In its initial stages, the international legal discourse around COVID-19 focused heavily on two narrow questions: first, the international legality of lockdowns, and secondly whether China could be held legally responsible for the pandemic. In September 2020, Donald Trump called upon the UN to find China responsible for COVID-19. Similarly, Australia called for a fact finding mission over the question of China’s state responsibility. For its part China has rebuffed such claims, at one point seeming to place responsibility for the pandemic with the WHO or, more recently, with imported frozen food that allegedly triggered a super-spreader event at the Wuhan food market. These accusations are not simply of concern to a small number of government-employed international lawyers. The popular international law blog EJIL:Talk! announced in late 2020 that its most read post for the year was a piece by Peter Tzeng on the possibility of holding China internationally responsible for the pandemic. Tzeng’s piece was part of – and itself generated – a flurry of academic commentary on China’s potential legal responsibility. Of course, one could retort here that the combination of veto rights at the UN Security Council, the absence of obvious grounds for ICJ jurisdiction and the operation of sovereign immunity make the possibility of China (or any other state for that matter) facing proceedings over COVID-19 wildly implausible. Questions of proof – both in the light of non-cooperation but also sheer uncertainty – and causation make the suggestion that anyone will be held internationally responsible sound like a cruel joke. One would be tempted to dismiss, then, these discussions as being irrelevant, as the expressions of an out-of-touch profession on the part of lawyers and simple rhetoric on the part of states. However, it is important to resist this ‘realist’ impulse. It cannot explain why these ‘impossible’ accusations have recurred with such frequency in the discourse around the pandemic. Indeed, from this perspective it is the sheer implausibility of these legal schemes that makes their popularity worth interrogating. Why, in such a practice-orientated field as law, does such an seemingly impracticalset of accusations recur? Our argument is that law, including international law, has many functions: it represses, it distributes resources, opportunities and violence, and it produces representations of our relationship with the world, or, in other words, it operates as an ideology. Our intervention is concerned with this latter, ideological function of law. In particular, we seek to detect and critique the specific representations about the relationship between states, capital, and global disaster that are implicitly articulated through discussions of state responsibility for the pandemic.
{"title":"International Law of State Responsibility and COVID-19: an Ideology Critique","authors":"Ntina Tzouvala, R. Knox","doi":"10.2139/ssrn.3930470","DOIUrl":"https://doi.org/10.2139/ssrn.3930470","url":null,"abstract":"In its initial stages, the international legal discourse around COVID-19 focused heavily on two narrow questions: first, the international legality of lockdowns, and secondly whether China could be held legally responsible for the pandemic. In September 2020, Donald Trump called upon the UN to find China responsible for COVID-19. Similarly, Australia called for a fact finding mission over the question of China’s state responsibility. For its part China has rebuffed such claims, at one point seeming to place responsibility for the pandemic with the WHO or, more recently, with imported frozen food that allegedly triggered a super-spreader event at the Wuhan food market. These accusations are not simply of concern to a small number of government-employed international lawyers. The popular international law blog EJIL:Talk! announced in late 2020 that its most read post for the year was a piece by Peter Tzeng on the possibility of holding China internationally responsible for the pandemic. Tzeng’s piece was part of – and itself generated – a flurry of academic commentary on China’s potential legal responsibility. Of course, one could retort here that the combination of veto rights at the UN Security Council, the absence of obvious grounds for ICJ jurisdiction and the operation of sovereign immunity make the possibility of China (or any other state for that matter) facing proceedings over COVID-19 wildly implausible. Questions of proof – both in the light of non-cooperation but also sheer uncertainty – and causation make the suggestion that anyone will be held internationally responsible sound like a cruel joke. One would be tempted to dismiss, then, these discussions as being irrelevant, as the expressions of an out-of-touch profession on the part of lawyers and simple rhetoric on the part of states. However, it is important to resist this ‘realist’ impulse. It cannot explain why these ‘impossible’ accusations have recurred with such frequency in the discourse around the pandemic. Indeed, from this perspective it is the sheer implausibility of these legal schemes that makes their popularity worth interrogating. Why, in such a practice-orientated field as law, does such an seemingly impracticalset of accusations recur? Our argument is that law, including international law, has many functions: it represses, it distributes resources, opportunities and violence, and it produces representations of our relationship with the world, or, in other words, it operates