Treaty Claims Research Articles

Legal Strategies to Expand Indigenous Governance in Climate Change Adaptation: Opportunities and Barriers

Indigenous governance has evolved through avenues such as self-determination, Indigenous rights (including treaty, native title and other claims to land, natural resources and genetic resources), human rights, ownership and management of terrestrial and marine protected areas and natural resources, traditional knowledge systems, customary law recognition, biodiversity conservation, sustainable livelihoods and community based environmental management. The agenda and resources of Indigenous nations, communities and organisations is overloaded and often unable to leverage effective participation and empowerment in so many forums. The work of the UN Permanent Forum on Indigenous Issues has highlighted the potential impacts of climate change on Indigenous peoples and their communities. This paper critically discusses the concept of adaptation relating to climate variability and climate change in order to explore the implications for the role of Indigenous Peoples in sustainability governance. In many respects the current unresolved problems of sustainable development reflect the failures in the older “Right to Development” debate at the international level. However, significant developments have occurred in the areas of human rights and Indigenous rights that should be integrated in the design and implementation of climate change adaptation measures. These themes will primarily be explored through a critical analysis of international Indigenous rights-based approaches and the implications for future governance approaches to climate change adaptation strategies such as REDD (reducing emissions from deforestation, degradation and enhanced conservation of forests in developing countries).

Assertions of cultural autonomy: indigenous Maori knowledge in New Zealand's community-based Maungatautari Eco-island project

This paper describes, situates and evaluates the use of indigenous knowledge by local Maori stakeholders in the Maungatautari Ecological Island Trust and project, a multi-stakeholder community-based biodiversity conservation project located on New Zealand's North Island. Local Maori groups known as Mana Whenua (subtribes with ancestral rights to certain lands) connect through ancestral and tribal ties to Maungatautari, a prominent mountain in the Waikato region and site of the project. They have with varying success asserted cultural rights and sought for inclusion of cultural protocols and indigenous knowledge. In conjunction with the pursuit of their Waitangi Treaty claim for lost land and rights, this has further (re)constructed and crystallised notions of culture and identity for them. These efforts have and will continue to provide leveraging power to Mana Whenua within the project, which enables them to implement their cultural knowledge and protocols in a “culturally safe” and inclusive multi-stakeholder partnership; accentuate their sociocultural uniqueness from other New Zealanders; and contribute on their own terms to the development of Maungatautari as a compelling ecotourism site and a globally significant biodiversity conservation reserve.

Settler-State Apologies to Indigenous Peoples: A Normative Framework and Comparative Assessment

