Settlement Provisions Research Articles

Extension of the Most Favoured Nation Clause to Dispute Settlement Provisions in Bilateral Investment Treaties Which Turkey is a Party of

Extension of the Most Favoured Nation Clause to Dispute Settlement Provisions in Bilateral Investment Treaties Which Turkey is a Party of

Withdrawal from mixed agreements under EU law: the case of the Energy Charter Treaty

This article argues that under EU law, the EU and its Member States can withdraw from a multilateral agreement such as the Energy Charter Treaty independently of one other. While loyalty obligations may require the EU and its Member States to coordinate their actions under a mixed agreement closely, all can withdraw. The autonomous nature of EU law does not allow Member States to prevent the EU from taking decisions within its competence. Similarly, as the European Court of Justice maintains, under EU law, the EU and its Member States are only ratifying those parts of the agreement that fall within their competence – thus, Member States are entitled to cease exercising their powers through withdrawal. However, this power to withdraw unilaterally is not without complications. First, it may affect the ability of others to remain a party to the Energy Charter Treaty under EU law. Second, where not all Member States and the EU withdraw, ‘incomplete mixity’ raises several complicated questions under international law, particularly those concerning international responsibility and investor-state dispute settlement provisions. Coordinated withdrawal by all Member States and the EU is, therefore, the preferred policy option.

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.

CONSTITUCIONALISMO DO PROCESSO: PRINCÍPIOS FUNDAMENTAIS ESTRUTURANTES DA PRESTAÇÃO JURISDICIONAL

We seek to examine the legal order that resides in the constitutional norms that form the process. Therefore, we use the bibliographical research through the deductive and comparative method. Therefore, we use the bibliographical research through the deductive and comparative method based on the doctrine of Sérgio Henriques Zandona Freitas. Fundamental rights are prevalent social values of constitutional supremacy that cannot be abolished by legislative deliberation. In the Democratic State of Law the constitutional process establishes the limiting guidelines to be adopted by the State-judge to interpret and declare the right of the litigants recipients of the judicial provision of settlement of the dispute, in accordance with the jurisprudence of the Supreme Court tending to the implementation of the phenomenon of constitutionalization of law. Based on the primacy of the dignity of the human person, the principles, among others, of due process, of contradictory, of broad defense and of isonomy, all guiding the process, administrative or judicial, forming a coherent whole, are included in this context.

An optimal investor-state dispute settlement mechanism

Many investment treaties include investor-state dispute settlement (ISDS) provisions which are supposed to protect a foreign investor against opportunistic behavior of a host country. This paper scrutinizes the optimal design of ISDS provisions that solve the holdup problem. It shows that an efficient investor protection mechanism requires an arbitrator as established in investment treaties. However, this arbitrator does neither have to learn nor to evaluate the circumstances of the dispute. Furthermore, any ISDS compensation from the government to the investor should not be based on reductions in investor profits but on the host country’s welfare effects.

The growing pains of actorness: the European Union in global investment governance

ABSTRACT Foreign investment is governed by thousands of international investment agreements (IIAs), many of which include investor-state dispute settlement (ISDS) provisions. Member states have played a prominent role in the evolution and shape of this decentralized global investment regime. The EU itself has become an actor in this regime since gaining competence in this area in 2009. This article examines the manners by which investment policies of the EU and its member states have evolved over time and their implications for the EU’s actorness. Using, first, the concept and metric of state regulatory space, we show that the EU is more enthusiastic than its member states about reforms, but that a lack of internal cohesiveness and a competitive external environment limit its actorness. Second, drawing on recent discussions on ISDS reforms, we highlight the increasing ability of the EU to speak up with one voice on global investment rules.

