In this article I present a multi-method examination of whether bilateral investment treaties, or BITs, are likely to promote inflows of foreign direct investment. Using regression analysis I show that BITs are not meaningfully correlated with measures of political risk, and using survey evidence I show that providers of political risk insurance do not reliably take BITs into account when deciding the terms of insurance. Nor do in-house counsel in large U.S. corporations view BITs as playing a major role in their companies' foreign investment decisions. In contrast to existing empirical studies, which claim to prove that BITs can have massive positive impacts on FDI, my results suggest that such results are probably spurious. BITs are unlikely to be a significant driver of foreign investment.
Saturday, April 24, 2010
Yackee: Do Bilateral Investment Treaties Promote Foreign Direct Investment? Some Hints from Alternative Evidence
Friday, April 23, 2010
Bilateral Investment Treaties: History, Policy, and Interpretation organizes, summarizes and comments upon the arbitral awards interpreting and applying BIT provisions. Policymakers and practitioners will find a thorough introduction to the operation of the BITs, including the principal arguments and case authorities on both sides of the major issues in international investment law. The book is intended to be a single-volume reference covering every important development in the 50 years of BIT programs worldwide, from 1959 until 2009.
Author Kenneth Vandevelde argues that the primary purpose of the BITs is to promote the application of the rule of law to foreign investment, while a secondary purpose is to create a liberal investment regime. He further argues that BITs are based on six core principles: reasonableness, security, nondiscrimination, access, transparency and due process. The book explains each of these principles and analyzes the major BIT provisions based on them. Vandevelde addresses the host of complex questions that BITs engender: Do bilateral investment treaties attract foreign investment or otherwise contribute to economic development? Do BITs limit host state regulatory discretion too much? Why should countries continue to conclude BITs? What is meant by BIT guarantees of "fair and equitable treatment" and "full protection and security"? What is the scope of the BIT provision for most-favored-nation treatment? The book's expert analysis of these questions makes it useful to policy makers in the area of international economic relations, attorneys representing multinational companies, and anyone interested in the process of economic globalization.
- April 29, 2010: Christian Tams (Univ. of Glasgow - Law), Enforcing International Security: What Role for Individual States?
- May 6, 2010: Steven Wheatley (Univ. of Leeds - Law), The Idea of Legitimate Authority and the (Democratic) Rule of International Law
- May 13, 2010: Craig Barker (Univ. of Sussex - Law), International Immunities and Human Rights: Mapping the Contours of an Uneasy Relationship
- May 20, 2010: Iain Scobbie (SOAS - Law), Transnational/Asymmetric Wars and Responsibility
- Hari M. Osofsky, The Continuing Importance of Climate Change Litigation
- Navraj Singh Ghaleigh, ‘Six Honest Serving-Men’: Climate Change Litigation as Legal Mobilization and the Utility of Typologies
- Kate Miles, Arbitrating Climate Change: Regulatory Regimes and Investor-State Disputes
- Anatole Boute, The Protection of Property Rights Under the European Convention on Human Rights and the Promotion of Low-Carbon Investments
- Sebastian Oberthür & René Lefeber, Holding Countries to Account: The Kyoto Protocol’s Compliance System Revisited after Four Years of Experience
- Javier de Cendra de Larragán, United We Stand, Divided We Fall: The Potential Role of the Principle of Loyal Cooperation in Ensuring Compliance of the European Community with the Kyoto Protocol
- Ole Røgeberg, Steinar Andresen, & Bjart J. Holtsmark, International Climate Treaties: The Case for Pessimism
The Schooner Exchange teaches that “[t]he jurisdiction of the nation within its own territory is necessarily exclusive and absolute.” Applying the Foreign Sovereign Immunities Act to grant immunity in U.S. courts to current and former foreign officials for any non-commercial conduct undertaken with the actual or apparent authority of a foreign state would dramatically undercut this basic feature of U.S. sovereignty. Arguments based on logic, policy, and international law do not compel such an extreme result.
