Substantive Standards Research Articles

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.

Probable Cause Pluralism

The constitutionality of a search or seizure typically depends upon the connection between the target of that search or seizure and some allegation of illegal behavior—a connection assessed by asking whether the search or seizure is supported by probable cause. But as central as probable cause is to the Fourth Amendment’s administration, no one seems to know what it means or how it operates. Indeed, the Supreme Court insists it is “not possible” to define the term, holding instead that the probable-cause inquiry entails no more than the application of “common sense” to “the totality of the circumstances.” Viewed charitably, this refusal to elaborate on the meaning of probable cause stems from an understandable desire for doctrinal flexibility in the face of weighty and competing law-enforcement demands. But the Court’s doctrinal approach is also routinely criticized as an “I know it when I see it” jurisprudence that is ill equipped to safeguard civil liberties in the numerous interactions between civilians and law-enforcement actors. This tension between doctrinal flexibility and structure is the animating dilemma of probable cause jurisprudence—a dilemma that this Article attempts to navigate and, ultimately, to resolve. To do so, it urges a rejection of an often invoked—if not always followed—tenet of Supreme Court doctrine: probable cause unitarianism. That dominant idea, expressly endorsed in many of the Court’s leading precedents, holds that whatever probable cause means, it ought to entail the same basic analytic method and be judged by the same substantive standard, from one case to another. But on close inspection, the Supreme Court’s existing jurisprudence contains seeds of an alternative— and superior—conception of probable cause, which this Article terms probable cause pluralism. On this view, probable cause is an open-textured and capacious idea that can comfortably encompass distinct analytic frameworks and substantive standards, each of which can be tailored to the unique epistemological and normative challenges posed by different types of Fourth Amendment events. Probable-cause analysis can be statistically driven or intuitively assessed; it can demand compelling evidence of illegal behavior or only an occasionally satisfied profile; it can presume the credibility of some types of witnesses while treating others with deserved skepticism or disbelief. It can, in short, come to mean something—if it gives up on meaning any one thing in all cases. In its current form, probable cause’s pluralism is nascent, implicit, and undertheorized—and is thus at best a stunted and haphazard collection of disparate ideas. This Article’s central contribution is to bring those ideas together, refining and synthesizing them into a comprehensive account of what a pluralist theory of probable cause could and should look like. Specifically, by organizing probable cause around three central analytic axes—which in turn ask how to assess evidentiary claims, how to assess proponents of such claims, and how to determine the certainty thresholds for those two assessments—this Article constructs a universally applicable framework for determining the constitutionality of any given search or seizure. With that framework in hand, scholars and jurists will be better equipped to reason through the many and varied cases to come and better able to assess the many cases that have come before.

From Individual Control to Social Protection: New Paradigms for Privacy Law in the Age of Predictive Analytics

What comes after the control paradigm? For decades, privacy law has sought to provide individuals with notice and choice and so give them control over their personal data. But what happens when this regulatory paradigm breaks down? Predictive analytics forces us to confront this challenge. Individuals cannot understand how predictive analytics uses their surface data to infer latent, far more sensitive data about them. This prevents individuals from making meaningful choices about whether to share their surface data in the first place. It also creates threats (such as harmful bias, manipulation and procedural unfairness) that go well beyond the privacy interests that the control paradigm seeks to safeguard. In order to protect people in the algorithmic economy, privacy law must shift from a liberalist legal paradigm that focuses on individual control, to one in which public authorities set substantive standards that defend people against algorithmic threats. Leading scholars such as Jack Balkin (information fiduciaries), Helen Nissenbaum (contextual integrity), Danielle Citron (technological due process), Craig Mundie (use-based regulation) and others recognize the need for such a shift and propose ways to achieve it. This article ties these proposals together, views them as attempts to define a new regulatory paradigm for the age of predictive analytics, and evaluates whether each achieves this aim. It then argues that the solution may be hiding in plain sight in the form of the FTC’s Section 5 unfairness authority. It explores whether the FTC could use its unfairness authority to draw substantive lines between data analytics practices that are socially appropriate and fair, and those that are inappropriate and unfair, and examines how the Commission would make such determinations. It argues that this existing authority, which requires no new legislation, provides a comprehensive and politically legitimate way to create much needed societal boundaries around corporate use of predictive analytics. It concludes that the Commission could use its unfairness authority to protect people from the threats that the algorithmic economy creates.

