Friday, June 12, 2009
Light Blogging Ahead
Thursday, June 11, 2009
Franck: Development and Outcomes of Investment Treaty Arbitration
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 Asserting that arbitration is unfairly tilted toward the developed world, some countries have withdrawn from World Bank dispute resolution bodies or are taking steps to eliminate arbitration.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.
Murnane: Ten Years After the War in Kosovo
Wednesday, June 10, 2009
New Issue: Schweizerische Zeitschrift für internationales und europäisches Recht
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
Call for Papers: ABA Section of International Law 2010 Spring Meeting
New Issue: ICC International Court of Arbitration Bulletin
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
Koebele: Corporate Responsibility under the Alien Tort Statute
Michael Koebele has published Corporate Responsibility under the Alien Tort Statute: Enforcement of International Law through US Torts Law (Martinus Nijhoff Publishers 2009). Here's the abstract: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
Hadfield: The Public and the Private in the Provision of Law for Global Transactions
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.
Arai-Takahashi: The Law of Occupation
Yutaka Arai-Takahashi (Univ. of Kent - Law) has published The Law of Occupation: Continuity and Change of International Humanitarian Law, and its Interaction with International Human Rights Law (Martinus Nijhoff Publishers 2009). Here's the abstract: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.
New Issue: ASA Bulletin
The latest issue of the ASA Bulletin (Vol. 27, no. 2, 2009) is out. Contents include: - 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
De Brabandere: Post-conflict Administrations in International Law
Eric De Brabandere (Leiden Univ. - Law) has posted Post-conflict Administrations in International Law: International Territorial Administration, Transitional Authority and Foreign Occupation in Theory and Practice (Martinus Nijhoff Publishers 2009). Here's the abstract: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.
New Issue: Journal of International Maritime Law
The latest issue of the Journal of International Maritime Law (Vol. 15, no. 1, 2009) is out. Contents include:- 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 [2008] EWHC 1944 (QB)
- Anton Dudnikov, Termination clauses: lessons for the contract draftsman - Stocznia Gdynia SA v Gearbulk Holdings Ltd [2009] 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
New Issue: Journal of International Economic Law
The latest issue of the Journal of International Economic Law (Vol. 12, no. 2, June 2009) is out. Contents include:- 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
Saturday, June 6, 2009
Anderson: Targeted Killing in U.S. Counterterrorism Strategy and Law
Targeted killing, particularly through the use of missiles fired from Predator drone aircraft, has become an important, and internationally controversial, part of the US war against al Qaeda in Pakistan and other places. The Obama administration, both during the campaign and in its first months in office, has publicly embraced the strategy as a form of counterterrorism. This paper argues, however, that unless the Obama administration takes careful and assertive legal steps to protect it, targeted killing using remote platforms such as drone aircraft will take on greater strategic salience precisely as the Obama administration allows the legal space for it in international law to shrink.
Moreover, the paper argues that non-state enemies of the United States will not always be al Qaeda or groups covered by Security Council resolutions or the US Authorization for the Use of Military Force. Eventually there will emerge other threats that do not fall within the existing armed conflicts, and the United States is likely to seek to address at least some of those threats using its inherent rights of self-defense, whether or not a conflict within the meaning of international humanitarian law (IHL) and its thresholds is underway, and using domestic law authority under the statutes establishing the CIA. In that case, a US administration seeking to offer a legal rationale justifying its use of targeted killing might discover that reliance upon a state of IHL-armed conflict does not provide it the robust authority to use force that the US has traditionally asserted under its rights of inherent self-defense.
This is a policy paper, not a law review or scholarly article, and it offers blunt advice to the Obama administration and the US Congress with a particular normative goal in mind - to preserve the legal rationales for the use of self-defense in targeted killing, whether or not an IHL armed conflict is underway, consistent with the positions taken by the United States in the 1980s, and culminating with a statement of the US position on self-defense against terrorism and targeting terrorists in third-state safe havens by then-State Department legal advisor Abraham Sofaer in 1989. The point of the paper is to urge the Obama administration, and offer it advice, on how to preserve the legal category of targeted killing as an aspect of inherent rights of self-defense and US domestic law.
