Settlement Mechanism Research Articles

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.

Weighted-Combined Model for Reclaimed Foundation Settlement Prediction in Coastal Sludge-Bearing Composite Stratum

Foundation settlement prediction is significant to the reuse and management of the reclaimed land from the sea by dykes where composite stratum of many strata with different physical and mechanical properties is encountered. Toward the foundation settlement analysis of reclaimed land in the Yellow Sea composite stratum in eastern China, a weighted-combination model is proposed in this paper combining the hyperbolic model, exponential curve model, and Asaoka model. First, the weight coefficient of the weighted-combination model is calculated by the reciprocal square method of average absolute error (MAE). Second, the settlement prediction results of different models are evaluated by the absolute error, MAE, root-mean-square error, and mean absolute percentage error. Finally, the settlement mechanism of reclaimed foundations in a composite stratum is analyzed from the point of view of the multistratum coupling, and the adaptability of different models to the settlement prediction of reclaimed foundations in a composite stratum is discussed. The results show that the predicted settlement duration curves of the weighted-combined model are in good agreement with the measured settlement duration curves, and the prediction performance is better than that of the hyperbolic model, exponential curve model, and Asaoka model. The MAE of the weighted-combination model is 75.7% lower than that of the exponential curve model, 90.2% lower than that of the hyperbolic model, and 70% lower than that of the Asaoka model. This model provides a new way to predict the settlement of reclaimed foundations in a similar composite stratum.

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.

Consideration on Legal Situation of Mine Ecological Restoration in China

Mine ecological restoration system is the guarantee of restoration practice and management. In the past half century, China's mining geological environment protection and restoration management system and land reclamation system have been established and continuously improved, but the current relevant legal system still has some defects, such as: no special legislation, implementations of ecological restoration settlement mechanism, two-in-one scheme compilation and reporting system, mining geological environment restoration t fund system are not smooth, and the binding force of legal responsibility is insufficient. In view of these problems, the revision of Mineral Resources Law, Regulations on Land Reclamation and Provisions on the Protection of the Geological Environment in Mines has become a practical necessity. In the revision, mine ecological restoration system can be constructed from the aspects of preparation and implementation supervision of mine ecological protection and restoration scheme, management of mine ecological restoration fund, ecological background investigation and monitoring, lifelong responsibility investigation, joint punishment and so on.

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.

Strategic Implicit Balancing With Energy Storage Systems via Stochastic Model Predictive Control

Battery Energy Storage Systems (BESS) may exploit the increasing price volatility in imbalance settlement mechanisms via inter-temporal arbitrage. However, participating in these markets requires a careful trade-off between expected profits, accounting for the impact of BESS actions on prevailing imbalance prices, the financial risks and the incurred battery degradation costs. This paper introduces a novel forecast-informed Model Predictive Control (MPC) methodology in which a strategic and potentially risk-averse BESS performs implicit balancing by taking out-of-balance positions in near-real time. Thereby it anticipates expected imbalance prices in a European-style balancing market, and takes into account state of charge-dependent battery degradation costs. To this end, an attention-based recurrent neural network forecasting technique is leveraged to predict the System Imbalance. The proposed methodology is tested on a real-life case study of the Belgian balancing market. Expected profits of a 2 MW/2 MWh BESS (21,784 MW/month) are shown to exceed those of different benchmarks available in the literature, including the profit associated with participating in the day-ahead energy market with perfect price foresight (7,082 /MW/month). From a system perspective, these implicit balancing actions performed by the BESS owner reduce the system imbalance in 75% of all cases, thus improving the cost-efficiency of power systems.

‘A Series of Unfortunate Events’ Opinion 1/20 and the Fate of the ECT Modernisation Process

In Opinion 1/ 20, for the first time, the cjeu declared a request for an opinion under Article 218(11) tfeu inadmissible due to its ‘premature nature’. The request had been made by Belgium and concerned the compatibility with EU law of Article 26 of the draft modernised Energy Charter Treaty, insofar as it would potentially allow the application of the dispute settlement mechanism to intra- EU disputes. A close examination of Opinion 1/ 20 reveals shortcomings in the attempts to exclude the intra- EU application of Article 26 ect and spillover effects on the ect’s modernisation process. The cjeu’s stance in Opinion 1/ 20, both unprecedented and questionable, is also important for the understanding of the Komstroy judgment, where the cjeu ultimately responded via obiter dictum to the same question presented in the request giving rise to Opinion 1/ 20.

