Dispute Settlement Mechanism Research Articles

Protecting noncommunicable disease prevention policy in trade and investment agreements.

Preventing noncommunicable diseases is a global priority, for which the World Health Organization has recommended policies to reduce the consumption of tobacco products, alcohol and unhealthy foods. However, regulation has been strongly opposed by affected industries, who have invoked the provisions of legally binding trade and investment agreements. The aim of this analysis of the legal, economic and public health literature was to present a short primer on the relationship between noncommunicable disease prevention policy and trade and investment agreements to help public health policy-makers safeguard public health policies. The analysis identified opportunities for protecting, and even promoting, public health in trade and investment agreements, including: (i) ensuring exceptions for public health measures are included in agreements; (ii) committing to good regulatory practice that balances transparency and cooperation with the need for governments to limit the influence of vested interests; (iii) ensuring trade and investment agreement preambles acknowledge the importance of public health; (iv) excluding investor–state dispute settlement mechanisms from agreements; and (v) limiting the scope and definition of key provisions on investor protection to reduce the risk of investment disputes. This synthesis of the multidisciplinary literature also provides support for greater strategic and informed engagement between the health and trade policy sectors. In addition, ensuring a high level of health protection in trade and investment agreements requires cooperation between disciplines, engagement with experts in law, economics and public health policy, and fully transparent policy processes and governance structures.

Counterfactuals and Contingency in WTO Dispute Settlement History

AbstractWith the benefit of hindsight, much scholarship across political science, law, and economics has told the story of the international trade regime as if it had been pulled all along by a definite aim. By contrast, this article emphasizes the contingent aspects of the trade regime's development, looking especially to its dispute settlement mechanism. The very creation of the Appellate Body had by no means a certain outcome, and once created, the tribunal's evolution was largely unanticipated by states. An often-overlooked actor played a key role in that development: the WTO Secretariat. Drawing on recent findings, this article lays out the full extent of the Secretariat's role in dispute settlement, which remains largely hidden from view, and deliberately so. From appointing adjudicators and managing their remuneration, to providing them with legal arguments and drafting final rulings, the Secretariat of the WTO looms larger than in any comparable tribunal. Making its influence more transparent, I argue, would go a long way to returning the system to the shape it was designed to have at its outset.

Research on the Host Country's Regulatory Power in the Situation of the Novel Coronavirus Pneumonia Outbreak

<p>In the process of combating the Newcastle pneumonia epidemic, shutdown measures taken by countries may harm the legitimate interests of foreign investors, and when foreign investors use the international investment dispute settlement (ISDS) mechanism to arbitrate with the host country, the purpose of international investment agreements (IIAs), which tends to protect the interests of investors, tends to be constantly expanded and used to the neglect of the host country's regulatory power. This is due both to the lack of clarity of certain provisions and to the inherent flaws of the ISDS mechanism. China should actively study the new changes in international investment rules, so that China can more favorably balance the interests of investors and host countries in the process of negotiating international investment agreements, and effectively safeguard the right of national regulation.</p>

ISDS Reform in the Context of China’s IIAs

Abstract The investor–state dispute settlement mechanism enables investors to seek remedies in the face of a violation of related international investment agreements, which are crucial to maintaining the standards of investor protection that have been consented to by the contracting parties. On the other hand, more and more problems in the system have been exposed as the number of investor–state dispute settlement cases has increased. These range from substantive issues, such as the treatment granted to investors, to procedural ones, such as cost management and related procedures. Debates on investor–state dispute settlement reform have led to various options for reshaping the relevant mechanisms. Amid the new trend of investment liberalization and facilitation, China is undergoing a new round of bilateral investment treaty revision and free trade agreement negotiation. How the investor–state dispute settlement process is to be framed boils down to how China assesses its own interest vis-à-vis its partners and how it prioritises its objectives in international investment agreement negotiation with its partners. It is submitted that China should take a calculated risk on the investor–state dispute settlement provisions in international investment agreements with adequate consideration of competing interests.