as an ideology. Our intervention is concerned with this latter, ideological function of law. In particular, we seek to detect and critique the specific representations about the relationship between states, capital, and global disaster that are implicitly articulated through discussions of state responsibility for the pandemic.","PeriodicalId":131289,"journal":{"name":"International Institutions: Laws","volume":"54 6 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-09-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116214444","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Behavior that violates company policies and/or societal notions of ethical conduct can sometimes produce short-term profits and consequent bonuses. Due to imperfect monitoring, such behavior may not be identified until after bonuses have been awarded and paid. Deferred remuneration with malus provisions has been proposed as a possible antidote to misconduct in the financial services industry. The principal attraction of deferred remuneration is the potential for better monitoring of behavior and outcomes prior to the payment of any variable remuneration. This paper is the first to empirically examine the impact of deferred remuneration on both compliance and productive behavior. We also consider how this change might affect the ability of the industry to attract talent through investigation of self-selection effects. With 298 student participants, we first use experimental methods to examine the case where a change in remuneration is imposed. We observe an increase in strategic violations of policy when deferred payment of variable remuneration is imposed, and mixed results for compliance behavior depending on how it is measured. Allowing for self-selection effects, where individuals can choose their preferred payment structure, the benefits of deferrals become more apparent. Relative to the case of immediate payment, deferred payment of variable remunerations improves compliance on all our measures. For example, the proportion of participants with zero policy violations is 23.2% higher and we also observe a statistically significant increase in productivity. We show that more productive individuals are attracted to the condition with deferred payment and superior monitoring, while less compliant individuals are attracted to the condition with immediate payment and poor monitoring. Finally, we observed that male participants in our experiment are more likely than females to select the condition with immediate payment and poor monitoring. The study suggests that the short-term impact of a switch to deferred remuneration would be limited. Over the long-term, allowing for self-selection effects to occur, adoption of deferred remuneration is likely to produce improved conduct, higher productivity and a greater proportion of females in the workforce, relative to workplaces retaining immediate payment of variable remuneration.A switch to fixed remuneration, with neither sanctions nor benefit flowing from policy violations, would not be beneficial for employee behavior. After allowing for self-selection effects, this study confirms that productivity decreases under fixed remuneration and suggests that there would be no compliance benefits.
{"title":"Deferred Pay in Financial Services: Compliance, Productivity and Attracting Talent","authors":"Elizabeth Sheedy, Le Zhang, Yin Liao","doi":"10.2139/ssrn.3535347","DOIUrl":"https://doi.org/10.2139/ssrn.3535347","url":null,"abstract":"Behavior that violates company policies and/or societal notions of ethical conduct can sometimes produce short-term profits and consequent bonuses. Due to imperfect monitoring, such behavior may not be identified until after bonuses have been awarded and paid. Deferred remuneration with malus provisions has been proposed as a possible antidote to misconduct in the financial services industry. The principal attraction of deferred remuneration is the potential for better monitoring of behavior and outcomes prior to the payment of any variable remuneration. This paper is the first to empirically examine the impact of deferred remuneration on both compliance and productive behavior. We also consider how this change might affect the ability of the industry to attract talent through investigation of self-selection effects. With 298 student participants, we first use experimental methods to examine the case where a change in remuneration is imposed. We observe an increase in strategic violations of policy when deferred payment of variable remuneration is imposed, and mixed results for compliance behavior depending on how it is measured. Allowing for self-selection effects, where individuals can choose their preferred payment structure, the benefits of deferrals become more apparent. Relative to the case of immediate payment, deferred payment of variable remunerations improves compliance on all our measures. For example, the proportion of participants with zero policy violations is 23.2% higher and we also observe a statistically significant increase in productivity. We show that more productive individuals are attracted to the condition with deferred payment and superior monitoring, while less compliant individuals are attracted to the condition with immediate payment and poor monitoring. Finally, we observed that male participants in our experiment are more likely than females to select the condition with immediate payment and poor monitoring. The study suggests that the short-term impact of a switch