scholarly journals Towards Deeper Judicialisation: Explaining Thailand’s Increasing Engagement with International Adjudication

2021 ◽  
pp. 22-46
Author(s):  
Phil Saengkrai
Keyword(s):  
Dispute Settlement ◽  
International Criminal ◽  
Criminal Court ◽  
Dispute Settlement Mechanism ◽  
Government Officials ◽  
The Icj ◽  
Thai Government ◽  
International Adjudication ◽  
First Time ◽  
Settlement Mechanism

This paper calls attention to a little-noticed phenomenon about the Thai government’s increasing involvement in international adjudication over the last two decades. For the first time, it has participated in the advisory proceedings before the ITLOS, and made oral statements in the advisory proceedings before the ICJ. It has faced the first treaty-based arbitration by a German investor. There has also been an attempt to initiate the proceedings at the International Criminal Court against Thai officials. All of these parallel the government’s extensive participation in the dispute settlement mechanism of the WTO. What accounts for such developments? The paper argues that Thailand’s constantly increasing engagement with international adjudication should be understood as part of the judicialisation of international relations. Specifically, it is shaped by four main conditions. First, the Thai government has cautiously yet constantly expanded its acceptance of jurisdiction of courts and tribunals. Second, the number of potential claimants has exponentially increased. Third, the composition of the international litigator communities has changed, resulting in the significant increase in the number of lawyers willing to pursue new cases. Fourth, Thai government officials are learning to strategically make themselves more visible in the litigator communities.

scholarly journals PEMANFAATAN MEKANISME ASEAN DALAM PENYELESAIAN MASALAH PERBATASAN THAILAND

2017 ◽  
Vol 15 (2) ◽  
pp. 105-138
Author(s):  
C.P.F. Luhulima
Keyword(s):  
World War Ii ◽  
Dispute Settlement ◽  
Dispute Settlement Mechanism ◽  
World War ◽  
Un Security Council ◽  
The Icj ◽  
The Hague ◽  
The One ◽  
Preah Vihear ◽  
Settlement Mechanism

AbstractThailand’s borders with Myanmar, Laos, Cambodiaand Malaysia have been established through amapping process within the framework of theTreaty of Westfalpha. Since the England andFrance left Southeast Asia after World War II,Thailand questioned its borders with itsneighbouring countries and since then the borderissue between Thailand and her neighboursbecame the major issue. The attempts to resolvethe border conflict between Thailand andMyanmar have been conducted through“constructive engagement”, and through her policyof “changing battlefields to market places”. TheASEAN approach has been employed in her borderconflict with Cambodia. Cambodia’s attempt toinvolve the UN Security Council has been respondedby the Council to involve ASEAN in its resolution.The failure of the ASEAN approach made Cambodiato submit the issue to the ICJ in The Hague in April2011. On November 11, 2013 ICJ decided thatPreah Vihear and its surrounding area belong toCambodia. The source of the conflict with Malaysiawas not primarily about border, but it was apolitical complaint. The rebellion at the border areawill thus not terminate until the Thai authoritiesunderstand the complaints of the Muslim-Malaysat the border area. The ASEAN mechanism toresolve the inter-state conflict consists of bilateral,trilateral approaches, through the High Council andthe United Nations. The application of stepsbetween Thailand and its neighbours are thebilateral, trilateral steps and the one through theInternational Courtof Justice in The Hague.Keywords: Thailand, Myanmar, Malaysia, Kamboja,ASEAN, Dispute Settlement Mechanism AbstrakBatas Kerajaan Thailand dengan Myanmar, Laos,Kamboja dan Malaysia dibentuk melalui prosespemetaan di dalam kerangka Traktat Westfalia.Ketika Inggris dan Prancis mengundurkan dirisesudah Perang Dunia II, Thailand mempersoalkanperbatasannya dengan negara-negara tetangganya,sehingga perbatasan menjadi pokokpermasalahan. Sengketa dengan Myanmar diupayakanpenyelesainnya melalui “constructiveengagement”, dan dengan kebijakannya “changingbattlefields to market places”. Pendekatan ASEANdigunakan untuk menyelesaikan konflik denganKamboja. Pelibatan Dewan Keamanan PBB dijawabdengan meminta kedua belah pihak melibatkanASEAN. Kegagalan pendekatan ASEAN menyebabkanKamboja mengajukan kasus ini ke ICJ padaApril 2011. Pada 11 November 2013 MahkamahInternasional di Den Haag memutuskan bahwaCandi Preah Vihear dan wilayah sekitarnya adalahmilik Kamboja. Permasalahan dengan Malaysiabukanlah masalah perbatasan antara keduanegara melainkan keluhan politik, sehinggapemberontakan di perbatasan tidak akan berakhirsampai penguasa Thailand memahami keluhanorang-orang Muslim-Melayu di perbatasan.Mekanisme ASEAN untuk mengatasi sengketaantarnegara anggota terdiri dari langkah bilateral,trilateral, melalui pembentukan Dewan Tinggi danmelalui lembaga hukum PBB. Yang di-terapkandalam kasus sengketa perbatasan antara Thailanddan negara tetangganya ialah pendekatanbilateral dan trilateral serta melalui LembagaPeradilan PBB.Kata kunci: Thailand, Myanmar, Malaysia,Kamboja, ASEAN, Mekanisme PenyelesaianPerselisihan

Investor-State Dispute Settlement under review; current challenges, lack of regulation in the EU-MERCOSUR agreement and basis for the EU-UK and UK-MERCOSUR FTAs

2020 ◽  
pp. 182-203
Author(s):  
Santiago Theoduloz Duarte
Keyword(s):  
Dispute Settlement ◽  
Free Trade Agreements ◽  
Court System ◽  
Dispute Settlement Mechanism ◽  
The United Kingdom ◽  
The Uk ◽  
First Time ◽  
Settlement Mechanism ◽  
Review Current ◽  
The Eu

