Significant changes to Australia’s foreign investment screening policy came into effect in 2021, modifying the Foreign Acquisitions and Takeovers Act 1975 (Cth). These changes establish a framework for national security reviews of proposed foreign investments in Australia, including the potential for review of investments that have already been lawfully admitted into the country. These developments increase the risk of conflict with international investment law, as reflected in Australia’s obligations under more than thirty international investment agreements, in the form of bilateral investment treaties and preferential trade agreements with investment chapters or associated investment agreements. Traditionally, these agreements shielded Australia’s foreign investment policy by restricting themselves to investments that had already been established in Australia. In more modern agreements, a range of reforms add explicit and implicit protections to Australia’s foreign investment policy. However, the co-existence of traditional and modern approaches and the inconsistency with which reforms have been adopted across different treaties complicate the assessment of Australia’s compliance with international investment law in its foreign investment screening policy. Potential remains for claims to be brought against Australia in this regard by home States or investors themselves.
Saturday, March 26, 2022
Voon & Merriman: Is Australia's Foreign Investment Screening Policy Consistent with International Investment Law?
de Guttry, Frulli, Casolari, & Poli: International Law and Chemical, Biological, Radio-Nuclear (CBRN) Events: Towards an All-Hazards Approach
The volume investigates to what extent the international and European Union legal frameworks applicable to Chemical, Biological and Radio-Nuclear (CBRN) events are adequate to face current challenges. It is innovative in many aspects: it adopts an all-hazard approach to CBRN risks, focusing on events of intentional, accidental and natural origin; it explores international obligations according to the four phases of the emergency cycle, including prevention, preparedness, response and recovery; and it covers horizontal issues such as protection of human rights, international environmental law, new technologies, the role of private actors, as well as enforcement mechanisms and remedies available to victims. The book thus offers a new way of looking at the applicable rules of international law in this field.
This article studies bilateral partnerships on reducing emissions from deforestation and forest degradation (REDD+), particularly those led by Norway, through the conceptual lens of legal diffusion. The article argues that rules created through such partnerships have significantly influenced rulemaking under the United Nations Framework Convention on Climate Change. It shows that bilaterally developed rules have spread to other countries beyond the original partners, particularly in respect of topics such as financial institutional structures and a results-based approach to REDD+. Reciprocal legal influence between multilateral and bilateral legal developments can further be seen in relation to other topics, such as monitoring, reporting and verification. The article shows that legal concepts related to REDD+ travelled in different directions, showcasing interactions between bilateral and multilateral arenas in the construction of international norms, as well as interactions between the law for environmental protection and development cooperation.
Carrington & Sigsworth: Home-State Interest, Nationalism, and the Legitimacy of the International Criminal Court
Although legitimacy is crucial for courts’ efficacy, the sources identified as legitimizing domestic institutions are weaker or absent altogether for international institutions. We use an original, preregistered, nationally representative survey experiment to show that perceived home-state interest strongly affects the legitimacy afforded by UK citizens to the International Criminal Court. Importantly, this relationship is moderated by nationalism. Our findings have implications for state actors in a position to act vis-á-vis international courts, elites seeking to alter opinions toward courts, and courts themselves weighing possible institutional costs of acting against noncompliant states.
Friday, March 25, 2022
The very existence of an employment relationship places the human rights of a worker at risk. Employers can, and frequently do, exercise their managerial and disciplinary powers in a manner that interferes with the most fundamental rights of the individual worker. Adequate safeguards against such infringements are necessary if individuals are to receive full protection of their rights. This book examines how far the labour laws of England and Wales offer such guarantees, with a particular focus on dismissal law. The chapters reflect on the relationship between employment, labour, and human rights before conducting a detailed and critical analysis of the scope, shape, and application of domestic employment law. The framework for evaluation is drawn from the case law of the European Court of Human Rights, as it develops a principled and tailored approach to how the rights contained in the European Convention on Human Right should be enforced in working relationships. Statutory mechanisms, such as the law of unfair dismissal, and common law causes of action are examined and found to be lacking in their capacity to vindicate and enforce the human rights of workers. This book culminates in the proposal and elaboration upon an innovative solution, the Bill of Rights for Workers, that would draw on the successes of human rights and labour law instruments to render the Convention rights directly enforceable in the relationship between a worker and their employer.