Investor-State Dispute Settlement Mechanism in Vietnam’s New Generation Free Trade Agreements: Challenges and Recommendations

In the recent years, Vietnam's attraction to foreign investment capital has increased rapidly. As a result, the disputes in the field of foreign investment have emerged more frequently. The fact that a dispute occurs between the government of the host country and a foreign investors, regardless of its cause, will bring adverse consequences to both parties. Amicable settlement of such disputes is an important factor to improve the efficiency of foreign investment, maintaining the trust between the host country and foreign investors. Therefore, stipulating commitments on the dispute settlement mechanism for international investment in multilateral free trade agreements such as Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP), Vietnam - EU Investment Protection Agreement (EVIPA), and Regional Comprehensive Economic Partnership (RCEP) are indispensable. Therefore, in this context, the paper studies the investor-state dispute settlement (ISDS) mechanism in new-generation free trade agreements to which Vietnam is a member, namely EVIPA, CPTPP, RCEP; accordingly, the paper proposes some recommendations to Vietnam.

Chip War: Rethinking on the WTO Dispute Settlement Mechanism

Chip War: Rethinking on the WTO Dispute Settlement Mechanism

Probabilistic analysis of ground settlement induced by tunnel excavation in multilayered soil considering spatial variability

Accurately evaluating and predicting the ground settlement during tunnel excavation are crucial for ensuring the stability of tunnel structures. However, the traditional methods always use representative (or average) values for deterministic analysis and rarely consider the spatial variability of soil properties. In this study, a probabilistic analysis of ground settlement under uncertain soil properties was performed based on random fields combined with the finite-difference method. The random fields of Young’s modulus and friction angle of multilayered soils were generated based on the Cholesky decomposition in a manner consistent with a specified numerical mesh. The effects of spatial variability and cross-correlation in random fields on the ground settlement were investigated in detail. The results demonstrate that spatially variable soils significantly influence the probability of failure, magnitude, and longitudinal profile of ground settlement in the vertical direction. It can be found that the allowable ground settlement of the limit state function also dominated the degree of the vertical scale of fluctuation on stability. Neglecting the cross-correlation between the two random fields results in an overestimation of the probability of failure compared with an independent analysis. Subsequently, the failure mechanisms of ground settlement in spatially random soils were discussed.

Research on the Retaliation System in the WTO's Dispute Settlement Mechanism

When conducting trade activities, due to the needs of countries' national interests or due to the general international context, it is inevitable that some acts will be used to disrupt the balance of world trade transactions, thus causing conflicts between two or more nations. If a dispute arises under the framework of the World Trade Organization (WTO) agreement, one party will be deemed to be in breach of the WTO agreement, and the injured party will resort to the WTO Dispute Settlement Body(DSB), and if the "losing party" does not fulfill the agreement, then the "winning party" will request the WTO Dispute Settlement Body to retaliate against it. If the "losing party" does not fulfill the agreement, then the "winning party" will request the DSB to authorize retaliation against it, to stop the behavior of the defaulting party and get certain compensation. Therefore, the retaliation system of the WTO dispute settlement mechanism is of great significance to maintaining the international economic order. The establishment of this system is of great practical significance for resolving disputes between disputing parties and achieving the rebalancing of the international economic order. However, along with the continuous occurrence of various dispute cases, and in the increasingly frequent use of the WTO panel members, member states and academics have gradually recognized certain shortcomings of the retaliation system, resulting in this system for certain violations of the agreement, often helpless. In this regard, all countries have improved the retaliation system under the WTO dispute settlement mechanism from their own or overall interests. This paper discusses the shortcomings of the retaliation system in the WTO dispute settlement mechanism and then makes some suggestions on how to modify and improve it.

Internasional Trade Regulation and its Impact on Macroeconomics: An Internasional Law Perspective

This journal article examines the dynamic relationship between international trade regulation and macroeconomics from the lens of international law. International trade, with its complex legal framework, plays a pivotal role in shaping the global economic landscape. Understanding the intricate interplay between trade regulations and macroeconomic variables is crucial for policymakers, scholars, and practitioners alike.
 Through a comprehensive analysis of international trade agreements, dispute settlement mechanisms, and trade policies, this research investigates the legal mechanisms that govern global commerce. It explores the impact of trade regulations on key macroeconomic indicators, such as economic growth, employment, inflation, and balance of payments. This study takes into consideration both the multilateral trading system, exemplified by the World Trade Organization, and regional trade agreements to provide a holistic view of the subject.
 The findings highlight the significant influence of international trade regulation on a nation's economic performance. Effective trade regulation can stimulate economic growth, enhance market access for goods and services, and promote stability in global markets. Conversely, trade disputes and protectionist measures can disrupt economic activities and lead to adverse macroeconomic consequences.
 Furthermore, this research delves into the legal mechanisms available to states to address trade-related disputes and their potential implications on macroeconomic stability. It underscores the importance of a rules-based international trading system in promoting global economic well-being.
 By analyzing international trade regulation through an international law perspective, this article aims to contribute to the ongoing discourse on the relationship between law and economics. It underscores the significance of legal frameworks in shaping macroeconomic outcomes and highlights the need for harmonizing trade policies with broader economic objectives. Ultimately, the research underscores the role of international law as a tool for promoting economic development and stability in the context of global trade.