EU-China Agreement on Investment: Lessons for India from the Sino-European Model

The European Union (EU) is the biggest source of outbound investment in the world and China is one of the top recipients of Foreign Direct Investment (FDI). The EU-China Comprehensive Agreement on Investment (CAI) is a unique international investment agreement that reflects the evolving economic relations of the EU and China and their strategic partnership. It also serves as one of the latest examples of the ever-evolving legal approach of the EU concerning international investment, particularly the dispute settlement mechanism in the CAI. This is why CAI might hold lessons for India, which also has a complex experience with its international investment agreements (IIAs), particularly the dispute settlement. Against this background, this article critically examines the dispute settlement provision of the CAI, its implications and lessons for India in the wake of renegotiation of the India-EU Broad-based Trade and Investment Agreement (BTIA). dispute settlement, international economic law, international investment agreements, European Union-China relations, Indian Model BIT, trade and investment law

Application of Dispute Settlement in Free Trade Agreements (FTAs’): A Cross Country Analysis of Modern FTAs’

Most modern free trade agreements (FTAs’) include chapters on a variety of topics such as investment, digital trade, labour, gender, environment and small-medium enterprises. These new issues are often addressed in FTAs’ as there is a lack of development of multilateral rules on these areas at the World Trade Organization (WTO). Further, many of these aspects are non-trade issuesviz. environment, labour, competition policy, and investment. These areas are contentious and often face opposition from the Global South and are frequently excluded from the scope of dispute settlement. Against this background, this article examines the trends with respect to the application of the dispute settlement across recent FTAs’ concluded by certain developed countries such as the United States, Canada, Australia, the European Union (EU) and the United Kingdom (UK). This article examines recent FTAs’ and categorizes its chapters as follows: (1) Chapters always subject to dispute settlement, (2) Chapters not subjected to dispute settlement and (3) Chapters that have inconsistent recourse to dispute settlement. Accordingly, the article provides a cross country assessment of the FTA chapters with dispute settlement provisions and the rationale behind such divergent practices. FTA, developed, non-trade, dispute settlement, sustainable trade, USMCA, gender, environment, labour, multilateralism.

Conciliation and Mediation in Investor-State Dispute Settlement Provisions: A Quantitative and Qualitative Analysis

Abstract The article sets out the results of an extensive review of conciliation and/or mediation in investor-State dispute settlement (ISDS) provisions contained in international investment agreements (IIAs). Out of 3815 IIAs that were initially screened, 2674 (ie 70 per cent) do not refer to such provisions. The research also revealed that while the number of IIAs signed each year with investor-State conciliation provisions have significantly decreased, IIAs signed with investor-State mediation provisions are gradually increasing. The screening identified 1125 IIAs that contain investor-State conciliation provisions, of which 806 (ie 71.6 per cent) provide advance consent to conciliation. In comparison, of the 53 IIAs that were found to contain investor-State mediation provisions, only seven (ie 13.2 per cent) offer advance consent to mediation. Advance consent to ‘conciliation or arbitration’ was identified in 703 IIAs. The authors outline arguments to show that the conjunction ‘or’ in these provisions does not give rise to a fork in the road that precludes an investor’s right to arbitration if it first initiates conciliation proceedings. Only seven IIAs were found to require conciliation and/or mediation as a mandatory precondition to arbitration. The article concludes with recommendations to increase the use of investor-State conciliation and mediation provisions in future IIAs and also to improve the quality of those provisions.

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.

Enhancing Conflict Resolution ‘ASEAN Way’: The Dispute Settlement System of the Regional Comprehensive Economic Partnership

Abstract This article examines the dispute settlement system of the Regional Comprehensive Economic Partnership (RCEP), adopted under the auspices of ASEAN on 15 November 2020. RCEP’s Chapter 19 on dispute settlement confirms and enhances the so-called ‘ASEAN way’, which promotes flexibility, consensus and the avoidance of direct confrontation in resolving inter-State controversies. This article discusses how RCEP enhances the ‘ASEAN way’ by reference to certain significant provisions of Chapter 19, also by comparison to the dispute settlement provisions of the WTO’s Dispute Settlement Understanding and other ASEAN+1 Free Trade Agreements.

The New Arbitration Law in Tanzania: An Appraisal of Its Salient Features and Implications for Investment Disputes Settlement

Preference for arbitration as an option for dispute settlement is steadily on the rise, partly because of its perceived efficacious proceedings and enforceability. In 2020, Tanzania enacted a new legislation on arbitration with a detailed and defined framework, cascading through the entire qualifying process of arbitrators, initiating the arbitration proceedings, enforcement and recognition of foreign arbitral awards. This article analyses the corpus of the new legislation, its pertinent structural features, the gaps, and future prospects. The analysis is predicated on the ramifications of the new arbitration law for investment dispute settlements, particularly, state versus investors disputes, as envisaged under the national investment legislation. It concludes by highlighting several aspects which need to be revisited, such as the independence of arbitrators, duty to refer disputes to arbitration, and determination of arbitration costs. Further, a case is made for amendment of the existing national investment legislation in respect of dispute settlement provisions in order to create a harmonious arbitration regime in Tanzania. Tanzania arbitration law, implications to investment disputes, enforcement of foreign arbitral awards