to deferred remuneration would be limited. Over the long-term, allowing for self-selection effects to occur, adoption of deferred remuneration is likely to produce improved conduct, higher productivity and a greater proportion of females in the workforce, relative to workplaces retaining immediate payment of variable remuneration.A switch to fixed remuneration, with neither sanctions nor benefit flowing from policy violations, would not be beneficial for employee behavior. After allowing for self-selection effects, this study confirms that productivity decreases under fixed remuneration and suggests that there would be no compliance benefits.","PeriodicalId":131289,"journal":{"name":"International Institutions: Laws","volume":"49 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-02-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115895265","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2020-01-23DOI: 10.1163/22119000-12340166
Steven R. Ratner
International investment law and domestic law governing foreign investment strongly influence one another and indeed operate in a relationship of co-dependency or interoperability. Yet the flows between the two bodies of law, and their respective modalities of influence, remain generally unexplored in international legal theory. To shed light on this important phenomenon, this article traces the ways in which international investment law can affect the content of domestic investment law, using theories of international law compliance as a lens for such an understanding. It then proposes a set of pathways by which domestic law can influence the content of international investment rules. International law thus depends upon national law not only for its implementation but for its very content. Indeed, the regime of investment law will not tolerate significant discrepancies between the two. An appreciation of this dynamic is critical to evaluating the prospects of improvements to international investment law and can inform the ongoing discussions among stakeholders to this end.
{"title":"International Investment Law and Domestic Investment Rules: Tracing the Upstream and Downstream Flows","authors":"Steven R. Ratner","doi":"10.1163/22119000-12340166","DOIUrl":"https://doi.org/10.1163/22119000-12340166","url":null,"abstract":"\u0000International investment law and domestic law governing foreign investment strongly influence one another and indeed operate in a relationship of co-dependency or interoperability. Yet the flows between the two bodies of law, and their respective modalities of influence, remain generally unexplored in international legal theory. To shed light on this important phenomenon, this article traces the ways in which international investment law can affect the content of domestic investment law, using theories of international law compliance as a lens for such an understanding. It then proposes a set of pathways by which domestic law can influence the content of international investment rules. International law thus depends upon national law not only for its implementation but for its very content. Indeed, the regime of investment law will not tolerate significant discrepancies between the two. An appreciation of this dynamic is critical to evaluating the prospects of improvements to international investment law and can inform the ongoing discussions among stakeholders to this end.","PeriodicalId":131289,"journal":{"name":"International Institutions: Laws","volume":"5 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-01-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115390684","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This chapter examines the contribution of investment arbitration to international law more generally in relation to matters of evidence and procedure. Part 1 examines the practice of a number of inter-State dispute settlement fora in an attempt to gauge the contribution of the considerable body of practice of investment arbitration which has been built up over the course of the last few decades. It is shown that, at least at this point in time, this contribution is difficult to discern and appears to vary from one context to another. Part 2 takes a step back and considers the broader implications of the current practice and potential future developments. The argument is made that investment arbitration is in practice an important point of reference for the resolution of ‘cross-cutting’ issues of evidence and procedure, with significant potential to influence the handling of similar issues before other courts and tribunals. For instance, certain issues such as the challenge and disqualification of decision-makers, abuse of process, or admissibility of illegally-obtained evidence have received extensive consideration in investment arbitration. The manner in which such issues have been dealt with by investment arbitrators, it is argued, forms part of an increasingly rich corpus of practice from which other courts and tribunals can potentially draw inspiration. Accordingly, the strict position taken by some inter-State tribunals to date, which circumscribes reference to investment arbitration practice on account of it not being a relevant source of law, is undesirable. For international courts and tribunals to wilfully deprive themselves of this potentially fruitful source of inspiration and guidance on issues of evidence and procedure is unnecessarily isolationist and potentially harmful to international law as a discipline more generally.