What will China do under the New Background of WTO Dispute Mechanism?

In the process of establishing a multilateral rule system, WTO (World Trade Organization) has always been an irreplaceable role, which can promote global economic development and provide a platform for resolving disputes. Nowadays, global economic and trade governance is multi-polar, and traditional governance rules are not enough to maintain the world economic order. There is an international recognition that the WTO is anachronistic and in need of reform. China, one of the world 's largest trading countries, for the sake of acclimatizing itself to the new changes in the global economic environment and respond to challenges as soon as possible, China must firmly safeguard the authority and effectiveness of the multilateral trading regime with the WTO as the core, and propel the recovery of the WTO dispute settlement mechanism actively. This paper mainly studies that the current WTO dispute settlement mechanism cannot play an effective role and therefore needs to be reformed. It also analyzes the crises and challenges that China faces in the new era, and gives suggestions for the crises and challenges. Finally, it calls for the current approach to dispute resolution to be through cooperation rather than conflict.

THE REGULATORY IMPROVEMENT OF INSURANCE LAW REFORM IN ORDER TO PURSUE THE LEGAL CERTAINTY FOR THE PEOPLE AND THE INSURANCE COMPANY

<p><em>The growth of insurance sector in Indonesia so far shows a significant development. The data from the Financial Services Authority (OJK) recorded that in 2020 there were 139 insurance companies had obtained the permits to run their business in Indonesia. <em>This number has been decreasing over the past five years due to the failure of several big insurance companies in managing the customer's insurance premium. For example, Bakrie Life and Bumi Asih Jaya Insurance. The research methods on this dissertation are normative with an empirical support to verify the basic research problem and to regulate an ideal formulation of legal protection for all insurance policyholders against the intentional mismanagement by the insurance companies. The results show that until now the rights of all insurance policyholders are still referring to the Commercial Law ( Trade Law Book ) and the Insurance Law. Both regulations do not specifically regulate the rights of insurance policyholders, especially those related to the investments or funds in the non-state-owned (non-BUMN) insurance companies with the priority of refunding if there is an intentional mismanagement or criminal acts committed by the director of the insurance company. The research concluded that the existing regulations do not provide a legal certainty for the insurance policyholders to get refunds for their deposit funds. This means, there is no legal protection for the insurance policyholders when the above mentioned crime occurs or when a violation occurs, or when there is a reinvestment failure. Therefore, it is recommended that the insurance law regulatory improvements be carried out, specifically those related to: </em><em>1) Non-litigation settlement mechanisms such as Arbitration (BANI), 2) Litigation settlement mechanisms including private law suit, force majeure, illegal act, bankruptcy suit against the investment managers, or criminal charges for embezzlement, fraud, or money laundering. In addition, it is necessary to have improvements of the technical provisions POJK No. 06/POJK.07/2022 concerning Consumer and Public Protection in the Financial Services Sector.</em></em></p><p><em> </em></p><p><em>Key Words: Legal Certainty; Customer Funds; The Failure of Reinvestment</em></p>

The Research and Reform on the Defects of WTO Panel Procedure

The WTO panel procedure is integral to the WTO dispute settlement mechanism. While playing its unique role, the panel procedure of WTO also faces many challenges and needs to be reformed to adapt to the development of economic society. To consolidate its legitimacy and improve the authority of the panel procedure in the dispute settlement mechanism, active adjustments, and reforms should be made in the selection of panel members and the transparency of the panel procedure. And we need to properly handle the relationship between the panel procedure and Appellate body, which is embodied in the fact that we can set up a standing panel to solve various contradictions in reality. Through reform, the WTO panel procedure can play its unique role in a more scientific and sustainable state, maintain fairness and promote cooperation to a large extent.

Unleashing the WTO Appellate Body: Strategies for Resolving the Deadlock

The suspension of the Appellate Body has plunged the WTO dispute settlement mechanism into a crisis, and the time and cost for countries to participate in dispute settlement have in-creased significantly. This paper aims at finding ways to mitigate shocks from the shutdown of Appellate Body. This paper analyzes the reasons for the suspension of the Appellate Body from the attitude of developed countries led by the United States. Then it analyzes the challenges faced by developing countries and Least Developed Countries (LDCs) due to the U.S. concerns about the status of developing countries. Lastly, the WTO Secretariat is compared with the IACHR Secretariat to find out the special status of the WTO Secretariat and its problems. Finally, this paper suggests that the voting mechanism should be used to facilitate the selection of Appellate Body members and clarify WTO agreements. In addi-tion, the accountability of the Secretariat should be strengthened. Finally, the WTO should give more support to developing countries and LDCs such as establishing a fund to help them participate more effectively in dispute settlement.