Should National Human Rights Institutions Institutionalize Dispute Resolution?

The UN has promoted the use of alternative dispute resolution (ADR) by national human rights institutions (NHRIs). This article critically examines this proposition by analysing the three assumptions that underlie it. First, that ADR is an appropriate means by which to resolve human rights disputes; second, that ADR should be provided in institutional form; third that an NHRI should play a role in the delivery of ADR. We argue that voluntary engagement with ADR is permissible subject to procedural and substantive standards of justice but identify the risk that the offer of ADR by an institution may turn into a de facto mandatory process if not set within a context in which the courts are also accessible. Rather than an outright rejection of a role for ADR in such circumstances, we examine the potential contributions an institution could make to redressing the deficiencies in access to justice landscape and identify the key factors states and other policymakers should take into account when determining which institution(s) assume a dispute resolution role.

EU-China comprehensive agreement on investment in the context of Chinese bilateral investment treaty program with the EU countries

EU-China negotiations for Comprehensive Agreement on Investment (CAI) have the potential to become one of the most important developments in international economic law as well as in investment treaty policymaking area. The sides have already had 18 rounds of negotiations discussing all major parts of the new BIT, such as the definitions, substantive and procedural protection standards, and still there seems a relatively long way to go for finalizing the formulations of the clauses. The first part of this article puts the China-EU CAI negotiations in historical, political and economic context for giving a background for the concurrent negotiations. The second part of the article provides discussion on substantive investment protection standards found in China-EU28 bilateral investment treaties (BITs) that are currently in force, for assessing the shortcomings of their formulations and pointing out the importance of concluding a unified BIT between China and EU for providing a higher level of legal clarity and certainty to their investors without compromising the regulatory powers of the state.

Co-production in integrated health and social care programmes: a pragmatic model

PurposeThe purpose of this paper is to outline the current thinking on co-production in health and social care, examine the challenges in implementing genuine co-production and argue for a pragmatic version of co-production that may assist programme managers in deciding which type of co-production is most suitable for which programme.Design/methodology/approachA discussion paper based on the professional and academic knowledge and insights of the authors. A focus group interview schedule was used to guide discussions between authors.FindingsThe authors argue for a pragmatic approach to co-production within integrated care programmes. The authors set out the basic parameters of such an approach containing procedural rather than substantive standards for co-production activities leaving sufficient room for specific manifestations of the practice in particular contexts.Practical implicationsThe authors put forward a pragmatic model of co-production that defines the essential elements of a process for ensuring services are designed to meet with the needs of patients yet allowing the process itself to be adapted to different circumstances.Originality/valueThe paper summarises the discussion on co-production in relation to integration programmes. It formulates a pragmatic model of co-production that may assist programme managers in establishing good practice co-production frameworks when designing or implementing integrated health and social care services.

The right to property as regional custom in Europe

ABSTRACTThe article examines the right to property in Europe and elaborates its content, with a view to developing a better understanding of the legal nature and scope of its protection. It is argued that an obligation to protect the right binds states in Europe under regional customary law on the basis of clear evidence of state practice and opinio juris that support the emergence of such an obligation. To illustrate this, the article initially explores the substantive standards of protection of the right under conditions of pluralism, taking into account the case law of the European Court of Human Rights and the Court of Justice of the European Union. Subsequently, the focus is placed on regional practice with a psychological element of conviction on the existence of legal obligation to protect the right to property in order to shed light on the emergence of a regional customary norm.