Transforming World Trade and Investment Law for Sustainable Development explains why the 2030 UN Sustainable Development Agenda for "Transforming our World"—aimed at realizing universal human rights and the17 agreed sustainable development goals (SDGs)—requires transforming the UN and WTO legal systems, as well as international investment law and adjudication. UN and WTO law protect regulatory competition between diverse neo-liberal, state-capitalist, European ordo-liberal, and developing countries' conceptions of multilevel trade and investment regulation. However, geopolitical rivalries and trade wars increasingly undermine transnational rule of law and effective regulation of market failures, governance, and constitutional failures. Protecting the WTO legal and dispute settlement system remains essential for SDGs such as climate change mitigation measures and access to medical supplies and vaccines in global health pandemics. Investment law and adjudication must better reconcile governmental duties to protect human rights and decarbonize economies with the property rights of foreign investors.
The constitutional, human rights, and environmental litigation in Europe enhances the legal accountability of democratic governments for protecting sustainable development. However, European economic constitutionalism has been rejected by neoliberalism, China's authoritarian state-capitalism, and many developing countries' governments. The more that regional economic orders (like the China-led Belt and Road networks) reveal heterogeneity and power politics block UN and WTO reforms, the more the US-led neoliberal world order risks disintegrating. UN and WTO law must promote private-public network governance and civil society participation in order to stabilize and de-politicize multilevel governance that protects SDGs and global public goods.
- Sławomir Czetwertyński, Institutional incongruence and unauthorized copying in Poland
- Saudin J. Mwakaje, Protection of geographical indications and cross-border trade: A survey of legal and regulatory frameworks in East Africa
- Lavinia Brancusi, The Procrustean fitting of trade marks under the requirements of clear and precise subject-matter in the EU trade mark law—A case of position marks
- Dyah P. B. Asri, Edy Sriyono, Murti A. Hapsari, & Savira A. Syahrin, Valuing local heritage: Issue and challenges of geographical indication protection for local artisans in Indonesia Kasongan village heritage
- Mirna de L. Medeiros & João L. Passador, Examining the development attributed to geographical indications
- Danny Friedmann, The rational construction of a universal register for distinctive wines and spirits GIs against dilution
- Mohsin Shafi, Geographical indications and sustainable development of handicraft communities in developing countries
- Lakshmi Kant & Faaiza Shahid, Managing intellectual property and technology commercialization: Experiences, success stories and lessons learnt—A case study from Vivekananda Institute of Hill Agriculture, India
- Hongjiao Zhang & Fanhong Chen, Implied license doctrine in copyright law: A typological framework
- Ahmad M. Ramli, Tasya S. Ramli, & Gabriela M. Hutauruk, Patent waiver on COVID-19 vaccine: Indonesian law perspective
- Elizaveta A. Gromova, Natalia S. Koneva, & Elena V. Titova, Legal barriers to the implementation of digital industry (Industry 4.0) components and ways to overcome them
- Gabriel M. do C. Cavalheiro & Mariana B. Cavalheiro, Assessing technological trends through patent landscaping: The case of Bitcoin
- Pratyush Nath Upreti, A TWAIL critique of intellectual property and related disputes in investor-state dispute settlement
- Pallavi Bhatia, Role of public interest in Trademark Law
Call for Submissions: World Trade Review Symposium on "War, Sanctions, and the Future of the Trade Regime"
In an article in IO, now somewhat old but still regularly cited, Professor Jeffrey Frieden (1994) imaginatively presented European colonialism as resolving what has become known as the “credible commitment” problem in the IPE literature on foreign investment. Frieden claimed that colonialism’s aim or function was to prevent expropriation of metropolitan investment. I revisit Frieden’s provocative interpretation, arguing that it gets things wrong—both about colonialism and investment. The better interpretation highlights themes associated with the school of historical rather than of rational institutionalism: the role of subjective ideas; of path dependence, and of unintended consequences. Through a close examination of French colonialism in Africa I show that the problem of credible commitment was both subjectively and objectively absent, and that patterns of colonial investment are better explained as a function of material factors, then-dominant economic beliefs and ideas, and the French government’s policy interventions and abstentions. The investment story of French colonialism in Africa is about the relative lack of private investment—arguably due, at least in part, to an excess of rights, allocated to the wrong people and of the wrong type—even in those sectors of the economy that Frieden suggests are most sensitive to the colonial resolution of credible commitment problems.
