Business and Human Rights: Alternative Approaches to Transnational Regulation

In recent years, various approaches to transnational regulation of business conduct have evolved as an alternative to the command-and-control model focusing on conduct of domestic businesses and the soft law approach of international human rights law to regulate corporations. On reviewing the potential of five such approaches (i.e., polycentric governance, extraterritorial regulation, proposed international treaty, reform of corporate laws, and rebalancing of trade-investment agreements), this article makes two arguments. First, although polycentric governance is critical to fill regulatory deficits of state-based regulation, this approach should not ignore or weaken further the role and relevance of states in regulating businesses, given the dynamic relation between state-based and other regulatory approaches. Second, greater attention should be paid to nonhuman rights regulatory regimes to change the corporate culture, which tends to externalize human rights issues. The increasing focus on the role of corporate laws and trade-investment agreements should be seen in this context. Expected final online publication date for the Annual Review of Law and Social Science, Volume 17 is October 2021. Please see http://www.annualreviews.org/page/journal/pubdates for revised estimates.

The EU beyond Brexit

This chapter looks at the future of the European Union beyond Brexit and analyses the plan, precedents, and prospects for the Conference on the Future of Europe. The establishment of the Conference on the Future of Europe is potentially an innovative model and path-breaking initiative to reform the EU and make it more effective and legitimate, along the lines of prior, out-of-the-box initiatives such as the Conference of Messina and the Convention on the Future of Europe. The Covid-19 pandemic has delayed the start of the Conference on the Future of Europe, but has also increased its urgency. Yet, the chances of success of this initiative are closely connected to the mechanics of treaty reform. As such, the chapter suggests that the Conference should consider channelling its output into a Political Compact, subject to an entry into force rule that do away with the unanimity requirement, as it has been done previously in the field of Economic and Monetary Union (EMU). Clearly, success cannot be taken for granted and there are many difficulties ahead, but the EU is facing a decisive moment.

The Economic Community of West African States

This chapter examines the international parliamentarization of the Economic Community of West African States (ECOWAS). ECOWAS was founded in 1975 without an international parliamentary institution (IPI). An IPI was only created in 1993 in the context of general treaty reform. In particular, the democratization process in the region, the promotion of pan-African community building and the example of other successful regional organizations motivated the initiative for an ECOWAS Parliament. Moreover, the ECOWAS Parliament represents an attempt by elites to strengthen the links between the international organization and the citizens. However, the ECOWAS Parliament took until 2001 to become operational and did not have legislative functions until 2017.

Possibilities of Limiting the Protection of Large-Scale Investments in Farmland

Large-scale investments in farmland can generate adverse effects on food security, minority groups, and the environment. Consequently, this Article analyzes to what extent international investment law has the potential to prevent those effects, considering the current investment treaty reform towards a symmetrical mechanism promoting sustainable development. First this Article presents the current substantive standard on expropriation of large-scale investments in farmland and the regulatory space left for host states. This Article then frames a potential public interest clause that would have the effect of granting due protection to investors and the right to regulate to host states, while not undermining the public interest and also preventing the adverse effects of these investments.

10. From Amsterdam to Lisbon (2000–09)

This chapter examines the new strategy adopted in March 2000 by a special European Council in Lisbon to make the European Union (EU) more competitive, culminating in the signing of the Treaty of Lisbon. The Amsterdam Treaty had scarcely entered into force before further Treaty reform emerged on the agenda. Throughout the year 2000, a new intergovernmental conference met to address outstanding institutional issues that had not been settled at Amsterdam. It concluded in December 2000 with the longest European Council in history, which led to the Treaty of Nice. The chapter first considers the Nice Treaty, before discussing the Lisbon Strategy, the European Security and Defence Policy, the Constitutional Treaty, the issue of enlargement, the European Parliament (EP), and the nomination of a new European Commission. It ends with a discussion of the Treaty of Lisbon.

