scholarly journals ISDS Regimes and Democratic Practice: Creating Conflict of Interests between Governments, Investors and Local Populations

2019 ◽  
Vol 25 (84) ◽  
pp. 36-52
Author(s):  
Martin Karas
Keyword(s):  
Decision Making ◽  
Dispute Settlement ◽  
Good Governance ◽  
Scholarly Work ◽  
Foreign Investors ◽  
Local Populations ◽  
Investment Arbitration ◽  
Democratic Practice ◽  
Recent Debate ◽  
The Relationship

Abstract The recent debate over the Investor-State Dispute Settlement (ISDS) regimes of international arbitration has resulted in concerted efforts aimed mainly at protecting the rights of states to regulate, improving transparency of proceedings and eliminating inconsistency in decision making of the tribunals. While the existing scholarly work frequently addresses issues of the relationship between the existing investment regimes and good governance in general, increased attention is rarely paid to the effects that investment arbitration has on democratic practice. The article applies an “action-based” approach to democracy, in order to analyse the role that the ISDS regimes play in exacerbating conflicts between the local populations, foreign investors and governments. The analysis leads to a conclusion that the ISDS regimes create incentives for the governments and foreign investors to disregard sound democratic practice. The article represents an attempt to move the discussion about the ISDS regimes away from the question of legitimacy of the regimes to the question of the impacts that the regimes have in practice.

Not all rights are created equal: A loss–gain frame of investor rights and human rights

2020 ◽  
pp. 1-16
Author(s):  
Tomer Broude ◽  
Caroline Henckels
Keyword(s):  
Decision Making ◽  
Human Rights ◽  
Cognitive Psychology ◽  
Dispute Settlement ◽  
International Investment ◽  
Foreign Investors ◽  
Normative Basis ◽  
Gain Frame ◽  
The Relationship ◽  
Cognitive Explanation

Abstract International investment tribunals often use the language of ‘rights’ to characterize foreign investors’ claims against host states, evoking the language of human rights and, in some cases, appearing to conflate the two concepts. We investigate the cognitive framing of the relationship between investor rights and human rights in investor-state dispute settlement (ISDS), as characterized by investment tribunals. We first establish that arbitrators (and scholars and counsel) tend to characterize investor claims as rights claims in general and property rights claims in particular, even if this normative basis is far from precise. Second, building on behavioural economics and cognitive psychology, we argue that this characterization places human rights considerations at a structural disadvantage in ISDS. Investor rights are perceived by arbitrators as endowments that are possessed and that risk being lost, while the human rights of host state populations are viewed as aspirational demands that might only be fully realized in the future. Thus, governmental actions interfering with investments are perceived by arbitrators as actual losses, while competing human rights claims are perceived as potential gains or demands. Following prospect theory, the former (certain losses) will usually be weighed more heavily in a decision-making calculus than the latter (possible gains). This loss–gain frame provides a cognitive explanation for the prevalence of arbitral decisions that prefer investor claims over human rights, a phenomenon that is highly problematic in times in which the legitimacy of the ISDS system rests on its ability to consider the rights of non-investors.

scholarly journals O papel da auditoria interna na promoção da accountability nas Instituições de Ensino Superior

2020 ◽  
Vol 54 (2) ◽  
pp. 243-265
Author(s):  
Anabela dos Reis Fonseca ◽  
Susana Jorge ◽  
Caio Nascimento
Keyword(s):  
Higher Education ◽  
Decision Making ◽  
Good Governance ◽  
Internal Auditing ◽  
Management Effectiveness ◽  
Public Sector Organizations ◽  
International Convergence ◽  
Accountability Practices ◽  
The Relationship