- Tom Dannenbaum, Siege Starvation: A War Crime of Societal Torture
- Weixia Gu & Jacky Tam, The Global Rise of International Commercial Courts: Typology and Power Dynamics
- Oren Tamir, Political Stare Decisis
- Shelly Aviv Yeini, The Persistent Objector Doctrine: Identifying Contradictions
Thursday, March 24, 2022
A radical vision for the future of human rights as a fundamentally reconfigured framework for global justice.
Reinventing Human Rights offers a bold argument: that only a radically reformulated approach to human rights will prove adequate to confront and overcome the most consequential global problems. Charting a new path—away from either common critiques of the various incapacities of the international human rights system or advocacy for the status quo—Mark Goodale offers a new vision for human rights as a basis for collective action and moral renewal.
Goodale's proposition to reinvent human rights begins with a deep unpacking of human rights institutionalism and political theory in order to give priority to the "practice of human rights." Rather than a priori claims to universality, he calls for a working theory of human rights defined by "translocality," a conceptual and ethical grounding that invites people to form alliances beyond established boundaries of community, nation, race, or religious identity.
This book will serve as both a concrete blueprint and source of inspiration for those who want to preserve human rights as a key framework for confronting our manifold contemporary challenges, yet who agree—for many different reasons—that to do so requires radical reappraisal, imaginative reconceptualization, and a willingness to reinvent human rights as a cross-cultural foundation for both empowerment and social action.
Panepinto: Truth and Transitional Justice: Localising the International Legal Framework in Muslim Majority Legal Systems
With a unique transitional justice perspective on the Arab Spring, this book assesses the relocation of transitional justice from the international paradigm to Islamic legal systems.
The Arab uprisings and new and old conflicts in the Middle East, North Africa and other contexts where Islam is a prominent religion have sparked an interest in localising transitional justice in the legal systems of Muslim-majority communities to uncover the truth about past abuse and ensure accountability for widespread human rights violations. This raises pressing questions around how the international paradigm of transitional justice, and in particular its truth-seeking aims, might be implemented and adapted to local settings characterised by Muslim majority populations, and at the same time drawing from relevant norms and principles of Islamic law.
This book offers a critical analysis of the relocation of transitional justice from the international paradigm to the legal systems of Muslim-majority societies in light of the inherently pluralistic realities of these contexts. It also investigates synergies between international law and Islamic law in furthering truth-seeking, the formation of collective memories and the victims' right to know the truth, as key aims of the international paradigm of transitional justice and broadly supported by the shari'ah. This book will be a useful reference for scholars, practitioners and policymakers seeking to better understand the normative underpinnings of (potential) transitional truth-seeking initiatives in the legal systems of Muslim-majority societies. At the same time, it also proposes a more critical and creative way of thinking about the challenges and opportunities of localising transitional justice in contexts where the principles and ideas of Islamic law carry different meanings.
Call for Papers: Lights and Shadows in the Ongwen Case at the International Criminal Court: Inter- and Multi-disciplinary approaches
This book discusses the future role of the International Court of Justice (ICJ) in a world facing survival challenges. It discusses threats such as climate change, environmental degradation and pandemics, and argues that in the future the ICJ will need to carry out judicial, security and protection functions as it is the only organ of the United Nations (UN) that can discharge such functions in view of its independence and expertise. The author proposes that the ICJ can apply a hitherto unused jurisdictional provision in Article 36 of its statute that allows it to deal with "All Matters Specially Provided for in the UN Charter" and presents three examples of issues that would require the urgent attention of the ICJ: vaccine equity in a global pandemic, climate disaster, and mass movements of people across frontiers due to climate change and environmental degradation.
