Dispute Settlement Procedures Research Articles

Odpowiedzialność państw za szkody wyrządzone w środowisku morskim


 
 
 The States’ responsibility is a fundamental institution of international law. The International law Commission – IlC expressed that in the Articles on responsibility of States for International Wrongful Acts. The principles and rules governing States are more clear and certain because they are set out in the United Nations Convention on the Law of the Sea – UNCLoS. UNCLoS and the Articles of ILC provide mechanisms to hold States respon- sible if they fail to fulfil their obligations to prevent, reduce and control pollutions of the marine environment. The dispute settlement procedures in UNCLoS provide remedies for an effective action that are not available in most fields of transboundary pollution.
 
 

The Use by Russia of the WTO Dispute Settlement Mechanisms

The Russian Federation acceded to the World Trade Organization (WTO), and so became subject to its international trade dispute settlement procedures, on August 22, 2012. The mechanism was adopted by the WTO under the Understanding on Rules and Procedures Governing the Settlement of Disputes (DSU). Thus, from August 2012 onwards, Russia has enjoyed the right to defend its trade interests by applying this particular instrument.

WTO 체재 개혁과 한국의 다자통상정책 방향 (Reshaping the Multilateral Trade Policy for Korea)

WTO 체재 개혁과 한국의 다자통상정책 방향 (Reshaping the Multilateral Trade Policy for Korea)

DISPUTE SETTLEMENT WITH PARTICIPATION OF JUDGE: PROBLEMS AND PERSPECTIVES

The article is devoted to novels of civil procedural legislation concerning dispute settlement with the participation of a judge. It is considered the legislative regulation of dispute settlement procedure with the participation of a judge as an alternative way to action proceedings to resolve a dispute. The distinctive features of dispute settlement procedure with the participation of a judge are considered, a comparative analysis of this procedure and mediation procedure is conducted. It is concluded that introduction of extrajudicial mediation does not mean abolition of the norms of the Civil Procedural Code of Ukraine, which provides for the settlement of a dispute with the participation of a judge, since extrajudicial mediation may become an independent way to resolve confl icts and disputes without judicial recourse.Based on the analysis of the legislation on dispute settlement with the participation of a judge and practice of its application, the provisions of foreign legislation on conciliation procedure with the participation of a judge, the positions of scientists, it is made a conclusion about a necessity to improve conciliation procedure with the participation of a judge, as well as about prompt adoption of the law on mediation.

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.

The Compliance and Dispute Settlement System of the European Energy Community

This article assesses the compliance, enforcement and dispute settlement procedure of the Energy Community (EnC). The EnC is an international organization composed of the European Union (EU) and several (South-)East European states, whose main goal is to integrate and harmonize the energy sector of the non-EU member countries with the energy sector of the EU by (among others) offering the prospects of easier access to foreign investments. This however requires implementation by those countries of the mandated rules as set by the EnC, which in practice are similar to the same rules and laws that are required within the EU itself. The implementation of these rules has been proven to be lacking, prompting active compliance enforcement by the Energy Community Secretariat, the permanent body tasked with monitoring compliance. For this, the EnC has a dispute settlement system which is highly diplomatic of nature, and which is most often already effective at enforcing compliance simply by negotiation. However, this dispute settlement system is still seen as lacking a few aspects, such as real sanctions, that would make it more effective at enforcing compliance of the rules of the EnC.

The Multilateral Investment Court: A Stumbling Block for Comprehensive and Sustainable Investment Law Reform

For the last years, reforming the international investment law regime has been a key priority of the trade agenda of the European Commission. Two important decisions in March 2018 can either be seen as a stepping stone or stumbling block in this regard. On 20 March 2018, the Council authorised negotiations for a treaty establishing a multilateral investment court (MIC). This proposal was yet the latest step in a series of activities aimed at replacing the traditional arbitration system of dispute settlement in investment treaties (Investor-State Dispute Settlement, ISDS) with a treaty-based MIC. The latest development concerns the multilateralization of the Investment Court System leading to a MIC. After lobbying for this approach in various intergovernmental fora, the Commission developed a more concrete proposal over the course of 2016 and the first half of 2017. Last year, the ISDS debate moved into the auspices of UNCITRAL Working Group III. Neither the negotiation mandate nor the UNCITRAL mandate touch upon substantive investment standards or refer to the current debates and negotiations on business and human rights. The negotiations will therefore not address any substantive elements of investment treaties. In all likelihood, they will also not address procedural issues such as counterclaims, participation rights of affected stakeholders, presumption of responsibility or burden of proof. The second important decision was taken two weeks earlier by the Court of Justice of the European Union (CJEU) on 6 March 2018. In its ruling in the case C-284/16 Achmea, the CJEU clarified that investment agreements between EU Member States (so-called intra-EU BITs) that have an ISDS clause violate EU law. It is not quite clear whether the CJEU would also transfer its view to other agreements such as CETA or the planned treaty for a MIC. However, the ruling indicates that any investment agreement providing for dispute settlement procedures in which EU law can be applied or interpreted and which does not ensure a review of this interpretation by the CJEU is in breach of EU law.

