Dispute Settlement Mechanism Research Articles

On the Reform of WTO Dispute Settlement Mechanism and Suggestions

WTO dispute settlement is a very important mechanism for settling international trade disputes, which plays an important role in promoting the stable development of international trade and creating a fair and just international trade environment. However, with the change of political and economic situations, dispute settlement mechanism has appeared more and more malpractice, including the lengthy and inefficient procedures, the unreasonable regulation of implementation and so on. The dispute settlement mechanism is now facing a crisis as a result of the closure of the Appellate Body. Expediting the process of reforming the dispute settlement mechanism is necessary so as to make sure that the dispute settlement mechanism remains effective in facilitating international trade. Although countries have made some suggestions, it has not reached agreement on the specific scheme of the reform. This article focuses on the issue of dispute settlement mechanism analysis and puts forward reform proposals so as to promote the further improvement of the dispute settlement mechanism.

Study on major legal issues and solutions in pandemic treaty negotiations.

In December 2021, WHO's 194 member states began reaching a consensus to start the process of drafting and negotiating a pandemic treaty under the WHO Act. Although there is already a PHEIC system to deal with sudden public health events such as pandemics, the system is not sufficient to deal with global pandemic events. The draft WHO Pandemic Agreement reflects the negotiating process until 24 May 2024. The negotiating team is faced with legal issues such as the treatment of the relationship between the pandemic treaty and the International Health Regulations, the determination of the contracting model, the attribution of the pandemic definition power and the construction of the dispute settlement mechanism. Through a study of the articles of the current draft and a comparative analysis with other treaties, this paper discusses the need to distinguish the functions of the pandemic treaty and the International Health Regulations (IHR), adopt a soft and hard contracting model, establish an open and transparent pandemic determination mechanism, reform the institutional functions of WHO, and establish an effective dispute settlement mechanism in order to solve the above problems. Ultimately, fairness and justice in international public health governance will be achieved.

IMPROVING THE MECHANISMS FOR ENSURING THE RIGHTS AND OBLIGATIONS OF INVESTORS IN PUBLIC INTERNATIONAL LAW

International investment law plays a crucial role in facilitating cross-border investment flows and promoting economic development. However, the current mechanisms for ensuring the rights and obligations of investors in public international law face a number of challenges, including fragmentation of the legal landscape, limitations of investor-state dispute settlement (ISDS) mechanisms, and the tension between protecting investor rights and safeguarding states' regulatory space.This article proposes a series of reforms to improve the mechanisms for ensuring the rights and obligations of investors in public international law. These reforms include harmonization and consolidation of investment treaties, modernization of ISDS mechanisms, clarification of investor obligations, and promotion of sustainable investment practices.

The Compatibility of the ISDS Mechanism under the Energy Charter Treaty With the Autonomy of the EU Legal Order

The article scrutinizes the ex-post constitutional compatibility with the autonomy of the EU legal order of the Investor to State Dispute Settlement (ISDS) mechanism established in Article 26 of the Energy Charter Treaty (ECT). Whereas the compatibility of intra-EU aspects of ECT arbitration is examined primarily in the light of the EU Court of Justice’s (CJEU) Achmea and Komstroy judgments, the compatibility of its extra-EU aspects is examined primarily in the light of its Opinion 1/17. Since those Court decisions are indeed in line with the previous case-law, the article does not need to delve into earlier case-law. Although the issue is analysed from the standpoint of EU law, awards of the arbitral tribunals before which the ECT is invoked have been taken into consideration especially to ascertain whether the CJEU’s concerns for preserving the autonomy of the EU legal order against any possible legal effects of these awards were justified. The article also analyses the principal options to remedy the incompatibility of the ISDS mechanism under the ECT with the autonomy of the EU legal order. Autonomy of the EU Legal Order, Investor to State Dispute Settlement, the Energy Charter Treaty, Intra-EU Arbitration, Extra-EU Arbitration

<span>DSU Expeditious Arbitration within the WTO Dispute Settlement Mechanism</span>

<span>DSU Expeditious Arbitration within the WTO Dispute Settlement Mechanism</span>

