New Issue: Journal of International Arbitration

The latest issue of the Journal of International Arbitration (Vol. 26, no. 2, April 2009) is out. Contents include:

• Markus Burgstaller, European Law and Investment Treaties
• Prabhash Ranjan, Definition of Investment in Bilateral Investment Treaties of South Asian Countries and Regulatory Discretion
• Lanfang Fei, Setting Aside Foreign-Related Arbitral Awards under Chinese Law: A Study in Perspective of Judicial Practice
• Günther J. Horvath, What Weight Should be given to the Annulment of an Award under the Lex Arbitri? The Austrian and German Perspectives
• Christopher Koch, The Enforcement of Awards Annulled in their Place of Origin: The French and U.S. Experience
• Beatrice Castellane, Arbitration in Employment Relationships in France
• Yuliya Chernykh, International Commercial Arbitration in Ukraine: Details Do Matter

Anderson: What NGO Accountability Means - and Does Not Mean (Review Essay)

Kenneth Anderson (American Univ. - Law) has posted What NGO Accountability Means - and Does Not Mean (Review Essay) (American Journal of International Law, Vol. 103, no. 1, p.170, Jan. 2009). Here's the abstract:

This essay offers a review (4000 words) of "NGO Accountability: Politics, Principles and Innovations," Lisa Jordan and Peter van Tuijl, eds. (London: Earthscan 2006); following AJIL permission, it is given in unedited form and is available in final form in 103 AJIL 1 (January 2009).

International and transnational NGOs have been under criticism for alleged lack of accountability since they emerged into prominence in the 1990s. In recent years, the debate over NGOs has shifted from legitimacy and "representativeness" to accountability in the narrower senses of internal governance, fiduciary responsibility, relationships with national governmental authorities, and similar issues. The volume under review seeks to cover both aspects of the debate, with emphasis on the latter, narrower issues. The review essay argues that the debate over representativeness and legitimacy - accountability in the large sense - cannot be left aside, but continues to be present, if only because the incentives that led NGOs to claim to represent the 'peoples of the world' in the first place have not gone away but have instead merely been submerged under critical pressure. The review essay argues that the question of NGO accountability as a matter of claims to governance remain salient, because global civil society still seeks a role in global governance in a way that relies upon claims of representativeness and that is not satisfied by narrower mechanisms by which NGOs make themselves accountable for other, narrower purposes, such as internal corporate governance or fiduciary accountability for charitable assets.

Goodman: Rationales for Detention: Security Threats and Intelligence Value

Ryan Goodman (Harvard Univ. - Law) has posted Rationales for Detention: Security Threats and Intelligence Value (International Law Studies, forthcoming). Here's the abstract:

In the essay, I contend that the law of armed conflict (LOAC) regulates the substantive grounds for detention in non-international armed conflicts and that LOAC prohibits long-term detention for the purpose of gathering intelligence.

New Issue: American Review of International Arbitration

The latest issue of the American Review of International Arbitration (Vol. 18, no. 3, 2007) is out. Contents include:

• Thomas E. Carbonneau, "Arbitracide": The Story of Anti-Arbitration Sentiment in the U.S. Congress
• Alexis Mourre & Janice Feigher, Can the Statutory Grounds for Review of Arbitral Awards Be Changed by the Parties? A French Law Perspective
• Bernardo M. Cremades & Alicia M. Blanco, Modification by Agreement of the Statutory Grounds to Set Aside International Arbitral Awards in Spain
• Hans Smit, Annulment and Enforcement of International Arbitral Awards: A Practical Perspective
• Hans Smit, Postscript: The Cour de Cassation's Decision in Putrabali
• Fuyong Chen, Striving for Independence, Competence, and Fairness: A Case Study of the Beijing Arbitration Commission
• Mauricio Gomm-Santos & Quinn Smith, On Dangerous Footing: The Non-Statutory Standards For Reviewing an Arbitral Award

Workshops: Keith, Somek, Waxman

Kenneth Keith (Judge, International Court of Justice) will deliver a lecture today at the University of Sydney Law School on "Judging in the International Court of Justice and Other National and International Courts and Tribunals."

