scholarly journals Multilateral Investment Court – a Cure for Investor-State Disputes Under Extra-EU International Investment Agreements?

2021 ◽  
Vol 9 (1) ◽  
pp. 195-211
Author(s):  
Agata Zwolankiewicz
Keyword(s):  
Dispute Settlement ◽  
International Investment ◽  
Dispute Settlement Mechanism ◽  
Settlement System ◽  
Trade Law ◽  
Wto Dispute Settlement ◽  
International Investment Agreements ◽  
International Economic Law ◽  
Dispute Settlement System ◽  
Investment Agreements

Both branches of international economic law – international investment and trade law are currently in crisis. Many reforms have been proposed to cure the shortcomings of their dispute resolution mechanisms. Distinctive though they are, it seems that the newest EU’s proposal to establish the Multilateral Investment Court is heavily inspired by the dispute settlement system which exists in the World Trade Organization. The new system has been introduced to replace the investor-State dispute settlement mechanism existing in most investment treaties. In this article, the author assesses the objectives of the reform through the prism of successes and failures of the WTO dispute settlement system. 

Inter-State Investment Dispute Settlement in Latin America: Is There Space for Transparency?

2016 ◽  
Vol 17 (4) ◽  
pp. 634-657
Author(s):  
María José Luque Macías
Keyword(s):  
Latin America ◽  
Dispute Settlement ◽  
International Investment ◽  
Attractive Alternative ◽  
Wto Dispute Settlement ◽  
International Investment Agreements ◽  
Treaty Interpretation ◽  
Dispute Settlement System ◽  
Investment Agreements ◽  
Inter State

Reinforcing inter-State dispute settlement gradually constitutes an attractive alternative in Latin America to overcome the lack of predictability in the interpretation and application of international investment agreements (IIA). Procedural transparency should certainly be part of this development. An initial question is whether, and if so to which extent, this approach serves reform. The next question is whether relying on the practice of the World Trade Organization (WTO) is appropriate to enhance transparency, considering that the WTO dispute settlement system has served as a model for introducing reforms in inter-State and investor-State dispute settlement (ISDS). This article shows that resorting to inter-State mechanisms may not remedy deficits of treaty interpretation or application. Furthermore, the WTO experience on procedural transparency reveals that transparency has not become an essential standard, so that other means shall be devised for ensuring, in inter-State dispute settlement, the degree of transparency attained so far in ISDS.

Good Governance Obligations in International Economic Law: A Comparative Analysis of Trade and Investment

2016 ◽  
pp. 7-46 ◽  
Author(s):  
Andrew D. Mitchell ◽  
Elizabeth Sheargold ◽  
Tania Voon
Keyword(s):  
International Economic ◽  
Good Governance ◽  
Procedural Fairness ◽  
International Investment ◽  
Economic Law ◽  
Trade Law ◽  
International Investment Agreements ◽  
International Economic Law ◽  
Equitable Treatment ◽  
Investment Agreements

International trade and international investment agreements typically contain provisions requiring the parties to comply with good governance principles, such as procedural fairness and transparency. These provisions are increasingly the subject of disputes before international tribunals. The scope of these obligations is often unclear, as treaty provisions usually employ broad standards rather than specific rules. For example, the requirement to accord investors ‘fair and equitable treatment’ is common in international investment agreements, while WTO agreements demand the ‘reasonable and impartial administration of measures’. This article compares approaches in international investment and trade law to three aspects of good governance: procedural fairness, transparency, and reasonable administration of measures. Despite textual differences, the standards adopted by these two regimes are remarkably similar. Consequently, decisions from these two branches of international economic law may provide States, tribunals, market participants and scholars with valuable insights into the conduct required by good governance obligations.