Settler-State Apologies to Indigenous Peoples:A Normative Framework and Comparative Assessment Sheryl Lightfoot (bio) DURING THE PAST TWO DECADES, an increasing number of states have issued official apologies to Indigenous peoples. The first wave of state apologies to Indigenous peoples began in 1991 when Canada’s assistant deputy minister for Indian affairs offered what may have been the first governmental apology to Indigenous peoples, and the first of three apologies Canada has offered for its century-long Indian Residential Schools program that removed Indigenous children from their homes and forcibly placed them in church-run Residential Schools.1 Shortly thereafter, in 1993, the United States Congress issued an official apology for “the illegal overthrow” of Hawaiian sovereignty in 1893.2 This non–legally binding apology, a joint resolution passed by Congress and signed in a small ceremony by U.S. President Bill Clinton the very same day, acknowledged the overthrow of Hawaiian sovereignty, but it also carefully sidestepped Hawaiian sovereignty claims and did not provide any federal recognition for Native Hawaiians. In 1997 and 1998, the kings of Norway and Sweden each offered formal apologies to the Sámi people for years of widespread discrimination and injustices committed against them, including forced dislocation, resettlement, and assimilation programs.3 Also in 1998, Canada’s Indian affairs minister Jane Stewart issued a “Statement of Reconciliation,” Canada’s second official “apology” to Aboriginal peoples, which was widely criticized by Aboriginal people as insincere and inadequate. Then, in September 2000, at a ceremony marking the 175th anniversary of the United States Bureau of Indian Affairs (BIA), BIA director Kevin Gover gave an apology speech expressing “profound sorrow” for the “historical conduct of this agency.”4 In 2008 and 2009, a fresh wave of apologies to Indigenous people washed over the Anglosphere.5 On February 13, 2008, Australia’s newly elected Labour prime minister Kevin Rudd opened his first session of Parliament with his government’s first official act. With crowds gathered outside and his image broadcast live on television throughout the country, the prime minister rose and delivered an official apology on behalf of the government of Australia to [End Page 15] the Stolen Generations—the Aboriginal children that had been removed from their homes and families under a century-long forced assimilation program. Several months later, on June 11, 2008, the Conservative prime minister of Canada, Stephen Harper, stood before Parliament in the House of Commons and delivered a new “official statement of apology” that he said was offered to Aboriginal survivors of Canada’s Residential School system “on behalf of the government of Canada and all Canadians.”6 The next year, the United States Senate passed a resolution7 apologizing for past policies of the U.S. government toward Native peoples, which was highly criticized by Native Americans for its lack of ceremonial presentation since it was tacked on to a defense appropriations bill and quietly signed, without ceremony, by President Barack Obama on December 19, 2009.8 Meanwhile, highly detailed and ceremonial apologies have been made to Māori claimant groups by the New Zealand government, acknowledging all documented violations of the 1840 Treaty of Waitangi, ongoing since 1992, as standard practice in settling treaty claims. In 2010, the trend of state apologies to Indigenous peoples extended to Latin America. In January 2010, Chile’s president Michelle Bachelet apologized to the descendants of a group of Kawesqar people, from Chile’s southernmost region. The remains of five Kawesqar, who had been taken captive in 1881 and displayed as curiosities in Europe, were returned to the Kawesqar people for proper burial, accompanied by a formal apology offered by Chile’s president. While the apology was only directed at the descendants of the Kawesqar people, Bachelet did acknowledge that wider mistreatment of Indigenous peoples was the result of Chile’s past racist attitudes.9 In October of the same year, on the 518th anniversary of Columbus’s landing in the Americas, Mauricio Funes, president of El Salvador, offered an apology to the nation’s Indigenous peoples for “the persecution, for the extermination of which they were victims for so many years” under a “reigning model of oppression.”10 Given the notable recent...

Taxation-Based Investment Treaty Claims

Taxation-Based Investment Treaty Claims

History and the Treaty of Waitangi Settlement Process

For the past quarter of a century the New Zealand government has actively sought to negotiate and settle historical Treaty claims, and it is anticipated that the vast majority of these historical claims will be settled by 2017. The negotiation of a claim culminates in a deed of settlement signed by a Māori claimant group and the Crown, which signals the resolution of all historical grievances between a Māori claimant group and the Crown. This article offers an introductory review of the Treaty of Waitangi negotiation and settlement process and the role of historical research. Much of the work done by historians remains hidden from view and is not easily analysed, but the Crown apology is an exception: it is a tangible, publicly available outcome of the process of negotiations between a particular Māori claimant group and the Crown. In conclusion, the article provides some preliminary discussion on the role of public education in relation to Treaty of Waitangi claims negotiations and suggests that greater attention to the Crown apology would enhance public understanding.

Collective Actions in ICSID Arbitration: The Argentine Bonds Case

The article deals with the subject matter of collective actions in ICSID arbitration. This topic has emerged as one of the ‘hottest’ issues in international investment law after the release of the Decision on Jurisdiction and Admissibility in the case Abaclat and others vs. Argentina. In this decision the majority of the ICSID Arbitral Tribunal considers as admissible in ICSID arbitration the collective action of about 60,000 Italian bondholders (initially about 180,000) represented by the Association for the Protection of Investors in Argentine Securities (‘Associazione per la Tutela degli Investitori in Titoli Argentini’). The decision issued by the Abaclat Tribunal, leaving the Argentine case aside, could open the way to mass claims in international arbitrations based on international agreements on the protection of foreign investments (the so called BITs), brought by holdout creditors in case of sovereign insolvency. The article critically analyses the majority’s ruling by commenting on some selected issues dealt with by the Tribunal. First of all, the article deals with the qualification by the Tribunal of the Italian investors’ mass claims as treaty claims (rather than as contractual claims). Secondly, the qualification of the Claimants’ security entitlements in the Argentine bonds as investments made in Argentine territory pursuant to Article 1(1) of the Argentina-Italy BIT is analysed. Finally, the method and the reasoning followed by the Tribunal in order to admit bondholders’ mass claims under the BIT in ICSID arbitration are critically discussed. In this respect, the conclusion is drawn that the Tribunal has conflated questions regarding jurisdictional subjective requirements under the ICSID Convention and Argentina-Italy BIT with questions of claims’ admissibility as well as issues related to parties’ consent to ICSID arbitration under the Argentina-Italy BIT with mere procedural issues.