{"title":"On The Contribution of Investment Arbitration to Issues of Evidence and Procedure Before Other International Courts and Tribunals","authors":"J. Devaney","doi":"10.2139/ssrn.3516715","DOIUrl":"https://doi.org/10.2139/ssrn.3516715","url":null,"abstract":"This chapter examines the contribution of investment arbitration to international law more generally in relation to matters of evidence and procedure. Part 1 examines the practice of a number of inter-State dispute settlement fora in an attempt to gauge the contribution of the considerable body of practice of investment arbitration which has been built up over the course of the last few decades. It is shown that, at least at this point in time, this contribution is difficult to discern and appears to vary from one context to another. \u0000 \u0000Part 2 takes a step back and considers the broader implications of the current practice and potential future developments. The argument is made that investment arbitration is in practice an important point of reference for the resolution of ‘cross-cutting’ issues of evidence and procedure, with significant potential to influence the handling of similar issues before other courts and tribunals. For instance, certain issues such as the challenge and disqualification of decision-makers, abuse of process, or admissibility of illegally-obtained evidence have received extensive consideration in investment arbitration. The manner in which such issues have been dealt with by investment arbitrators, it is argued, forms part of an increasingly rich corpus of practice from which other courts and tribunals can potentially draw inspiration. \u0000 \u0000Accordingly, the strict position taken by some inter-State tribunals to date, which circumscribes reference to investment arbitration practice on account of it not being a relevant source of law, is undesirable. For international courts and tribunals to wilfully deprive themselves of this potentially fruitful source of inspiration and guidance on issues of evidence and procedure is unnecessarily isolationist and potentially harmful to international law as a discipline more generally.","PeriodicalId":131289,"journal":{"name":"International Institutions: Laws","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-01-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130686877","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Since the 5th of January 2018, Mr. Sisiku Ayuk TABE and 46 other activists of the pro-independence movement of North-West and South-West (Ambazonia) of Cameroon have been arrested in Nigeria and extradited by the Government of Nigeria and recognized to be on Cameroon soil on the 29th of January 2018 by the then Cameroonian government Spokesman, Minister of Communication, Mr. Issa Tchiroma Bakari and that despite the advocacy of the United Nations High Commissioner for Refugees to the Government of Nigeria who in his letter of the 24th of January 2018 declares, among others, we quote ".... To ensure better management of migration flows in accordance with international humanitarian principles, the Office of the United Nations High Commissioner for Refugees continues its advocacy with the Nigerian authorities to safeguard the rights of those who have fled the crisis and to facilitate the supply humanitarian assistance to refugees in safety and dignity. The Office of the High Commissioner negotiated the release of certain asylum seekers arrested by the Nigerian authorities. For those in detention including the leader of the pro-independence group, the Nigerian government agreed to grant the High Commission access to determine their status. The Government has also reaffirmed to the High Commissioner that those in detention will not return to Cameroon. The article intends to present human rights challenges in Cameroon and how can be overcome. The article gives some recommendations in this regard.