Enforcing WTO Law

2017 ◽  
Author(s):  
Antonello Tancredi
Keyword(s):  
Dispute Settlement ◽  
Legal Framework ◽  
Dispute Settlement Mechanism ◽  
Settlement System ◽  
Wto Dispute Settlement ◽  
Legal Nature ◽  
Dispute Settlement System ◽  
Settlement Mechanism ◽  
Wto Agreements ◽  
The Eu

This chapter provides a brief analysis of the enforcement tools foreseen in the WTO dispute settlement mechanism. It focuses in particular on some of the peculiarities which differentiate them from the EU legal system. As the analysis shows, the relevance of reciprocity and post-litigation negotiations between States influences the legal nature of the WTO dispute settlement system, which today remains to a large extent a mixed or hybrid system. This contrasts one of the mantras diffused in the legal scholarship immediately after the entry into force of the Uruguay Round Agreements. It also represents a vehicle for the potential fragmentation of the multilateral legal framework governing international trade, which contributes to undermining the idea of uniformity of the obligations arising under the WTO Agreements for all Members.

Judicial Lawmaking by Judicial Restraint? The Potential of Balancing in International Economic Law

2011 ◽  
Vol 12 (5) ◽  
pp. 1141-1174 ◽  
Author(s):  
Thomas Kleinlein
Keyword(s):  
International Law ◽  
Dispute Settlement ◽  
International Investment ◽  
Prima Facie ◽  
Legal Norms ◽  
Investment Protection ◽  
Trade Law ◽  
Wto Dispute Settlement ◽  
Judicial Lawmaking ◽  
Dispute Settlement System

In the framework of this project, both the WTO dispute settlement system and international investment tribunals are portrayed as core actors in judicial lawmaking. By weaving international trade law and investment law on the roughly timbered looms of imperfect treaty law, they have proven to be successful creators of the fabrics of a world trade order and of investment protection standards, respectively. Such effective lawmaking, on the part of particular “regimes,” has the potential to increase the fragmentation of international law. Consequently, international judicial institutions are not only spotted as originators of fragmentation, but—as interpreters of international law—also as addressees of strategies in response presented in the 2006 Report of the ILC Study Group on Fragmentation. It is the Study Group's comforting message that a considerable part of the difficulties arising from the diversification and expansion of international law can be overcome by recourse to a “coherent legal-professional technique.” The Fragmentation Report highlights that conflict resolution and interpretation cannot be distinguished: “[w]hether there is a conflict and what can be done with prima facie conflicts depends on the way the relevant rules are interpreted.” According to the Report, coherence can be established by interpreting legal norms with due regard to their normative environment.

Mexico – Tax Measures on Soft Drinks and Other Beverages (Complainant: United States of America)

2019 ◽  
Vol 181 ◽  
pp. 436-487
Keyword(s):  
International Law ◽  
Dispute Settlement ◽  
Trade Agreement ◽  
International Agreements ◽  
Dispute Settlement Mechanism ◽  
Settlement System ◽  
Wto Dispute Settlement ◽  
Trade Relationship ◽  
Dispute Settlement System ◽  
Settlement Mechanism

Economics, trade and finance — World Trade Organization — General Agreement on Tariffs and Trade — Relationship with other international agreements — North American Free Trade Agreement — Measures allegedly taken contrary to GATT said to be countermeasures responding to violation of NAFTA — WTO dispute settlement mechanismInternational tribunals — Jurisdiction — Discretion not to exercise jurisdiction — Whether inherent power — WTO dispute settlement system — Whether Panel empowered to decline to exercise jurisdiction — Whether dispute between two States parties to NAFTA should be heard by arbitral tribunal under NAFTA rather than by panel under the WTO Dispute Settlement UnderstandingReprisals and countermeasures — Nature and scope — Relationship between countermeasures under international law and measures to secure compliance with laws and regulations within the WTO — Whether falling under GATT Article XX(d)Treaties — Interpretation — Effect — Interpretation of GATT Article XX(d) — Relationship between GATT and other international agreements

The Proliferation of Joint Interpretation Clauses in New International Investment Agreements: A Mixed Blessing?

