书目名称 | Judging the State in International Trade and Investment Law | 副标题 | Sovereignty Modern, | 编辑 | Leïla Choukroune | 视频video | http://file.papertrans.cn/502/501387/501387.mp4 | 概述 | Provides readers with the latest developments on why, how and what for States are sued for breaches of their international trade and investment obligations.Covers recent case law and theoretical discu | 丛书名称 | International Law and the Global South | 图书封面 |  | 描述 | .This book addresses concerns with the international trade and investment dispute settlement systems from a statist perspective, at a time when multilateralism is deeply questioned by the forces of mega-regionalism and political and economic contestation. In covering recent case law and theoretical discussions, the book’s contributors analyze the particularities of statehood and the limitations of the dispute settlement systems to judge sovereign actors as autonomous regulators..From a democratic deficit coupled with a deficit of legitimacy in relation to the questionable professionalism, independence and impartiality of adjudicators to the lack of consistency of decisions challenging essential public policies, trade and investment disputes have proven controversial. These challenges call for a rethinking of .why, how and what for.,. .are. .States judged.Based on a “sovereignty modern” approach, which takes into account the latest evolutions of a globalized trade and investment law struggling to put people’s expectations at its core, the book provides a comprehensive framework and truly original perspective linking the various facets of “judicial activity” to the specific yet encom | 出版日期 | Book 2016 | 关键词 | BRICS; Disputes; International Law; Investment; State; Trade | 版次 | 1 | doi | https://doi.org/10.1007/978-981-10-2360-6 | isbn_softcover | 978-981-10-9597-9 | isbn_ebook | 978-981-10-2360-6Series ISSN 2510-1420 Series E-ISSN 2510-1439 | issn_series | 2510-1420 | copyright | Springer Nature Singapore Pte Ltd. 2016 |
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Front Matter |
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,Introduction, |
Leïla Choukroune |
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., . and . are States sued for breaches of their International trade and investment law obligations? At a time when multilateralism is deeply questioned by the forces of mega-regionalism as well as political and economic contestation, these essential interrogations have never been more pressing. Whether by a permanent court or an ad hoc body, the questioning of judging the State for breaches of its treaty obligations however remains at the core of today’s interrogations on the adequacy and legitimacy of trade and Investor States Dispute Settlement System. While rich and diverse in the way it addresses some fundamental issues in international trade and investment dispute settlement, our book does not claim to be exhaustive. Its analysis is voluntarily limited to trade and investment disputes settled at the international level by the World Trade Organisation (WTO) dispute settlement mechanism and international investor States disputes systems. But in this relatively restricted context, . takes into account the latest evolutions of a globalized trade and investment regulation struggling to put people’s expectations at its core, and provides a comprehensive framework and truly original
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Judging the Judges or Judging the Members? |
Arthur E. Appleton |
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The politicization of the WTO Appellate Body selection process is undermining the Appellate Body’s legitimacy. Quasi-permanent seats, growing obstacles in the appointment and reappointment process, and the growing tendency of Members to appoint political as opposed to legal experts, are damaging the Appellate Body as an institution. Instead of choosing Appellate Body Members with strong legal backgrounds, Members are demonstrating a preference for judges with government experience, in particular ex-ambassadors. This development may erode respect for Appellate Body decisions. As Montesquieu noted, “there is no liberty, if the power of judging be not separated from the legislative and executive powers.” Members would be wise to remember this as they ponder Appellate Body appointments and reappointments.
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WTO, State and Legal Capacity Building |
James J. Nedumpara |
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This chapter examines the background and the key WTO disputes which triggered a policy shift in India towards the State playing a more proactive role in encouraging the building of trade-related legal capacity. The chapter examines the features of the unique trade-related capacity model chosen by India and how it differs from the alternate models established by other major developing countries that have an active profile in WTO dispute settlement. The chapter explores how the Indian model is more geared towards hybrid policy making in contrast to alternative trade-related legal capacity models employed by other WTO Members.