Abstract This paper discusses the link between accountability and internal auditing, particularly analyzing the extent to which the latter contributes to improve the former, in Higher Education Institutions (HEIs). This study applied a questionnaire to the management boards of a sample of HEIs, to empirical analyze the relationship between internal auditing and accountability. The main focus was on internal auditing carried out by the offices or departments in those institutions. The paper contributes to understand how management boards perceive internal auditing to foster transparency and accountability in HEIs, allowing to corroborate that auditing, and particularly internal auditing, favors the institutions’ accountability. In effect, it promotes the principles underlying accountability practices. The information provided in the scope of internal audits is acknowledged as contributing to improve management effectiveness and helping in decision-making. HEIs wanting to create an internal auditing office or to enhance the role of an existing one, should develop this office’s activities so that it becomes an instrument to support accountability and good governance of the organization. The sample consisted of Portuguese public HEIs, universities and polytechnics. Despite a certain international convergence regarding this type of public sector organizations, and regarding their purposes and governance, certain contextual specificities might limit the generalization of the findings for other jurisdictions.

scholarly journals The Reform of Investor-State Dispute Settlement: Bringing the Findings of Social Psychology into the Debate

2019 ◽  
Vol 10 (4) ◽  
pp. 561-581
Author(s):  
Myriam Gicquello
Keyword(s):  
Social Psychology ◽  
Decision Making ◽  
Dispute Settlement ◽  
Ad Hoc ◽  
Group Decision ◽  
Current System ◽  
Psychological Perspective ◽  
Investment Arbitration ◽  
Domestic Courts ◽  
The Eu

Abstract This article introduces the findings of social psychology, especially group psychology, into the study of investment arbitration. It argues that arbitrators as members of small groups (i.e. tribunals or divisions in an Investment Court) might be subjected to a number of influences inherent to such collective settings—factors already proven to be at play in domestic courts. In turn, identifying those factors provides an opportunity to reduce their impact on the decision-making of legal adjudicators through the implementation of adequate remedies. Adopting one of the most popular models of group decision-making—groupthink— this article discusses the manifestations and implications of this theory for Investor-State Dispute Settlement both in its ad hoc and institutionalized forms. Specifically, it claims that the Investment Court defended by the EU and generally posited in some agreements might not be that different from the current system from a socio-psychological perspective, and hence could be further improved.

Part III Towards a Jurisprudence Constante in Investment Arbitration Decision-Making on Corruption, 11 Concluding Chapter: Legal and Policy Tensions Underlying Anti-Corruption Decision-making

2014 ◽  
Author(s):  
Llamzon Aloysius P
Keyword(s):  
Decision Making ◽  
Economic Development ◽  
Good Governance ◽  
Investor Protection ◽  
International Investment ◽  
Investment Arbitration ◽  
Policy Goals

This chapter discusses the competing policy goals that vie for supremacy in every decision made by investment arbitrators concerning corruption. It considers all the policies that underpin the system of international investment arbitration — investor protection, good governance, and economic development — vis-à-vis international anti-corruption norms, leading to the proposal of an alternate typology for transnational corruption that may better assist arbitrators in the resolution of difficult corruption-related issues.

scholarly journals PARTICIPATION OF INDIVIDUALS IN PUBLIC DECISIONS IN THE POLISH LEGAL SYSTEM-THE OUTLINE

2020 ◽  
Vol 1 ◽  
pp. 21-27
Author(s):  
Agata Barczewska-Dziobek
Keyword(s):  
Decision Making ◽  
Rule Of Law ◽  
Legal System ◽  
Text Analysis ◽  
Good Governance ◽  
The Body ◽  
The Rule Of Law ◽  
Decision Making Processes ◽  
Polish Law ◽  
The Relationship

The idea of good governance is associated with the postulate of participatory and interactive democracy. This results in the appearance in the legal system of solutions reflecting the recommendations of the so-called "good administration." Good administration is the subjective right which, in the relationship between the body and the citizen, defines the individual's rights and the duties of the administration to act in a particular way. It may be interpreted differently, but it must comply with universal standards. They have been defined in international, European and soft law. These include the rule of law, equality, administrative transparency, confidence and trust, as well as the opportunity to participate in decisions. The last of these relates to procedures for involving citizens in administrative decision-making. The purpose of the article is to present normative solutions in Polish law that guarantee citizens participation in decision-making processes at various levels of administration and their systematics. To achieve this goal, the method of legal text analysis was used, which allows us to indicate the existence of many different mechanisms of participation. Their presence in Polish law determines the varying levels of civic influence on public decisions.