BOOK REVIEW] The Peaceful Settlement of International Disputes

Yoshifumi Tanaka is a Professor of International Law at the Faculty of Law, University of Copenhagen. He has published widely in the fields of the law of the sea and international environmental law. I had a profound admiration for Tanaka’s writings, particularly in law of the sea subjects. He has a compelling method in deliberating issues comprehensively but still convenient to digest, especially for academicians, practitioners, and law students (postgraduate). Settlement of International Dispute is considered as a foundation of the establishment and the development of International Law. Accordingly, there are plenty of books and writings had published addressing similar topic, however, Tanaka’s book is distinctive. Tanaka successfully gives the reader an exhaustive and extensive analysis of the procedures for dispute settlement both in traditional means and newly development. In addition, He complemented figures and tables to give the reader a comprehensive understanding.

Rights of Small Peoples Living in the European North of Russia in the Legislative Acts of the Russian Federation

Introduction. The work is of relevance due to the ambiguity of the status of small peoples: legislation of many countries (including Russia), being aimed at supporting small ethnic groups, is difficult to implement in practice. The article intends to analyze the situation concerning small ethnic groups living in Russia, created by the system of legislative acts. Materials and Methods. The study employed the method of content analysis, which allowed for a qualitative analysis of documents and their subsequent valid interpretation and comparison. Results. It has been revealed that Russia has not ratified the UN Declaration on the Rights of Indigenous Peoples and has its own understanding of the term; therefore the state does not recognize the right of peoples to own lands and does not establish a dispute settlement procedure. In theory, Russia provides ethnic groups with a wide range of rights, for example, the right to use lands and the right to receive education in their mother tongue. However, imp lementation of these provisions is often limited or completely impossible due to insufficient resources or conflicts of laws. It has been identified that generally the legislation makes provision for strengthening the unity and integrity of the state as the main goal of the state national policy. Discussion and Conclusion. The legislation on small peoples is of a declarative nature, so there is a need for regulation of relations between the state, enterprises and the indigenous population. Since the legislation is quite flexible due to changes in society, further monitoring of the acts adopted by the state on small ethnic groups and of the mechanisms introduced is necessary and appears to be a matter for further research.

Addressing Tensions and Avoiding Disputes: Specific Trade Concerns in the TBT Committee

Most specific trade concerns (STCs), which are raised before the WTO Committee on Technical Barriers to Trade (TBT Committee), disappear from the TBT Committee’s meeting agendas without escalating into formal disputes. At the same time, a relatively small number of TBTrelated disputes have been subject to the WTO dispute settlement (DS) procedures. By examining the practice of raising STCs and the relationship between STCs and disputes, the article emphasizes the role of STCs as a trade tension resolution mechanism. It argues that the STC mechanism is a viable alternative to the currently overburdened WTO DS system. The article also suggests ways to strengthen the STC mechanism of the TBT Committee through dividing TBT Committee meetings into thematic sessions, adopting mediation procedures and reporting on STC resolutions. Further, it underscores the importance of increasing transparency and promoting good regulatory practice in avoiding disputes.

A New Trade Dispute Settlement for Trade Remedy Disputes

This concept paper briefly reviews the problems with the current WTO dispute settlement and envisions a new trade dispute settlement for trade remedy disputes. The objective of the paper is not to propose short-term fixes to solve the problems but to provide a conceptual basis for the new trade dispute settlement procedures. For that purpose, the paper seeks to draw insights from other dispute settlement procedures.

