement (ISDS), including ISDS mechanisms in bilateral investment agreements concluded between the EU Member States.

scholarly journals The Future of Amicus Participation at the WTO: Implications of the Sardines Decision and Suggestions for Further Developments

2005 ◽  
Vol 33 (3) ◽  
pp. 449-470 ◽  
Author(s):  
Joseph Keller
Keyword(s):  
World Trade Organization ◽  
World Trade ◽  
International Institutions ◽  
Dispute Settlement ◽  
Public Access ◽  
Democratic Participation ◽  
Global Society ◽  
Appellate Body ◽  
The World ◽  
The Future

In today's increasingly interdependent global society, international institutions formerly committed to operating as insular systems recognizing only states as legitimate participants have come under pressure to open their processes to public view and participation. The World Trade Organization (WTO) in particular has been widely criticized for its lack of transparency and democratic participation. Nowhere has this criticism been more prevalent than in the arena of dispute settlement. The controversy over the acceptance of amicus briefs at the WTO reflects the tensions among WTO members and non-members concerning greater public access to dispute settlement proceedings. This battle has been fought primarily through the Appellate Body and its important series of decisions on amicus briefs.

From Washington with Love—Investor–State Arbitration and the Jurisdictional Monopoly of the Court of Justice of the European Union

2010 ◽  
Vol 12 ◽  
pp. 425-453
Author(s):  
Philip Strik
Keyword(s):  
European Union ◽  
Dispute Settlement ◽  
Case Law ◽  
Legal Order ◽  
Forum Shopping ◽  
Eu Law ◽  
The European Union ◽  
Court Of Justice ◽  
International Dispute ◽  
The Eu

AbstractWhile investor–State arbitration is to a large extent detached from the EU legal order, EU law has recently started to be invoked in investor-State arbitration proceedings. In the context of intra-EU bilateral investment treaties, the Commission has expressed the view that investor-State arbitration gives rise to a number of ‘arbitration risks’ for the EU legal order. Not only can it solicit investors to engage in forum-shopping, but it can also result in questions of EU law not being litigated in Member State or Union courts. This chapter explores the extent to which the compatibility of investor–State arbitration with the EU legal order is in issue. It examines the main features of investor-State arbitration as concerns its interplay with the EU legal order, as well as the Court of Justice’s case law on issues of compatibility between systems of international dispute settlement and the EU legal order. The chapter highlights that the way in which investor–State arbitral tribunals handle issues of EU law, as well as the involvement of interested parties, may foster the synergy between investor–State arbitration and the EU legal order.

scholarly journals Regulatory autonomy and regulatory chill in Opinion 1/17

2020 ◽  
Author(s):  
Laurens Ankersmit
Keyword(s):  
Dispute Settlement ◽  
Trade Agreement ◽  
International Investment ◽  
Public Interests ◽  
International Investment Law ◽  
European Court ◽  
Negative Effect ◽  
Investment Law ◽  
Investment Agreements ◽  
The Eu

This article analyses the aspect of the Court’s reasoning in Opinion 1/17 that focuses on the regulatory autonomy of the Parties to the Comprehensive Economic and Trade Agreement (CETA) to decide on levels of protection of public interests. The European Court of Justice’s (ECJ) introduction of regulatory autonomy under EU law coincides with the wider debate around ‘regulatory chill’ under international investment law. This article finds the ECJ’s concept of regulatory autonomy to be narrower than that of the regulatory chill hypothesis put forward by critics of investor-state dispute settlement (ISDS). It further analyses the ECJ’s reasoning that the CETA’s investment tribunals do not have jurisdiction to call into question the levels of protection sought by the EU. In so doing, it will critically evaluate the certainty of the ECJ’s promise that there will be no negative effect on public interest decision-making through CETA’s investment chapter. Finally, it will explore the legal consequences of Opinion 1/17 for future awards and investment agreements.

scholarly journals Lo que se está discutiendo en la CNUDMI: evolución o revolución en el sistema de solución de controversias inversor-Estado = What is being discussed in the UNCITRAL: evolution or revolution in the investor-State dispute

2020 ◽  
Vol 12 (1) ◽  
pp. 203
Author(s):  
Enrique Fernández Masiá ◽  
Margherita Salvadori
Keyword(s):  
Working Group ◽  
Dispute Settlement ◽  
Ad Hoc ◽  
Institutional Reform ◽  
International Investment ◽  
Access To Justice ◽  
Group Iii ◽  
International Investment Law ◽  
El Sistema ◽  
The Eu

Resumen: La principal iniciativa para reformar el sistema de solución de controversias inversor-Estado está siendo debatida en el Grupo de Trabajo III de la CNUDMI. Se están discutiendo propuestas específicas tanto para una reforma procesal como institucional. En lo que se refiere a la reforma institucional, la Unión Europea propone el establecimiento de un tribunal multilateral de inversiones, que rompería con el sistema actual ad-hoc. Con independencia de estas propuestas, cada vez parece existir un mayor acuerdo para la adopción de un Centro de asesoramiento sobre el Derecho internacional de inversiones, que podría solventar la cuestión de la duración y costes de los procedimientos, facilitar el acceso a la justicia y, mejorar la elaboración de los futuros Acuerdos internacionales.Palabras clave: Arbitraje inversor-Estado , Grupo de Trabajo III de la CNUDMI, Tribunal Multilateral de Inversiones, Mecanismo de Apelación, Centro de Asesoramiento.Abstract: The main initiative to reform the system of investor-State dispute settlement is being debated by Working Group III appointed by the UNCITRAL. Specific proposals for a procedural and institutional reform of the system are being discussed. As concerns the institutional reform, the EU proposes the establishment of a multilateral investment court, which would break the current ad hoc-based system. Independent from these proposals, there appears to be a growing consensus on the establishment of an Advisory Centre on International Investment Law, which could address the issue of costs and duration of procedures, enhance access to justice issues, apart from improving the future treaty law-making.Keywords: Investor-State Arbitration,UNCITRAL Working Group III, Multilateral Investment Court, Appellate Mechanism, Advisory Centre.

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