Payne: Pulp Mills on the River Uruguay: The ICJ Recognizes Environmental Impact Assessment as a Duty under International Law
- David Kennedy, El Misterio de la Gobernanza Global
- Lina M. Céspedes-Báez, Las Limitaciones de las Palabras de los Jueces
- Benedict Kingsbury, Nico Krisch & Richard B. Stewart, El Surgimiento del Derecho Administrativo Global
- Estefanía Ponce, Violación de Derechos Humanos y de Normas Imperativas de Derecho Internacional en la Lucha contra el Terrorismo por parte del Consejo de Seguridad de las Naciones Unidas
- Martti Koskenniemi, El Destino del Derecho Internacional Público: Entre la Técnica y la Política
- Michelle Ratton Sanchez, El Proyecto ‘Derecho Administrativo Global’: Una Reseña Desde Brasil
- Liliana Obregón Tarazona, Construyendo la Región Americana: Andrés Bello y el Derecho Internacional
- Rene Urueña, Espejismos Constitucionales: La Promesa Incumplida del Constitucionalismo Global
Thursday, April 22, 2010
Bismuth: The Independence of Domestic Financial Regulators: An Underestimated Structural Issue in International Financial Governance
Among the myriad of institutions involved in the reshaping of the international financial system, several standard-setting bodies (the Basel Committee on Banking Supervision, the International Organization of Securities Commissions and the International Association of Insurance Supervisors) present the distinctive feature of being comprised of national independent regulatory authorities. The international activity of these independent authorities has complicated and blurred several aspects of the standard-setting process of the aforementioned international institutions. Despite being the product of a soft law process, international financial standards are in practice influential international rules. Given this de facto predominance, these standards result in a fait accompli for domestic or regional authorities which have no choice but to implement them, therefore bypassing the traditional democratic dimension of the law-making process. Although the standard-setting activities have progressively included consultation procedures, they have not completely corrected this flaw. Another problem stems from the presence of several domestic regulatory authorities representing the same state and rendering the decision-making process more complex at the international level. For these reasons, this article aims to demonstrate that the establishment of an international financial organization may correct these institutional gaps without necessarily call into question the soft law nature of the standard-setting process.
Pan: Challenge of International Cooperation and Institutional Design in Financial Supervision: Beyond Transgovernmental Networks
This paper explores the case for a global financial regulator. It first identifies two problems with how legal scholars viewed the international financial architecture before the financial crisis. International law scholars mistakenly thought that informal transgovernmental networks could serve as the heart of an international regulatory framework. In fact, the international financial architecture proved incapable of preventing or managing the causes and effects of the recent financial crisis. The reason why is the second problem. Financial law scholars did not speak out more strongly before the crisis about the limitations of the international financial architecture. They focused their attention on the coordination and harmonization of rules and standards in areas of accounting, securities, and bank capital adequacy, but did not resolve the problems of prudential supervision of cross-border financial institutions and systemic risk regulation. The failure of states to provide for an international legal regime capable of conducting prudential supervision of cross-border financial institutions proved to be one reason why the international financial architecture could not address the spread of financial instability.
This paper sets forth an international administrative law model for international financial regulation. It advocates the creation of an international body that has the power and resources to supervise cross-border financial institutions, demand action by national supervisors, promulgate supervisory standards, conduct inspections, and initiate enforcement proceedings. Acknowledging possible objections to an international administrative law model, particularly those related to the protection of state sovereignty and democratic accountability, this paper argues that an international administrative agency is the best solution to the problem of global financial regulation.