{"title":"Human Rights Issues in Cameroon in the Case of the Independentists Arrested in Nigeria and Extradited to Cameroon","authors":"Maxi Ngo MBE","doi":"10.2139/ssrn.3472963","DOIUrl":"https://doi.org/10.2139/ssrn.3472963","url":null,"abstract":"Since the 5th of January 2018, Mr. Sisiku Ayuk TABE and 46 other activists of the pro-independence movement of North-West and South-West (Ambazonia) of Cameroon have been arrested in Nigeria and extradited by the Government of Nigeria and recognized to be on Cameroon soil on the 29th of January 2018 by the then Cameroonian government Spokesman, Minister of Communication, Mr. Issa Tchiroma Bakari and that despite the advocacy of the United Nations High Commissioner for Refugees to the Government of Nigeria who in his letter of the 24th of January 2018 declares, among others, we quote \".... To ensure better management of migration flows in accordance with international humanitarian principles, the Office of the United Nations High Commissioner for Refugees continues its advocacy with the Nigerian authorities to safeguard the rights of those who have fled the crisis and to facilitate the supply humanitarian assistance to refugees in safety and dignity. The Office of the High Commissioner negotiated the release of certain asylum seekers arrested by the Nigerian authorities. For those in detention including the leader of the pro-independence group, the Nigerian government agreed to grant the High Commission access to determine their status. The Government has also reaffirmed to the High Commissioner that those in detention will not return to Cameroon. The article intends to present human rights challenges in Cameroon and how can be overcome. The article gives some recommendations in this regard.","PeriodicalId":131289,"journal":{"name":"International Institutions: Laws","volume":"31 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-10-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124607517","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Foreign investment is the movement of capital flow from one country to another country. A company and natural person can be the part of management of company or corporation in another country. Traditionally foreign investment was mere the subject matter of contract which has been changed with the presence of international law. Many issues of foreign investment are addressed by multilateral treaty provisions. There are financial investment; foreign direct investment (horizontal investment, vertical investment, conglomerate investment, greenfield investment, brownfield investment), portfolio investment, official flows, commercial loans, and technological investment etc. There are classical approach, dependency approach and middle path approach of foreign investment. Classical economic theory argues that foreign investment is beneficial for host country whereas dependency theory is reverse to classical theory and middle path theory analyses both positive and negative aspect of foreign investment. Joint venture, management contract, turnkey operation, and licensing agreement are basic method of foreign investment in Nepal. There are bilateral, regional and multilateral instruments supporting for foreign investment. Bilateral instruments include Bilateral Investment Protection Treaties and Bilateral Double Taxation Avoidance Treaties whereas regional instruments are developed by African Union, European Union etc. Multilateral instruments are developed by International Monetary Fund (IMF), World Bank Group, World Trade Organization etc. Constitution of Nepal (2015 AD) has purported liberal and open economic policy to accelerate economic growth. Foreign Investment and Technology Transfer Act, 2075 (2019 AD) and Foreign Exchange (Regulation) Act, 2019 BS (1962 AD) are principal legislation for foreign investment in Nepal. There are various principles of foreign investment which are most favored nation treatment, national treatment, preferential treatment, full protection and security, fair and equitable treatment, protection against nationalization or expropriation and protection from threat agreements etc.