TO THE QUESTION ON PRE-CASE SETTLEMENT OF ECONOMIC DISPUTES

The article identifies the nature of pre-trial settlement of an economic dispute, analyzes the features of the pretrial settlement of an economic dispute. Taking into account the provisions of the current Commercial Code and the Commercial Procedure Code of Ukraine, the article examines the procedure for pre-judicial settlement of the economic dispute, including the analysis of the rules of economic law and commercial procedural law, which regulate the general procedure for pre-trial settlement of economic disputes. It is determined that pre-trial settlement of economic disputes is an independent legal institution, the rules of which are contained in both procedural and material sources of law of different legal force. Specified that pre-trial settlement of economic disputes is a set of actions defined by law and/or contract, On the basis of the conducted analysis, it is concluded that it is advisable to include in the Commercial Code a separate Chapter “Pre-trial settlement of economic disputes”, in which to determine the forms of pre-trial settlement (negotiations, claim procedure, mediation), the procedure for their application. The necessity to align the requirements of procedural and substantive norms in cases of obligatory application of pre-trial settlement of economic disputes was noted. The imperative prescription regarding the obligation to apply pre-trial settlement of economic disputes is contained in Art. 29, 30 of the International Rail Freight Agreement. In a number of other legal acts, the application of pre-trial dispute settlement is dispositive. Based on case law and business research, it is proposed to provide for the obligation of pre-trial settlement for transportation contracts, telecommunication services contracts, public procurement contracts. Keywords: pre-trial settlement, legal institute, economic dispute, parties to the economic dispute, claim, consequences of the pre-judicial settlement of the economic dispute.

개도국의 WTO법자문센터(ACWL) 활용과 제도적 시사점 연구 : 내국민대우의무 위반 여부를 중심으로

WTO 분쟁해결제도 운영에 있어 개발도상국의 참여가 중요한 문제로 제기되면서 분쟁해결양해(DSU) 제27.2조를 바탕으로 WTO 사무국이 제공하던 개도국에 대한 자문 및 법률지원 서비스가 WTO 외부의 독립기관인 WTO법자문센터(Advisory Centre on WTO Law: ACWL) 설립으로 확대, 발전하였다. 본 논문은 ACWL의 제도적 의의를 조명하고 2001년부터의 분쟁해결 지원 활동을 분석하여 향후 제기될 제도적 문제와 시사점을 논의하였다.BR ACWL 조직과 운영체계에 대한 연구결과, WTO 회원국에 국한되지 않은 광범위한 대상을 지원하되 소득과 무역 비중 등 개도국 상황을 고려하여 차등적인 운영체계를 갖추고 있으며 분쟁해결 지원 관련 높은 전문성과 경험을 축적하고 있다는 점을 알 수 있다. 그러나 선진국의 기부 자금을 바탕으로 운영되고 있어 향후 센터 역할이 확대될 경우를 대비한 근본적인 재정적, 제도적 논의가 필요한 실정이다.BR ACWL의 핵심적인 역할이라고 할 수 있는 WTO 분쟁해결제도 관련 법률지원 서비스는 전반적으로 긍정적인 기여를 하고 있는 것으로 분석된다. 즉, ACWL의 지원 사례가 증가하고 있을 뿐만 아니라 지원을 받는 경우 개도국이 분쟁해결을 위해 절차적 단계를 최대한 활용하는 경향이 높아지는 것을 알 수 있다. 또한 피소국 및 제3국 참여 지원은 개도국의 법률 역량을 장기적으로 제고하는 데 도움이 될 것이다. 그럼에도 불구하고 ACWL 지원이 기술적, 법률적 지원에 집중되어 있어 분쟁해결제도 접근을 근본적으로 확대하기에는 한계가 있는 것으로 평가된다.

The Dispute Settlement Mechanisms in Major Multilateral Treaties

Although dispute settlement mechanisms providing for compulsory referral to a third party are rarely used, their presence can, and usually do, have a major underlying influence over the actions of States, which are typically anxious to avoid lengthy and expensive dispute settlement procedures. We undertook a quantitative analysis of the dispute settlement mechanisms of 236 major multilateral treaties and found that most of the multilateral treaties provide for compulsory referral to a third party (ie, they can be triggered without the consent of both disputing parties). Of those treaties, the majority provide for compulsory referral to an arbitral tribunal. These findings are significant, as they debunk the myth that treaties providing for compulsory referral to a third party are uncommon. This paper also looks at the various compromise solutions that have been developed over the years in response to State disagreement over whether to include compulsory third party mechanisms in treaties, as well as the number of treaties that contain voluntary and non-third party dispute settlement mechanisms. This analysis will enable a better understanding of the different types of dispute settlement mechanisms found in multilateral treaties and their background and purpose. We also hope that this paper will be useful for those involved in the negotiation of dispute settlement provisions in future multilateral agreements.