MFN Clauses and Substantive Treatment: A Law of Treaties Perspective of the “Conventional Wisdom”

On the big questions, Simon Batifort and J. Benton Heath are plainly right. Dogmatic presumptions about the necessary effect of particular clauses and woolly notions of systemic teleology may distract the interpreter from the task of finding the meaning that represents the intentions of the parties, best articulated in the specific terms chosen. Customary rules on treaty interpretation, reflected in Articles 31 and 32 of the Vienna Convention on the Law of Treaties (VCLT), are meant to be flexibly adapted to the case in hand. But in applying their insight to the small print of the interpretative question, Batifort and Heath are less persuasive. Can most favored nation (MFN) clauses be generally relied upon to, as they put it, “import” substantive standards of treatment of investment protection law? The authors are critical of the apparent consensus in favor of an affirmative answer—they call it “conventional wisdom”—and in this regard seem to me to be significantly overstating their case.

The Role of Labour Laws in Maintaining the Relationship Between Employers and Employees in Tanzania

Labour law gives specification of rights, obligations and it regulates and tells the subjects on how they can conduct themselves on contractual terms and how they can enforce their rights. In other words, labour law sets a forum or an institution to enable the effective enforceability of both the employers’ and employees’ rights. Labour law has Substantive Labour Law and Procedural Law. Substantive law is that branch of labour law that prescribes the standards to be observed by both employers and employees. Specifically, substantive law deals with things like contracts of service and for services, termination of contract/employment, benefits e.t.c. These are provided for by the Employment and Labour Relations Act No. 6 of 2004, while Procedural Law is that branch of Labour Law that prescribes procedures to be followed in all labour matters. This is done by providing for institutions for implementation of the substantive standards, and enforcement of rights. This is provided for by the Labour Institutions Act No.7 of 2004 and the specific rules issued in 2007 GN Nos. 42, 64, 65, 66 and 67 of 2007. The main objective of labour law is to maintain the relationship between employers and employees by defining their rights and duties and regulating their conducts. And it is from this paper whereby such relationship is shown within the Act.

The New Debate on the Interpretation of MFN Clauses in Investment Treaties: Putting the Brakes on Multilateralization

AbstractThis article challenges the conventional wisdom that MFN clauses in investment treaties can always be used to “import” substantive standards of treatment (e.g. FET). It argues that most tribunals permitting this use of MFN clauses have relied on presumptions and have ignored meaningful variations among clauses. It also points out that states are increasingly questioning the conventional view, and that a recent arbitral award has firmly rejected an attempt to use an MFN clause to import substantive standards. It concludes by sketching the terms of the new MFN debate.

Assessing the epistemic quality of democratic decision-making in terms of adequate support for conclusions

How can we assess the epistemic quality of democratic decision-making? Sceptics doubt such assessments are possible, as they must rely on controversial substantive standards of truth and rightness. Challenging that scepticism, this paper suggests a procedure-independent standard for assessing the epistemic quality of democratic decision-making by evaluating whether it is adequately supported by reasons. Adequate support for conclusion is a necessary (but insufficient on its own) aspect of epistemic quality for any epistemic justification of democracy, though particularly relevant to theories that emphasize public deliberation. Finding existing methods for measuring the quality of public discourse to fall short, we draw on an epistemological theory of argumentation to provide a more sophisticated approach to evaluating the epistemic quality of democratic decision-making, illustrate how the approach can be used, and demonstrate its relevance for the epistemic turn in democratic theory.