The Compatibility of Investment Arbitration in eu Trade Agreements with the eu Judicial System

2016 ◽  
Vol 13 (1) ◽  
pp. 46-63 ◽  
Author(s):  
Dr. Laurens Ankersmit
Keyword(s):  
Dispute Settlement ◽  
Trade Agreements ◽  
Legal Order ◽  
European Court Of Justice ◽  
Court System ◽  
Foreign Investors ◽  
Investment Arbitration ◽  
Court Of Justice ◽  
European Court ◽  
The Eu

This article explores the legality of investment arbitration in eu trade agreements under eu law. Investor-state dispute settlement (isds), including the Investment Court System, allows foreign investors to challenge eu acts and decisions before investment tribunals and these tribunals may be faced with questions of eu law. Since this system of dispute resolution operates entirely outside the eu judicial framework and rivals with it, the powers of the courts of the Member States and that of the European Court of Justice may be adversely affected. This in turn could affect the uniform interpretation and effectiveness of eu law and the autonomy of the eu legal order.

Investment Arbitration in the Energy Sector

2020 ◽  
pp. 814-842
Author(s):  
Elena Cima
Keyword(s):  
Dispute Settlement ◽  
Energy Sector ◽  
Foreign Company ◽  
Foreign Investor ◽  
Energy Investment ◽  
Foreign Investors ◽  
Significant Percentage ◽  
Investment Arbitration ◽  
The World

This chapter studies the role of investment arbitration in the energy sector, which has received increasing attention over the last decade. International energy investment accounts for a significant percentage of all global investments and makes up the largest portfolio of international arbitrations in the world today. Energy-related disputes can take many forms. They may occur between two states, two private parties, or a private party and a state—in which case they may relate either to an investment by a foreign company in a state or to a commercial contract between a foreign company and a state. The chapter considers only one type of energy-related dispute, namely investment disputes between a foreign investor and a state. It particularly focuses on arbitration, which represents ‘the most widely used form of dispute settlement between foreign investors and host States’.

Investment Arbitration as Constitutional Law

2020 ◽  
pp. 420-447
Author(s):  
David Schneiderman
Keyword(s):  
Judicial Review ◽  
Constitutional Law ◽  
Dispute Settlement ◽  
Foreign Investors ◽  
State Action ◽  
High Courts ◽  
Investment Arbitration ◽  
Legitimacy Crisis ◽  
Legal Processes

This chapter argues that investment arbitration serves functions analogous to high courts when interpreting constitutional text. As in the case of high courts issuing authoritative interpretations of constitutional texts, arbitrators are tasked with determining the propriety of state action with reference to open-ended obligations that states owe to foreign investors and their investments. Viewed from this angle, investment arbitration can be likened to the performance of judicial review under national constitutions. This is a proposition that will be resisted by many investment lawyers and arbitrators. Analogizing to constitutional rules and institutions will be seen as contributing to a ‘legitimacy crisis’ presently confronting investor-State dispute settlement (ISDS). Legitimation problems have arisen because legitimacy requires more than merely following correct legal processes. There is expected to be some value beyond mere legality served by the power of coercive law. Indeed, investment arbitration will continue to be of doubtful legitimacy so long as investment arbitration is characterized as performing constitution-like functions.

Citizen Participation in Public Administration

2005 ◽  
pp. 415-445 ◽  
Author(s):  
Hein van Duivenboden
Keyword(s):  
Decision Making ◽  
Service Delivery ◽  
Public Administration ◽  
Citizen Participation ◽  
Public Service ◽  
Good Governance ◽  
Theory And Practice ◽  
Electronic Government ◽  
Government Services ◽  
The Relationship

This chapter is on responsive electronic government services. Various changes in the relationship between government and citizens will be discussed by examining theory and practice of electronic public service delivery initiatives in a broad sense. The increasing complexity of society, individualization, new expectations of citizens and the use of modern ICT all influence the behavior of governments in their relations with citizens. What impact does e-government have on some of the most important principles of good governance — such as principles that safeguard “access and transparency”, “accountability and legitimacy” and “effectiveness of policy- and decision-making”?

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