比较视域下RCEP争端解决机制研究

比较视域下RCEP争端解决机制研究

Contemporary Dilemmas of International Investment Law: From the Perspective of Settlement of International Investment Disputes

The current state of international investment law consists of thousands of International Investment Agreements (IIAs) and Investor-State Dispute Settlement (ISDS) mechanisms that create safeguards in international investment law and provide foreign investors with the means to mitigate the political risks they face in host countries. However, the number of effective international investment treaties is generally decreasing, and new investment treaties also exclude investor-state dispute settlement mechanisms. Based on past litigation, it is easy to see that the majority of investors who have successfully initiated litigation against host States have come from developed countries. Litigation against the host State by investors from the global South has been relatively few and far between, and has mostly been dismissed, and even when it has been successfully filed, it has not been successful. As a result, the dispute settlement mechanism is not inherently fair. It can be said that this mechanism is a symbol of protectionism in the post-colonial era, which is no longer suitable for the current time. This paper addresses these issues by providing a comprehensive analysis of the current state of development of international investment treaties and the current state of investor-state dispute settlement mechanisms.

Legal Risk in Transnational Investment and Its Countermeasures

In today's world, economic globalization has become an irreversible trend. Various countries and regions are gradually becoming important entities in economic globalization. Transnational investment faces a number of legal challenges and risks, including investment restrictions, differences in legal systems, corrupt practices and dispute settlement mechanisms. To address these issues, investors should have a thorough understanding of the legal differences between their home and host countries, make use of international treaties and agreements, and improve dispute settlement mechanisms in bilateral agreements. To draft a clear and comprehensive investment agreement that defines the rights and obligations of the parties involved and includes dispute settlement provisions, in addition, investors should assess and address potential legal risks through due diligence, diversification of investments, purchase of loss insurance and use of entities that provide legal protection. The need to prioritize legal considerations is essential to successful cross-border investments and to protect investments in global markets.

Modernization and Reform of the ICSID Mechanism: Based on New ICSID Rules for 2022

The Investor-State Dispute Settlement (ISDS) mechanism plays a significant role in international investment governance. Recent years, this mechanism has faced increasing criticism and reform pressures. In order to establish procedures that are more transparent, efficient, cost-effective, and environmentally friendly, the International Centre for Settlement of Investment Disputes (ICSID) initiated a modernization reform of its rules in 2016, and the new rules came into effect on July 1, 2022. This reform marks an important milestone. This article primarily employs methods of literature review, inductive analysis, and case study analysis. This reform improves procedural efficiency, reduces costs, and enhances the transparency of arbitration proceedings. This reform has also driven the modernization of ICSID rules, furthered the deepening of ISDS mechanism reform, and had a significant impact on the practices of relevant countries and stakeholders.

Improvements to the system of host country regulatory authority in the Investor-State Dispute Settlement (ISDS) Mechanism

As the ISDS mechanism has been widely applied, its shortcomings have been gradually magnified, and the host country's right to regulate has been constantly challenged by foreign investors in international investment dispute settlement, and the sovereignty and public interests of the host country have been undermined as a result. This paper examines the existing problems of the host country's right to regulate, and analyses in depth the motivation for strengthening the host country's right to regulate in the context of the reform of the ISDS mechanism, taking into account past cases and practical experience. At the same time, by comparing and analysing the relevant theories of domestic and foreign scholars on the ISDS mechanism, the paper highlights the necessity of strengthening the host country's right to regulate in order to maintain a balance between the interests of both the host country and the investors, and proposes a feasible and practicable reform plan in this regard.

Looking Around: Should Thailand Promote Mediation Effectiveness and How?

Mediation as a form of alternative dispute resolution has many advantages compared to other dispute resolution methods, especially those of adjudicatory nature, such as litigation and arbitration. Thailand and Singapore share a similar policy of advocating the practice of mediation. That said, Thailand seems to focus principally on domestic mediation, while Singapore tends to position itself as a mediation hub for international disputes. In terms of the legal framework, both countries have enacted legislation and regulations that endorse, effectuate, and facilitate mediation. In both jurisdictions, these laws and regulations aim to uphold the principle of party autonomy, provide the necessary support, create a mediation-friendly climate, maintain the integrity of the process, and ensure the enforceability of valid mediated settlement agreements. This article, which is intended to be descriptive, discusses some important concepts and characteristics of mediation and explores the legal frameworks of mediation in Thailand and Singapore, as well as both countries’ experiences in dealing with this non-adversarial dispute settlement mechanism.