As such, this paper runs sharply counter to the dominant trend in international law scholarship, which is overwhelmingly hostile to the practice. It urges the Obama administration to consider carefully ways in which apparently unrelated, broadly admirable human rights goals, such as accepting extraterritorial application of the International Covenant on Civil and Political Rights, or accepting its standards as a complement to the lex specialis of IHL, or accepting recent soft-law standards offered by some influential NGOs such as the International Committee of the Red Cross to define "direct participation in hostilities," have the effect of making legally difficult, if not legally impossible, a counterterrorism strategy of targeted killing using standoff platforms that the Obama administration has correctly embraced as both more effective and more discriminating from a humanitarian stance. It is frank, practical advice to the Obama administration that it must assert the legality of its practices in the face of a hostile and influential international soft-law community or risk losing the legal rationale for a signature strategy.
The draft policy paper runs 20,000 words and is a Working Paper of the Series on Counterterrorism and American Statutory Law, a project of the Brookings Institution, the Georgetown University Law Center, and the Hoover Institution, none of whom are responsible for the contents of individual papers. A finalized version of the paper will appear in Benjamin Wittes, Legislating the War on Terror: An Agenda for Reform (Brookings Institution Press 2009).
Friday, June 5, 2009
Ní Aoláin: Learning the Lessons: What Feminist Legal Theory Teaches International Human Rights Law and Practice
In the contemporary international moment, as the long-term impact of 9/11 and the wars in Iraq and Afghanistan continue to shape and redefine international legal and political rules, this analysis pauses to reflect on the gendered elements which ground international legal norms. As an international legal scholar I focus on how feminist legal theory can be applied to the present, and how insights gleaned in domestic legal contexts (significantly though not exclusively within western states) are relevant to the experiences of women in multiple jurisdictional and cultural environments. My concluding observations are specifically drawn from societies emerging from war and repression, and ruminate on the experiences of women in those contexts.
Addis: Imagining the International Community: The Constitutive Dimension of Universal Jurisdiction
The assertion of prescriptive and adjudicative universal jurisdictions by some countries in relation to a handful of offenses that are classified as international or universal crimes (e.g. genocide) has led to a great deal of controversy. Those who favor universal jurisdiction argue that certain acts (often crimes) affect all of us, not just the specific individual or group of victims or the country of which the victims are nationals. It is therefore legitimate, they argue, for any state to punish or suppress such acts regardless of any traditional jurisdictional connection between the alleged acts and the state asserting jurisdiction. The availability of universal jurisdiction is premised on the presumed effect of certain crimes on humanity as a whole. Those who commit these offenses are referred to as hostis humani generis-enemies of human kind. Skeptics argue that the idea of universal jurisdiction is conceptually incoherent, inconsistent with the principle of political self-determination, and has great potential to be an instrument of political mischief. While they disagree on the conceptual coherence and utility of the notion of universal jurisdiction, both proponents and opponents view its function in purely instrumental terms, to provide the condition for punishing or suppressing certain offenses that affect all of us. This article argues that universal jurisdiction also serves another, less articulated purpose. It has a constitutive function as well. It is partly a process through which the identity of the international community is imagined and enacted. It is an expression of a sense of ourselves (a community of humankind) at given moments of time. This article argues that neglect of this constitutive dimension leads to an incomplete analysis of universal jurisdiction.
Conference: Business and International Law
Today, the British Institute of International and Comparative Law will host its annual conference. The conference theme is: "Business and International Law." The program is available here.
Thursday, June 4, 2009
Horn, Mavroidis, & Sapir: Beyond the WTO? An Anatomy of EU and US Preferential Trade Agreements
It is often alleged that PTAs involving the EC and the US include a significant number of obligations in areas not currently covered by the WTO Agreement, such as investment protection, competition policy, labour standards and environmental protection. The primary purpose of this study is to highlight the extent to which these claims are true. The study divides the contents of all PTAs involving the EC and the US currently notified to the WTO, into 14 'WTO' and 38 ‘WTO-X' areas, where WTO provisions come under the current mandate of the WTO, and WTO-X provisions deal with issues lying outside the current WTO mandate. As a second step, the legal enforceability of each obligation is evaluated, judged on the extent to which the text specifies clear obligations. Among the findings are: (i) EC agreements contain almost four times as many instances of WTO-X provisions as do US agreements; (ii) but EC agreements evidence a very significant amount of ‘legal inflation’ (i.e., non-legally enforceable provisions) in the WTO-X category, and US agreements actually contain a more of enforceable WTO-X provisions than do the EC agreements; and (iii) US agreements tend to emphasize regulatory areas more compared to EC agreements.
