Friday, June 12, 2009
Thursday, June 11, 2009
The legitimacy of investment treaty arbitration is a matter of heated debate. Asserting that arbitration is unfairly tilted toward the developed world, some countries have withdrawn from World Bank dispute resolution bodies or are taking steps to eliminate arbitration. In order to assess whether investment arbitration is the equivalent of tossing a two-headed coin to resolve investment disputes, this article explores the role of development status in arbitration outcome. It first presents descriptive, quantitative research about the developmental background of the presiding arbitrators who exert particular control over the arbitration process. The article then assesses how (1) the development status of the respondent state, (2) the development status of the presiding arbitrator, and (3) the interaction of these variables affect the outcome of investment arbitration. The results demonstrate that, at the macro level, development status does not have a statistically significant relationship with outcome. This suggests that the investment treaty arbitration system, as a whole, functions fairly and that the eradication or radical overhaul of the arbitration process is unnecessary. The existence of two statistically significant simple effects – namely that tribunals with presiding arbitrators from the developing world made smaller awards against developed states in particular circumstances – suggests that particularized reform could enhance the procedural integrity of arbitration. Irrespective of whether future research replicates the results, reforms targeted to redress possible imbalance in the system have the potential to enhance procedural justice and the perceived legitimacy of arbitration in an area with profound political and economic implications.
Wednesday, June 10, 2009
The latest issue of the Schweizerische Zeitschrift für internationales und europäisches Recht (Vol. 18, no. 5, 2008) is out. Contents include:
- Robert Kolb, Le contrôle de Résolutions contraignantes du Conseil de sécurité des Nations Unies par des juridictions internationales ou nationales sous l'angle du respect du jus cogens
- Daniel Girsberger & Axel Buhr, Zwanzig Jahre IPRG
- Barbara Wilson, Le droit à un logement suffisant au sens du Pacte international relatif aux droits économiques, sociaux et culturels des Nations Unies (Pacte I)
- Lucius Caflisch, PraxisChronique - La pratique suisse en matière de droit international public 2007
The latest issue of the ICC International Court of Arbitration Bulletin (Vol. 19, no. 2, 2008) is out. Contents include:
- Bernard Audit, French Court Decisions on Arbitration, 2007-2008
- Fan Kun, Arbitration in China: Practice, Legal Obstacles and Reforms
- Christopher R. Seppälä, International Construction Contract Disputes: Second Commentary on ICC Awards Dealing Primarily with FIDIC Contracts
The Alien Tort Statute (also referred to as the Alien Tort Claims Act) is a US statute that provides a cause of action for violations of international law. While originally used against former dictators and military officials who fled to the U.S. after the respective governments in their home countries have been removed, human rights activists are now targeting transnational corporations or multinational enterprises for human rights violations in connection with their investments made outside the United States. This book examines and analyzes corporate liability under the Alien Tort Statute.
Tuesday, June 9, 2009
In this essay, I revisit the public/private divide in order to explore more fully the potential for private production of law in global exchange and also to clarify what I think are differences in the way common law and civil legal scholars think about the public and the private in law.
This monograph analyses the historical evolution of the laws of occupation as a special branch of international humanitarian law (IHL), focusing on the extent to which this body of law has been transformed by its interaction with the development of international human rights law. It argues that a large part of the laws of occupation has proved to be malleable while being able to accommodate changing demands of civilians and any other persons affected by occupation in modern context. Its examinations have drawn much on archival research into the drafting documents of the instruments of IHL, including the aborted Brussels Declaration 1874, the 1899/1907 Hague Regulations, the 1949 Geneva Conventions and the 1977 Additional Protocol I.
After assessing the complementary relationship between international human rights law and the laws of occupation, the book examines how to provide a coherent explanation for an emerging framework on the rights of individual persons affected by occupation. It engages in a theoretical appraisal of the role of customary IHL and the Martens clause in building up such a normative framework.
- Markus Müller-Chen, The Use of Evidence Obtained in US-American Discovery in International Civil Procedure Law and Arbitration in Switzerland
- Ingeborg Schwenzer & Florian Mohs, Arbitration Clauses in Chains of Contracts
- Simon Gabriel & Jodok Wicki, Vorvertragliche Schiedszuständigkeit
- Matthias Scherer, Veijo Heiskanen, & Sam Moss, Domestic Review of Investment Treaty Arbitrations: The Swiss Experience
Monday, June 8, 2009
The concept of international administrations of territory, in which comprehensive administrative powers are exercised by, on behalf of or with the agreement of the United Nations has recently re-emerged in the context of reconstructing (parts of) states after conflict. Although in Kosovo and East Timor, the UN was endowed with wide-ranging executive and legislative powers, in the subsequent operations in Afghanistan it was decided, to principally rely on local capacity with minimal international participation, and in Iraq, administrative power was exercised by the occupying powers. The objectives are however very similar.
This work first delineates the origins of the granting of administrative functions to international actors, and analyses the context in which it has resurfaced, namely post-conflict peace-building or reconstruction. Secondly, the book methodically establishes the legal framework applicable to post-conflict administrations and peace-building operations, by taking into account the post-conflict scenario in which they operate. Based on these two analyses, an enquiry into the practice of the reconstruction processes in Kosovo, East Timor, Afghanistan and Iraq is undertaken, to analyse and understand the influence of the international legal framework and the different approaches on the implementation of the mandates. Finally, the book concludes with an analysis of questions on exit strategies, local ownership, the internationalisation of domestic institutions, and the need for a comprehensive approach towards post-conflict reconstruction.
- Måns Jacobsson, Bunkers Convention in force
- David A. Glass & Rawindaran Nair, Towards flexible carriage documents? Reducing the need for modally distinct documents in international goods transport
- Jason Lowther, Richard Glover, & Michael Williams, Salvage, pollution or looting? The stranding of the Napoli's cargo
- Martin George, The law applicable to torts committed on board vessels in foreign territorial waters - Hornsby v James Fisher Rumic Ltd  EWHC 1944 (QB)
- Anton Dudnikov, Termination clauses: lessons for the contract draftsman - Stocznia Gdynia SA v Gearbulk Holdings Ltd  EWCA Civ 75
- Fei Lanfang, A review of judicial attitudes towards the incorporation of arbitration clauses into bills of lading in China
Sunday, June 7, 2009
- Alberto Alvarez-Jiménez, The WTO Appellate Body's Decision-Making Process: A Perfect Model For International Adjudication?
- Maureen Irish, Regulatory Convergence, Security and Global Administrative Law in Canada–United States Trade
- Rudolf Adlung and Antonia Carzaniga, MFN Exemptions Under the General Agreement on Trade in Services: Grandfathers Striving for Immortality?
- Alberto Alvarez-Jiménez, The WTO Appellate Body's Exercise of Judicial Economy
- Armin Steinbach, The DSU Interim Review—Need for its Elimination or Extension to the Appellate Body Stage?
- Aaditya Mattoo & Deepak Mishra, Foreign Professionals in the United States: Regulatory Impediments to Trade
- Cai Congyan, China–US BIT Negotiations and the Future of Investment Treaty Regime: A Grand Bilateral Bargain with Multilateral Implications
- Anne van Aaken, International Investment Law Between Commitment and Flexibility: A Contract Theory Analysis
- Anabel González, Revitalizing the US Trade Agenda in Latin America: Building on the FTA Platform