Alexander Somek (Univ. of Iowa - Law) will give a talk today at the New York University School of Law Institute for International Law and Justice International Legal Theory Colloquium on "Democracy-Enhancing International Law: The Argument for Transnational Effect."

Matthew Waxman (Columbia Univ. - Law) will give a talk today at the Temple University School of Law International Law Colloquium on "The Use of Force Against States that Might Have WMD."

New Issue: Journal of World Investment & Trade

The latest issue of the Journal of World Investment & Trade (Vol. 10, no. 1, February 2009) is out. Contents include:

• Sergey Ripinsky, Assessing Damages in Investment Disputes: Practice in Search of Perfect
• Dominque D'Allaire, The Nationality Rules under the Energy Charter Treaty: Practical Considerations
• Ugliješa Grušić, The Evolving Jurisdiction of the International Centre for Settlement of Investment Disputes
• Tarcisio Gazzini, General Principles of Law in the Field of Foreign Investment
• M. Shabir Korotana, US-Gambling: Test of Limits of the WTO Dispute Settlement Process
• Francisco Aguayo Ayala & Kevin P. Gallagher, Subsidizing Sustainable Development under the WTO
• Jarrod Hepburn, The Australia New Zealand Closer Economic Relations Trade Agreement: First Among Equals

Coyle: Incorporative Statutes and the Borrowed Treaty Rule

John Coyle (Harvard Univ. - Law) has posted Incorporative Statutes and the Borrowed Treaty Rule (Virginia Journal of International Law, forthcoming). Here's the abstract:

This Article examines how courts should interpret statutes that, by their terms, incorporate treaty provisions into the domestic law of the United States. The Article looks to a number of sources - including the structure of these "incorporative" statutes, common law canons of construction, separation of powers principles, and the case law of the United States Supreme Court - to develop an interpretive framework for reading such statutes. Under the proposed framework, courts should presume that a statute that incorporates language or concepts from a treaty should generally be read to conform to the treaty, regardless of whether the statute is ambiguous. This presumption may be rebutted only by compelling evidence that Congress intended a different result. The Article labels this approach "the borrowed treaty rule."

The Article then goes on to distinguish the borrowed treaty rule from the Charming Betsy canon of interpretation, which provides that courts should, whenever possible, construe domestic statutes so as not to violate international law. A number of legal scholars have argued that U.S. courts should, per the Charming Betsy canon, construe all ambiguous statutes (not just statutes that are incorporative) to conform to international law. Such an approach is misguided, the Article suggests, because none of the rationales underlying the borrowed treaty rule support using that same approach to interpret statutes that are not incorporative. It is necessary, therefore, to distinguish between the borrowed treaty rule and the Charming Betsy canon. The former rule should be used to ensure that incorporative statutes are read to conform to international law. The latter canon, however, should be used merely to ensure that ambiguous statutes that are not incorporative do not conflict with it.

Treaty Transmittal: Annex VI to the Protocol on Environmental Protection to the Antarctic Treaty

On Thursday, April 2nd, the President transmitted to the Senate, for its advice and consent to ratification, Annex VI on Liability Arising From Environmental Emergencies to the Protocol on Environmental Protection to the Antarctic Treaty, adopted on June 14, 2005, at the twenty-eighth Antarctic Treaty Consultative Meeting held in Stockholm, Sweden. The transmittal package (Treaty Doc. 111-2) is here. This if the first treaty transmitted by President Obama.

Workshops: Bermann, Turner, Weitz

George Bermann (Columbia Univ. - Law) will give a talk today at the George Washington University Law School Global Workshop Series on "The Restatement of International Commercial Arbitration: Special Challenges."