El Paso v Argentine Republic: UNIDROIT Principles of International Commercial Contracts as a reflection of 'general principles of law recognized by civilized nations' in the context of an investment treaty claim

El Paso v Argentine Republic: UNIDROIT Principles of International Commercial Contracts as a reflection of 'general principles of law recognized by civilized nations' in the context of an investment treaty claim

When Investor-State Arbitration Tribunal Becomes Policy Maker: Reflection on Jurisdiction Decision of Philip Morris v. Uruguay

Investor-State arbitration (ISA) consists of numerous individual ad hoc Tribunals as a mechanism to settle disputes between an investor and a State arising out of an investment, however, the aggregate effect of individual tribunals presents certain systematic structure of governance of which the awards have policy implications beyond the very individual disputes to both stakeholder in host states and other ISA tribunals per se. Philip Morris v. Uruguay offers us a chance to conceptualize ISA as a governance mechanism. Philip Morris v. Uruguay involves public health measures of tobacco control which is of broad implications to multilevel stakeholder, including foreign investor, industrial competitors, public authority in host state, and public interests in host state as a whole. Uruguay has made prerequisite domestic litigation procedure for investment treaty claims which constitutes an interface of interaction of two governance mechanisms. Detailed analysis of Jurisdiction decision of Philip Morris v. Uruguay reveals the flexible self-enforcement approach to jurisdiction, including confirmation of broad treaty terms, e.g. investment, disputes, and satisfactions of prerequisite jurisdiction conditions, which could be characterized as reflections of ISA as governance mechanism. ISA awards have the policy externality of which the implications go beyond disputants in individual disputes to stakeholders in host state because foreign disputes always involve public interest per se as well as through individual case reasoning and awarding, tribunals review states’ measures, either regulatory or commercial, and by interpretation of treaty obligations and general international law, set standards for states in their internal administrative process. Policy externality of individual awards is only the initial step of institutionalization of ISA as governance which is ultimately fulfilled through the conscious or unconscious self-enforcement of ISA as a system by individual arbitrators. With direct rights of foreign investors to sue state in international arbitration and abstract but similar IIA terms, considerable discretions are vested to ISA arbitrators. The large number but homogenous arbitrators interact with each other, gradually establishing certain shared understanding concerning the interpretation method, the content of core concepts in IIAs. With the long term and large scale evolvement, ISA finally becomes an institution which de facto and should exercise public authority over public policy issues in domestic level, rather than an simple ad hoc dispute settlement tribunal, which could escape from individual states’ treaty design and acquire certain institutional ability of self-maintenance. ISA achieve public policy function through two approaches - substitution effect and review effect - in dealing three kinds of disputes, namely contract disputes, regulatory disputes and administrative disputes (if not overall overlapped with regulator disputes). During the institionalization process, critics follow. Justifications and safeguard measures to ISA as governance mechanism are of great urgency and significance which call for further research.

Investor-State Arbitration in Sovereign Debt Restructuring: The Role of Holdouts

Abaclat and others v. Argentina is the first investor-state arbitration case that deals with holdouts. International arbitration, compared to litigation, gives holdouts a more efficient way to enforce a final and binding decision as well as to attach and execute against sovereign assets. However, the jurisdiction of investor-state arbitration tribunals over holdout claims is a complex matter, since the claims have to be treaty claims, and they have to be legal disputes related to an investment. The fact that investor-state arbitration tribunals assess jurisdiction over these kinds of disputes may have a positive impact on the restructuring process and the sovereign debt markets. Nevertheless, holdout arbitration may also disrupt the restructuring process. In order to avoid such a problem, arbitration tribunals should limit the scope of the arbitration remedy.