Alternative Dispute Resolution in Mining Disputes with the Mechanism of Mediation

In Article 33 of the constitution of the Republic of Indonesia Year 1945, the management and exertion needed protection and legal certainty both to the public as a common property over the excavated material, the entrepreneur as a manager, and the government as a regulator. Mining activities often cause disputes involving the government, employers mining (investors), and the community in the territory of the mining operations. Therefore, need to be pursued to resolve the dispute through the dispute settlement mechanism. Issues to be examined include the development of the regulation of business activities the mining sector in Indonesia and the dispute settlement mechanism in the field of mining in order to create legal certainty and justice. This paper discusses the completion of mining disputes by alternative dispute resolution in mining through the concept of mediation. Be aware that the development of the regulation of the activities of the mining business in Indonesia has existed since the reign of the Dutch east Indies with the entry into force of the Indische Mijnwet 1899, after the independent published a Regulation Number 37 of the 1960s about Mining, Regulation Number 44 of 1960 on Oil and Gas, LAW Number 37 of Prp. 1960 about Mining, later replaced by LAW No. 11 of 1967 about the Basic Provisions of Mining which is then lifted and the publication of LAW No. 4 Year 2009 on Mineral and Coal Mining. As for the dispute settlement mechanism of mining through a few options that include adjudications, non-adjudications, the court, arbitration, ADR, mediation and traditional institutions. In this discussion the author argues that the choice of dispute resolution through mediation is the right choice rather than the settlement of disputes in court. This is due to the mediation has several advantages such as the dispute resolution process is faster, the result of an agreement that is a “win-win solution”, as well as the guarantee of the confidentiality of the dispute from the public spotlight. Based on these advantages, mediation is considered more appropriate to be applied in a contract dispute mining in Indonesia. Keywords: Alternative Dispute Resolution, Mining, Mediation.

Alternative Dispute Settlement and the Jurisprudential Legacy of the World Trade Organization’s Appellate Body

This article analyses the possible impact of the disputes advanced through the Multiparty Interim Appeal Arbitration Arrangement (‘MPIA’) and preferential trade agreements (‘PTAs’) on the jurisprudential legacy of the Appellate Body (‘AB’) and shows that those alternative dispute settlement mechanisms can play a significant role in preserving and further developing World Trade Organization’s (‘WTO’) case law. In the future, the importance of alternative dispute settlement mechanisms resolving arguments of international trade law is bound to increase (especially, in light of the ongoing deadlock at the WTO). That said, this does not come without risks for the (much disputed) coherence of WTO precedence by way of departure from established interpretations of the WTO acquis. Ultimately, it is the quality of the alternative dispute settlement awards that will determine the extent to which the jurisprudential legacy of the AB will be maintained. This article demonstrates that alternative dispute settlement mechanisms pose both challenges and opportunities for the consistency of the WTO case law. This article sheds further light on the potential risks and virtues pertaining to each one of them and argues that until the functioning of the Appellate Body is restored, alternative dispute adjudicating bodies must observe its jurisprudential legacy to promote legal certainty and predictability in international trade dispute settlement. WTO Dispute Settlement, Alternative Dispute Settlement, Appellate Body, Multiparty Interim Appeal Arbitration Arrangement, Preferential Trade Agreements

The CPTPP Dispute Settlement Mechanism: Is There a Way out of the WTO Crisis or Is This a New Model?

The CPTPP Dispute Settlement Mechanism: Is There a Way out of the WTO Crisis or Is This a New Model?