Call for Submissions: AJIL Symposium on "The War in Ukraine and the Future of the International Legal Order"
- Sandra L. Bell & Amadi Anene, Meeting the Challenges of Customs Compliance in a Post TFTEA and Reinvigorated Trade Enforcement Environment: Go Beyond by Returning to Basics
- Omer Wagner, The COVID-19 Pandemics’ Impact on Customs Valuation and Import Duties: An Israel Perspective, and a Wider Comparison
- Olga Biryukova, ‘Shaken Not Stirred’: WTO as a Ground for Plurilateral Initiatives
- Jöran Gesinn, The Logistics Service Providers’ Pre-tax Deduction of Import VAT Is Still a Pipe Dream and the Recent ECJ Decision Hasn’t Changed That: Or Has It?
- Alessandro Fruscione, Dual Use Items: A Whole New Export Regulation in the European Union
- Laura Fraedrich, Interview: Interview of Brian Murphy, Former Chief of Intelligence, Department of Homeland Security
Wednesday, March 23, 2022
The UN Resolution Transforming our world: “the 2030 Agenda for Sustainable Development” set in forth at 1 January 2016 enshrines 17 Sustainable Development Goals (SDGs) including 169 targets and seems a conceptual, normative answer to the global fluid pattern of economic transformation, shortly: the globalisation. Against this background, the SDGs are embarking to the multileveled legal order, following different horizontal and vertical ways. The significance of the SDGs for the application of the law in the context of regulations of the international level within the UN and autonomous International Organisations appears to be clearly visible. On the vertical level regional cooperation such as the EU, ASEAN, CARICOM, are integrating the SDGs in different legal agreements and similar currently happens on the national level and not to forget the transnational level as well. This new Commentary covers the whole field of SDG law.
- Symposium: The Ethics of Indirect Intervention
- Helen Frowe & Benjamin Matheson, Introduction: Symposium on The Ethics of Indirect Intervention
- James Christensen, Selling Arms and Expressing Harm
- Helen Frowe, Liability for Wrongful Assistance: On Causing Unjust Harm in the Course of Suboptimal Rescue
- Christopher J. Finlay, Assisting Rebels Abroad: The Ethics of Violence at the Limits of the Defensive Paradigm
The forgotten story of the birth and life of the definition of ‘military objectives’ is relevant to the ongoing discussion about the need to adapt the law to asymmetric warfare. This definition, authored by a West-German law professor and a former member of the Nazi party, was driven by a Western effort to privilege regular armies while curbing the actions of guerrilla fighters and exposing their civilian supporters to harm. The Non-Aligned Movement turned the tide by burdening regular armies while exempting irregular combatants from the consequences of disregarding the law. It was only through judicial intervention—grounded in an imagined history of the linear progress of humanity—that civilians on both sides of asymmetric conflicts would ultimately become entitled to receive adequate protection.
- Nestlé USA, Inc. v. Doe (U.S. Sup. Ct.), with introductory note by William S. Dodge
- Directive 2311.01 on the Law of War Program (U.S. Dept. Defense), with introductory note by Rachel E. VanLandingham
- Prosecutor v. Mladić (U.N. Int'l Residual Mechanism Crim. Tribunals App. Chamber), with introductory note by Steven Arrigg Koh
Tuesday, March 22, 2022
What norms apply to the determination of lawful targets? What persons and objects may be lawfully targeted in armed conflict? What are the reasons, both legal and extra-legal, of civilian losses? What principles must be observed when attacking military objectives? How can the protection of persons who are not participating in hostilities can be strengthened? Is it possible to develop a consistent approach to targeting in armed conflict regardless of the legal qualification of the armed conflict? This monograph answers these questions and many more. Taking into account both military objectives and civilian objects, it considers the extent of their protection in a range of contexts, providing an essential source of reference for scholars dealing with issues across international humanitarian law and armed conflict.