When the Claim Hits: Bilateral Investment Treaties and Bounded Rational Learning

Using the international investment regime as its point of departure, the article applies notions of bounded rationality to the study of economic diplomacy. Through a multimethod approach, it shows that developing countries often ignored the risks of bilateral investment treaties (bits) until they themselves became subject to an investment treaty claim. Thus the behavior of developing country governments with regard to the international investment regime is consistent with that routinely observed for individuals in experiments and field studies: they tend to ignore high-impact, low-probability risks if they cannot bring specific “vivid” instances to mind.

The Authority of Domestic Courts in Adjudicating International Investment Disputes: Beyond the Distinction between Treaty and Contract Claims

While it is widely acknowledged that international tribunals may, depending on their jurisdictional entitlements, entertain treaty claims as well as claims arising out of breaches of contract, the exercise of jurisdiction by domestic courts has generally been deemed to be limited to matters of national law. What is more, domestic adjudication has generally been considered without consequence for the outcome of a number of international proceedings. However, is deference to international dispute settlement mechanisms really compatible with dispute settlement clauses contained in investment treaties and contractual agreements that foresee a role to be played by domestic courts? The answer attempted by this paper is in the negative. On the one hand, the identity of a legal dispute within the jurisdiction of different forums is not dependent on the cause of action that might be invoked, nor is the distinction between contract claims and treaty claims one that necessarily justifies the existence of two wholly separate layers of legal obligations. This may be illustrated through an assessment of how international jurisdictional entitlements exist and interact with specific dispute settlement clauses contained in contracts and treaties. On the other hand, where a distinction based on the causes of action might exist, municipal courts that deal strictly with matters of domestic law ought not to be deprived of influence on the outcome of international proceedings. In this regard, an analysis of the consequences for international tribunals of adjudication by municipal courts over derivative claims and investment disputes in general will be of avail.

The Authority of Domestic Courts in Adjudicating International Investment Disputes: Beyond the Distinction Between Treaty and Contract Claims

The Authority of Domestic Courts in Adjudicating International Investment Disputes: Beyond the Distinction Between Treaty and Contract Claims

'Good Faith', 'Abuse of Process' and the Initiation of Investment Treaty Claims

The principle of ‘good faith’ in assessing the initiation of investment treaty claims has manifestly become an important rule of international investment arbitration. From a procedural perspective, ‘good faith’ plays a significant role at the jurisdictional stage of international arbitral proceedings; for questions relating to whether the investment was acquired in ‘good faith’ or whether investor’s initiation of a claim is made in ‘good faith’, in order to avoid an abuse of the arbitral process. Such assessments, procedurally speaking, can be characterized either as a question that goes to the jurisdiction of the arbitral tribunal and thus to the consent to arbitration, or as a question of the admissibility of the claim. This article will examine the position of the principles of ‘good faith’ and ‘abuse of process’ in the assessment by investment tribunals of their jurisdiction and the admissibility of the claim. In doing so, this article will show that the application of these principles in international investment arbitration may play an important role in shielding tribunals from abusive submissions, and thus avoiding abuses of the arbitral procedure and the direct access of foreign investors to international arbitration.

The Political Economy of Fishing Rights and Claims: The Maori Experience in New Zealand

The capitalist penetration of fisheries in New Zealand began in the nineteenth century and has carried on into the twenty‐first. Early on, Maori were denied access to fisheries by a lack of access to capital; a de facto restriction that became a de jure restriction with the creation of fishing quotas in the 1990s. This legal change allowed Maori to use their historic treaty claims to articulate with the discourse of property rights and gain legal access to fish. In return, this engagement facilitated the penetration of capitalism into Maori fishing practices. Two Maori‐controlled fishing companies, Aotearoa Fisheries Ltd (AFL) and Moana Pacific Fisheries Ltd (Moana Pacific), demonstrate how Maori ownership of fishing quotas irrevocably changed historical modes of access and relationships to capital.

