Dispute Settlement Regime Research Articles

Compliance with Decisions of the Dispute Settlement Bodies of the UN Convention on the Law of the Sea

Abstract The UN Convention on the Law of the Sea (‘UNCLOS’) not only establishes a suite of maritime zones and sets out the rights and duties of States therein, but it is also one of the few multilateral treaties that includes a complex dispute settlement regime creating compulsory jurisdiction for disputes relating to its interpretation or application. Given that the UNCLOS dispute settlement regime has now been in operation for close to 30 years, it is timely to consider whether the cases instituted under the regime are resulting in decisions with which the parties comply. This study is the first to examine compliance in relation to all judgments issued pursuant to the UNCLOS compulsory dispute settlement regime to date.

Race & International Investment Law: On the Possibility of Reform and Non-retrenchment

The international investment regime is in flux. The mainstream practice of investment law and arbitration works on the basis of the regime's foundations in contract and property law. However, critical scholarship in the field has unearthed the coloniality of power that permeates both the practice of international investment law and the current reform exercise led by the United Nations Commission on International Trade Law (UNCITRAL) Working Group III. These critical scholars warn of the imminent reproduction and entrenchment of the systemic inequities, power asymmetries, and investment law's investor-state dispute settlement (ISDS) regime which is skewed against post-colonial host states. The two books1 under review offer a range of thought-provoking approaches for analyzing the past, present, and future of investment law. This Review Essay categorizes these books into two modes of critical scholarship on international investment law: moderate and radical.2 In Part II, I flesh out the conceptual categories of moderate and radical critique. In Part III, I analyze the books under review through the lens of these two conceptual frameworks. In Part IV, I turn to the question of race and investment law. This Review Essay suggests that race should not be neglected in our analysis of the past, present, and, most importantly, the future of investment law—a core theme that both books under review does not engage with. Part V briefly concludes.

Bridging multinational corporations' investment‐climate gap: Prospects for the direct claims approach

AbstractMultinational corporations (MNCs) have enjoyed considerable investment rights and gained massive benefits under international investment law; at the same time, they have also significantly contributed to the climate crisis. Yet, they do not bear corresponding climate change obligations. A huge gap between MNC investment rights and climate change obligations—the MNC investment‐climate gap—persists because of MNCs' global operations, the limited reach of domestic legal mechanisms in regulating MNCs' obligations, and the ineffectiveness of international regimes at addressing MNCs' obligations. This gap is mainly due to the asymmetrical structure of the investor‐State dispute settlement regime. To correct this asymmetry, this article explores the possibility of direct claims by States against MNCs under recent investment treaties. In particular, it analyses this possibility from three angles: investor obligations, arbitral tribunals' jurisdiction and States' initiation of claims. To facilitate such claims, one must reconsider the jurisprudence of international investment law.

Reshaping Investor-State Dispute Settlement Before the Next Syndemic

In the midst of a legitimacy crisis in investor-State dispute settlement regime, COVID-19 syndemic may lead States to the perfect storm as a result of the enlargement of the national policy space in order to tackle health, social and economic impacts. Thus, this piece aims to identify measures adopted by Latin American States which may be challenged by foreign investors’ claims. It also addresses the protection of national policy space and argues that the roadmap for reshaping the regime should include the following options: 1) moratorium on pending disputes and restriction on future claims related to Covid-19 measures;2) introduction of counterclaims as a general rule; 3) reference to right to regulate in investment agreements; 4) exclusion of protected areas or policies.

Legal Framework for Securities Market Dispute Resolution in Nepal

Dispute settlement provisions are crucial segments of the securities law for each and every jurisdiction as recognized within core objectives of the securities regulation even by International Organization of the Securities Commissions. This article deals mainly with the questions on how far the dispute settlement provisions in Nepali securities law are adequate to redress and compensate the investors for actual losses resulting from market malpractices. Employing doctrinal legal research followed by in-depth key informant interview with the regulatory representatives, experts and market participants to conduct the study, it is based on descriptive, analytical and interpretative in research design. Drawing upon the analysis of the existing grievances handling mechanism and securities dispute settlement practices, the author concludes that law on securities dispute settlement regime is quite scattered and it seems urgent to have a consolidated approach to bring them at one place within a separate regulation. The study recommends the concerned authorities to restructure the securities dispute settlement regime by means of amendment of the existing securities law to provide a Securities Dispute Settlement Committee under the aegis of the regulator Securities Board of Nepal, which could function as a first-tier quasi-judicial body to look and decide over all kinds of securities disputes. Likewise, the concerned authorities are recommended to pass a separate legislation to establish and form an independent Securities Market Dispute Settlement Tribunal having its jurisdiction to hear an appeal against the decision of the proposed Dispute Settlement Committee under the Securities Board of Nepal.