ГРОШОВІ РОЗРАХУНКИ ЗА ТОВАРНИМИ ОПЕРАЦІЯМИ: ОСОБЛИВОСТІ ОБЛІКУ, АНАЛІЗУ, ФІНАНСОВОГО КОНТРОЛЮ В БАНКАХ І НА ПІДПРИЄМСТВАХ

The article defines the essence of non-cash payments and their forms. Non-cash settlements are the transfer of a certain amount of funds from the accounts of payers to the accounts of the recipients of funds, as well as the transfer by banks on behalf of enterprises and individuals of funds deposited by them in cash to the bank's cash register, to the accounts of the recipients of funds. It is shown that calculations are carried out by the bank on the basis of settlement documents on paper media or in electronic form. Payment instruments are: memorial order; payment order; payment request-order; payment claim; settlement check; letter of credit; collection order. Systematized the requirements for registration of payment instruments and internal control of the bank's settlement operations in terms of verifying the authenticity and formal compliance of the document. The main problems of monetary settlements for commodity transactions are clarified: the imperfection of the system of their legal regulation, which does not guarantee the unconditional fulfillment of obligations due to the existence of risks for one of the parties: in the case of prepayment, the risk is borne by the buyer, in the case of payment for actually shipped finished products, goods, services provided, work performed, the owner of the risk is the seller. It has been proven that the improvement of the accounting, analytical and control provision of cash settlements for commodity transactions is connected with the substantiation of the criteria for choosing a payment method by the buyer and seller. They should facilitate the acceleration of settlements and the reduction of transaction costs, reduce their urgency, normalize the circulation of funds, ensure a smooth process of buying and selling finished products, goods, works and services. The areas of improvement of the system of monetary settlements for commodity transactions are substantiated: minimization of costs for their implementation based on the use of electronic money and cryptocurrencies; reducing the risks of non-fulfillment of mutual obligations by the buyer and seller based on the spread of the system of guarantees and sureties, the use of more complex forms of non-cash settlements (letters of credit), where the bank's participation is significant and it assumes the function of guarantor.

فك رموز اتفاقية الاستثمار لمنظمة التعاون الإسلامي في ضوء قضية "اتصالنا" لجمهورية العراق

Promulgated in 1981, the purpose of the Agreement on Promotion and Protection and Guarantee of Investments among Member States of the Organization of the Islamic Conference (nowadays the Organization of Islamic Cooperation) (the “OIC Investment Agreement” or the “Agreement”) is to provide guidelines for the treatment of investments between member States of the Organization. The Agreement provides for investor compensation if the State hosting the investment breaches the Agreement’s substantive terms. Disputes arising under the OIC Investment Agreement are subject to the resolution provisions in Article 17, which provides for conciliation and arbitration. Although, since its entry into force, several investors have attempted to make use of its dispute resolution mechanism, since information on the outcome of these cases is limited. The two arbitral awards that are publicly available, in conjunction with recent practice followed by investors, reveal that the dispute settlement provisions of the Agreement are not free from ambiguity. In light of the recent Itisaluna Iraq LLC and others v. Republic of Iraq case, this article sets out to elucidate a series of problematic issues pertaining to the interpretation and the application of the Agreement’s dispute settlement provisions, as they have risen from publicly availably arbitral awards and other decisions. These include whether: a) the Agreement provides for investor-State dispute settlement; b) conciliation is a precondition to arbitration; and c) investors can use the Most Favored Nation clause (MFN) of the Agreement for dispute settlement purposes. These issues are of significance for pending and future cases under the OIC Investment Agreement. Given the ambiguities of the language of the OIC Investment Agreement, it is preferable that future claimants follow the OIC dispute settlement process as faithfully as possible. Such an approach will immunize them to a great degree from jurisdictional pitfalls of importing separate dispute resolution frameworks via MFN.