Māori Issues

Māori Issues Margaret Mutu (bio) The year under review was one of shocking upheavals for Māori in more ways than one. In August and September 2010 we lost some key leaders. In September 2010, in February 2011, and in June 2011, Christchurch suffered a series of earthquakes that left many Māori families devastated and feeling abandoned as recovery aid passed them by. On the political scene, Prime Minister John Key finally got his wish when the Māori Party forced Hōne Harawira out, only to have Harawira win a by-election for his Taitokerau seat and return to Parliament as the leader of the new Mana Movement. But the most bewildering development was the Māori Party turning its back on its constituents and supporting the passage into law of the racist Marine and Coastal Area (Takutai Moana) Bill. [End Page 184] On 17 August 2010, two very different leaders from different parts of the country passed away. In Taranaki, Te Miringa Hohaia died unexpectedly at the age of fifty-eight. He was a scholar, artist, and activist who spent his adult life fighting the injustices perpetrated on his Taranaki people by the British. He was trained and deeply skilled in the traditions, customs, and history of his ancestral home, Parihaka, a place renowned for the atrocities that the British committed there over many years. In the 1970s he was involved in the eventually successful Treaty of Waitangi claims against the Crown to stop the pollution and despoliation of the seafood beds off the north Taranaki coast. In the 1990s he was one of the leaders of the complex and successful Taranaki Treaty claims. In 2000 he co-curated the hugely successful landmark exhibition Parihaka, The Art of Passive Resistance at Wellington's City Gallery, and in 2005 he created the Parihaka International Peace Festival, which has become an annual celebration of the heritage of Taranaki (Ashworth, Hond, and Hohaia 2010; Māori Party 2010a). An obituary noted, "In life he was akin to his tupuna [ancestors], becoming perhaps the most hated person in the province among Pakeha in the 1980s as he fought the injustice of the pittance paid by leaseholders farming confiscated Taranaki Maori reserve land. . . . Opponents vilified him, echoing the 19th century settler reaction to the non-violent campaign of Parihaka founders Tohu and Te Whiti" (Ashworth, Hond, and Hohaia 2010, 9). On the east coast, Te Kapunga (Koro) Matemoana Dewes passed away. He was staunchly Ngāti Porou, a scholar, a thinker, and the architect of the Māori Studies Department at Victoria University in Wellington. There he challenged the dry, dusty approach to university teaching and scholarship imported from Britain, writing the first MA thesis in the Māori language. However, he was passed over as the inaugural head of the department, so he left academia and returned home to his Ngāti Porou roots to farm and work for his people. It was many years before Victoria University recognized his contributions. In 2004 they awarded him an honorary doctorate in literature (Fox 2010). In September 2010, Sir Archie John Te Atawhai Taiaroa passed away. He was Te Atihaunui a Pāpārangi, Ngāti Tūwharetoa, and Ngāti Apa and chairman of the Whanganui River Māori Trust Board. He played a key role in one of the nation's longest running court cases—the Whanganui River claim. He took a number of leading roles tribally, nationally, and internationally. He was at the heart of the protracted Māori fisheries struggles and a leader of the Māori broadcasting litigation that spanned over twenty years and led to Māori radio and television. He traveled to the United Nations, the International Whaling Commission, and the Privy Council in London to defend the rights of Māori and indigenous people (Māori Party 2010b; Harawira 2010). On 8 September, the first earthquake hit Christchurch. It measured 7.1 on the Richter scale and, while there was extensive damage to buildings in the central business district in particular, there was no loss of human life. Hundreds of aftershocks followed, [End Page 185] and a magnitude 6.3 quake on 22 February...

Contractual Rights as Protected Investments in International Investment Law

This paper is focused on issues regarding contractual rights as investments in international investment law. The text is divided into three main parts. The first part examines the existing definitions of investments, stemming from various sources of investment law, and the role of contractual rights in those definitions. Following that, the author sets out a classification of issues concerning contractual rights into three groups – investor-State contracts, contracts usually recognized as investments, and sales contracts. This creates the structure for the discussion in further text. A short overview of these groups is then given. The second part is focused on examining the most important contemporary issues regarding each of the three groups in more detail and suggesting possible solutions for certain problems. These issues mostly concern the treaty versus contract claims problems, the scope of umbrella clauses, the search for criteria for recognizing investments, and the status of sales contracts in international investment law. A special emphasis is put on suggesting the model for recognizing investments under the ICSID Convention which should promote predictability in recognizing contractual rights and also on arguing that sales contracts existing in the context of an overall recognized investment should be given investment protection themselves. The final part of the paper contains concluding remarks regarding the topics dealt with in the work and also proposed guidelines for the future.