Investment treaties aim to protect the rights of foreign investors and provide legal certainty, generally including an Investor-state dispute settlement (ISDS) system. The increase of criticism towards ISDS -which reached its highest point during the EU-US TTIP negotiations- brought up different concerns. As a result, the Investment Court System (ICS) was developed and incorporated for the first time in the CETA between Canada and the EU, and then in other Free-Trade Agreements (FTA) signed by the EU. However, in the EU-MERCOSUR FTA there is no regulation of a dispute settlement mechanism between investors and States parties.Currently, the United Kingdom (UK) is leaving the EU and negotiations of a new deal with the EU are being developed. In the next stages, the UK will most likely reach different agreements with sovereign states and others commercial blocks. In this sense, there is a possibility that a future EU-UK and UK-MERCOSUR agreement will need to consider whether the ISDS or the ICS will be adopted. Also, MERCOSUR will need to analyse which system it will be willing to adopt in the future in case a dispute settlement between investors and States is adopted, and could even explore a system that includes aspects of both the ISDS and the ICS.

The Legitimate Regulatory Distinction Test: Incomplete and Inadequate for the Particular Purposes of the TBT Agreement

2016 ◽  
Vol 15 (4) ◽  
pp. 543-562 ◽  
Author(s):  
JASON HOUSTON-MCMILLAN
Keyword(s):  
Dispute Settlement ◽  
Technical Barriers To Trade ◽  
Dispute Settlement Mechanism ◽  
Appellate Body ◽  
The Creation ◽  
The Cost ◽  
Special Circumstances ◽  
Settlement Mechanism

AbstractPrior to 2011, the Agreement on Technical Barriers to Trade had been somewhat neglected as a dispute-settlement mechanism, due in part to the lack of previous interpretation of the Agreement by WTO DSB Panels. In 2012, the Appellate Body adjudicated on three TBT disputes:US–Clove Cigarettes, US–Tuna II, andUS–COOL, aiming to officially interpret and clarify Articles 2.1 and 2.2 of the Agreement by creating a distinct test for a measure's consistency with these Articles. This paper explores the relevant decisions of both the Panel and Appellate Body in the three disputes which led to the creation of the ‘legitimate regulatory distinction’ test. The substance behind this phrase, placed in context, is dissected along with the associated idea of ‘even-handedness’. The test attempts to simplify future interpretations regarding what will constitute unjustifiable discrimination, but at the cost of the necessary distinction between the GATT and the TBT Agreement being blurred. The result is a test which is incomplete and which fails to take account of the special circumstances surrounding the TBT Agreement.

EUROPEAN UNION IN WTO’S DISPUTE SETTLEMENT SYSTEM

2020 ◽  
Vol 4 (XX) ◽  
pp. 33-49
Author(s):  
Małgorzata Czermińska
Keyword(s):  
European Union ◽  
Dispute Settlement ◽  
World Trade Organisation ◽  
The European Union ◽  
Dispute Settlement Mechanism ◽  
Settlement System ◽  
Dispute Settlement System ◽  
Trade Conflicts ◽  
Settlement Mechanism ◽  
Descriptive Method

The World Trade Organisation (WTO) serves as a forum for co-operation, currently for as many as 164 countries, and in addition, it allows for the resolution, also amicably, of trade conflicts between parties, consequently, settling disputes between them. One of essential provisions of the Uruguay Round (UR) of the General Agreement on Tariffs and Trade (GATT) included the introduction of a new dispute settlement mechanism, that is to say, the Dispute Settlement Understanding (DSU), which became effective on 1 January 1995. Member States of the European Union were not only actively involved in developing the rules of the international trade system, but they also influenced, to a large extent, the form of both such rules and of ongoing trade negotiations, as well as they assumed and still assume responsibility for the final arrangements. Hence, their role in the multilateral trade system is both active and passive. This paper aims to demonstrate the functioning of the WTO’s dispute settlement mechanism and show the role which the European Union serves in this system. The Article employs an analytical and descriptive method. It draws on sources from the national and international literature and WTO’s databases.

“Constitutionalization” and Dispute Settlement in the wto: National Security as an Issue of Competence

1999 ◽  
Vol 93 (2) ◽  
pp. 424-451 ◽  
Author(s):  
Hannes L. Schloemann ◽  
Stefan Ohlhoff
Keyword(s):  
National Security ◽  
Dispute Settlement ◽  
Uruguay Round ◽  
Significant Shift ◽  
Dispute Settlement Mechanism ◽  
Economic Relations ◽  
Trade Law ◽  
International Trade Law ◽  
Dispute Settlement System ◽  
Settlement Mechanism

The 1994 Uruguay Round revision of the dispute settlement mechanism under the General Agreement on Tariffs and Trade/World Trade Organization (GATT/WTO) has made it a forum both for traditional trade issues and for interests ranging from environmental protection to national security. The limits of GATT jurisdiction have become important issues of dispute settlement within the WTO, especially as the emergence of the WTO and its rule-based, quasi-obligatory dispute settlement system has spurred a significant shift toward legalism. Constitutional structures are developing much faster in international trade law than in any other area of international law and, in the aftermath of the Uruguay Round, are integrating ever more aspects of economic relations among states. Within the WTO regime the dispute settlement mechanism established by the Understanding on Rules and Procedures Governing the Settlement of Disputes (DSU) plays a prominent role in enforcing its rules and reconciling a wide array of the members’ interests. The limits of the reach of the dispute settlement mechanism, given its obligatory character, are, to a certain degree, the limits of the constitutionalization of the organization as a whole.

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