Newton & Kuhlman: Why Criminal Culpability Should Follow the Critical Path: Reframing the Theory of 'Effective Control'
Commanders are the critical path enabling the formation and employment of any fighting organization. By extension, their units are most militarily effective where they are governed by adequate control mechanisms. The classic doctrine of command responsibility that imputes the criminality of subordinates onto their leaders is founded on the legal premise that commanders are responsible for establishing affirmative controls over their subordinates to regulate their conduct. The commander is thereby criminally culpable for failing to create a climate of compliance with the laws and customs of war. The obligation of commanders to control the conduct of their subordinates, or to take action to ameliorate violations when they do occur, applies to both formalized regular military organizations and the loosely structured non-state entities that are common in modern conflicts. Current legal tests for evaluating such ‘effective control’ inaccurately reflect modern operational reality by narrowly focusing on the particular circumstances of the criminal act and the precise relationship between the perpetrators and the superior at the moment of the offense. However, courts have developed and applied a series of tests for evaluating ‘effective control’ that in practice become formulaic and limiting. This trend is exacerbated when applied to warlords or non-state actors in nonhierarchical organizations.
Command responsibility has deep historical roots that transcend culture and geography, indicating a timeless consensus that commanders bear personal and professional responsibility for the acts of their subordinates regardless of the context in which they occur. International law subsequently developed to place a heightened responsibility on commanders who field a fighting organization and control the application of violence by their subordinates. Without the proper internal enforcement of the laws and customs of warfare, the commander becomes liable to external criminal enforcement, directed towards both the subordinates and the commander. Prosecutorial trends toward charging joint criminal enterprises and other new theories of individual responsibility fail to understand the essence of the criminality at issue for all fighting organizations – that it is the fielding of the fighting organization without the proper safeguards that in many cases is the causal factor for mass atrocities. Is the law presently configured such that a rebel warlord, a terrorist leader or an outsourced intelligence operator may evade superior responsibility simply because of the unorthodox structure of the fighting organization or the disaggregated orchestration of violence?
If the theory of effective control is not reconceived, the answer will be yes, and increasingly so. It is perhaps inevitable that the changing face of warfare requires a modernized conception of effective control. The concept of effective control should be reconceptualized by jurists to extend its present applications by including an imputed responsibility to any commander or non-state actor assuming that role who organizes a collective entity with the intent of conducting hostilities and thereafter fails to create a climate of compliance with the laws and customs of war. This approach will permit the extension of liability to commanders who organize cellular units that operate on the basis of primary loyalty to a local leader and with little/no tactical control by the hierarchy, such as the tactics seen in Iraq, Afghanistan, and a number of modern non-international armed conflicts.
Jurists should analyze superior responsibility cases with full cognizance of modern command and control theory in order to sustain its viability as a practical prosecutorial tool to regulate the crimes committed by loosely knit groups and non-state actors conducting atrocities in chaotic circumstances. A reconceived theory of effective control would retain the current indicia developed by jurists, which are most often applicable to state actors and formalized military hierarchies. To be clear, the current jurisprudence may well support liability in many cases, but the Composite Theory proposed herein would make localized findings of effective control one aspect of the larger judicial inquiry. A Composite Theory of Responsibility would revitalize and modernize the doctrine of superior responsibility and avoid impunity for those perpetrators clever or lucky enough to exploit the lacunae in current case law.
- Special Feature: Challenges to Arms Control Regime
- Anthony Aust, The Comprehensive Nuclear-Test-Ban Treaty - The Problem of Entry into Force
- Zhang Xinjun, Intentional Ambiguity and the Rule of Interpretation in Auto-interpretation - The Case of “Inalienable Right” in NPT Article IV
- Masahiko Asada, Confronting the Challenges to the Nuclear Non-Proliferation Treaty: A Legal Appraisal of Recent Proposals
- Christine Gray, The Use of Force to Prevent the Proliferation of Nuclear Weapons
- Ralf Trapp, The Chemical Weapons Convention a Decade after its Entry into Force - Challenges and Opportunities
- Barry Kellman, The Biological Weapons Convention - Strategies for Reducing Dangers of
- Natalino Ronzitti, WMD Terrorism
- Setsuko Aoki, Space Arms Control: the Challenges and Alternative
- Public International Law
- Hironobu Sakai, New Developments of the Orders on Provisional Measures by the International Court of Justice
- Shin-ichi Ago, International Labour Standards in Asia and the Role of Emerging CSR Codes
- Tamada Dai, Assessing Damages in Non-expropriation Cases before International Investment Arbitration