Jenia Iontcheva Turner (Southern Methodist Univ. - Law) will give a talk today at the Northwestern University School of Law International Law Colloquium.

Eric D. Weitz (Univ. of Minnesota - History) will give a talk today at the University of Miami School of Law Faculty Speaker Series on "From the Vienna to the Paris System, or: What Human Rights has to do with Imperial Politics, Minority Protection, Forced Deportations, and German Genocides."

Mendenhall: WTO Panel Report on Consistency of Chinese Intellectual Property Standards

James Mendenhall (Sidley Austin LLP) has posted an ASIL Insight on WTO Panel Report on Consistency of Chinese Intellectual Property Standards.

Milanović: Norm Conflict in International Law: Whither Human Rights?

Marko Milanović (Belgrade Centre for Human Rights) has posted Norm Conflict in International Law: Whither Human Rights? (Duke Journal of Comparative & International Law, forthcoming). Here's the abstract:

The article examines norm conflicts, defined as situations where one norm constitutes, has lead to, or may lead to a breach of another, and particularly those norm conflicts in which one of the conflicting norms is a rule of human rights law. Such instances occur more and more every day, are increasingly litigated, and can be of great political importance. For example, a human rights treaty might prohibit the preventative detention or internment of persons under any circumstances, while the UN Security Council might pass a resolution actually authorizing such detention, say in relation to suspected terrorists. What does then happen when a state's obligations under a human rights treaty conflict with its obligations under the UN Charter?

In that regard, one possible solution is that pursuant to Article 103 of the UN Charter, obligations under the Charter - including binding Security Council resolutions - prevail over conflicting treaty obligations of the UN member states. The article will explore whether the Council can displace international human rights treaties, and if so, how can such a development be curtailed or avoided. It will elaborate on various forms of norm conflict resolution and avoidance, and will discuss the recent jurisprudence of the House of Lords (Al-Jedda), the European Court of Human Rights (Behrami and Bosphorus) and the courts of the European Union (Kadi). The article thus provides a systematic overview of the impact of norm conflicts on the protection of human rights in a fragmented international legal order.

Shan & Gallagher: Chinese Investment Treaties: Policies and Practice

Wenhua Shan (Xi'an Jiatong Univ. - Law) & Norah Gallagher (Herbert Smith LLP) have published Chinese Investment Treaties: Policies and Practice (Oxford Univ. Press 2009). Here's the abstract:

China's success in attracting foreign direct investment (FDI) in the last decade is undisputed, and unprecedented. It is currently the second largest FDI recipient in the world, a success partially due to China's efforts to enter into bilateral investment treaties (BITs) and other international investment instruments. The second title to publish in the new Oxford International Arbitration Series is a comprehensive commentary on Chinese BITs.

Chinese investment treaties have typically provided international forums for settling investment disputes such as the International Centre for the Settlement of Investment Disputes (ICSID). Given the continuous growth of FDI in China, the emergence of state-investor disagreements in China and the dramatic rise of investment treaty based arbitrations world wide in recent years, it is anticipated that there will be an increasing number of investment arbitrations involving the central and local governments of China. This book will provide a detailed review and analysis of China's approach to foreign investment. It will consider the current role of investment treaties in China's foreign economic policy, analyse and interpret the key provisions of the BITs, and discuss the future agenda of China's investment programme. It will look at how this investment regime interconnects with the domestic system and consider the implications for a foreign investor in China.

Kelly: The Politics of International Economic Law: Legitimacy and the UNCITRAL Working Methods

Claire Kelly (Brooklyn Law School) has posted The Politics of International Economic Law: Legitimacy and the UNCITRAL Working Methods. Here's the abstract:

The process of international lawmaking is, in part, a function of both politics and the attempt to engage in legitimate norms generation. States seek power through process in the international sphere. But States also use process enable representative, transparent, and effective rules. This paper considers how we might begin to deconstruct procedural proposals involving international norm generation by taking a look at a recent controversy over the methods of work at the United Nations Commission on International Trade Law (UNCITRAL). It will consider various paradigms to assess the legitimacy claims of international norms as applied to one particular controversy and consider specifically whether proposals to regulate decision-making as well as the participation of nonmembers serve legitimacy or politics or both.