Reform Trend of Investor-State Dispute Settlement in International Investment

The reform of Investor-State Dispute Settlement (hereafter "ISDS") is a bellwether for the reform of the international investment dispute settlement mechanism, this paper about the ISDS mechanism reform finds the root cause of ISDS mechanism reform comes from the national sovereignty and the interests of the investors under the conflict of "crisis of legitimacy” Based on the" legitimacy" crisis, the ISDS mechanism has many problems. In this context, countries have started to reform the ISDS mechanism in order to solve the corresponding problems. These reform measures have three typical trends, Facing the three trends of ISDS mechanism reform, Chinese scholars put forward countermeasures from various angles, but fundamentally China should recognize its own position in international investment, be realistic and adopt a flexible way to deal with ISDS mechanism reform, and try best to contribute to ISDS mechanism reform.

Blue Trade and Forced Labour: Breaking the Resounding Silence of International Economic Law

Abstract On 5 December 2017, the United Nations declared a ‘Decade of Ocean Science for Sustainable Development’ to be observed from 2021 to 2030. Beyond the rhetoric of sustainability, the absence of a rights-based approach that places human beings at the core of ocean policy and governance is striking. The ocean indeed remains the scene of major human rights violations. From seafarers to ship breaking sites or fisheries, the ocean is not only the place where 90% of trade in goods happens, but also the territory where grave human rights violations, often related to the labour recruited for ocean trade and investments, occur. In this context and based on a series of case studies involving seafarers, ship breaking and fisheries, in various countries, this article interrogates the silence of international economic law instruments and dispute settlement mechanisms and suggests pathways for reform in better integrating the International Labour Organization approach.

Global Health Governance on Cruise Tourism: A Lesson Learned From COVID-19

Cruise tourism is becoming increasingly popular worldwide. However, the health and safety of thousands of cruise tourists have been put in jeopardy due to the COVID-19 pandemic. The refusal of cruise ships calling has been the most significant reason behind the health hazards faced by passengers. Moreover, some coastal States have decided to close their borders, leaving passengers to their own fate in the case of a COVID-19 outbreak on board. Situation analysis contributes to demonstrating obstacles encountered in public health governance on cruise tourism. Information is collected from official websites of governments and international organizations to investigate the reasons behind the non-compliance of these countries with the International Health Regulations (IHR) (2005). Academic literatures showcase different views on the necessity of revising the IHR (2005). Statistical analysis is used to assess core capacities required by the IHR (2005) of the coastal States. Coastal States reserve their rights to refuse foreign cruise ships to enter ports and to prevent the persons aboard from embarking or disembarking so long as conditions under Article 43 are met. However, some foreign cruise ships were directly refused to call by various coastal States without scientific evidence. This practice stems largely from the high risk of COVID-19 outbreaks in cruise ships and the resulting burden from the cruise pandemic response. Compared with improving IHR (2005), especially its dispute settlement mechanism, helping coastal States to boost their core capacities is more conducive to solving the problem of cruise public health governance. The improvement of core capacities can be carried out from the aspects of surveillance of cruise ships and risk assessment, medical examinations on cruise travelers, cruise design and cruise tourism management.

PERAN WTO DALAM MENYELESAIKAN SENGKETA PRICE RANGE SYSTEM ANTARA PERU DAN GUATEMALA TAHUN 2013

The World Trade Organization (WTO) is an international organization that facilitates international cooperation in the field of economy and trade. The position of the WTO as an international regime to date certainly has an important influence in the context of a country's national economic progress. In addition, the World Trade Organization has a function to resolve trade disputes experienced by its member states. One of the disputes faced was Peru's price range system on agricultural products that were considered detrimental to Guatemala in the two countries' free trade agreements. This is evidenced by the violation of Article 4.2 by Peru, namely the determination of additional import costs is not allowed in an agreement and is not an ordinary customs duty. Based on the above issues, the authors try to see how the WTO facilitates the implementation of negotiations between the two sides based on the concept of dispute settlement mechanism. Later in obtaining the data source, the author browses news, international trade documents, WTO norms and official statements relating to the topic of this research online. The article found that the WTO established a panel as a mediator to resolve the trade dispute and asserted that Peru had violated international trade norms applicable to the WTO and this was a permanent decision to be exercised by Peru.