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States’ Regulatory Autonomy to Protect Societal Values by Legitimate Regulatory Distinctions |
Denise Prévost |
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Trade disputes in which public policy regulation is challenged have been among the most difficult and controversial of those before the adjudicatory bodies of the WTO. They have showcased the crucial role of adjudication in achieving an appropriate balance between the sovereign autonomy of States to regulate to protect important societal values on the one hand and trade liberalization on the other. Nowhere is this more clearly apparent than in the line of case law by the WTO Appellate Body, interpreting the non-discrimination obligation in Article 2.1 of the WTO Agreement on Technical Barriers to Trade (TBT Agreement). Despite its limited mandate, the Appellate Body has shouldered its responsibility to give appropriate meaning to this badly drafted provision. Thereby it has averted the risk of unacceptable limitations on the regulatory autonomy of States. However, since in order to do so, the Appellate Body has had to read into this provision a flexibility not apparent in its wording, no negotiated criteria for its availability exist. Thus, to ameliorate the risk of abuse of this new flexibility, the Appellate Body has itself established some criteria limiting its use. This contrib
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Investor-State Arbitration Distorted |
Julien Chaisse,Dini Sejko |
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Investments from emerging economies have increased since the beginning of the century and notably a large proportion of the flows of foreign direct investment (FDI) coming from emerging economies is executed by State-Owned Enterprises (SOEs) and Sovereign Wealth Funds (SWFs) both typical contemporary forms of State Controlled Entities (SCEs). Such trend that has been further reinforced since 2008/2009 and SCE’s investment activism has reflected into a systemic shift that has transformed State capitalism into a key feature of contemporary global economy. At the time, investment arbitration, which was designed to allow foreign private investors to sue sovereign States, has transformed since host States can now be judged at the initiative of another State owning enterprises making investments. The thesis of this chapter is that the international regime for foreign investment, which includes both substantive rules and arbitration principles, is gradually adjusting to the emergence of SCEs in the investment sphere. This adjustment implicitly means that the rules and practice of international investment are reshaped by actors, which were not initially at the center of the regime. Actuall
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Claims and Counterclaims Under Asian Multilateral Investment Treaties |
Trisha Mitra,Rahul Donde |
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Asian States are in the spotlight of global foreign investment flows. They are increasingly entering into international investment agreements (“IIAs”) at both the bilateral and multilateral level to attract, protect and safeguard foreign investment. And yet, some Asian States have felt the need to reform or terminate their IIAs . because of their disenchantment with investment arbitration. The perception that the State must be a “perpetual respondent”, always playing the defence has undermined the legitimacy of investment arbitration, a feeling which is growing in Asia. In these circumstances, it is useful to consider whether Asian States can vindicate their own claims within the existing investment arbitration system. Can Asian States start an arbitration (i.e., bring claims) or raise counterclaims against foreign investors? What are the factors necessary for doing so? Are there lessons to be learnt from the experiences of other States? These are precisely the questions that this contribution attempts to answer, with a focus on prominent multilateral investment treaties in the Asian region.
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Determination of Indirect Expropriation and Doctrine of Police Power in International Investment Law |
Prabhash Ranjan,Pushkar Anand |
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The chapter aims at examining the role of the doctrine of police powers in judging a claim of indirect expropriation against a host State. It seeks to answer if the ITA tribunals, while judging if a host State’s regulatory measures amount to indirect expropriation or not, have been able to develop and apply the police power doctrine in a uniform manner? The significance of the inquiry lies in understanding suitability of this doctrine as a benchmark to judge a host State’s regulatory measures. The methodology adopted includes the study of ITA cases where this doctrine has been invoked, followed by studying cases where the doctrine of police power was referred by the parties or used for disputes, related to indirect expropriation, by ITA tribunals and to see whether the approach of different arbitral tribunals was similar or different. The study concludes by observing that the actual scope and application of the police power doctrine remains unclear in ITA and thus its use as a benchmark to judge host State’s regulatory action is questionable.
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Role of Indian Judiciary in the Realm of International Trade and Investment Law |
Amal K. Ganguli |
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Globalization is no longer a buzzword. It is a reality that has impacted almost every sphere of human life. Globalization, which envisages a borsubsidies for various sectors, derless world, has not only diluted the traditional concept of State sovereignty but has also added new dimensions to the relations amongst the States inter se, between the State and the citizens, and also between aliens and the State when they choose to deal with the host State. The sovereign States are no longer free to formulate their own policies concerning the economy, trade and business investment, agriculture, and subsidies,. the global scenario. Even the social and cultural values are not immune from the impact of globalization. The all-pervasive influence of globalization is now well accepted and acknowledged even by the national judiciary while construing the laws and the Constitution. India became party to several multilateral trade agreements in 1995. Being a Member of the WTO and being obliged to comply with various “covered” agreements, including the Agreement on Trade Related Investment Measures (TRIMs), India has updated all the concerned legislations in consonance with various provisions of th
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Human Rights in International Investment Disputes |
Leïla Choukroune |
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Are human rights taken into consideration in international investment law and dispute settlement? The controversy surrounding this now tedious debate has largely been fuelled by political and economic interests rather than convincing legal arguments. Interestingly indeed, the apparent contradiction between norms could be easily resolved if a political and economic will to read the law from a holistic perspective making use of its many flexibilities could eventually manifest itself. Twenty years after the creation of the World Trade Organization (WTO) and the massive adoption of investment treaties promoting and protecting FDI, the complexities of today’s international economic law scene as well as the recent defiance of developing, but also developed countries, towards trade and investment instruments and dispute settlement in particular calls for a paradigm shift, that of the reconsideration of the State’s sovereign attributes and duty to regulate in the favour of the public interest and the protection of human rights. In relation to these changes, the rapid development of global mega investment cases (Bhopal, Chevron-Texaco v. Ecuador, Philipp Morris), which are litigated, often
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Sovereignty Modern |
Leïla Choukroune |
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What is modernity in international trade and investment law when confronted with a never-ending inflation of norms and proliferation of dispute settlement mechanisms whose decisions are, if only known, sometimes incoherent and often inconsistent? Isn’t modern international economic law also driven by successive developments hence always on the move towards the integration (or not) of new protagonists and potential subjects, either public or private, which domains of action rest at the margin of its traditionally defined sphere of competence that is the regulation of trade and investment relations amongst nations. In this rather unstable environment, the rediscovery of sovereignty in the light of the emergence of a new State capitalism and the better voiced and framed expectations of an interrelated global civil society contributes to a form of stabilization, if not yet re-unification, of an international law now ritually denounced as fragmented. While it was not the purpose of this book to thoroughly assess the latest developments of sovereignty as a polymorphous, uncertain and so controversial concept in international trade and investment law, the question arose throughout all its
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