Finally Time for Realistic and Determinate Standards in Family Court

AbstractThe child protection field has long recognized that legal standards applied by family courts are both broad and vague—definitions of abuse and neglect encompass a wide range of behavior, and substantive standards governing disposition hearings, foster care placements, and permanency hearings provide little guidance. This status quo empowers child protection agencies—who can take advantage of broad and vague standards to obtain judicial approval when they want to intervene. As a result, judicial checks and balances are weaker and reform efforts are more agency‐dependent than they ought to be. The weak legal and judicial checks enable the child protection pendulum to swing widely. Narrower and more precise legal standards can mitigate those problems. They can also improve current reform efforts by providing clearer standards for when court intervention is appropriate, and thus help distinguish cases which need court intervention from those that do not—a central challenge of existing reform efforts. This Article outlines several principles for stronger legal standards. First, standards should balance future risk, with adequate weight given both to risks of future child maltreatment and to risks of harms imposed by the court or foster care systems. Second, standards should apply lessons from social science research—and should evolve in light of future research. Third, they should follow a firm evidentiary record in the case. These principles should shape standards for all essential decisions, not only those that are typically litigated at a trial. Whether a child is removed, what conditions are required for reunification, and where and with whom a child lives while in foster care, for instance, can all be the most important questions in any given case, and deserve clearer legal guidance. This Article will apply these principles to several such decisions. Finally, this Article will identify two systemic features necessary to make standards more effective—vigorous advocacy for all parties, and access to appellate courts to decide interlocutory—but often decisive—issues.

A Mutual Legal Assistance Case Study: The United States and France

This article provides a case study involving France and the United States for a topic of growing importance – how to reform the outdated system of “Mutual Legal Assistance” (MLA). Mutual Legal Assistance occurs when one country (such as France) requests evidence held in another country (such as the US) for criminal prosecution, frequently pursuant to a Mutual Legal Assistance Treaty. The article is part of the broader Georgia Tech Cross-Border Requests for Data Project, addressing MLA reform. The topic has reached a new level of prominence driven by two technological developments: (1) globalized communications, with data often stored abroad by a cloud service provider; and (2) increased use of encrypted communications, so many local wiretaps are ineffective. The article, building off our prior research on how French criminal procedure operates, examines French and US law in detail to understand the substantive standards that apply to government access to data for criminal prosecutions. Part III explains the US regime, founded on Fourth Amendment protections against unlawful searches and seizures. The United States also has created a multi-tiered set of standards, with different rules, for instance, for: basic subscriber information; metadata such as to/from information; content of stored records; and interception of electronic communications. Part IV explains the French regime. As a general theme, the French system has a tradition of relying on the acts that can be performed at each stage of the investigation, as well as the investigative authority of a particular actor, such as a magistrate. In contrast, the US system relies more heavily on distinct rules for different categories of electronic evidence. Part V explains the current France/US MLA regime. Part VI turns to possible MLA reform, with the proposed reform mechanism of an amendment to the U.S. Electronic Communications Privacy Act. This amendment would provide that the relatively strict US laws would no longer apply to some French requests for the content of communications held by US companies. We conclude that the France/US relationship is a good case study for MLA reform, given the large differences in criminal procedure and substantive standards for access to evidence. Building on choice of law principles, the article identifies what factors support current MLA procedures and which ones instead suggest the need for reform.

Balancing stability and flexibility in adaptive governance: an analysis of tools available in U.S. environmental law.

Adaptive governance must work "on the ground," that is, it must operate through structures and procedures that the people it governs perceive to be legitimate and fair, as well as incorporating processes and substantive goals that are effective in allowing social-ecological systems (SESs) to adapt to climate change and other impacts. To address the continuing and accelerating alterations that climate change is bringing to SESs, adaptive governance generally will require more flexibility than prior governance institutions have often allowed. However, to function as good governance, adaptive governance must pay real attention to the problem of how to balance this increased need for flexibility with continuing governance stability so that it can foster adaptation to change without being perceived or experienced as perpetually destabilizing, disruptive, and unfair. Flexibility and stability serve different purposes in governance, and a variety of tools exist to strike different balances between them while still preserving the governance institution's legitimacy among the people governed. After reviewing those purposes and the implications of climate change for environmental governance, we examine psychological insights into the structuring of adaptive governance and the variety of legal tools available to incorporate those insights into adaptive governance regimes. Because the substantive goals of governance systems will differ among specific systems, we do not purport to comment on what the normative or substantive goals of law should be. Instead, we conclude that attention to process and procedure (including participation), as well as increased use of substantive standards (instead of rules), may allow an increased level of substantive flexibility to operate with legitimacy and fairness, providing the requisite levels of psychological, social, and economic stability needed for communities to adapt successfully to the Anthropocene.

