Ciurtin: Beyond the Norm: The Hermeneutic Function of Treaty Preambles in Investment Arbitration and International Law

Horia Ciurtin (European Federation for Investment Law and Arbitration) has posted Beyond the Norm: The Hermeneutic Function of Treaty Preambles in Investment Arbitration and International Law (Revista Romana de Arbitraj, Vol. 36, no. 4, 2015). Here's the abstract:

The present essay proposes an alternative theoretical framework regarding the notion of normativity in international law, beyond the dominant kelsenian-positive paradigm. By using a decisionist approach, it is shown how the preambles of international treaties are conceptualized and instrumented so as to serve a non-literal exegesis of the relevant legal norms. Thus, not only the general rule of VCLT is taken into consideration, but also the underlying principles that guarantee its effectiveness. As regards the BITs, our inquiry begins by analyzing the structure of preambles and their latest evolutions, continuing by explaining the influence that such instruments actually played in investment arbitration case-law, as well as the role they exerted in expanding the rights of the investors in relation to indeterminate standards such as FET.

New Issue: Journal of World Investment & Trade

The latest issue of the Journal of World Investment & Trade (Vol. 17, no. 1, 2016) is out. Contents include:

• Stephan W. Schill, Editorial: US versus EU Leadership in Global Investment Governance
• Andrew D. Mitchell; Elizabeth Sheargold & Tania Voon, Good Governance Obligations in International Economic Law: A Comparative Analysis of Trade and Investment
• Rudolf Adlung, International Rules Governing Foreign Direct Investment in Services: Investment Treaties versus the GATS
• Luis M. Hinojosa-Martínez, The Scope of the EU Treaty-Making Power on Foreign Investment: Between Wishful Thinking and Pragmatism
• Simon Maynard, A New Framework for the Analysis of Multi-Party Claims
• Chester Brown, The End of the Affair?
• Conor McCarthy, The Problems of Fragmentation and Diversification in the Resolution of Complex International Claims
• Lorenzo Cotula, Human Rights and Investor Obligations in Investor-State Arbitration

New Issue: Vanderbilt Journal of Transnational Law

The latest issue of the Vanderbilt Journal of Transnational Law (Vol. 48, no. 5, November 2015) is out. Contents include:

• Silvia Beltrametti, Capturing the Transplant: U.S. Antitrust Law in the European Union
• Ines Gillich, Illegally Evading Attribution? Russia’s Use of Unmarked Troops in Crimea and International Humanitarian Law
• Sandeep Gopalan & Michael Guihot, Recognition and Enforcement in Cross-Border Insolvency Law: A Proposal for Judicial Gap-Filling
• Valentina Vadi, Beyond Known Worlds: Climate Change Governance by Arbitral Tribunals?

AJIL Unbound Symposium: International Indigenous Rights, Financial Decisions, and Local Policy

AJIL Unbound has posted a symposium on "International Indigenous Rights, Financial Decisions, and Local Policy." The symposium includes an introduction by Dwight Newman and essays by Asta Hill, Dwight Newman, and Ibironke T. Odumosu-Ayanu.

New Issue: International Legal Materials

The latest issue of International Legal Materials (Vol. 54, no. 5, 2015) is out. Contents include:

• Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia) (I.C.J.), with introductory note by Larissa van den Herik
• Request for an Advisory Opinion Submitted by the Sub-Regional Fisheries Commission (SRFC) (ITLOS), with introductory note by Maria Gavouneli
• Southern Africa Litigation Centre v. Minister of Justice and Constitutional Development (N. Gauteng High Ct., Pretoria), with introductory note by John Dugard
• United Nations Security Council Resolution 2206 on Targeted Sanctions in South Sudan, with introductory note by Laura Nyantung Beny

New Issue: Revista Peruana de Derecho Internacional

The latest issue of Revista Peruana de Derecho Internacional (Vol. 64, no. 151, July-December 2014) is out. Contents include:

• Óscar Maúrtua de Romaña, La Alianza del Pacifico: perspectivas de un Nuevo bloque de integraciñn orientado al Asia-Pacífico
• Germán Vera Esquivel, Las negociaciones del cambio climático: de la COP 20 de Lima a la COP 21 de París

Greenhill: Transmitting Rights: International Organizations and the Diffusion of Human Rights Practices

Brian Greenhill (Dartmouth College - Political Science) has published Transmitting Rights: International Organizations and the Diffusion of Human Rights Practices (Oxford Univ. Press 2016). Here's the abstract:

When considering the structures that drive the global diffusion of human rights norms, Brian Greenhill argues that we need to look beyond institutions that are explicitly committed to human rights and instead focus on the dense web of international government organizations (IGOs)-some big, some small; some focused on human rights; some not-that has arisen in the last two generations. While most of these organizations have no direct connection to human rights issues, their participation in broader IGO networks has important implications for the human rights practices of their member states. Featuring a rigorous empirical analysis, Transmitting Rights shows that countries tend to adopt similar human rights practices to those of their IGO partners, whether for better or worse. Greenhill argues that IGOs constitute a tightly-woven fabric of ties between states and that this network provides an important channel through which states can influence the behavior of others. Indeed, his analysis suggests that a policy of isolating "rogue" states is probably self-defeating given that this will reduce their exposure to some of the more positive IGO-based influences on their human rights. Greenhill's analysis of the role of IGOs in rights diffusion will not only increase our understanding of the international politics of human rights; it will also reshape how we think about the role of international institutions in world politics.

New Issue: Journal of Conflict Resolution

The latest issue of the Journal of Conflict Resolution (Vol. 60, no. 1, February 2016) is out. Contents include:

• Nam Kyu Kim, Revisiting Economic Shocks and Coups
• Claude Berrebi & Jordan Ostwald, Terrorism and the Labor Force: Evidence of an Effect on Female Labor Force Participation and the Labor Gender Gap
• Dennis T. Kahn, Varda Liberman, Eran Halperin, & Lee Ross, Intergroup Sentiments, Political Identity, and Their Influence on Responses to Potentially Ameliorative Proposals in the Context of an Intractable Conflict
• Jonathan Hall, Are Migrants More Extreme Than Locals After War? Evidence From a Simultaneous Survey of Migrants in Sweden and Locals in Bosnia
• Graeme A.M. Davies, Policy Selection in the Face of Political Instability: Do States Divert, Repress, or Make Concessions?
• Alastair Smith, Leader Turnover, Institutions, and Voting at the UN General Assembly
• Mark S. Manger & Mark A. Pickup, The Coevolution of Trade Agreement Networks and Democracy

Hollis: Setting the Stage: Autonomous Legal Reasoning in International Humanitarian Law

Duncan B. Hollis (Temple Univ. - Law) has posted Setting the Stage: Autonomous Legal Reasoning in International Humanitarian Law (Temple International & Comparative Law Journal, forthcoming). Here's the abstract:

This short essay seeks to reorient — and broaden — the existing discourse on international humanitarian law (IHL) and autonomous weapons. Written for a conference co-sponsored by the International Committee of the Red Cross, it employs a contextual analysis to pose new questions (and reformulate others) regarding the relationship between IHL and autonomous weapon systems. It asks six questions: (1) Who should IHL regulate in this context? Does IHL only regulate States and individuals, or can it provide rules for autonomous weapon systems themselves? (2) What types of autonomous technology should IHL regulate? Should the current focus on kinetic weapons expand to encompass cyber operations? (3) Where should this discourse occur? How do the trade-offs involved in locating legal discourse in a particular forum impact the elaboration of IHL vis-à-vis autonomous systems? (4) When should IHL regulate autonomous weapons? Should IHL ban autonomous weapons now or allow its regulation to emerge incrementally over time? Can IHL only apply when an autonomous system’s operations constitute an attack, or should IHL’s application reach more broadly? (5) How should IHL regulate autonomous weapon systems? Are prohibitions better or worse than prescriptive authorities? Should IHL regulate via rules, standards, or principles? Finally, (6) why should IHL regulate autonomous weapons? How can IHL best prioritize among its foundations in military necessity, humanitarian values, and the practical reality that the development of such systems now appears inevitable. In asking these questions, my essay offers a critical lens for gauging the current scope (and state) of international legal discourse on this topic. In doing so, it sets the stage for new lines of inquiry that States and other stakeholders will need to address to fully understand the perils — and potential — of increasing autonomy in technology for IHL and the international lawyers who practice it.