Chander: Trade 2.0
Where the last century saw the dismantling of barriers to trade in goods, the new century will see the dismantling of barriers to trade in services. Once theorized as nontradable, services now join goods in a global marketplace powered by advances in communications technology. Today, an engineer, accountant, or lawyer can supply her services across the globe without boarding a plane. Less well understood is that cyber-trade encompasses not just the services outsourced to Bangalore, but also the online services supplied by Silicon Valley to the world. Apple, eBay, and Yahoo too are exporters of information services, seeking to become middlemen to the world. Google now earns half of its income overseas. Almost sub rosa, the Internet has become a global trading platform rivaling any history has yet produced. But law developed over millennia for the paradigm of goods is unprepared for trade, version 2.0.
The pressure on law is clear: Antigua challenges U.S. rules barring online gambling; Brazil demands that Google identify hate speakers; an Alien Torts Statute suit charges Yahoo with abetting Chinese torture; and the United States challenges Chinese media restrictions on movie, music, and financial information services. Once we recognize the connections between these disputes, we can begin to form a general theory of cyber-trade. Ricardo’s theory of comparative advantage applies to all trade, whether in goods or in information. Economic theory thus counsels, and international treaties compel, the dismantling of barriers to cyber-trade. Yet, because of its remote nature, it is easy to assert consumer protection to bar online competition. I articulate a principle of technological neutrality to smoke out barriers hiding under this veneer. To flourish, cyber-trade will also require digital analogues to the physical infrastructure for services, from handshakes to courts.
The footloose nature of cyber-trade poses a more fundamental challenge - to law itself. Via the net, service providers can flout local law from afar. This race to the bottom arises from the exploitation of overly liberal regimes, lacking consumer and other protections. A second potential race to the bottom arises from overly repressive regimes, which require service providers to serve as auxiliaries of the authoritarian state. I offer principles to protect local control of global Internet trade without jeopardizing either human rights or the World-Wide nature of the Web.
Knop, Michaels, & Riles: International Law in Domestic Courts: A Conflict of Laws Approach
The relationship between international law and domestic law is rarely understood as a conflict of laws. Understanding it in this way opens up a parallel with the field of conflict of laws: the field for which the relationship between legal systems, especially the role of another system's jurisdiction, laws, and judgments vis-à-vis the domestic legal system, are exactly the bread-and-butter issues. We argue for such an approach to international law in domestic courts: an approach that we elaborate as "theory through technique."
In our view, conflicts should be seen broadly as the discipline that developed to deal with conflicts between laws, without necessarily being committed to any one method or policy. Surprisingly, we demonstrate that it is precisely the seemingly negative features of conflicts - the field's high degree of technicality disparaged as a "conflict-of-laws machine" and the multitude of theories famously deemed a "dismal swamp" - that figure among the advantages of a conflict-of-laws approach to international law in domestic courts.
A conflict-of-laws approach offers ways to respect the nature of international law as law, without simplifying that nature by characterizing it exactly as domestic law. In addition, seeing the parallel with conflict of laws brings a wealth of experience that can enrich and refine the debate on international law in domestic courts. Finally, the parallel with conflicts changes international law in domestic courts from a specific problem addressed by international and constitutional lawyers into a general problem of relativism - which, we argue, conflict of laws is uniquely positioned to address.
Ratner: Bringing Ethical Inquiry into International Law
International law and ethics share a common goal of helping us understand the norms and institutions needed to promote a just world order. Yet each of the two fields has approached this shared task with little regard for the insights of other, and interdisciplinary collaboration is now imperative. This essay shows the complementary nature of inquiries in political and moral philosophy, on the one hand, and international law, on the other, by examining the so-called New Haven School (or policy-oriented jurisprudence), an international law method that explicitly considers values as both inputs and outputs of the process of making law. It finds that the School’s sociological orientation does not adequately integrate ethical inquiries essential to prescribing law, in particular questions about the scope of duties that individuals and states owe those abroad. Using the current legal debate over the extraterritorial application of human rights as an example, the paper shows how approaches from moral and political philosophy can help provide a rigorous and principled basis for the prescription of law, as well as link seemingly unrelated questions of international law to each other.
Wednesday, June 3, 2009
Call for Papers: EU - Mexican Legal, Commercial and Business Relations
In the 1980's Mexico significantly transformed its international economic policy from protectionism to tradeliberalization. Two of the most notable occurrences in this framework were the formation of the North American Free Trade Area in 1994 and the Mexican – European Free Trade Agreement, which entered into force in 2000. Both granted Mexico a preferential access to two of the most important and dominating markets of the world.