- Hiroko Yamane, From Constructive Ambiguities to Flexibilities: TRIPS Interpretation, Commonly-held Views and Industrial Policies
- Private International Law
- Noriko Mizuno, Parent-child Relationship in the Japanese Civil Code - Regarding Medical Technology for Reproductive Treatment
- Shinichiro Hayakawa, International Aspects of Family Maintenance Law in Japan
- Takami Hayashi, International Succession in Japan
- Shoichi Kidana, Private International Law Principles on Intellectual Property - Recent Development of Court Precedents in Japan and Current Characteristics
- Yasuhiro Kawaguchi, The Enactment and Significance of the Financial Instruments and Exchange Act in Japan
Wednesday, April 21, 2010
Bradley: The United States and Human Rights Treaties: Race Relations, the Cold War, and Constitutionalism
The United States prides itself on being a champion of human rights and pressures other countries to improve their human rights practices, and yet appears less willing than other nations to embrace international human rights treaties. Many commentators attribute this phenomenon to the particular historical context that existed in the late 1940s and early 1950s when human rights treaties were first being developed. These commentators especially emphasize the race relations of the time, noting that some conservatives resisted the developing human rights regime because they saw it as an effort by the federal government to extend its authority to address racial segregation and discrimination in the South. While this historical claim is not inaccurate per se, it provides an incomplete picture in that it under-emphasizes the Cold War fears that many people had at the time about the spread of communism abroad and the threat of totalitarianism at home – concerns that, fairly or unfairly, became linked to the developing human rights project. More importantly, an emphasis on the particular historical context of the late 1940s and early 1950s does not explain why the complicated U.S. relationship with human rights treaties has persisted even after the end of racial segregation and after the end of the Cold War. As this essay explains, the guarded and qualified U.S. relationship with human rights treaties stems not only from a particular moment in history but also is a product of more enduring, and less obviously problematic, features of the U.S. constitutional system.
- Spyridon Vrellis, La Loi et la Culture
- Christian Kohler, Le droit de l’Union européenne face à la diversité culturelle : tensions et solutions
- Hans Van Loon, Legal diversity in a flat, crowded world: the role of the Hague Conference
- Paul Lagarde, La gestation pour autrui : problèmes de droit interne et de droit international privé
- Alegría Borrás, Les relations entre parents et enfants dans une société multiculturelle
- Marie-Claude Najm, Dévolution successorale et système multicommunautaire : l’exemple libanais
- Anastasia Grammaticaki-Alexiou, Multiculturalism: does it affect contemporary international transactions?
- Trevor C. Hartley, Multinational corporations and the Third World: a conflict-of-laws analysis
- François Ost, Liberté artistique et respect de la diversité culturelle. Pour un multiculturalisme libéral
- Makoto Tadaki, Cultural diversity and criminal activity
- Petya Totcharova, The 2003 UNESCO Convention for the safeguarding of the intangible cultural heritage
- Tsvetana Kamenova, Different legal cultures and global judicialization at the end of the 20th and the beginning of the 21st century
- Karl Kreuzer, Clash of civilizations and conflict of laws
- Angelos Yokaris, Le droit international face au défide la diversité culturelle
- Herbert Kronke, From international to transnational commercial law: the impact of diversity of cultures
- Jürgen Basedow, Multiculturalism, globalisation and the law of the open society
- Michael M. Bechtel & Gerald Schneider, Eliciting Substance from ‘Hot Air’: Financial Market Responses to EU Summit Decisions on European Defense
- Beth A. Simmons and Allison Danner, Credible Commitments and the International Criminal Court
- Marc L. Busch & Krzysztof J. Pelc, The Politics of Judicial Economy at the World Trade Organization
- Kenneth A. Schultz, The Enforcement Problem in Coercive Bargaining: Interstate Conflict over Rebel Support in Civil Wars
- Alexandra Guisinger & David Andrew Singer, Exchange Rate Proclamations and Inflation-Fighting Credibility
Tuesday, April 20, 2010
Experience suggests that public emergencies pose a heightened threat of grave and systematic human rights abuse. To address this threat, international law regulates states’ derogation from their human rights commitments through a two-tiered inquiry: First, are circumstances on the ground sufficiently dire to warrant a state of emergency? Second, if a state of emergency is warranted, are the state’s responsive measures strictly necessary to address the emergency? This article illuminates the normative basis for international law’s two-tiered approach to public emergencies by arguing that human rights are best conceived in Kantian terms as norms arising from a fiduciary relationship between states (or state-like actors) and the citizens and noncitizens subject to their power. States bear a fiduciary duty to guarantee subjects’ secure and equal freedom, a duty that flows from their institutional assumption of sovereign powers. The fiduciary theory of human rights clarifies the substantive and procedural principles that guide international law’s regulation of public emergencies. It also disarms Carl Schmitt’s critique of constitutionalism by explaining how emergency powers can be reconciled with the rule of law.