Escalating crisis in the governance of the global trading system

Object: The crisis in the governance of the WTO multilateral trading system is manifested in the destruction of the negotiation process and decision-making within the rounds, virtually fruitless Ministerial Conferences and a protracted pause in the implementation of the dispute settlement mechanism. Crises and increased geopolitical tensions provoke national governments to use protectionist policy instruments that violate trade norms and rules adopted within the WTO. There is increasing attention to the problems of global trade from the IMF, the World Bank and the UN. The possibility of creating a new governing body for the global trading system under the auspices of the UN is being discussed. Target. The purpose of the study is to identify the main trends in the development of international trade relations that influence the deepening crisis in the management of the global trading system.Methods: General scientific and special methods were used: the dialectical method of understanding international trade relations; methods of historical and logical analysis; comparative analysis methods; methods of statistical and structural analysis; methods of empirical research, identifying individual parts of an object, identifying cause-and-effect relationships; methods of systems approach.Findings: The influence of modern trends in the field of international trade on the deepening crisis in the management of the global trading system is empirically substantiated, which is manifested in: the deepening disagreements among WTO member countries regarding the agenda and decision-making within the WTO; increasing geopolitical tensions; an increase in the types and number of violations of trade rules adopted in WTO agreements; increased attention to crisis phenomena in international trade by the IMF, World Bank and UNConclusions: Crisis phenomena in trade relations and increased geopolitical tensions provoke national governments to use protectionist policy instruments that violate trade norms and rules adopted within the WTO. The above allows us to speak about the validity and adequacy of the formulated research hypothesis and the achievement of the set goal.

LEGAL ASPECTS OF ENERGY COOPERATION OF THE SHANGHAI COOPERATION ORGANIZATION MEMBER STATES

Energy is the main area of cooperation among the member states of the Shanghai Cooperation Organization (SCO). From project cooperation to "Energy Cooperation Club" agreements, the member states' desire to jointly build energy cooperation has achieved certain results. The existing SCO energy cooperation takes the form of declarations, agreements, statements, meeting minutes and memorandums of understanding, as well as principle provisions that lack clear responsibilities in treaties. It is soft at the level of international law, and it does not fully constitute a comprehensive legal cooperation mechanism. The laws of each member state lack stability and uniformity, and existing treaties do not have corresponding mechanisms to ensure the implementation of dispute settlement solutions. There is also a lack of interest coordination mechanisms accepted by member states, making it difficult to meet the needs of current and future SCO energy cooperation. In the future, only by giving full play to the role of the "Energy Cooperation Club" and establishing a comprehensive and effective legal mechanism for energy cooperation, including energy cooperation information sharing mechanism, energy cooperation environmental protection legal mechanism and energy dispute settlement mechanism can we fundamentally solve the problems in mutual energy cooperation. To strengthen the reciprocity, stability and standardization of cooperation, to create conditions and opportunities for energy cooperation among member states.

Enforcing Sustainability

After the Lisbon Treaty, the European Union (EU) has prioritized sustainable development as a key aspect of its external trade and investment policy. This emphasis on sustainability has been reinforced through treaty- making and has received support from the Court of Justice of the European Union (cjeu). However, there are notable variations and nuances in the understanding and implementation of sustainability in the EU’s treaties. Moreover, these treaties introduce innovative dispute resolution mechanisms, such as arbitration and alternative dispute resolution methods, which can significantly impact international dispute settlement practices. Opinion 2/ 15 on the EU- Singapore Free Trade Agreement marked a crucial moment in clarifying the scope and nature of sustainable development chapters within the EU’s trade and investment policy. Different agreements concluded after the Lisbon Treaty reflect diverse approaches to sustainability. In the context of environmental protection, these agreements encompass a range of provisions, from generic to more specific clauses addressing particular aspects. This article critically analyzes the effectiveness and scope of “green conditionality” within the Sustainable Development Chapters of EU-established Trade and Investment Agreements. It examines the incorporation of environmental provisions in these agreements, evaluates their role in promoting sustainable development objectives, and explores the implications of dispute settlement and international arbitration mechanisms. This analysis aims to provide a cutting- edge perspective on the topic.