Акт исполнительной власти: история, дилеммы и возможные решения

Concerns about the rule of law in the modern administrative state are not only the result of our current legal system, but of our historical experience. Our legal tradition provides us with no precedents for imposing rules on executive power or authority. English kings created two institutions, the common law courts and the legislature (Parliament), in part to extend his control over the nobles. These institutions gradually acquired independent power and reduced the authority of the monarchy. They did not do so, however, by imposing controls, or standards of behavior, on the king's executive authority. Rather, they reduced the scope his authority, taking command of one field after another. In the process of defining and justifying their newly developed roles, the courts and the legislature established procedures and decision-making standards for their own actions that embodied the rule of law.Thus we, as heirs to English legal and constitutional thought, know how to impose the rule of law on judicial and administrative action. But we have not inherited any standards for executive action; our historical experience teaches us how to limit its scope but not how to control its content. The Administrative Procedure Act (APA) reflects this historical and cultural lacuna. It contains elaborate standards for adjudication, modeled on judicial procedure, and at least rudimentary standards for rulemaking, modeled on legislative procedure. But it provides no standards for executive action, and in fact, does not even recognize such action as a category. We know that category as informal adjudication, an obvious misnomer that does not appear in the language of the Act, but has been concocted by observers based on the Act's implicit structure. The unsolved problem in administrative law is to impose rules on action that falls within that category, that is, executive action, without impairing government’s ability to act. Methods for doing so could include substantive standards such as rationality, imposed by a revised APA and enforced by courts, or new supervisory institutions such as an the ombudsperson, or new procedural requirements, such as a revision of the APA notice and comment provisions that would be based on the concept of policy making rather than legislation by elected representatives.

Combating Norm and Forum Shopping in Investment Arbitration

The present article seeks to address the norm and forum shopping in investment arbitration that results from the overlap between contract and treaty claims. By no means new, the proliferation of parallel proceedings arising from the same dispute has brought this problem to the forefront of investment arbitration again. The overlap stems from the lack of well-defined spheres of application between treaty and contract: arbitral tribunals have extended the scope of treaties to govern conduct that is not necessarily sovereign, and have construed substantive standards in a broad manner, on occasion reducing the standards to the protection of an investor’s expectations. The difficulty with such interpretations is that they present an investor with a choice as to what standard the host state’s conduct should be measured against, and before which tribunal this should take place. In extreme cases, investors are allowed to initiate simultaneous or subsequent proceedings in connection with the same set of facts before different fora. This discretionary choice of norms and/or duplication of proceedings maximises the investor’s chances not only of recovery but also of success, can allow the investor to put a host state under undue pressure, and may lead to inconsistent decisions. To address this issue, one can clarify the scope of investment treaties by clarifying the conduct treaties are meant to govern and the standards of protection they offer, thus ensuring distinct normative spheres for contract and treaty. Where two norms must nevertheless coexist in respect of the same conduct, tools such as fork-in-the road and waiver provisions can ensure that an investor cannot pursue parallel claims, whether directly or indirectly. If parallel proceedings are nevertheless initiated, concepts such as res judicata have been used to bind the investor to the decisions of the commercial tribunal through which it is claiming even if not a party to the commercial arbitration.

Investor Rights under EU Law and International Investment Law

Are investors entitled to the same level of protection under investment treaties and EU law? This article will examine some of the principal differences and overlaps in the level and scope of protection which foreign investors can enjoy under intra-EU international investment agreements (IIAs) and EU law. The primary focus of analysis will be on key substantive protection standards which intra-EU IIAs offer and their counterparts in EU law. Comparative analysis of intra-EU investment treaties with EU rules on investment protection offers a fresh opportunity to revisit the origins and history of international investment agreements, trace their recent transformation and analyse their interactions with other international and supranational rules to which investors can also resort to protect their economic rights vis-à-vis host states.