Due to their strong commercial ties, the Mexican - US relations in the context of NAFTA have been analyzed in profusion by academic literature. On the other hand, even with the entry into force of the EU - Mexico Free Trade Agreement, EU's position as Mexico's second most important trading partner and the recent classification of Mexico as a "Strategic Partner" of the EU, little reference has been made to the legal, commercial and business relations of this partnership.
To enrich the discussion in this field and in the context of the EU - Mexico Free Trade Agreement 10th year anniversary to be commemorated on October 1st 2010, the Endowed Research Chair in European Studies on Development and Competitiveness (Cátedra Estudios Europeos sobre Desarrollo y Competitividad) of the School for Government, Social Sciences and Humanities of the Tecnológico de Monterrey (ITESM), headed by Dra. María de Lourdes Dieck Assad, former Ambassador of Mexico for the European Union, invites to the contribution for book under the working title:
"EU - Mexican Legal, Commercial and Business Relations"
Covering topics involving:
- International and World Trade Law
- European Mexican Business
- Economic Analysis
- European Community Law
- Business Strategies
- Political Economy Analysis
- Protection of Investment
- Institutional Cooperation
- Fair Trade and Social Responsibility
Propositional abstracts of about 300 - 400 words in length should be sent no later than July 31st, 2009 to Gerhard Niedrist gerhard.niedrist@itesm.mx, Associate Professor at the Masters Program of International Law at ITESM. Submitted abstracts will be reviewed for acceptance by a group comprised of researchers from the organizing institution. Responses on whether proposals are accepted will be sent to submitters by September 2009. The final chapters (about 10,000 words in length including footnotes and references) should be submitted by February 29th 2010. The contributions should be in English and will be published through a major international publisher in the first half of 2010.
The final works will be presented as one stream at the "Bicentennial Anniversary on the Mexican
Independence Conference" to be held in Monterrey, México in September 2010.
New Volume: Netherlands Yearbook of International Law
The latest volume of the Netherlands Yearbook of International Law (Vol. 39, 2008) is out. Contents include:- Fabian Amtenbrink, The Multidimensional Constitutional Legal Order of the European Union – A Successful Case of Cosmopolitan Constitution-Building?
- Ruth L. Okediji, WIPO-WTO Relations and the Future Of Global Intellectual Property Norms
- Jan Vanhamme, Formation and Enforcement of Customary International Law: The European Union's Contribution
- Alexander Orakhelashvili, International Law and Geopolitics: One Object, Conflicting Legitimacies?
Fassbender: The United Nations Charter as the Constitution of the International Community
Bardo Fassbender (Universität der Bundeswehr München - Law) has published The United Nations Charter as the Constitution of the International Community (Martinus Nijhoff Publishers 2009). Here's the abstract:The “constitutionalization” of international law is one of the most intensely debated issues in contemporary international legal doctrine. The term is used to describe a number of features which distinguish the present international legal order from “classical” international law, in particular its shift from bilateralism to community interest, and from an inter-state system to a global legal order committed to the well-being of the individual person. The author of this book belongs to the leading participants of the constitutionalization debate. He argues that there indeed exists a constitutional law of the international community that is built on and around the Charter of the United Nations. In this book, he explains why the Charter has a constitutional quality and what legal consequences arise from that characterization.
New Issue: Journal of World Trade
The latest issue of the Journal of World Trade (Vol. 43, no. 3, June 2009) is out. Contents include:- Locknie Hsu, SWFs, Recent US Legislative Changes, and Treaty Obligations: Sovereign Wealth Funds, Recent US Legislative Changes, and Treaty Obligations
- Rupa Chanda, Mobility of Less-Skilled Workers under Bilateral Agreements: Lessons for the GATS
- Arwel Davies, Interpreting the Chapeau of GATT Article XX in Light of the ‘New’ Approach in Brazil-Tyres
- Xiaomei E, China’s WTO Accession and Sustainable Development: Challenges and Policy Responses
- Andrew D. Mitchell & Tania Voon, Patents and Public Health in the WTO, FTAs and Beyond: Tension and Conflict in International Law
- Alan Swinbank, EU Sugar Policy: An Extraordinary Story of Continuity, But Then Change
- Vik Naidoo, Trade Commitments in Education Services: The Need to Move Out of the Current Impasse
- Ruwantissa Abeyratne, Carbon Trading in Commercial Aviation