When the Claim Hits: Bilateral Investment Treaties and Bounded Rational Learning

Using the international investment regime as its point of departure, the paper introduces notions of bounded rationality to the study of economic diplomacy. Through a multi-method approach, it shows that developing countries often ignored the risks of bilateral investment treaties (BITs) until they themselves became subject to an investment treaty claim. Thus the behavior of developing country governments with regard to the international investment regime is consistent with that observed for individuals in experiments and field studies: they tend to ignore high-impact, low-probability risks if they cannot bring specific ‘vivid’ instances to mind.

COLLECTIVE ACTIONS IN ICSID ARBITRATION: THE ARGENTINE BONDS CASE

This comment deals with collective actions in ICSID arbitration. This topic has emerged as one of the hottest issues in international investment law after the recent Decision on Jurisdiction and Admissibility in the case Abaclat and others v. Argentina. In this decision the majority of the ICSID Arbitral Tribunal considers as admissible the collective action of about 60,000 Italian bondholders represented by the Association for the Protection of Investors in Argentine Securities. The decision issued by the Abaclat Tribunal could open the way to mass claims in international arbitrations based on international agreements on the protection of foreign investments (so-called BITs), brought by holdout creditors in case of sovereign insolvency. A critical review of some selected issues dealt with by the Tribunal will be presented. First of all, this comment addresses the qualification of the Italian investors’ mass claims as treaty claims (rather than as contractual claims). Secondly, the qualification of the claimants’ security entitlements in the Argentine bonds as investments made in Argentine territory pursuant to the Argentina-Italy BIT is analysed. Finally, the method and reasoning followed by the Tribunal in order to admit bondholders’ mass claims under BITs in ICSID arbitration are critically discussed. In this respect, the conclusion is drawn that the Tribunal has conflated questions regarding subjective jurisdictional requirements under the ICSID Convention and Argentina-Italy BIT with questions of claims’ admissibility, as well as issues related to parties’ consent to ICSID arbitration with mere procedural issues.

Applying the Full Protection and Security Standard of International Investment Law to Digital Assets

This article considers the possibility that digital assets of foreign investors such as websites and computer systems could be protected by the full protection and security (‘FPS’) standard common to many bilateral investment treaties. Such assets can properly be described as investments and the flexible nature of the FPS standard observed in recent arbitration practice could be extended to cover civil disturbances such as 'cyber attacks' against companies. The article considers host state liability with respect to the prevention of harm to digital assets as well as failure to enforce laws that prohibit it. The lack of governmental control over websites suggests that it would be difficult to ascribe state liability under an FPS clause, except possibly in situations of large scale internet infrastructure collapse. A duty to prosecute attacks against digital assets, while common to many jurisdictions and seen in international instruments, is inappropriate as an investment treaty claim because of difficulties in compensation. The FPS standard further appears to incorporate a degree of contextual proportionality linked to the host state’s resources and this may prevent successful claims against Developing States where many cyber attacks occur.

Access and advantage in investor-state arbitration: The law and practice of treaty shopping

This paper is concerned with ‘Treaty Shopping’ in foreign direct investment. In this context, the expression ‘Treaty Shopping’ connotes the conduct of foreign investors who deliberately seek to acquire the benefits of an investment treaty by making foreign investments or bringing claims from third countries that have more favourable treaty terms with the target host state. This paper begins with an overview of the investment treaty system. It then describes the process by which investment treaty claims are prosecuted and resolved by investor-state arbitration. This is followed by a discussion of the various methods of Treaty Shopping, and a survey of the key provisions of investment treaties (including the Energy Charter treaty) that regulate this practice. The paper closes with a discussion of recent developments in the jurisprudence of Treaty Shopping. This piece will be of interest to lawyers with clients engaged in foreign investment in the energy and resources sectors of both developed and developing countries, and parties with potential or current investment treaty claims.