Features of the Investor State Dispute Settlement (ISDS) Provisions under Bilateral Investment Treaties (BITs) of Bangladesh: An Overview

Abstract not available
 Dhaka University Law Journal, Vol. 31, 2020 P.85-103

An essential reading on IP and international investment law

Intellectual Property and International Dispute Resolution, Christopher Heath and Anselm Kamperman Sanders (Eds), Wolters Kluwer, 2019. ISBN : 978-90-411-9097-0, pp. 266 Price: € 132 The relationship between intellectual property (IP) and international investment law is a relatively new and emerging area of research. Increasing international investment agreements (IIAs) consisting of IP chapters with dispute settlement provisions are likely to invite IP disputes in investor–state dispute settlement (ISDS). Christopher Heath and Anselm Kamperman Sanders’ (eds) Intellectual Property and International Dispute Resolution consists of 11 chapters and aims to explore the interaction between IP and investment law and arbitration. The edited collection features contributions by leading scholars and academics working in the areas of IP and investment law. The introductory chapter, authored by the two editors, sets the stage by succinctly providing an overview of IP issues in ISDS. The editors challenge the legitimacy of the ISDS system and take the...

The state of infrastructure of the territories affected by the Chernobyl accident (in review of population and experts)

The article presents the assesment of satisfaction by the infrastructure of settlements located on the polluted lands in the context of achievement SDG 11 «Steady cities and settlements». On the basis of empirical data obtained during the implementation of the joint study of the Institute of Sociology of the National Academy of Sciences of Belarus and the Belarus State Economic University, the level of provision of settlements of the transport, social and housing and utilities infrastructure was determined. The quality of their services is assessed by the population and experts living in the territory contaminated with radionuclides. Insufficient level of provision of rural settlements of household services, sports and recreational facilities and organisations of housing and communal services has been revealed. Vulnerable aspects of health facilities included the organisation of reception of patients, the possibility of examination and treatment by doctors of narrow specialisation, as well as diagnostic examinations. The population and experts negatively assess road-, roadside- and sidewalks-clearing work in winter. They are concerned about the construction of roads, bridges, and the state of road surfaces, pay attention to the insufficient number of playgrounds and sports fields. The key problem in the work of public transport is associated with inconvenient schedules (insufficient amount of transport on the route).

Effects of Increase in the Cost of Building Materials on the Delivery of Affordable Housing in South Africa

Adequate provision of affordable human settlements is a huge challenge in South Africa since its independence. This paper investigates the effects of the cost increase of building materials on affordable housing delivery in South Africa. With potential solutions for cost minimisation of building materials, with the aim of achieving affordable housing delivery in South Africa are provided. This study uses a sequential mixed methods approach, wherein surveys were conducted among the construction professionals (project managers, site managers architects, site engineers, quantity surveyors, contractors, building materials suppliers, and government workers) in the construction industry within Cape Town, South Africa, who were considered as the research participants. The qualitative data obtained from the survey exercise were analysed using content analysis, while the quantitative data were analysed using a descriptive statistical technique on SPSS. The findings attained show fluctuation in construction cost and a rise in maintenance cost (caused by poor workmanship) as significant effects in the cost increase of building materials for affordable housing delivery. Adequate application of the recommendations given in this study will minimise the effects of high cost of building materials and enhance affordable housing delivery. Appropriate handling of the findings given in this study will reduce the effects of the high cost of building materials and augment timely delivery of affordable housing and stakeholders’ satisfaction.

Analysis of Money Supply in Russia

The article examines the changes in the volume and structure of the money supply of the Russian Federation for 2011–2019. The аuthor analyzes the correspondence of mone­tary indicators to global trends on the basis of comparisons with similar foreign data. The study of the level of the monetization coefficient in Russia and economically developed countries allows the author to draw conclusions about the degree of provision of settlements with cash and prospects for the development of the domestic economy as a whole.

The End - or a New Beginning? The EU/UK Withdrawal Agreement

Abstract The Brexit withdrawal agreement is full of tensions between EU and international law, and mixes together provisions winding down the UK's membership and continuing the EU/UK relationship—culminating in the confused and incomplete provisions on Northern Ireland. This paper analyses the key elements of the agreement, including its legal effect, dispute settlement provisions, and rules on UK and EU citizens' acquired rights.