Is a Multilateral Agenda on Enforcement Realistic and Achievable? Grounds and Challenges for a Performing Enforcement Regime

Intellectual property enforcement norms enable the fulfillment of substantive rights and obligations, in a weighting and balancing process that takes place in the context of the broader legal order, in a continuous dialogue with fundamental rights, competition and free trade principles. Intellectual property enforcement is a priority issue in the international intellectual property normative and institutional agenda, and it is frequently accompanied by intense technical cooperation and the use of dispute settlement procedures. Proportionality, flexibility and judicial discretion are consubstantial to traditional approaches of intellectual property enforcement and are of central relevance to respond to the challenges arising from digitalisation and the current stalemate of multilateralism. Guaranteeing an efficacious, fair and balanced enforcement is key to consider intellectual property law, law, and to enable intellectual property to fostering innovation and creativity.

Revisión de los factores de éxito en la promoción de comportamientos prosociales como estrategia preventiva en la justicia juvenil en España

La adquisición y fortalecimiento de comportamientos prosociales se asocia a una reducción en la frecuencia de conductas antisociales, agresivas o de riesgo. Así, su promoción en el contexto de la aplicación de la Ley Orgánica 5/2000, de 12 de enero, reguladora de la responsabilidad penal del menor supondría una estrategia eficaz para los fines de reeducación y de reinserción social que ésta postula. Resultará necesario, entonces, revisar las posibilidades que dicha Ley ofrece para su desarrollo, así como detectar factores de éxito que contribuyan a incrementar el impacto de tales actuaciones. Para ello, en el presente trabajo se realizará un análisis comparativo de intervenciones dirigidas al fomento de comportamientos prosociales en el contexto escolar, en los programas de centros de internamiento de Andalucía y en la ejecución de medidas de prestaciones en beneficio de la comunidad, tareas socioeducativas y de libertad vigilada. Los resultados apuntan a que, entre los factores de éxito asociados a las diferentes intervenciones, se encuentran un abordaje integral que suponga trabajar las dimensiones de temperamento, desarrollo cognitivo, moral y socioafectivo del sujeto, el empleo de metodologías activas, la formación del personal que ejecuta el programa o la implicación de las familias. Mientras que, a la hora de fomentar la conducta prosocial, de las medidas incluidas en la citada Ley, destacan las prestaciones en beneficio de la comunidad, tanto como medida judicial como si es aplicada como solución extrajudicial, así como de la conciliación y de la reparación dentro de estas últimas.

The International Economic Law and Conservation of Marine Resources in 'The Area': An Analysis Over the WTO Coercive Measures

The present article intends to analyze the adoption of World Trade Organization’s coercive measures against restrictions on domestic production or consumption of natural resources extracted from the “Area” by a third state that contravened international standards on its conservation policy. Firstly, The Article will analyze the dispute settlement system that exists today in international economic law, focusing on the Dispute Settlement procedure institute in 1994 by the WTO vis-a-vis its member states and the sanctions imposed and the Organization’s regulatory powers. In turn, given the current international legal system of the sea linked to the so-called “Area” in the UNCLOS, and how the United Nations throughout committee sections and supplementary regulatory frameworks intended to insert General Agreement on Tariffs and Trade (GATT)’s principles in UNCLOS’s context. Finally, a parallel is established between measures of economic coercion that discriminate against imported products, in order to encourage the conservation of marine resources, adopted by Article XX of the GATT, linked to the protection granted by the Law of the Sea to the Area, through analysis of cases judged by the WTO dispute settlement system.

Case of Confirmation of Constitutional Violation in Relation to the Omission of the Government - Constitutional court decisions on the right to claim compensation by the comfort women of the Japanese military -