Using res judicata to resolve jurisdictional conflicts between WTO and regional trade agreements’ dispute settlement mechanisms

The WTO has a renowned dispute settlement body, distinguished from other dispute settlement bodies by its compulsory and exclusive jurisdiction. However, regional trade agreements provide for rights and obligations similar to those guaranteed by the WTO thus, causing material jurisdictional overlaps between the WTO institutions and regional dispute resolution institutions. Potentially, a State aggrieved by measures that contravene rights or obligations within such overlaps has two alternative fora for dispute resolution. Where the regional trade agreement dispute resolution mechanism resolves the dispute first, the compulsory and exclusive nature of the WTO jurisdiction allows the matter to be re-determined at the WTO level, causing jurisdictional conflicts and duplicative proceedings. Although it is an established principle in customary international law, res judicata is not provided in any of the instruments guiding the jurisdiction of the WTO dispute settlement system. The jurisprudence of WTO Panels and the Appellate Body are also thin on this matter. Seemingly, the inclination has been to exercise the compulsory and exclusive jurisdiction, without regard to other existing fora. This paper therefore suggests clear recommendations to be employed in widening the existing WTO jurisprudence on res judicata as a solution to jurisdictional conflicts. In doing so, this paper further acknowledges the possible criticisms against res judicata in WTO dispute settlement and provides possible solutions to these challenges to ensure the peaceful and harmonious coexistence of the WTO dispute settlement mechanisms vis-à-vis those of regional trade agreements. Using the South American region as an example, this paper enunciates the jurisdictional overlaps and proposes the application of res judicata by the WTO dispute settlement mechanisms in judicial restraint

The Tax Cooperation Mechanism between China and African Countries and the Avoidance of a Double Taxation Agreement

The tax cooperation mechanism between China and African countries has a bearing on the business environment of bilateral economic and trade cooperation. At present, the tax cooperation mechanism between China and African countries has developed rapidly by way of the Forum on China-Africa Cooperation (FOCAC) and the Belt and Road Initiative (B&R), but it still faces challenges, such as an insufficiency in tax agreements, differences on the agreement content, a lack of trans-regional tax cooperation agreements and support mechanisms to promote tax cooperation and exchange. To improve the China-Africa international business environment, it is necessary to enhance the tax cooperation mechanism between China and African countries, including the speeding up and signing of tax treaties, coordinating and improving the content of the agreements, negotiating a convention of trans-regional tax cooperation, setting up a tax supporting cooperation dialogue mechanism, strengthening the construction of tax capacity and improving the tax dispute settlement mechanism.

DISPUTE SETTLEMENT MECHANISMS UNDER THE UNITED NATIONS CONVENTION ON THE LAW OF THE SEA 1982: THE WAY FORWARD FOR MALDIVES

The maritime boundary delimitation judgment by the International Tribunal for the Law of the Sea between Mauritius and the Maldives was the first Maldivian dispute settled at an international court or tribunal. Regrettably, misinterpretation and misinformation regarding international laws and the Maldivian domestic laws related to the dispute became prevalent among the Maldivian community. One of the core concerns that need to be addressed is how Maldives got subjected to a legally binding dispute settlement mechanism concerning a dispute that was initially regarding the sovereignty over the Chagos Archipelago between two other States, namely: Mauritius and the United Kingdom. Additionally, it is important to determine whether Maldives has any other legal means to safeguard its maritime zones from future maritime disputes. The main objective of this paper is to explore the dispute settlement mechanisms under Part XV of the United Nations Convention on the Law of the Sea (LOSC) and determine how these provisions can be utilised to safeguard the Maldivian maritime zones. This research is primarily a doctrinal legal research. Firstly, the article outlines the provisions under Part XV of the LOSC whilst exploring its drafting history. Next, the article analyses the optional exception on maritime delimitation under LOSC Article 298(1)(a) and its significance to the Maldivian situation. It suggests that considering the undelimited outer continental shelves of Maldives, Maldives should consider declaring an optional exception under LOSC Article 298(1)(a). The article concludes that optional declarations serve as safeguards against premature and costly dispute resolution.