Stewart: The Strangely Familiar History of the Unitary Theory of Perpetration

James G. Stewart (Univ. of British Columbia - Law) has posted The Strangely Familiar History of the Unitary Theory of Perpetration (in Essays in Honor of Mirjan Damaška, forthcoming). Here's the abstract:

A unitary theory of perpetration is one that does not espouse different legal standards for different forms of participating in crime. In this Article, I pay homage to Professor Damaška’s influence on my work and career by reiterating my earlier arguments for a unitary theory of perpetration in international criminal law. Whereas my earlier work defended the unitary theory in abstract terms then for international criminal law in particular, this Article looks to the history of the unitary theory in five national systems that have abandoned differentiated systems like that currently in force internationally in favor of a unitary variant. Curiously, as things transpire, the reasons Norway, Denmark, Italy, Austria and Brazil dispensed with the types of differentiated system currently in force in international criminal law are strangely familiar to those working in international criminal justice today. The eerie sense of déjà vu that arises from reading these histories suggests that, potentially, the unitary theory may have real potential as a way through many of the key points of conceptual impasse that presently characterize this aspect of the field. In this respect, the Article seeks to contribute an historical perspective to a burgeoning dialogue about forms of blame attribution internationally by again questioning whether the great struggle with “modes of liability” is worth continuing.

Barnidge: Self-Determination, Statehood, and the Law of Negotiation: The Case of Palestine

Robert P. Barnidge, Jr. (Webster Univ. - International Relations) has published Self-Determination, Statehood, and the Law of Negotiation: The Case of Palestine (Hart Publishing 2016). Here's the abstract:

From the Madrid Invitation in 1991 to the introduction of the Oslo process in 1993 to the present, a negotiated settlement has remained the dominant leitmotiv of peacemaking between Israel and the Palestinian people. That the parties have chosen negotiations means that either side’s failure to comply with its obligation to negotiate can result in an internationally wrongful act and, in response, countermeasures and other responses. This monograph seeks to advance our understanding of the international law of negotiation and use this as a framework for assessing the Israeli–Palestinian dispute, with the Palestinian people’s unsuccessful attempt to join the United Nations as a Member State in autumn 2011 and the successful attempt to join the same institution as a non-Member Observer State in November 2012 providing a case study for this. The legal consequences of these applications are not merely of historical interest; they inform the present rights and obligations of Israel and the Palestinian people. This work fills a significant gap in the existing international law scholarship on the Israeli–Palestinian dispute, which neither engages with this means of dispute settlement generally nor does so specifically within the context of the Palestinian people’s engagements with international institutions.

Heller: Radical Complementarity

Kevin Jon Heller (SOAS, Univ. of London - Law) has posted Radical Complementarity (Journal of International Criminal Justice, forthcoming). Here's the abstract:

In March 2015, Simone Gbagbo, the former First Lady of Côte d’Ivoire, was convicted of various crimes in an Ivorian court and sentenced to 20 years in prison. Despite her conviction and sentence, however, the Appeals Chamber has held that her case is admissible before the ICC. The reason: the national proceeding was not based on “substantially the same conduct” as the international one. Whereas the OTP intended to prosecute Gabagbo for the crimes against humanity of murder, rape, other inhumane acts, and persecution, the Ivorian court convicted her for the ordinary domestic crimes of disturbing the peace, organising armed gangs, and undermining state security.

This Article argues that the Appeals Chamber’s decision in Simone Gbagbo undermines the principle of complementarity – and that, in general, the ICC has used the principle to impose structural limits on national proceedings that are inconsistent with the Rome Statute and counterproductive in practice. The Article thus defends ‘radical complementarity’: the idea that as long as a state is making a genuine effort to bring a suspect to justice, the ICC should find his or her case inadmissible regardless of the prosecutorial strategy the state pursues, regardless of the conduct the state investigates, and regardless of the crimes the state charges.

The Article is divided into three sections. Section 1 defends the Appeals Chamber’s recent conclusion in Al-Senussi that the principle of complementarity does not require states to charge international crimes as international crimes, because charging ‘ordinary’ domestic crimes is enough. Section 2 then criticises the Court’s jurisprudence concerning Art. 17’s ‘same perpetrator’ requirement, arguing that the test the judges use to determine whether a state is investigating a particular suspect is both inconsistent with the Rome Statute and far too restrictive in practice. Finally, using Simone Gbagbo as its touchstone, Section 3 explains why the ‘same conduct’ requirement, though textually defensible, is antithetical to the goals underlying complementarity and should be eliminated.

Conference: Lehre des internationalen Rechts – zeitgemäß?!

On March 16, 2016, the Deutsche Gesellschaft für Internationales Recht will hold a conference on "Lehre des internationalen Rechts – zeitgemäß?!," at the Universität zu Köln. The program is here. Registration is here.