헌법재판소는 이 사건 대상판결에서 그동안 논란이 되어 온 일본군위안 부로서의 배상청구권이 ‘대한민국과 일본국 간의 재산 및 청구권에 관한 문제의 해결과 경제협력에 관한 협정’(이하 ‘이 사건 협정’이라 한다) 제2조 제 1항에 의하여 소멸되었는지 여부에 관한 한･일 양국 간 해석상 분쟁을 이사건 협정 제3조가 정한 절차에 따라 해결하지 아니하고 있는 정부의 부작 위가 위헌이라 결정하여 정부의 외교적 해결 노력에 대한 책임을 명확히 하였다. 헌법재판소는 정부의 작위의무의 근거로 헌법 전문, 제2조 제2항, 헌법 제10조, 이 사건 협정 제3조의 문언과, 우리 정부가 청구권의 내용을 명확히 하지 않고 ‘모든 청구권’이라는 포괄적인 개념을 사용하여 이 사건 협정을 체결한 것에도 책임이 있기 때문에, 그 장애상태를 제거하는 행위로 나아가야 할 구체적 의무가 있다고 하였다. 따라서 헌법재판소는 정부가 이사건 협정에 의하여 일본군위안부 피해자들의 일본에 대한 배상청구권이 소멸되었는지 여부에 관한 해석상의 분쟁을 해결하기 위해 이 사건 협정 제3조의 분쟁해결절차로 나아갈 의무를 이행하지 않은 것이라 판단하였다 본고에서는 다수의견의 결론에는 동의하지만, 정부의 작위의무의 근거나 기본권보호의무론을 적용하는 논증구조에 의문점을 가지고, 이에 중점을 두고 대상판결에 대한 평석을 시도하였다.In the case for the controversial right to claim compensation for the Japanese comfort women, the Constitutional Court ruled that the government’s omission not to be resolved the issues in relation to the interpretational disputes between the two countries on whether or not they have been extradited pursuant to Article 2, paragraph 1 of ‘Agreement on the Resolution of the Property and Claims between the Republic of Korea and Japan and Economic Cooperation Agreement’ (Hereinafter referred to as the “Case Convention”), in accordance with the procedures set forth in Article 3 of this Case Convention was unconstitutional and it clarified the responsibility for the Government s diplomatic efforts to resolve it. As the basis of governmental duties, the Constitutional Court cited the preamble of the constitution, Article 2, paragraph 2, Article 10, Article 3 of the Case Convention, and stated that our government is responsible for concluding this case using a comprehensive notion of ‘all claims’ rather than clarifying the content of the claim so that there is a specific obligation to move on to the removal of the disability. Therefore, the Constitutional Court ruled that the government has failed to fulfill the obligation to proceed to the dispute settlement procedure of Article 3 of this case convention in order to resolve the interpretation dispute as to whether the victims of the Japanese military comfort women have lost their claim to Japan by this case convention. In this paper, I have agreed with the conclusion of the majority opinion, but questioned the basis of the government s duties and the argument structure applying the basic right of protection, and tried to make a critical analysis on the court’s ruling.

One Belt One Road Initiative: How to Regulate Chinese Dragon in Central Asia

One Belt, One Road Initiative (OBOR) has become one of the most ambitious projects that the 21st century has seen. Being central landscape in realization of ‘One Belt’ part of OBOR, does China pose a new international economic legal-order? If OBOR successfully implemented, what would be the potential implications on economic-legal governance onto Central Asian countries? And to reap the full benefits of OBOR, what kind of legal tools or framework is required? This paper focuses on the Republic of Uzbekistan which once formed the Soviet Union, alongside the other four other ‘STANs’ in the region. The paper argues that China has yet to pose a new international economic order and does not change substantially the status quo. A close look to Chinese international economic relations with Central Asian Stans (e.g. trade agreements, investment treaties and financing infrastructure projects) reveals to us that the former is not shaping or building a new economic order, instead it is trying hard to recalibrate and enrich the current global economic order with Chinese element. The problem is, China still lacks concrete, coherent and transparent multilateral institutional framework regarding OBOR, and it is mostly taking a bilateral or regional approach with each OBOR supporter state or a region, something which resembles president Trump administration’s foreign trade policy. In that sense, this new Chinese Dragon might have both negative and positive implications onto economic-legal governance of Central Asian countries. Without any doubt, a massive transfer of technology, trade facilitation and easy access to financing for ambitious infrastructure projects will improve the welfare of region’s people. On the other hand, the non-transparent activity of Chinese SOEs, the lack of transparent dispute settlement procedures and increasing use of less formal arrangements may prevent host states from fully embracing and enforcing fair international economic rules.

PERATURAN MAHKAMAH AGUNG NOMOR 2 TAHUN 2015 TENTANG TATA CARA PENYELESAIAN GUGATAN SEDERHANA SEBAGAI INSTRUMEN PERWUJUDAN ASAS PERADILAN SEDERHANA, CEPAT DAN BIAYA RINGAN

There is a need to conduct business transactions rapidly and in a quick perfunctory manner. At the same time arose also the need to develop and implement a quick, simple and cost efficient business dispute settlement procedure. In response to this need, the Indonesian Supreme Court issued regulation no. 2 of 2015 re. procedure for filing simple civil claims. The legal issue to be discussed here, using a juridical normative or dogmatic approach, is whether this regulation succeed in fulfilling its promise to provide for a quick, simple and cost efficient civil claim examination procedure? The answer to this question is sought, in addition to the method mentioned above, by comparing the procedure provided by the Supreme Court regulation with the existing model of civil claim court examination procedure. By virtue of this comparison the strength and weakness of the Supreme Court dispute settlement model can be analyzed.