Tax Sovereignty and Investor Protection: Why the Proposed Global Minimum Tax Is not the Final Frontier for Corporate Tax Arbitrage

Over the past decade, international tax governance has evolved with bewildering speed in response to the challenges of digitalization and widespread corporate tax avoidance. Since the launch of the Group of 20 (G20)-Organisation for Economic Co-operation and Development (OECD) base erosion and profit shifting (BEPS) initiative in 2012, 135 countries and 14 international organizations have joined the BEPS Inclusive Framework, committing to implement new global standards on corporate tax, which has already been lauded as a revolution in the architecture of international tax law and policy. Even further expanding the scope of the OECD’s work on international taxation in a landmark announcement in March 2021, the U.S. administration further proposed imposing a global minimum corporate tax at a rate of 21% to be implemented through an international agreement by mid-2021. If the new OECD initiative is agreed, will the plan to implement a minimum corporate tax be fully implemented by G20 members, and if so, will it do enough to address the tax challenges of digitalization embodied in corporate tax arbitrage? Although the evidence suggests legislative and public policy compliance is likely to be high among G20 members, this article argues the minimum tax initiative is unlikely to go far enough to address deficiencies in global tax dispute resolution, which are extremely germane to the success of the proposed minimum tax. As explained in this article, U.S. leaders and global policymakers must enhance the mutual agreement procedure (MAP), a cornerstone of tax dispute resolution, given a growing body of tax litigation in investment law that threatens the implementation of BEPS 2.0. To do so, global policymakers must also reconcile the conflict of norms between tax sovereignty and investor protection contained in the investor-state dispute settlement (ISDS) regime. Only by addressing the conflict between the principles of tax sovereignty and investor protection can they prevent a tidal wave of investor disputes that will challenge the implementation of the minimum tax through national tax laws.

The Middle East Air Blockade: Revisiting the Jurisdictional Inquiry of the ICAO Council

The present article analyses the most recent appeal relating to international civil aviation in the case of Bahrain, Egypt, Saudi Arabia and United Arab Emirates v. Qatar before the International Court of Justice (ICJ). This case is the second appeal case of an International Civil Aviation Organization (ICAO) Council decision since India v. Pakistan made in 1972. The dispute targets the jurisdictional controversy of the ICAO Council under the Chicago Convention (1944). In its decision of 14 July 2020, the ICJ has redefined the jurisdictional powers of the ICAO Council with respect to dispute settlement governed by the Chicago Convention (1944). However, the question of ‘due process’ governing the dispute settlement regime has yet to be settled. Dispute Resolution, ICAO Council, Chicago Convention, International Court of Justice, Middle East

From Constitutional Adjudication to Trade Arbitration Enforcing Mobility Rights Post-Brexit

This article addresses the termination of the CJEU’s jurisdiction post-Brexit and its replacement with a much more restricted dispute resolution provision, more reminiscent of that found in free trade agreements, focusing in particular on the enforcement of mobility rights. It begins by addressing the root causes for Britain’s antagonism towards the Court. It argues that the Court’s expansive interpretation of the Treaties, masked by a legalist approach to European integration, has allowed the Court largely to avoid scrutiny by most Member States. Nevertheless, the Court’s judicial activism was ultimately rejected by the UK leading to the Court’s curia non grata status post-Brexit. It then analyses the key features of the post-Brexit dispute settlement system proposed by the UK and the EU .We argue that while the Court has been criticized for its judicial activism, EU law did provide significant avenues for an individual’s access to courts. This fundamental feature is missing from the dispute resolution mechanism under the proposed UK-EU free trade agreement (FTA), leaving an important gap in the system of justice in the future UK-EU relationship.We argue that under the new dispute settlement regime mobility rights will be adjudicated as trade disputes. This has serious implications for the protection of rights of individuals wishing to exercise any future mobility rights. Court of Justice, free trade agreement, integration, free movement of person, mobility, dispute resolution