Prosedur dan Efektifitas Mekanisme Penyelesaian Sengketa Perdagangan dan Investasi Dalam ASEAN

Trade and investment play an important role in the practice of relations between countries in the prospective economic cooperation efforts to increase the economic growth of each country. In this regard, ASEAN also has legal instruments that regulate transactions and investments among other countries. In the trade regime, ASEAN has several agreements such as the ASEAN Free Trade Agreement, ASEAN Trade in Goods Agreement, ASEAN Trade in Services Agreement, ASEAN Framework Agreement on Services, and so on. Meanwhile in the investment regime, ASEAN has the ASEAN Comprehensive Investment Agreement. One of the important components in a Regional Trade Agreement is the clause of a legally binding dispute settlement mechanism. In the trade regime, the system and mechanism of the dispute resolution procedures are separated from other trade agreements, the ASEAN Protocol on the Enhanced Dispute Resolution Mechanism. Meanwhile in the Investment regime, the system and mechanism of the dispute resolution procedure are regulated in the same agreement in the ASEAN Comprehensive Investment Agreement. This article will describe the procedural mechanism for the dispute resolution framework of the trade and investment regime in ASEAN, as well as focus on each dispute resolution system with the preferences of each participating country, with differences in the use of the dispute system in the WTO.

The Status of Chinese State-owned Enterprises in International Investment Arbitration: Much Ado about Nothing?

Abstract Chinese State-owned enterprises (SOEs) play a key role not only in China’ domestic market, but also in implementing the Government of China (GOC)’s ambitious Belt and Road Initiative. Accordingly, Chinese SOEs have increasingly fallen back on investor-State investment arbitration to protect their investments in host States. A recurrent issue arising in arbitral proceedings concerns whether Chinese SOEs should be allowed access to investor-State dispute settlement mechanisms in view of the close links between Chinese SOEs and the GOC. This article sets forth two arguments. First, applying the relevant ILC Articles to Chinese SOEs, the article makes a legal argument that it is highly unlikely for a Chinese SOE to be denied standing as a qualified claimant in investor-State arbitration. Second, notwithstanding concerns about Chinese SOEs in the global investment landscape, the article makes a policy argument that the denial of Chinese SOEs’ standing before arbitral tribunals is not only unhelpful in addressing those concerns, but also undermines the rule of law in international investment.

Prosedur dan Efektifitas Mekanisme Penyelesaian Sengketa Perdagangan dan Investasi Dalam ASEAN

Trade and investment play an important role in the practice of relations between countries in the prospective economic cooperation efforts to increase the economic growth of each country. In this regard, ASEAN also has legal instruments that regulate transactions and investments among other countries. In the trade regime, ASEAN has several agreements such as the ASEAN Free Trade Agreement, ASEAN Trade in Goods Agreement, ASEAN Trade in Services Agreement, ASEAN Framework Agreement on Services, and so on. Meanwhile in the investment regime, ASEAN has the ASEAN Comprehensive Investment Agreement. One of the important components in a Regional Trade Agreement is the clause of a legally binding dispute settlement mechanism. In the trade regime, the system and mechanism of the dispute resolution procedures are separated from other trade agreements, the ASEAN Protocol on the Enhanced Dispute Resolution Mechanism. Meanwhile in the Investment regime, the system and mechanism of the dispute resolution procedure are regulated in the same agreement in the ASEAN Comprehensive Investment Agreement. This article will describe the procedural mechanism for the dispute resolution framework of the trade and investment regime in ASEAN, as well as focus on each dispute resolution system with the preferences of each participating country, with differences in the use of the dispute system in the WTO.