- Janina Dill, Scott D. Sagan & Benjamin A. Valentino, Kettles of Hawks: Public Opinion on the Nuclear Taboo and Noncombatant Immunity in the United States, United Kingdom, France, and Israel
- Erica D. Lonergan & Shawn W. Lonergan, Cyber Operations, Accommodative Signaling, and the De-Escalation of International Crises
- Max Smeets, Cyber Arms Transfer: Meaning, Limits, and Implications
- Brian Blankenship & Erik Lin-Greenberg, Trivial Tripwires?: Military Capabilities and Alliance Reassurance
- Risa Brooks & Peter B. White, Oust the Leader, Keep the Regime? Autocratic Civil-Military Relations and Coup Behavior in the Tunisian and Egyptian Militaries during the 2011 Arab Spring
- Ariel Zellman & Davis Brown, Uneasy Lies the Crown: External Threats to Religious Legitimacy and Interstate Dispute Militarization
- Gabriela A. Oanta, European Union–Falkland Islands Fisheries Relations Post Brexit
- Nigel Bankes, The Jurisdiction of the Dispute Settlement Bodies of the Law of the Sea Convention With Respect to Other Treaties
- Clive R. Symmons, Recent Developments Concerning Irish Straight Baselines and Bay Closing Lines
- Jan Jakub Solski, The ‘Due Regard’ of Article 234 of UNCLOS: Lessons From Regulating Innocent Passage in the Territorial Sea
- Lan Ngoc Nguyen, Expanding the Environmental Regulatory Scope of UNCLOS Through the Rule of Reference: Potentials and Limits
- Junghwan Choi & Sangil Lee, Legal Status of the Remote Operator in Maritime Autonomous Surface Ships (MASS) Under Maritime Law
Monday, March 21, 2022
- Jane Kelsey, The Illegitimacy of Joint Statement Initiatives and Their Systemic Implications for the WTO
- Christian Delev, Straining the Spaghetti Bowl: Re-Evaluating the Regulation of Preferential Rules of Origin
- Bernard Hoekman & Hugo Rojas-Romagosa, EU Trade Sustainability Impact Assessments: Revisiting the Consultation Process
- Eva Johan & Hanna Schebesta, Religious Regulation Meets International Trade Law: Halal Measures, a Trade Obstacle? Evidence from the SPS and TBT Committees
- Ksenia Polonskaya, The Strategies of the International Chamber of Commerce to Eliminate Double Taxation
- Magdalena Słok-Wódkowska & Joanna Mazur, Secrecy by Default: How Regional Trade Agreements Reshape Protection of Source Code
- Julien Chaisse, Manfred Elsig, Sufian Jusoh, & Andrew Lugg, Drafting Investment Law: Patterns of Influence in the Regional Comprehensive Economic Partnership (RCEP)
- Yanwen Zhang, The Judicial Function of Investment Tribunals: Taking Foundational Assumptions Seriously
- Oliver Hailes, Lithium in International Law: Trade, Investment, and the Pursuit of Supply Chain Justice
- Juan He, Sustainable Seafood Consumption in Action: Reinvigorating Consumers’ Right to Information in a Borderless Digital World
- Francesco Seatzu & Paolo Vargiu, Three Views of a Secret: Missed Opportunities in the echr’s Recent Case-Law on International Commercial Arbitration
- Angioletta Sperti, Constitutional Courts Speak Their Voice: Their Fight Against Fake News and Disinformation on Constitutional Justice
- Gianpaolo Maria Ruotolo, Abolish the Rules Made of Stone? Contemporary International Law and the models to Internet Regulations
- Oreste Pollicino, The Transatlantic Dimension of the Judicial Protection of Fundamental Rights Online
- Marco Bassini, Social Networks as New Public Forums? Enforcing the Rule of Law in the Digital Environment
- Giovanni De Gregorio, The Transnational Dimension of Data Protection: Comparative Perspectives from Digital Constitutionalism