The future of environmental counterclaims in ICSID arbitration: challenges, treaties and interpretations

This article considers the potential of addressing global environmental risks through the investor–State dispute settlement regime, specifically arbitration under the International Centre for Settlement of Investment Disputes. It examines the viability of States raising environmental counterclaims against investors for breaches of environmental norms through an analysis of the jurisdictional and substantive issues in Burlington v Ecuador and Perenco v Ecuador. The article then assesses broader challenges in using such counterclaims to address environmental risks. However, it also tracks recent developments, such as the rise of new generation treaties that directly impose environmental obligations on investors and tribunal pronouncements that reflect environmental concerns, which demonstrate that international investment law is evolving in a way that will encourage and strengthen environmental counterclaims in the future. The article notes that these developments come with their own set of limitations, some of which are underexamined in practice and in existing literature. While the viability of environmental counterclaims will turn on a careful analysis of the circumstances of each case, the article concludes that such counterclaims will likely play a greater role in supporting global environmental protection in the near future.

The Exclusion of Compulsory Proceedings Entailing Binding Decisions in Light of the Southern Bluefin Tuna and South China Sea Arbitrations

For international disputes covering the same ground under a constellation of complementary and conflicting agreements, mapping the relationship between treaties is critical, especially if each contains compulsory jurisdiction clauses. Their interrelatedness or independence will affect a finding of jurisdiction. This paper considers the procedural effects of treaty parallelism on the exclusion of Part XV compulsory proceedings entailing binding decisions under the UN Convention on the Law of the Sea (UNCLOS), using as examples the Southern Bluefin Tuna and South China Sea arbitrations. The jurisprudence splits on whether an explicit exclusion is necessary in an alternative agreement to remove a dispute from Part XV’s reach. The adoption of either approach depends on how a Tribunal views the Convention. Oxman divides predominant attitudes into separate “substantive and procedural models” which form the bases of diverging lines of authority. This taxonomic exercise is pertinent not only in theory, but in practice, as Klein recognizes “a core tension existing around the operation of Part XV” is whether it is “intended to be as comprehensive and inclusive as possible” or serving “a more limited, albeit still important, purpose.” The “obvious tension between sustaining an integrated global regime and allowing further development on a regional basis” finds specific expression in divided interpretations of Articles 281 and 282, the jurisdictional prerequisites of the UNCLOS Part XV dispute settlement regime. In resolving jurisdictional problems related to treaty parallelism, invocations of lex posterior, lex specialis, and the like, may be misplaced given UNCLOS’ unique dispute settlement provisions and “something more than, or different from, specific affirmation of the effect of certain generally applicable rules of the law of treaties” may be required. Equally important is understanding the limitations in “expansive” approaches to treaty exegesis. This has broader consequences for other long-term agreements in international law’s universe of treaties, including “the ICAO Convention, or those of the GATT and WTO Agreements, or the optional clause of the ICJ Statute.” Caught in the waves of “an international legal system in transition” crashing against volatile political realities increasingly commonplace in recent sea disputes like South China Sea, this paper concludes that the unique dispute settlement regime of the Montego Bay Agreement is best buoyed by a process of harmonization. This is only feasible if fundamental attitudes towards UNCLOS, procedural and substantive model views or otherwise, “suffer a sea change.”