Special Issue: UNCITRAL and Investment Arbitration Reform: Matching Concerns and Solutions

The ongoing ‘legitimacy crisis’ in investor-State dispute settlement (ISDS) has triggered a comprehensive attempt at multilateral reform. In 2017, Working Group III at the United Nations Commission on International Trade Law (UNCITRAL) was entrusted with a broad, open-ended and problem-driven mandate. The reform process aims to tackle particular concerns with ISDS: excessive costs and lengthy proceedings, inconsistent and incorrect decisions, and a lack of arbitral diversity and independence. The exclusion of substantive treaty reform has met critique but states are considering a wide range of procedural options from incremental reform to a multilateral court, appellate mechanism, and ISDS alternatives. In this article, we introduce the reform process and the seven articles that follow in this Special Issue of the Journal on World and Investment and Trade. In these contributions, ISDS Academic Forum members analyse the basis for each concern and the potential contribution of leading reform models.

Die Konferenz zur Zukunft Europas zwischen „Konvent 2.0“ und „Intergouvernementalismus 3.0“: Warum Europa diese Chance zur Reform nutzen muss

Three months after the initially scheduled start of the Conference on the Future of Europe (CoFoE) its design remains unclear. While the European Parliament proposed a rather ambitious concept of a “European Convention 2.0”, the European Council seeks additional legitimacy for its Strategic Agenda, excluding the possibility of treaty reforms. However, not all national governments seem to be convinced that such an “Intergovernmentalism 3.0” legitimised by participative democracy is a good idea. In between these two positions, the European Commission seeks to water down Ursula von der Leyen’s bid to the European Parliament. Comparing the opportunities and risks entailed in these three concepts of the CoFoE, the article argues for an open process, which neither pushes for nor excludes treaty reform. If citizens and civil society support such a constitutional momentum, it is about time to address the numerous reform needs and to end the further procrastination of treaty reforms.

Germany’s Stance on the EU Treaty Reform in the Years 2005–2009

Celem badawczym pracy jest rekonstrukcja wpływu Niemiec na reformę ustrojową Unii Europejskiej dokonaną w traktacie lizbońskim z 13 grudnia 2007 r. Autor formułuje hipotezę badawczą, że traktat lizboński znacząco wzmocnił pozycję Niemiec w Unii. Ograniczenie prawa weta państw członkowskich oraz radykalne wzmocnienie metody wspólnotowej w Unii dokonane w tym traktacie zamiast jeszcze bardziej związać Niemcy z UE, stworzyły potencjalne przesłanki nawet do ich dominacji w Unii.

3. From the Constitutional Treaty to the Treaty of Lisbon and Beyond

This chapter explores the emergence and implementation of the Treaty of Lisbon. Its origins lie in the Constitutional Treaty of 2004 and its rejection in the French and Dutch referendums of 2005, which led to a period of so-called reflection. Then, mainly under the German Council presidency of early 2007, there was an emphatic drive to produce not a constitution, but an orthodox amending treaty to carry forward the basic reforms of the Constitutional Treaty. A deal was reached in October 2007. However, while parliamentary ratification went successfully, an initial referendum rejection in Ireland in June 2008 cast doubt on the new Treaty’s future. In part, this symbolized a rejection of some elements of the Treaty, but it also owed much to a deeper unease about the EU. Once Irish concerns had been assuaged, a second referendum produced the necessary ‘yes’ to ratification and, following some last-minute concessions to the Czech Republic, the Treaty of Lisbon entered into force on 1 December 2009. Its implementation proceeded relatively smoothly but was complicated by the eurozone crisis, which in turn pushed the EU to pursue some further treaty reform. In the face of increasing Euroscepticism, and persistent question marks over the popular legitimacy of the EU, the appetite for treaty reform all but evaporated for much of the 2010s, even if for integrationists the eurozone crisis demanded further reform. Towards the end of the decade, with Emmanuel Macron as French President calling for a ‘re-founding’ of the EU and the UK negotiating its withdrawal from the EU, opportunities for and some interest in a new round of treaty reform appeared to be emerging.