With no deterrent effect, the WTO dispute settlement crisis leaves US exporters exposed, especially US agriculture

The absence of a functioning Appellate Body at the World Trade Organization (WTO) leaves the dispute settlement mechanism weakened, and countries may be more likely to pursue their domestic policy goals in ways that restrict trade. Industries with relatively large export exposure like US agriculture will be particularly vulnerable in this new chaotic regime. The deterrent effect is more important than you think An integral part of the world trading system has been the WTO’s dispute settlement mechanism, which enables the WTO to enforce the rules the Members signed up for. Knowing you could get sued in the WTO for not following the rules tends to deter bad behavior. Citing need for reform, however, the US has blocked appointments to the body responsible for reviewing appeals and this has left the enforcement mechanism ineffective. Countries can still bring cases but there is no Appellate Body so the losing party can indefinitely delay the process by appealing the panel decision into a void, leaving the issue unsettled. The WTO is inherently a member driven organization and the dispute settlement function can be seen as a way for members to “check” each other on following the rules. When Members designed the Dispute Settlement Understanding, they were saying, “we commit to following the rules that we made for ourselves and if we don’t follow them, then we subject ourselves to retaliation.” Disputes inevitably arise from time to time, so having a place to sort things out before a trade war ensues is essential. The most important function of the dispute settlement mechanism might just be the deterrent effect—that is, policymakers and legislators are deterred from designing laws and policies that would violate the WTO rules. The deterrent effect has been hard to measure. Until now.

Conflict of Jurisdiction and Harmonization Between WTO and Marine Environmental Dispute Resolution Mechanisms -- Concentrating on the EC-Chilean Swordfish Case

There is a conflict of jurisdiction between the maritime environmental dispute settlement mechanism and the WTO dispute settlement mechanism, which can lead to conflicts in practice, especially with regard to free trade. This paper therefore analyses the EC-Chile Swordfish case, in which both parties to the dispute submitted their cases to both the UN Tribunal for the Law of the Sea and the WTO panel procedure, and finds that the conflict of jurisdiction between the two mechanisms arises because of the conflicting concepts of their rules and the lack of specific provisions that make them equivalent in effect. As a result, it was not possible to exclude the jurisdiction of the other party, which could lead to different outcomes and a new impasse in dispute resolution. It is therefore important to harmonise the conflicting principles of the marine environment and free trade, and to establish a coordinating body between the two mechanisms in order to better resolve marine environmental disputes and ultimately help China to deal with such conflicts and establish its own environmental and trade regime.

Перспективы и место ВРЭП в системе мегарегиональных торговых блоков

The article analyzes the Regional Comprehensive Economic Partnership (RCEP) in terms of agreements reached and effects on the international trade system. Having involved the issues of tariff protection, rules of origin, TBT and SPS barriers in trade, investments, dispute settlement mechanism, and other regulation RCEP has an impact on both megaregionalism and international political economy system. In addition to the system level, the article examines the influence that this FTA will have on Russia and comparative market access conditions for Russian exporters in the RCEP countries. In comparison with other mega-regional trade arrangements such as TTP, RCEP provides for a more flexible approach to the commitments of the RCEP countries. Alongside the fact that each participating state has individual tariff elimination schedules with prolonged transition period for some products, such countries as Indonesia, Malaysia, Vietnam, China, Philippines, and Korea set differentiated tariff elimination schedules for certain participating states. Overall, the significance of RCEP is based upon two levels. First, this allowed to form a FTA that is of key importance for Southeast and East Asia, especially China, Japan, and Korea, which may be the basis for deeper integration. Second, RCEP is a case for megaregionalism revival against economic nationalism that seemed to be on the rise. Importantly, RCEP has non-western countries at its core, which puts the entire Asia to the fore of trade liberalization process. As for Russia, it is essential to secure the potential export niches, products, and services so to go up the value chain as well as to be cautious about potential surge in imports that may happen.