New Issue: Columbia Journal of Transnational Law

The latest issue of the Columbia Journal of Transnational Law (Vol. 54, no. 1, 2015) is out. Contents include:

• George K. Foster, Combating Bribery of Indigenous Leaders in International Business
• Lea Shaver, The Right to Read
• Steven Arrigg Koh, Marbury Moments
• James Kraska, Putting Your Head in the Tiger’s Mouth: Submarine Espionage in Territorial Waters

Call for Applications: GlobalTrust Research Project Postdoctoral Fellowships

The GlobalTrust Research Project at the Tel Aviv University Faculty of Law, directed by Professor Eyal Benvenisti, invites candidates interested in exploring themes related to the project to apply for postdoctoral fellowships for the academic year 2016-2017. The call is here.

Chazal: The International Criminal Court and Global Social Control

Nerida Chazal (Flinders Univ. - Criminology) has published The International Criminal Court and Global Social Control: International Criminal Justice in Late Modernity (Routledge 2016). Here's the abstract:

The International Criminal Court was established in 2002 to prosecute war crimes, crimes against humanity, and genocide. At its genesis the ICC was expected to help prevent atrocities from arising or escalating by ending the impunity of leaders and administering punishment for the commission of international crimes. More than a decade later, the ICC’s ability to achieve these broad aims has been questioned, as the ICC has reached only two guilty verdicts. In addition, some of the world’s major powers, including the United States, Russia and China, are not members of the ICC. These issues underscore a gap between the ideals of prevention and deterrence and the reality of the ICC’s functioning.

This book explores the gaps, schisms, and contradictions that are increasingly defining the International Criminal Court, moving beyond existing legal, international relations, and political accounts of the ICC to analyse the Court from a criminological standpoint. By exploring the way different actors engage with the ICC and viewing the Court through the framework of late modernity, the book considers how gaps between rhetoric and reality arise in the work of the ICC. Contrary to much existing research, the book examines how such gaps and tensions can be productive as they enable the Court to navigate a complex, international environment driven by geopolitics.

Titi: The European Union's Proposal for an International Investment Court: Significance, Innovations and Challenges Ahead

Catharine Titi (French National Centre for Scientific Research) has posted The European Union's Proposal for an International Investment Court: Significance, Innovations and Challenges Ahead. Here's the abstract:

Rampant discontent with the system that governs the protection of international investment and the functioning of investment tribunals has led to a widespread view that there is an urgent need for reform. This is particularly pronounced in the context of investor-state dispute settlement (ISDS). The European Union (EU) has responded to this need by proposing the creation of an international investment court. With its political weight, the EU confers unprecedented legitimacy on the critics of the current ISDS system and breaks with its background in commercial litigation. The article explores the EU proposal, focusing on its significance, innovative provisions, and projected impact. It argues that the international investment court constitutes a ground-breaking reform proposal for ISDS but it also faces challenges. These need to be tackled in order to avoid affecting the court’s “legal feasibility” and prospective functioning, and the article proposes steps that can help address these issues.

Viebig: Illicitly Obtained Evidence at the International Criminal Court

Petra Viebig has published Illicitly Obtained Evidence at the International Criminal Court (Asser Press 2016). Here's the abstract:

This work deals with the exclusion of illicitly obtained evidence at the International Criminal Court. At the level of domestic law, the so-called exclusionary rule has always been a very prominent topic. The reason for this is that the way a court of law deals with tainted evidence pertains to a key aspect of procedural fairness. It concerns the balancing of the right to a fair trial with the interest of society in effective law enforcement. At the international level, however, the subject has not yet been discussed in detail. The present research intends to fill this gap. It provides an overview of the approaches of a number of domestic legal systems as well as of the approaches of the UN ad hoc tribunals and the European Court of Human Rights and uses the different perspectives to develop a version of the exclusionary rule which fits the International Criminal Court.

Conference: The EU and Investment Arbitration under the Energy Charter Treaty

On February 11-12, 2016, the Centre for European and International Legal Affairs at Queen Mary University of London School of Law will host a conference on "The EU and Investment Arbitration under the Energy Charter Treaty." Here's the idea:

The conference will bring together legal experts, practitioners and policy-makers to discuss the interaction of EU law with investment arbitration under the Energy Charter Treaty. The objective is to set out and assess the legal and practical arrangements, which govern the involvement of the European Union (EU) and its Member States in investment arbitration under the Energy Charter Treaty (ECT). It aims to provide a comprehensive and up-to-date coverage of the topic and explore the broader implications of the application of the investment provisions of the ECT on i) the integrity of EU law and ii) international investment law and, in light of the above, iii) assess the added value of the ECT for energy investments.

