Hedging Bets with BITS

This chapter argues that bilateral investment treaties (BITS) and free trade agreements (FTAs) erect a high hedge around intellectual property rights, protecting them from the impact of state regulation. Two investor-state dispute settlements (ISDS) involving IP have been resolved by final award. In both cases, the state prevailed, suggesting that the hedge may not be as impenetrable as had originally been feared. However, the chapter contends that this view is mistaken. While the awards in the decided disputes may close the door on specific contentions, they invite further challenges and maintain the heavy shadow that the hedge provided by ISDS casts on state action. In order to trim that hedge, it will be necessary for the drafters of investment obligations and the tribunals that hear ISDS disputes to take into account the intangibility of IP rights in determining when IP is sufficiently localized in a host state that it should be considered protectable by that state's investment obligations. The chapter then explores ways to trim ISDS, including the possibility of using ISDS as a mechanism for building counter-norms—hedges that protect the public and its regulatory interest.

Rethinking Global Administrative Law: Formulating a working definition of “global administrative action”

<p>Global administrative law (GAL) aims to plug the “accountability deficit” in global institutions by projecting national administrative law principles onto the global scale. Global administrative action has been provisionally delineated as "rulemaking, adjudication, and other decisions that are neither treaty-making nor simple dispute settlements between parties”. But the concept has not yet been defined. The paper adopts a “bottom up” approach by analysing the domestic administrative law of America, New Zealand, and South Africa in order to construct a definition of global administrative action. The paper presents a working definition of the concept.</p>

Rethinking Global Administrative Law: Formulating a working definition of “global administrative action”

<p>Global administrative law (GAL) aims to plug the “accountability deficit” in global institutions by projecting national administrative law principles onto the global scale. Global administrative action has been provisionally delineated as "rulemaking, adjudication, and other decisions that are neither treaty-making nor simple dispute settlements between parties”. But the concept has not yet been defined. The paper adopts a “bottom up” approach by analysing the domestic administrative law of America, New Zealand, and South Africa in order to construct a definition of global administrative action. The paper presents a working definition of the concept.</p>

The Impact of Bilateral Investment Treaties on FDI Inflows Into India: Some Empirical Results

After a run of adverse investor-state dispute settlements, India has recently denounced all its erstwhile investment treaties. New investment treaties need to be negotiated on the basis of a new Model Treaty that privilege state rights over investor rights. We study the impact of bilateral investment treaties on foreign direct investment (FDI) inflows into India before the denunciation with the intent of inferring the consequences of changing the system. Our work captures the effects of international investment agreements on FDI inflows specifically into India. We construct an empirical model drawing on the Gravity Model, and estimate parameters using generalised method of moments. The results show that while the individual signing of bilateral investment treaties does not influence the inflow of FDI, the effect of the cumulative bilateral investment treaties signed is statistically very significant—suggesting that the spill over effect of signing a series of bilateral investment treaties are important, signalling a regime of overall protection to investors. The importance of institutional variables in influencing FDI tells us that overall participation in a system governed by international investor agreements influenced the inflow of FDI positively and therefore recent policy changes should be viewed with caution. JEL Codes: F21, F23, F550, F63, K33, O19, C22, C29

Making International Law Truly ‘International’?

Before non-European regions adopted international law, a different set of law of territory governed the non-European regions. Notwithstanding their differences, international courts and tribunals have approached non-European territorial disputes through a single lens of Eurocentric international law. The general claim of this article is that international courts and tribunals should approach non-European territorial disputes with special consideration to account for the region’s historical system. This article case studies the China-Vietnam dispute in the South China Sea to advance this claim. Through the case study, I argue that East Asian concepts of sovereignty do not equate with those employed by Eurocentric international law. I then suggest guidelines for considering regional systems when ruling on non-European territorial disputes. If international courts and tribunals do not change their legal approach, this not only distorts the historical realities of the non-European regions but also results in unfair dispute settlements.