The Role of the Registry and Legal Division of the African Court of Human and People's Rights in Dispute Settlement

This Essay explores whether the African Court of Human and People's Rights’ (African Court) Registry and Legal Division have a similar expansive role in the dispute settlement mechanism as the World Trade Organization's (WTO) Secretariat. The African Court is the African Union's regional body for enforcing human rights. This Essay contributes to the scholarship on African international courts by testing the central arguments in Pauwelyn and Pelc's “Who Guards the ‘Guardians of the System’? The Role of the Secretariat in WTO Dispute Settlement”1 through a comparative analysis of the role of the Secretariat within the African Court.2 Despite the growing jurisprudence and influence of Africa's international courts, they continue to be neglected by mainstream scholarship of international courts and tribunals. This is evident in Pauwelyn and Pelc's article, which does not refer to any of Africa's seven international courts and tribunals. For that matter, the article makes no reference to any international tribunal outside Europe or the United States.3 Our analysis illustrates the fact that the influence of the African Court's Registry and Legal Division (Registry) in the process for dispute settlement is not as significant and concerning as that of the WTO Secretariat. As such, the influence of the Registry on the outcome of a case is significantly limited and does not raise any legitimacy crisis like the WTO. We attribute this disparity to the operational and structural disparities between the African Court and the WTO. In the following paragraphs, we examine each of the factors that Pauwelyn and Pelc raise concerning the influence of the WTO staff in WTO panel and Appellate Body proceedings4 in the context of the functions of the African Court Registry.

India-Afghanistan Trade and International Law

The horrific takeover of Afghanistan by the Taliban has been accompanied by the shutting down of the trade route with India. This action has put into serious jeopardy the bilateral trade between the two countries totaling USD 1.5 billion nurtured in the last two decades. The paper argues that despite Taliban’s unconstitutional takeover of the Afghan government and the absence of de jure recognition being conferred on it, international law obligations continue to bind it. In this regard, the paper argues that Taliban’s shutting down of the trade route is tantamount to imposing a trade embargo with India, which breaches several provisions of the three trade agreements that govern India-Afghanistan trade: India-Afghanistan Preferential Trade Agreement (PTA), South Asian Free Trade Area (SAFTA) agreement and the World Trade Organization (WTO) agreement. However, due to the weak dispute settlement mechanism in India-Afghanistan PTA and SAFTA, it will be difficult for India to hold the Taliban regime accountable. An important lesson for India is to reboot the dispute settlement mechanism in SAFTA moving away from a diplomacy-based system to a de-politicized and rule-based dispute settlement order. India, Afghanistan, Trade, Taliban, PTA, SAFTA, WTO, GATT

ISDS mechanism under the EVFTA: Comparison with the CPTPP and Implications for Vietnam

International investment plays an indispensable part in the economic development of most countries in the world. Not only does it ensure huge and stable capital flows, but it also creates jobs and transfers advanced technology to host countries. Nevertheless, in that process, investment-related disputes are inevitable and it is impossible not to mention the Investor-State dispute because of the unequal status of the two disputing parties. As a consequence, the Investor-State Dispute Settlement (ISDS) mechanism was born to resolve this particular type of dispute as well as protect the interests of foreign investors, who are always considered to be the subordinate party. This article mainly aims to study the ISDS mechanism in the European Union - Vietnam Free Trade Agreement (EVFTA) in a comparative relationship with the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP). The authors collect, summarize, compare and analyze data from trustworthy sources and conducts the in-depth interviews with the experienced experts in law, dispute settlement and international integration. The findings show that the ISDS mechanism is basically quite similar in EVFTA and CPTPP. However, there are still notable differences in these two new generation free trade agreements in terms of the scope of application, dispute settlement agency and suit procedures. In addition, the study also highlights the situation of widespread application of the mechanism worldwide in the period 1987-2020. Besides, the difficulties and challenges that Vietnam has to face in the context of ISDS-related disputes are expected to increase in the coming time are pointed out. From the analysis, a number of implications are proposed for the state and businesses with the desire to minimize the disputes or damage caused by the disputes.