نحو صیاغة أکثر إحکاما للاتفاقیات المصریة لحمایة وتشجیع الاستثمارات دراسة تحلیلیة للالتزامین بالمعاملة العادلة والمنصفة وبتوفیر الحمایة والأمن للاستثمار

تعتبر مصر واحدة من أکثر دول العالم إبراما للاتفاقيات الثنائية لحماية وتشجيع الاستثمارات، وهي أيضا من أکثر الدول تعرضا للدعاوى تحکيمية التي يرفعها مستثمرون أجانب تأسيسا على نصوص هذه الاتفاقيات. ويتعرض نظام تسوية منازعات الاستثمار بين المستثمرين الأجانب والدول المضيفة للاستثمار من خلال التحکيم اليوم لانتقادات کثيرة، حيث تطبق هيئات التحکيم نصوص اتفاقيات الاستثمار الثنائية التي صيغت بطريقة واسعة وغير محددة، مما أدى إلى تفسيرات شديدة الاتساع أحيانا تکون في صالح المستثمر أکثر من الدول. ولذا، دعت الکثير من الدول إلى إعادة النظر في اتفاقيات حماية وتشجيع الاستثمارات التي تعقدها، وفي صياغة هذه الاتفاقيات. ترکز هذه الدراسة على اتفاقيات حماية وتشجيع الاستثمارات الثنائية التي عقدتها مصر، من خلال دراسة التزامين محددين: الالتزام بمعاملة الاستثمارات معاملة عادلة ومنصفة والالتزام بتوفير الحماية والأمن للاستثمارات. ومن خلال دراسة صياغة هذين الالتزامين وکيفية تطبيق هيئات التحکيم لهما في بعض القضايا التي رفعت ضد مصر، نظهر عيوب هذه الصياغة، وندرس في النهاية کيف حاولت عدة دول التغلب على هذه العيوب من خلال اقتراح صياغات أکثر وضوحا وتحديدا. Egypt is considered to have one of the widest network of bilateral investment treaties (BITs). It has also been party to a large number of arbitration cases brought by foreign investor based on BIT provisions. The investor-state dispute settlement regime (ISDS) is largely criticized at the moment. In many cases, arbitral tribunals have applied and interpreted BIT provisions, drafted in broad wording, in a manner that favored foreign investors. This article focuses on BITs concluded by Egypt and studies two substantive standards of treatment: the fair and equitable treatment and the protection and security. It studies also how arbitral tribunals applied and interpreted these standards in cases involving Egypt to show the disadvantages and shortfalls of the wording and drafting of these two standards in current Egyptian BITs. The article concludes by studying attempts made by a number of states to amend the drafting of these two standards in their BITs to clarify the two standards and limit their scope of application.

Pacific Settlement of Disputes: Application of the Dispute Resolution Mechanisms of International Law to Environmental Disputes

The most fundamental principle of contemporary international law is its emphasis on the peaceful resolution of disputes. This principle is amplified by Article 2(3) of the UN Charter encouraging states to live in peace and unity, and to settle their disputes such that international peace, security and justice are not endangered. The proliferation of disputes arising from the destructive consequences of human activities on the environment has increased the choices of pacific dispute settlement regimes under international law. This paper examines the extant dispute resolution regimes of international law and how they apply to environmental disputes. It seeks to examine the effectiveness of these regimes in addressing environmental disputes. The paper finds that in contemporary times, states prefer to use Alternative Dispute Resolution (ADR) to judicial settlement. It also finds that the outbreak of these disputes can help to test the capacity of the international dispute settlement regime to resolve similar disputes. The paper recommends that although there is a renewed interest in ADR, the role of the judicial bodies cannot be left out. The relevance of judicial institutions, especially the environmental chamber of the International Court of Justice (ICJ) needs to be felt globally.

Human Rights and International Investment Agreements: How to Bridge the Gap?

Abstract Although an increasing number of bilateral investment treaties (BITs) now incorporate the concept of sustainable development, direct reference to human rights is still rare and remains embryonic. A close look at the positions held by some representative groups and countries, including the European Union (EU), the USA, China, India, South Africa, and Mercosur, reveals that the reference to human rights features divergence. The divided positions held by these groups or countries reveal the difficulties of operationalizing human rights obligations into international investment rule making. Even among developed countries or economies, a consistent approach to human rights is yet to be found. Based on these observations, this article proposes a number of pragmatic solutions to bridge the gap between these divided positions. In order to synergize international investment treaty regimes on human rights, internal engagement, including the reform of BIT dispute settlement regimes, and external engagement, including dialogues among stakeholders, should be made.