Decent work for the digital platform workers. A preliminary survey in Beijing

This paper discusses the status and implications of the employment relations and working conditions experienced by digital platform workers; the analysis is based on a survey conducted in 2017 on 1 338 workers engaged in work-on-demand via apps (WODVA) from 25 platforms in Beijing, of whom 48.8 % are full-time WODVA workers or take WODVA as their primary job. The survey finds that nearly a half of the respondents engage in platform work due to a lack of employment opportunities in formal labor markets or their permanent jobs providing insufficient income. The respondents reveal substantial decent work deficits in representation, compensation, job stability, social protection, working time, and health and safety: 1) WODVA workers seldom have any voice in labor dispute settlements and have a very low rate of unionization; 2) about one third of the full-time WODVA workers cannot earn a living wage and 7.6 % of them earn less than the minimum wage level; 3) three quarters of the full-time WODVA workers have no labor contract with the platforms or other employers, nor access to employer-contributed social insurances; 4) overtime work and underemployment coexist among full-time respondents, with nearly 10 % working for fewer than 4 hours per day while nearly 10 % work for more than 11 hours per day; 5) a majority of respondents run a higher risk of occupational health or physical risks, without any protection provided by the platforms or employers. To promote decent work by digital platform workers, the State needs to establish a portable social security system extending to all workers, to facilitate association and collective actions of platform workers either by extending the outreach of traditional unions or fostering new forms of organizations, to leverage digital technology to facilitate platform workers’ organization and information sharing, and even to promote universal basic income and a workers’ cooperative of platforms in the long run.

The Reflection of WTO Brazilian Dispute Settlements on Domestic Law: A Place to Legal Pluralism?

International trade law, followed by the development of legal mechanisms for regulation of multilateral trading system, from General Agreement on Tariffs and Trade – GATT (1948–94), Uruguay Round (1986–94) to World Trade Organization – WTO (1995) dispute settlement system is the current scenario of the world economy transactions. This paper aims to analyze whether Brazilian activism in the world trading system may be identified in the WTO Dispute Settlement dealing with the concept of direct effect on international law. Since 1995, Brazil has been an assiduous claimant at the WTO and at the South American Common Market (MERCOSUR) dispute mechanism. However, explaining Brazilian participation at the WTO Dispute Settlement Body (DSB) requires a collision between the Brazilian private sector and the political relevance that trade disputes have acquired.

The European Union’s Position in Global Foreign Direct Investment Flows and Stocks: Institutional Attempts to Improve It

Global flows of foreign direct investment (FDI) have slowed down in recent years, which particularly affected developed countries, including those in the European Union (EU). A general decrease in capital circulation in the form of FDI between the EU and the rest of the world has been observed. The aim of this paper is to assess the changes in the EU’s position in global FDI flows and stocks and to discuss attempts made by EU institutions and the EU member states to improve this position. The EU can use the common investment policy to strengthen its investment position. The EU acquired the competence to conduct this policy based on the Lisbon Treaty, while its actual shape was determined in practice. Improving the EU’s position in global FDI flows requires agreements regarding foreign investment, concluded at the EU level with other countries and integration groupings. Ensuring national treatment of investors before and after investing is important, as are solutions used for inwestor protection, inwestor-state-dispute-settlements (ISDS), and the use of investment project screening to protect strategic sectors of the EU economy. The EU investment policy can mitigate the effects of slowing down FDI flows, create a more favorable climate for outgoing FDI, and protect vital interests for FDI coming into the EU from third countries.

A Brief Analysis of International Arbitration as a Form of Alternative Dispute Settlements

Over the past decades, the rapid expansion of cross-border commercial transactions has given rise to a concomitant increase in cross-border disputes. As a method of settling commercial disputes, in comparison with litigation, international arbitration has a lot of strengths, which is one reason why it is increasingly popular. Thus this article offers a brief analysis of international arbitration as a form of Alternative Dispute Settlements in order that the concept of international arbitration can be had a clear understanding.