Examining the complementarity of 'children's rights' and 'bioethics' moral frameworks in pediatric health care.

The United Nations Convention on the Rights of the Child has inspired numerous initiatives to recognize children's health-related rights. Whereas children's rights have served as the dominant moral framework for child health concerns in Europe, pediatric bioethics has emerged as the principal framework used in North America. Despite their similarities, these two frameworks differ significantly. Children's rights initiatives tend to be universalist, highlighting substantive standards for all children, while pediatric bioethics has developed norms, models, and procedures for the ethical analysis and management of individual cases. The aim of this article is to critically examine the respective contributions and intersections of children's rights and pediatric bioethics moral frameworks in child health. We describe our collaboration bridging our work with these two frameworks to address pediatric health-care concerns in the Republic of Georgia. We conclude with recommendations for how the complementarity of these two frameworks can be further bridged and promoted internationally.

When Is the Right to Justice Undermined? Identifying and Applying International and Islamic Human Rights Law Standards for Domestic Judicial Processes: The Case of the Seven Bahá’í Leaders and Iran’s Revolutionary Courts

Section one of this article is divided in two parts, defining a ‘competent tribunal established by law’, and secondly independence and impartiality, including both structural and substantive standards for assessment. The second section provides an assessment of the legitimacy of the process in terms of minimum standards of due process. This part consists of three sub-sections, addressing three aspects of the right to due process that most gravely risk political manipulation of trials. These are: the principle of legality; procedural transparency; and the right to be represented by competent defence counsel. Both these sections also apply the components identified to the general operation of Iran’s Revolutionary Courts. Finally, section three will analyse the conduct of Iran’s Revolutionary Courts in the particular trials of the seven Bahá’í leaders (known as the ‘Yaran’ or ‘friends’) in Iran in 2010.

Executive Action: Its History, its Dilemmas, and its Potential Remedies

Concerns about the rule of law in the modern administrative state can be fully understood only in their historical context. After the Norman Conquest, the national government of England was controlled entirely by the king, although the nobility exercised substantial powers within their assigned areas. The king subsequently created two institutions, the common law courts and the legislature (Parliament), in part to extend his control over the nobles. These institutions gradually acquired independent power and reduced the authority of the monarchy. They did not do so, however, by imposing controls, or standards of behavior, on the king's executive authority. Rather, they reduced his authority, taking command of one field after another. In the process of defining and justifying their newly developed roles, the courts and the legislature established procedures and decision-making standards for their own actions that embodied the rule of law. Thus we, as heirs to English legal and constitutional thought, know how to impose the rule of law on judicial and administrative action. But we have not inherited any standards for executive action; our historical experience teaches us how to limit its scope but not how to control its content. The Administrative Procedure Act reflects this historical and cultural lacuna. It contains elaborate standards for adjudication, modeled on judicial procedure, and at least rudimentary standards for rulemaking, modeled on legislative procedure. But it provides no standards for executive action, and in fact, does not even recognize such action as a category. We know it now as informal adjudication, an obvious misnomer that does not appear in the language of the Act, but has been concocted by observers based on the Act's implicit structure. This introductory essay attempts to unify the incisive and illuminating discussion that the articles in this symposium provide about our lack of standards for executive action. Pretrial diversion agreements (Arlen), executive waivers (Price), guidances (Epstein) and the control exercised by Presidential signing statements (Rodriguez, Stiglitz & Weingast) are all examples of a general category of executive action (DeMuth) that raises rule of law concerns due to this lack of standards. After describing the problem, and setting it in its historical context, the essay ends by considering substantive standards (rationality), supervisory institutions (the ombudsperson) and procedural mechanisms (a revised Administrative Procedure Act) that might be employed to impose legal standards on this essential but troublesome mode of public governance.