A Belt and Road Dispute Settlement Regime

A Belt and Road Dispute Settlement Regime

The Belt and Road Initiative and the Potential for Dispute Settlement Under the UN Convention on the Law of the Sea

This chapter explores the potential use of the dispute settlement regime in the UN Convention on the Law of the Sea (UNCLOS) in relation to certain aspects of the Belt and Road Initiative. The maritime aspects of the BRI predominantly entail developing ports and ensuring unimpeded access along key trade routes identified through maritime regions of Southeast Asia, South Asia, the Middle East, East Africa and the Mediterranean. The Chapter first provides an overview of the UNCLOS dispute settlement procedures and then considers their application in relation to possible disputes relating to three subjects that may arise pursuant to the BRI: ports, navigation and military activities. The Chapter concludes in observing that there is undoubtedly an important role for judges or arbitrators to play in ensuring that the implementation of the BRI remains consistent with the rights and obligations agreed under UNCLOS.

ISDS Regimes and Democratic Practice: Creating Conflict of Interests between Governments, Investors and Local Populations

Abstract The recent debate over the Investor-State Dispute Settlement (ISDS) regimes of international arbitration has resulted in concerted efforts aimed mainly at protecting the rights of states to regulate, improving transparency of proceedings and eliminating inconsistency in decision making of the tribunals. While the existing scholarly work frequently addresses issues of the relationship between the existing investment regimes and good governance in general, increased attention is rarely paid to the effects that investment arbitration has on democratic practice. The article applies an “action-based” approach to democracy, in order to analyse the role that the ISDS regimes play in exacerbating conflicts between the local populations, foreign investors and governments. The analysis leads to a conclusion that the ISDS regimes create incentives for the governments and foreign investors to disregard sound democratic practice. The article represents an attempt to move the discussion about the ISDS regimes away from the question of legitimacy of the regimes to the question of the impacts that the regimes have in practice.

A Legal Inquiry into the Sustainability of the West African Gas Pipelines Project

The history of cross border and transit oil and gas pipelines suggests a tendency to cause conflict and discrepancy which do result in the interruption of output. It is inviting to link this to poor political relations between neighbor countries. The concern with transit and cross-border pipelines has a significant legal implication. The intricacies of the legal and regulatory frameworks for the regional pipeline project together with the issues of multiple jurisdictions require well-articulated dispute settlement regime. This is necessary in view of the disorganized judicial systems throughout the West African region – disputes in the Nigerian and Ghanaian courts have the tendency to drag on for years without determination. In the face of the disparity in the legal systems of the contracting nations, this study critically examined the legal sustainability of the West African Gas Pipeline Project.

Introduction to the Symposium on Investor Responsibility: The Next Frontier in International Investment Law

This symposium focuses on the fact that investors enjoy a suite of rights and privileges without corresponding responsibilities in international investment law. Is there a more promising future on the horizon for lawyers and advocates dissatisfied with the perceived imbalance between the rights conferred and the duties assigned to transnational corporations in today’s interconnected world? This symposium looks at the possibilities and limits that currently exist under the investor-state dispute settlement (ISDS) regime in its controversial yet changing context.

Large investors, regulatory taking and investor-state dispute settlement

This paper offers an economic analysis of an international investor-state dispute settlement regime (ISDS) in markets with large investors. It identifies a reason for strategic overinvestment by the domestic industry, leading to permissive regulation in the absence of ISDS. An “ideal” investor-state dispute settlement arrangement (efficiency- oriented, transaction-cost free, with untouchable, fully reliable, and unbiased judges) has positive and negative effects in this framework. It generates an equal level playing field for domestic and foreign investors, but it magnifies an existing overinvestment problem and may reduce world welfare. The results explain anecdotal evidence according to which ISDS that protects foreign investors is liked by the domestic industry and disliked by other interest groups in the host country.

The Vicissitudes of Dispute Settlement under the Law of the Sea Convention

The South China Sea Arbitration raises important questions about the potential operation of the dispute settlement system enshrined in Part xv of the United Nations Convention on the Law of the Sea (losc). This article explores the scope and different limitations that we are seeing in the interpretation of the losc dispute settlement regime with a particular focus on the South China Sea Arbitration. This examination questions the contours of the losc Part xv dispute settlement regime and its utility in resolving disputes relating to the South China Sea.