2020 ◽  
Author(s):  
Loris Marotti
Keyword(s):  
Dispute Settlement ◽  
General Rule ◽  
International Investment ◽  
Vienna Convention ◽  
Control Mechanisms ◽  
International Investment Agreements ◽  
Joint Interpretation ◽  
Dispute Settlement System ◽  
The Impact ◽  
Investment Agreements

Abstract Joint interpretation clauses (JICs) are among the most controversial control mechanisms on the interpretative powers of tribunals brought by the current wave of reform of the investor–State dispute settlement system (ISDS). Literally proliferating in the new generation of international investment agreements (IIAs), these clauses give contracting States the power to issue joint interpretations (JIs) that are expressly recognized as binding upon dispute settlement bodies and may even be issued in relation to matters pending before such bodies. This article discusses several issues raised by the ‘authentic interpretation’ enhanced by JICs. In the first part, JICs are assessed against the background of the general rule on treaty interpretation, including, in particular, subsequent agreements under article 31(3)(a) of the 1969 Vienna Convention on the Law of Treaties. The second part of the article addresses the tensions between judicial bodies and treaty parties sharing the interpretative authority over IIAs and investigates whether there are any limitations on the interpretative powers of States under JICs. The third part is devoted to the impact of JIs on the proper conduct of investment arbitration proceedings, considering the participation of private actors (the investors) in the proceedings and the ‘dual role’ of States (as treaty parties and respondents) in this field. The concluding part of the article speculates whether a greater institutionalization of the international investment regime is likely to prompt more frequent forms of judicial reactions against ‘ill-perceived’ JIs and fuel the tension between States and dispute settlement bodies.

scholarly journals An Empirical Study of China's Participation in the WTO Dispute Settlement Mechanism: 2001-2010

2011 ◽  
Vol 4 (1) ◽  
pp. 218-246 ◽  
Author(s):  
Wei Zhuang
Keyword(s):  
World Trade ◽  
Dispute Settlement ◽  
Comprehensive Analysis ◽  
Third Party ◽  
Dispute Settlement Mechanism ◽  
Settlement System ◽  
Wto Dispute Settlement ◽  
The World ◽  
Dispute Settlement System ◽  
Settlement Mechanism

On 11 December 2001, China officially became a Member of the World Trade Organization (WTO) after years of negotiations. The paper shows how a major developing country has used the WTO dispute settlement system by examining China’s participation in the WTO dispute settlement mechanism from its entry through 31 December 2010. It provides a comprehensive analysis of the WTO dispute cases in which China has participated as a complainant, a respondent, or a third party.

scholarly journals International Investment Agreements, Human Rights, and Environmental Justice: The Texaco/Chevron Case From the Ecuadorian Amazon

2020 ◽  
Vol 23 (2) ◽  
pp. 455-468 ◽  
Author(s):  
Lorenzo Pellegrini ◽  
Murat Arsel ◽  
Martí Orta-Martínez ◽  
Carlos F Mena
Keyword(s):  
Dispute Settlement ◽  
International Investment ◽  
Dispute Settlement Mechanism ◽  
Environmental Rights ◽  
Environmental Liabilities ◽  
Playing Field ◽  
Investment Treaty ◽  
International Investment Agreements ◽  
Investment Agreements ◽  
Dispute Settlement Mechanisms

Abstract The Texaco/Chevron lawsuit, which started in November 1993 and is still being litigated in 2020, is a prominent example of the process of judicialization of environmental conflict. The Ecuadorian plaintiffs claim that the oil company’s operations generated ruinous impacts on the environment and on the development prospects and health of nearby individuals and communities. The tortuous and lengthy judiciary process was further hindered by an arbitration process, an Investor–State Dispute Settlement mechanism nested in the Ecuador—United States Bilateral Investment Treaty. The significance of the case goes beyond the specifics of Ecuador and provides further arguments fuelling the protracted legitimacy crisis experienced by International Investment Agreements. The current praxis of Investor–State Dispute Settlement mechanisms is generating an asymmetrical system, protecting the interest of investors, and intruding into the space of human and environmental rights. These issues are resonating with social movements, activist scholars and policy makers who are reacting to the vulnerabilities engendered by International Investment Agreements through multipronged strategies. These asymmetries provide ammunition to resist the signing of new International Investment Agreements, support the inclusion of human and environmental rights safeguards in International Investment Agreements, and contribute to the rationale of pre-empting extractive projects that are likely to produce severe environmental liabilities. Some of the potential ways in which a somewhat more level playing field can be created include, in addition to denouncing investment agreements, transforming Investor–State Dispute Settlement mechanisms towards a format that can also accommodate the complaints of affected communities or enacting moratoria on extraction projects that are prone to adverse socioenvironmental impacts. Both strategies could prove to be productive avenues towards the achievement of justice.

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