Addressing these questions, the conference is divided into three parts. Part I will focus on the “intra-EU” aspects of investment arbitration under the Energy Charter Treaty. The papers in this part will assess how investment tribunals deal with EU law and also look into the compatibility of the intra-EU application of the ECT with EU law. Part II will focus on the “extra-EU” aspects of the Energy Charter Treaty. It will explore how recent developments in EU investment policy affect it, focusing among other on the implications of the new EU FDI competence and the autonomy of EU law as well as into the question when and how the EU and its Member States bear international responsibility and can be parties to “extra-EU” investment arbitration. Part III will examine the added value of “intra-EU” and “extra-EU” investment protection under the ECT. Contributions in this part will explore the protection of energy investments under EU law and the ECT, addressing if and why the ECT as a sectoral investment agreement is still needed for the protection of energy investments in Europe.

Poulsen: Bounded Rationality and Economic Diplomacy: The Politics of Investment Treaties in Developing Countries

Lauge N. Skovgaard Poulsen (Univ. College London - Political Science) has published Bounded Rationality and Economic Diplomacy: The Politics of Investment Treaties in Developing Countries (Cambridge Univ. Press 2015). Here's the abstract:

Modern investment treaties give private arbitrators power to determine whether governments should pay compensation to foreign investors for a wide range of sovereign acts. In recent years, particularly developing countries have incurred significant liabilities from investment treaty arbitration, which begs the question why they signed the treaties in the first place. Through a comprehensive and timely analysis, this book shows that governments in developing countries typically overestimated the economic benefits of investment treaties and practically ignored their risks. Rooted in insights on bounded rationality from behavioural psychology and economics, the analysis highlights how policy-makers often relied on inferential shortcuts when assessing the implications of the treaties, which resulted in systematic deviations from fully rational behaviour. This not only sheds new light on one of the most controversial legal regimes underwriting economic globalization but also provides a novel theoretical account of the often irrational, yet predictable, nature of economic diplomacy.

Conference: ASIL Annual Meeting 2016

The 110th Annual Meeting of the American Society of International Law will take place March 30-April 2, 2016, in Washington, DC. The theme is "Charting New Frontiers in International Law." Online registration is now open. Here's the idea:

Dramatic shifts in the global economy, the environment, technological innovation, geopolitical power structures, and human mobility are forcing societies around the world to redefine their normative foundations. These shifts are creating new frontiers in the physical and conceptual structure of our international order.

Growing migration, climate, and public health challenges disrupt the salience of geographic borders. Non-state actors such as regional organizations and ISIS demand a more nuanced taxonomy of the subjects of international law. Technological advances such as cyber warfare, digital surveillance, and automated weapons are changing the terms and consequences of international conflict. Calls for transparency in international dispute resolution, and the increasing role of public issues such as financial regulation and energy policy in private disputes, are redefining the nature of commercial adjudication.

The dynamic frontiers of our international order require that scholars and lawyers chart new frontiers in the theory and practice of international law. At its 110th Annual Meeting in Spring 2016, the American Society of International Law (ASIL) invites policymakers, practitioners, academics, and students of international law to reflect upon these shifting frontiers in the world and in law, to devise new modes of thinking, and to address the questions they present.

Call for Papers: International Human Rights Law and Business: Evaluating the Impact of UNGPs

The Human Rights Interest Group of the American Society of International Law has issued a call for papers for a workshop on "International Human Rights Law and Business: Evaluating the Impact of UNGPs," to take place March 29, 2016. Here's the call:

Human Rights Interest Group

American Society of International Law

Business and Human Rights Roundtable

on

‘International Human Rights Law and Business:

Evaluating the Impact of UNGPs’

29th March 2016

George Washington University, Washington DC, USA.

Call for Papers

Deadline 20th January 2016.

The Human Rights Interest Group of the American Society of International Law is delighted to announce that a Human Rights Workshop will take place on 29th March 2016 in advance of the ASIL 2016 Annual Meeting in Washington DC. The CoChairs and Executive Committee cordially invite the submission of proposals and abstracts on the theme of Business and Human Rights theory and practice, particular in respect of the UN Guiding Principles of Business in respect of Human Rights.