The possibility of creating an ICSID protocol for the establishment of a multilateral investment tribunal: A flexible or complex process.

The 2030 Agenda for Sustainable Development was introduced in 2015 with its 16th goal which has targeted enhancing the concepts of the rule of law and universal access to justice. This goal, along with the current trend of directing investment projects towards sustainable development, has brought the mechanisms for investor-state dispute settlement (ISDS) into the spotlight in the realm of global investment.Recently, based on a different vision that was supported, especially by the European Union, a new approach to ISDS emerged that is characterized by fundamental differences from the well-known approach represented in the ICSID system. Whereas providing facilities to settle and arbitrate the investment disputes between a state member and investors belonging to another state member over several decades by the ICSID system made it a key player in the administration of the ISDS system. The fundamental differences adopted by the new EU’s model represent a serious challenge to the ICSID system. Especially if this new system proves to be effective and widely used and inserted in future international investment agreements (IIAs), the ICSID will be required to make adjustments that are compatible with this new system.Due to the complexity of the process of amendment to the ICSID convention, as it requires unanimous consent by all member states, the present paper, by analysing some historical stations of the functional and administrative context of the ICSID, examines the flexibility of the ICSID convention to establish a protocol that includes the features of the new system without resorting to amending the convention. The paper concludes that the ICSID enjoys the flexibility necessary to establish this protocol. Finally, the paper presents the motives and benefits envisioned for the establishment of this protocol.

The ICS vs. the ICSID system: a possible compromise in the light of the sustainable development

The current inclination to direct investment efforts towards sustainable development, coupled with the 2030 Agenda for Sustainable Development, unveiled in 2015, which included the 16th goal of granting equal access to justice and reinforcing the rule of law on a universal level, has brought investor-state dispute settlement (ISDS) mechanisms to the forefront of global investment discussions. The ICSID has carried out a crucial role in overseeing the ISDS system, offering arbitration facilities for disputes between investors and states for over six decades. However, the ISDS system has faced criticism in recent years. In response, a new Investment Court System (ICS) implemented by the EU that aims to address these concerns by establishing a permanent court formed with judges who have been appointed by member states in advance and are distributed to disputes in a rotating and random manner. It also limits the parties’ freedom to opt the applicable law and considers that the substantive provisions in investment agreements are the applicable law to the raised disputes and inserts an appellate mechanism review for law and fact matters as well. The paper discusses the relationship between the ICS and the ICSID system in the light of sustainable development and examines a possible compromise between both systems by considering the ICS as inter se modification of the ICSID convention based on investigation of its compatibility with requirements of the VCLT. Ultimately, the paper finds that recognizing the ICS as an amendment between some parties to the ICSID convention does not conflict with the VCLT.

Enforcing Sustainability: Assessing the Effectiveness of the EU’s Trade and Investment Policy in Promoting and Implementing Sustainable Development Provisions

After the Lisbon Treaty, the European Union (EU) has prioritized sustainable development as a key aspect of its external trade and investment policy. This emphasis on sustainability has been reinforced through treaty- making and has received support from the Court of Justice of the European Union (cjeu). However, there are notable variations and nuances in the understanding and implementation of sustainability in the EU’s treaties. Moreover, these treaties introduce innovative dispute resolution mechanisms, such as arbitration and alternative dispute resolution methods, which can significantly impact international dispute settlement practices. Opinion 2/ 15 on the EU- Singapore Free Trade Agreement marked a crucial moment in clarifying the scope and nature of sustainable development chapters within the EU’s trade and investment policy. Different agreements concluded after the Lisbon Treaty reflect diverse approaches to sustainability. In the context of environmental protection, these agreements encompass a range of provisions, from generic to more specific clauses addressing particular aspects. This article critically analyzes the effectiveness and scope of “green conditionality” within the Sustainable Development Chapters of EUestablished Trade and Investment Agreements. It examines the incorporation of environmental provisions in these agreements, evaluates their role in promoting sustainable development objectives, and explores the implications of dispute settlement and international arbitration mechanisms. This analysis aims to provide a cutting- edge perspective on the topic.