- Anja Matwijkiw & Bronik Matwijkiw, Stakeholder Theory and Justice Issues: The Leap from Business Management to Contemporary International Law
- Alexis Demirdjian, Armless Giants: Cooperation, State Responsibility and Suggestions for the ICC Review Conference
- Harmen van der Wilt, National Law: A Small but Neat Utensil in the Toolbox of International Criminal Tribunals
- Mónica Zapico Barbeito, Investigating the Crimes of the Franco Regime: Legal Possibilities, Obligations of the Spanish State and Duties Towards the Victims
- Sophie Papillon, Has the United Nations Security Council Implicitly Removed Al Bashir's Immunity?
- Fernando Mantilla-Serrano, Algunos apuntes sobre la ejecución de los laudos anulados y la Convención de Nueva York
- José Joaquín Caicedo-Demoulin & Juan Felipe Merizalede-Urdaneta, El control de la nacionalidad de los inversionistaspor los árbitros internacionales
- Ana Vohryzek-Griest, State Counterclaims in Investor-State Disputes: A History of 30 Years of Failure
- Ximena Herrera-Bernal, Impuesto sobre ganancias extraordinarias (Windfalltaxes) y medidas provisionales: cuatro casos recientes
- Carlos Pablo Márquez-Escobar & Lorenzo Villegas-Carrasquilla, Regulación e inversión extranjera: Los tratados de promoción recíproca de inversiones y el estándar de trato justo y equitativo
- Lina Marcela Escobar-Martínez, La independencia, imparcialidad y conflicto de interés del árbitro
- Héctor Mauricio Medina-Casas, Las partes en el arbitraje CIADI
- María Angélica Burgos-de la Ossa & Nicolás Lozada-Pimiento, La protección diplomática en el marco de las controversias internacionales de inversión
- Diego Bernal-Corredor, Regulatory Expropriation Developments: did Metalclad Comply with all the Dark Premonitions?
- Miguel Antonio Villamizar-Parra, ¿Stare Decisis o uso selectivo de los antecedentes judiciales?: un análisis del rol de las decisiones judiciales como fuentes del derecho internacional
The key-importance for the understanding of all his successive work that Koskenniemi ascribes to his 1989 seminal inquiry into the structure of the international legal argument justifies that this article opens with an explanation of the main theses of Koskenniemi’s pathbreaking From Apology to Utopia at the time of its re-issue with a new Epilogue. Its doctrinal emplacement as the book which “managed to convey to a wide audience the challenging, but hitherto rather mysterious message of CLS for international law” invites an inquiry into the internal dynamics of Koskenniemi’s disciplinary renovating impact as part of a critical international legal movement, the precedents and main characteristics of which, must be searched in the work of a number of international legal scholars in the 80s’. In further examining the author’s own deep introspective journey into the archetypes that nurture the international lawyer’s self-sustaining intellectual mythology, it is argued that Koskenniemi’s work champions a profoundly ethical-oriented awakening call addressed to his contemporary doctrinal counterparts. No discontinuity or rupture exists in Koskenniemi’s opus, no renunciation and less oblivion of the baggage of his 90s’ insights, but rather an evolving transference and application of them in connection to his so-doctrinally vaunted “culture of formalism”. In examining the latter by reference to a number of Koskenniemi’s essays, this appears to be both a consistent and realistically emancipatory perspective of international law when this is seen as a historically contingent ideological framework. An application of Koskenniemi’s interpretative lenses to the doctrinal divide brought about by the aftermath of 9/11 and the Iraq war and an examination of the current strengthening of an international constitutionalist debate in international legal doctrine gives way an assessment of the relationship between the critical Newstream’s epistemological and normative challenges to traditional international law and Koskenniemi’s defence of a philosophically inclusive emancipatory tool against the “managerialmindset” and the related risk of de-formalization brought about by the current evolution of international law towards IR grounded vocabularies.