Roundtable details

Papers presented at the Roundtable will be selected through a competitive process by the Human Rights Interest Group Executive Committee. The selection process will be based exclusively on the scholarly merit of proposals received and priority will be given to unpublished papers and work in progress. We welcome proposals from practitioners, academics, and graduate students that are attentive to Roundtable theme outlined below. All other interested parties are invited to attend to observe and participate in the proceedings of the Roundtable discussion.

Theme: The case for a covenant directly binding on corporations?

In 2014, at the 26th session of the UN Human Rights Council, Resolution A/HRC/26/L.22/Rev.1 for the “Elaboration of an international legally binding instrument on transnational corporations and other business enterprises with respect to human rights” was passed. The resolution establishes an open-ended Intergovernmental Working Group (IGWG) on a legally binding instrument on transnational corporations and other business enterprises with respect to human rights. The IGWG’s mandate is to elaborate an international legally binding instrument to regulate, in international human rights law, the activities of “Transnational Corporations and Other Business Enterprises.”

The resolution follows from a statement made the previous year at the 24th Session of the Human Rights Council on behalf of the African Group, the Arab Group, Pakistan, Sri Lanka, Kyrgyzstan, Cuba, Nicaragua, Bolivia, Venezuela, Peru and Ecuador. Therein it was stated: “We are mindful that soft law instruments such as the Guiding Principles and the creation of the Working Group with limited powers to undertake monitoring of corporate compliance with the Principles are only a partial answer to the pressing issues relating to human rights abuses by transnational corporations. These principles and mechanisms fell short of addressing properly the problem of lack of accountability regarding Transnational Corporations worldwide and the absence of adequate legal remedies for victims.”

Exactly what method of reform the IGWG will pursue is unclear from the 2014 Resolution. Proposals for an entirely new jurisdiction over corporations have been dismissed as suitably radical yet unsuitably unrealistic. Identified avenues for enhanced judicial mechanism include: (i) National mechanisms overseen by regional human rights commissioners (appointed by the UNHRC or the regional human rights courts); (ii) specialised permanent tribunals at a regional level with some level of harmonization across tribunals and judges from the existing regional human rights courts; (iii) the extension of the Rome Statute in the International Criminal Court (ICC) to apply to corporate, as well as natural persons; and/or (iv) a corporate human rights chamber based at the International Court of Justice (ICJ) in the Hague. Yet irrespective of lack of political support, some maintain that a reconfiguration to make corporations directly accountable is unworkable as a system of international law. John Ruggie, former UN Special Representative on Human Rights, asserts that the UN expert group on business and human rights simply needs more time to complete their mandate and for the impact of the norms to show.

This roundtable seeks to address some of the inconvenient questions in relation to the UNGPs. In particular:

• Do the UNGPs over greater protection than that existing under the ICESCR?
• Have they been integrated into domestic jurisprudence and to what effect?
• What are the obstacles to their integration at the domestic level and can these be overcome?
• What is the meaning of ‘due diligence’ at the centre of the UNGPs?
• How does the UNGPs discourse intersect with the extraterritorial obligations discourse?
• Ultimately are stronger mechanisms necessary, as is argued by the newly established intergovernmental working group at the UN Human Rights Council?

Call for Proposals and Abstracts

Each submission should include an abstract of the proposed presentation of no more than 700 words and a short CV, both in English. Applications should be submitted in a WORD or PDF format. They should be emailed to Dr. Siobhan McInerney Lankford and Dr. Kirsteen Shields at hrig.asil@gmail.com. Please indicate “2016 ASIL HRIG Roundtable” in the subject line of the email.

Deadline: The deadline for submission of proposals is 20th January 2016. The outcome of the selection process will be notified to successful applicants by 1st February 2016.

Feldman: Investment Arbitration Appellate Mechanism Options: Consistency, Accuracy, and Balance of Power

Mark Feldman (Peking Univ. - School of Transnational Law) has posted Investment Arbitration Appellate Mechanism Options: Consistency, Accuracy, and Balance of Power. Here's the abstract:

For policymakers exploring appellate mechanism options for the international investment law regime, the competing interests of efficiency and finality will receive due consideration. But two additional — and possibly overlooked — risks also merit close analysis.