- Diego Mauri, A New Technique for Implementing ECtHR Judgments: Will It Work? The Corte Costituzionale “Urges” the Houses to Reform the Ergastolo Ostativo Note to: Corte Costituzionale, 15 April 2021, Order No. 97
- Giorgia Berrino, “Plus Ça Change, Plus C’est la Même Chose”: State Immunity and International Crimes in Judgment No. 20442/2020 of the Corte di Cassazione Note to: Corte di Cassazione (Sezioni Unite Civili), P.T. v. Federal Republic of Germany and Republic of Italy, 28 September 2020, No. 20442
- Stefano Dominelli, Unjustified Interruption of the Taking Evidence by the Court of Origin as a Ground to Refuse Cross-Border Enforcement Under the Brussels I Rules Note to: Corte di Cassazione (Sez. I civile), F.L. v. Ministry of the Interior and Attorney General at the Court of Appeal of Naples, 26 February 2021, No. 5327
- Fabrizio Marongiu Buonaiuti, The Law Applicable to Succession, Between Unity and Splitting of the Relevant Legal Regime The Role of Renvoi Note to: Corte di Cassazione (Sezioni Unite Civili), 5 February 2021, No. 2867
- Orlando Scarcello, Opinion of Advocate General Hogan in Randstad Italia: Disarming the Constitutional Bomb Note to: Opinion of Advocate General Hogan, Case C-497/20, Randstad Italia, 2021
- Giuliana Lampo, Italy’s Exercise of Foreign Investment Screening Power against Chinese Takeover: An Assessment under International Law
- Gustavo Minervini, Italian Citizenship Attribution to Patrick Zaki: An International Law Perspective
- Angelo Schillaci, Back at It. Italy’s Struggle for a Law against Homophobia and Transphobia: Freedom of Expression versus Equal Dignity?
- Michael Denly, Michael G. Findley, Joelean Hall, Andrew Stravers, & James Igoe Walsh, Do Natural Resources Really Cause Civil Conflict? Evidence from the New Global Resources Dataset
- Patrick Gill-Tiney, A Liberal Peace?: The Growth of Liberal Norms and the Decline of Interstate Violence
- Tyler Kustra, Sanctioning the Homeland: Diasporas’ Influence on American Economic Sanctions Policy
- Michelle Benson & Colin Tucker, The Importance of UN Security Council Resolutions in Peacekeeping Operations*
- Maura R. Cremin & Bogdan G. Popescu, Sticks and Stones? Connecting Insurgent Propaganda with Violent Outcomes
- Stephen Stapleton, Andres Uribe, Austin L. Wright, Televising Justice during War
- Data Set Feature
- Christopher J. Fariss, Therese Anders, Jonathan N. Markowitz, & Miriam Barnum, New Estimates of Over 500 Years of Historic GDP and Population Data
Sunday, March 20, 2022
- Alain Pellet, Adieu, James Crawford
- Marco Dimetto, “To Fall, or Not to Fall, That Is the (Preliminary) Question”: Disputes, Compromissory Clauses and Swinging Jurisdictional Tests at the ICJ
- Kit De Vriese, How to?: A Methodological Guide to Identify a Treaty’s Object and Purpose
- Gian Maria Farnelli, Consistency in the ICJ’s Approach to the Standard of Proof: An Appraisal of the Court’s Flexibility
- Brian McGarry & Yusra Suedi, Judicial Reasoning and Non-State Participation before Inter-State Courts and Tribunals
- Thomas-Nektarios Papanastasiou, The Role of Human Rights in International Investment Arbitration: Arguments Raised by the Parties and Procedural Implications
- Kieran Bradley, Appointment and Dis-Appointment at the CJEU: Part II – The Sharpston Litigation
- Nilüfer Oral & Massimo Lando, International Procedure between Past and Future – Procedural Developments in Law of the Sea Dispute Settlement in 2021