Meyer: Second Thoughts on Secondary Sanctions

Jeffrey Meyer (Quinnipiac Univ. - Law) has posted Second Thoughts on Secondary Sanctions (University of Pennsylvania Journal of International Law, forthcoming). Here's the abstract:

This Article explores the legality of so-called "secondary sanctions" under customary principles of international jurisdiction law. Ordinarily, when the United States imposes economic sanctions, it imposes primary sanctions only - to restrict its own companies and citizens (or other people who are in the United States) from doing business with a rogue regime, terrorist group, or other international pariah. Secondary sanctions, such as secondary trade boycotts and foreign company divestment, involve additional economic restrictions designed to inhibit non-US citizens and companies abroad from doing business with a target of primary US sanctions. Secondary sanctions have proved highly controversial, in part because of broad claims that they are illegally "extraterritorial" in purpose and effect. This Article challenges the conventional view. It suggests that a wide range of secondary sanctions measures are permissible if tailored to regulate exclusively on "terrinational" grounds - on the combined basis of territorial and nationality jurisdiction. Secondary sanctions may seldom be wise as a matter of policy, but when primary sanctions fail, secondary sanctions may be a last alternative to the use of military force. Because the use of secondary sanctions has been complicated by lack of clarity about their legality, terrinational forms of secondary sanctions should be considered as an alternative to other more legally controversial forms of secondary sanctions.

Workshop: Stephan

Paul Stephan (Univ. of Virginia - Law) will give a talk today at the University of Georgia School of Law International Law Colloquium Series on "Privatizing International Law."

Conference: Regime Interaction in International Law: Theoretical and Practical Challenges

The Lauterpacht Centre for International Law, University of Cambridge, and the Institute for International Law and the Humanities, Melbourne Law School will sponsor a conference on "Regime Interaction in International Law: Theoretical and Practical Challenges," June 26-27, 2009, at the Lauterpacht Centre. The program is available here. Here's a description:

International law develops in a fragmented way to address functional needs. This has resulted in the development of special “regimes” of norms and decision‐making procedures and accompanying international organisations. There is much scholarship about allegedly autonomous legal regimes addressing international trade, human rights, humanitarian law, environmental protection and other issues. The need to resolve conflicting norms between regimes has led to recommendations by the International Law Commission. Less attention, however, has been given to the way in which, in the default situation of diversity and concurrent activities, regimes interact, and how international law might help to shape this interaction.

Knox: The Boundary Waters Treaty: Ahead of Its Time, and Ours

John H. Knox (Wake Forest Univ. - Law) has posted The Boundary Waters Treaty: Ahead of Its Time, and Ours (Wayne Law Review, forthcoming). Here's the abstract:

Article IV of the 1909 Boundary Waters Treaty between Canada and the United States, which prohibits harmful transboundary water pollution, foreshadows the prohibition on transboundary environmental harm expressed as Principle 21 of the 1972 Stockholm Declaration. The terms of Article IV and Principle 21 are similar, as is the failure of states to comply with them. Canada and the United States have fallen short of their obligations under Article IV by establishing standards that are more specific but that states need exercise only due diligence to meet, and by failing to apply even these standards to boundary waters other than the Great Lakes. As a result, Article IV seems not only ahead of its time, but ahead of ours as well.