First, gains in the consistency of treaty interpretation by a standing, permanent appellate body would not guarantee corresponding gains in the accuracy of treaty interpretation. As illustrated by two lines of case law applying denial of benefits provisions under a number of investment treaties, consistent treaty interpretation does not ensure accurate treaty interpretation.

Second, a shift from an ad hoc to a more institutionalized international investment dispute settlement regime would significantly impact the balance of power between States and adjudicators. In general terms, standing, permanent tribunals are associated with greater levels of independence than ad hoc tribunals. The experience of the WTO Appellate Body illustrates how standing, permanent tribunals can develop as institutions through bold acts of independence. Greater levels of tribunal independence give rise to a greater need for control mechanisms to address the risk of tribunals exceeding their mandate. That risk is heightened in the context of the international investment arbitration, where, even under the current ad hoc regime, the level of tribunal independence is significant.

Legitimate policy arguments — based on goals of achieving greater consistency, coherence, and predictability — can be made in favor of the development of one or more appellate mechanisms within the international investment law regime. But policymakers exploring appellate mechanism options should give careful consideration to all competing policy interests, which are not limited to the goals of efficiency and finality. The two additional risks analyzed in this article — the gap between consistent and accurate treaty interpretation, and the balance of power consequences of greater institutionalization — should be part of the policy discussion. That policy discussion also should include consideration of control mechanism options to address such risks.

New Issue: Asian Journal of International Law

The latest issue of the Asian Journal of International Law (Vol. 6, no. 1, January 2016) is out. Contents include:

• Surya P. Subedi, The UN Human Rights Special Rapporteurs and the Impact of their Work: Some Reflections of the UN Special Rapporteur for Cambodia
• Junianto James Losari, Comprehensive or BIT by BIT: The ACIA and Indonesia's BITs
• Derek Inman, From the Global to the Local: The Development of Indigenous Peoples’ Land Rights Internationally and in Southeast Asia
• Andrew Garwood-Gowers, China's “Responsible Protection” Concept: Reinterpreting the Responsibility to Protect (R2P) and Military Intervention for Humanitarian Purposes
• Mar Campins Eritja, Jaume Saura Estapá & Xavier Pons Ráfols, Towards Improved Regional Co-operation over Water Uses in Central Asia: The Case of Hydroelectric Energy and Inland Fisheries
• Matthew Koh, Indicators in the ASEANstats Statistical Regime: A Case-Study on the Need for Accountability, Participation, and Transparency in International Governance by Indicators

Barral: Le développement durable en droit international

Virginie Barral (Univ. of Hertfordshire - Law) has published Le développement durable en droit international : Essai sur les incidences juridiques d'une norme évolutive (Bruylant 2016). Here's the abstract:

Élaboré essentiellement dans le cadre des Nations Unies et ayant fait l’objet, depuis sa consécration au Sommet de Rio en 1992, d’une large dissémination tant en droit conventionnel qu’en droit international général, le développement durable se pose en objectif général de la communauté internationale et requiert à cet effet l’intégration des considérations économiques, sociales et environnementales. Son caractère flexible et intrinsèquement évolutif lui permet de constamment s’adapter aux changements de circonstances et à la diversité des situations qu’il a vocation à régir. Destiné à permettre la réconciliation d’intérêts opposés ou contradictoires en exigeant leur intégration, une première fonction juridique du développement durable est de venir peser dans le processus d’interprétation. Il se révèle être un outil commode dont la souplesse et l’adaptabilité confèrent au juge une marge de manœuvre non négligeable. Le développement durable autorise ainsi, de par sa nature évolutive, à procéder à une interprétation dynamique des règles litigieuses, à leur mise en balance, et autorise parfois même la révision du traité. Cependant, s’adressant avant tout aux sujets de droit, le développement durable déploie en outre des effets directement contraignants. S’il ne pose pas aux États une obligation absolue de se développer durablement, il met cependant à leur charge une obligation relative. L’État est ainsi tenu de s’efforcer d’atteindre cet objectif. Pour ce faire, il devra mettre en œuvre certaines mesures définies comme nécessaires à sa réalisation en fonction des circonstances particulières de la situation. Le caractère variable et indéterminé des mesures en question tend en outre à se préciser au fil de développements jurisprudentiels dégageant peu à peu les traits essentiels d’un développement qui soit durable. Le juge dispose ainsi aujourd’hui de suffisamment d’éléments lui permettant, le cas échéant, de caractériser la violation de l’obligation de s’efforcer d’atteindre le développement durable.