Roger O'Keefe (Univ. of Cambridge - Lauterpacht Centre for International Law) will give a talk today at the Oxford Brookes University Centre for Legal Research and Policy Studies: Human Rights Group on "The Protection of Cultural Property in Armed Conflict."
Monday, April 19, 2010
- Robert C. Thompson, Anita Ramasastry, & Mark B. Taylor, Translating Unocal: The Expanding Web of Liability for Business Entities Implicated in International Crimes
- Liesbeth F.H. Enneking, Crossing the Atlantic? The Political and Legal Feasibility of European Foreign Direct Liability Cases
- Jan Wouters & Cedric Ryngaert, Litigation for Overseas Corporate Human Rights Abuses in the European Union: The Challenge of Jurisdiction
- Beate Sjåfjell, Internalizing Externalities in E.U. Law: Why Neither Corporate Governance nor Corporate Social Responsibility Provides the Answers
- Ole Kristian Fauchald Jo Stigen, Corporate Responsibility before International Institutions
- Adam McBeth, A Right by Any Other Name: The Evasive Engagement of International Financial Institutions with Human Rights
- Radu Mares, Defining the Limits of Corporate Responsibilities against the Concept of Legal Positive Obligations
This program will examine three important efforts relating to International Humanitarian Law: the San Remo Manual on International Law Applicable to Armed Conflicts at Sea, the more recent Commentary and Manual on International Law Applicable to Air and Missile Warfare (prepared by the Harvard Program on Humanitarian Policy and Conflict Research), and the ICRC's multi-volume study on Customary International Humanitarian Law. To what extent do the manuals reflect state practice, and what role do such manuals play in the formulation and application of customary international humanitarian law? Panels of international law experts and practitioners will discuss these important issues in a format designed to encourage lively debate, and to draw conclusions based both on scholarly treatises and the actual practice of states.
Domestic courts are increasingly being seized by persons subjected to or affected by sanctions imposed by the UN Security Council, particularly under the regime established under resolution 1267. In Abdelrazik v Canada, the Canadian Federal Court ‘interprets away’ the obligations of Canada under the 1267 regime, potentially forcing upon the state a breach of its international obligations under the resolution and the UN Charter. But at the same time it offers an important - if implicit - justification for that breach under international law.
Sunday, April 18, 2010
Focusing on the juridical zone of the exclusive economic zone, this paper investigates the nature and scope of inclusive and exclusive usage rights in the international law of the sea. In doing this, this paper will particularly address the tension of balancing resource-related rights with navigational rights within the exclusive economic zone and how the formal rules in treaty law and its interpretation in case law has influenced the limits of these rights. In treaty law, the 1982 United Nations Convention on the Law of the Sea (LOSC) as a model for determining uses is not without anomalies. In case law, these anomalies are made more apparent. Although the LOSC provides the legal framework for the development of the law of the sea, in the light of new challenges, this paper advocates for the increased participation of international organisations to prevent obfuscation and the oft-mentioned creeping jurisdiction. Ultimately, this paper, in determining whether the changing view of the EEZ as a resource-oriented zone is the reason for the confusion (and if this is at odds with the community ownership norm in ocean usage), will argue that in determining applicable rules, international organisational enforcement can, if utilised, prevent any perceived erosion of flag state rights without prejudicing coastal and port state rights.