Turner & Mohtashami: A Guide to the LCIA Arbitration Rules

Peter Turner (Freshfields Bruckhaus Deringer, Paris) & Reza Mohtashami (Freshfields Bruckhaus Deringer, Paris) have published A Guide to the LCIA Arbitration Rules (Oxford Univ. Press 2009). Here's the abstract:

The London Court of Arbitration (LCIA) is one of the world's foremost arbitration institutions, with a growing annual caseload. The LCIA Arbitration Rules are among the most modern and forward-looking of the various sets of institutional arbitration rules but until now have not been the subject of in-depth study. This is the first full length and comprehensive commentary on the rules, written by two well-known and experienced arbitration practitioners. Portable and functional, this book acts as a guide and provides an indispensable resource for all involved in international arbitration under the LCIA rules.

Grouped thematically, the commentary to each rule provides 1) a description of the rule and its intended meaning 2) the provenance and history of the rule 3) the practical effect of the rule with reference to previous case law and jurisprudence and 4) a comparative look at conceptual and practical differences between each rule. Focusing specifically on how the rules of the LCIA differ from those of the ICC and the UNCITRAL, this title emphasises the international nature of the LCIA and provides the only dedicated reference to the Rules.

Hong & Van Dyke: Maritime Boundary Disputes, Settlement Processes, and the Law of the Sea

Seoung-Yong Hong & Jon M. Van Dyke have published Maritime Boundary Disputes, Settlement Processes, and the Law of the Sea (Martinus Nijhoff Publishers 2009). Contents include:

• Harry N. Scheiber & David D. Caron, Preface
• Seoung-Yong Hong & Jon M. Van Dyke, Introduction
• David D. Caron, Climate Change, Sea Level Rise and the Coming Uncertainty in Oceanic Boundaries: A Proposal to Avoid Conflict
• Clive Schofield, The Trouble with Islands: The Definition and Role of Islands and Rocks in Maritime Boundary Delimitation
• Jon M. Van Dyke, Disputes Over Islands and Maritime Boundaries in East Asia
• Ji Guoxing, Sino-Japanese Jurisdictional Delimitation in East China Sea: Approaches to Dispute Settlement
• Masahiro Miyoshi, Some Thoughts on Maritime Boundary Delimitation
• Seokwoo Lee, Intertemporal Law, Recent Judgments and Territorial Disputes in Asia
• Kentaro Serita, Some Legal Aspects of Territorial Disputes over Islands
• Yann-huei Song, Okinotorishima: A “Rock” or an “Island”? Recent Maritime Boundary Controversy between Japan and Taiwan/China
• Ted L. McDorman, Canada-U.S. International Ocean Law Relations in the North Pacific: Disputes, Agreements and Cooperation
• Richard J. McLaughlin, Maritime Boundary Delimitation and Cooperative Management of Transboundary Hydrocarbons in the Ultra-Deepwaters of the Gulf of Mexico
• Marcus Haward, The Law of the Sea Convention and the Antarctic Treaty System: Constraints or Complementarity?
• Helmut Tuerk, The Contribution of the International Tribunal for the Law of the Sea to International Law
• Bernard H. Oxman, The Tomimaru Case: Confiscation and Prompt Release

Workshop: Rosanvallon

Pierre Rosanvallon (Collège de France) will give a talk today at the New York University School of Law Institute for International Law and Justice International Legal Theory Colloquium on "The Metamorphoses of Democratic Legitimacy."

New Issue: Journal of World Intellectual Property

The latest issue of the Journal of World Intellectual Property (Vol. 12, no. 2, March 2009) is out. Contents include:

• Tu Thanh Nguyen, Patent Holders' Contractual Restrictions on Downstream Purchasers in the United States and European Union through Quanta Prism
• Deming Liu, Reflections on Lack of a Patent System throughout China's Long History
• Deepthi Elizabeth Kolady & William Lesser, Does Plant Variety Protection Contribute to Crop Productivity? Lessons for Developing Countries from US Wheat Breeding
• Brenda Pamela Mey, China, the "Intellectual Property Black Hole" Hosts the XXIX Olympiad: Measures the People's Republic of China Undertook to Secure the Protection of Olympic-related Intellectual Property Rights