{"title":"Implication of International law on Foreign Investment Process: A Reference of Nepal","authors":"Suman Acharya","doi":"10.2139/SSRN.3366280","DOIUrl":"https://doi.org/10.2139/SSRN.3366280","url":null,"abstract":"Foreign investment is the movement of capital flow from one country to another country. A company and natural person can be the part of management of company or corporation in another country. Traditionally foreign investment was mere the subject matter of contract which has been changed with the presence of international law. Many issues of foreign investment are addressed by multilateral treaty provisions. There are financial investment; foreign direct investment (horizontal investment, vertical investment, conglomerate investment, greenfield investment, brownfield investment), portfolio investment, official flows, commercial loans, and technological investment etc. There are classical approach, dependency approach and middle path approach of foreign investment. Classical economic theory argues that foreign investment is beneficial for host country whereas dependency theory is reverse to classical theory and middle path theory analyses both positive and negative aspect of foreign investment. Joint venture, management contract, turnkey operation, and licensing agreement are basic method of foreign investment in Nepal. There are bilateral, regional and multilateral instruments supporting for foreign investment. Bilateral instruments include Bilateral Investment Protection Treaties and Bilateral Double Taxation Avoidance Treaties whereas regional instruments are developed by African Union, European Union etc. Multilateral instruments are developed by International Monetary Fund (IMF), World Bank Group, World Trade Organization etc. Constitution of Nepal (2015 AD) has purported liberal and open economic policy to accelerate economic growth. Foreign Investment and Technology Transfer Act, 2075 (2019 AD) and Foreign Exchange (Regulation) Act, 2019 BS (1962 AD) are principal legislation for foreign investment in Nepal. There are various principles of foreign investment which are most favored nation treatment, national treatment, preferential treatment, full protection and security, fair and equitable treatment, protection against nationalization or expropriation and protection from threat agreements etc.","PeriodicalId":131289,"journal":{"name":"International Institutions: Laws","volume":"28 3 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-04-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"134387130","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Along with many other countries, Australia is considering implementing a tax on digital services to try to capture more of the revenues of digital businesses, which may operate without a substantial physical presence in the country. Although traditional approaches to tax may need wholesale revision to adjust to the digitalisation of the global economy, these changes are best pursued through a multilateral process, which is already ongoing through the Organisation for Economic Co-operation and Development and the G20, and in which Australia is participating. An interim Australian digital services tax risks breaching Australia’s obligations under international economic law: namely international trade law and international investment law. The relevant trade and investment rules contain certain flexibilities, including some specific references to taxation, that might assist in justifying such a tax. However, the overarching problem that may lead to a breach of at least some of the relevant treaties is that an Australian digital services tax is likely to burden United States businesses disproportionately, particularly if smaller businesses are exempt as is envisaged. In the current global economic and political climate, provoking retaliation of the United States or further closing of national economies through the imposition of an Australian digital services tax is undesirable.
{"title":"Taxing Tech: Risks of an Australian Digital Services Tax under International Economic Law","authors":"A. Mitchell, Tania Voon, J. Hepburn","doi":"10.2139/SSRN.3347655","DOIUrl":"https://doi.org/10.2139/SSRN.3347655","url":null,"abstract":"Along with many other countries, Australia is considering implementing a tax on digital services to try to capture more of the revenues of digital businesses, which may operate without a substantial physical presence in the country. Although traditional approaches to tax may need wholesale revision to adjust to the digitalisation of the global economy, these changes are best pursued through a multilateral process, which is already ongoing through the Organisation for Economic Co-operation and Development and the G20, and in which Australia is participating. An interim Australian digital services tax risks breaching Australia’s obligations under international economic law: namely international trade law and international investment law. The relevant trade and investment rules contain certain flexibilities, including some specific references to taxation, that might assist in justifying such a tax. However, the overarching problem that may lead to a breach of at least some of the relevant treaties is that an Australian digital services tax is likely to burden United States businesses disproportionately, particularly if smaller businesses are exempt as is envisaged. In the current global economic and political climate, provoking retaliation of the United States or further closing of national economies through the imposition of an Australian digital services tax is undesirable.","PeriodicalId":131289,"journal":{"name":"International Institutions: Laws","volume":"12 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-02-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116758471","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2018-10-19DOI: 10.1163/22119000-12340125
Tania Voon
Two of the four disputes against Australia’s tobacco plain packaging in the World Trade Organization (WTO) have been resolved, with the adoption of the Panel Reports upholding Australia’s tobacco plain packaging scheme with respect to Cuba and Indonesia. The fifth dispute, brought by Ukraine, was previously abandoned. The Panel’s decision deserves close examination, particularly regarding the balance between WTO Members’ legitimate policy objectives and restrictions on trade or on the use of trademarks. The Panel’s approach to the fundamental concepts of trade-restrictiveness and unjustifiability did not conform with the arguments of Australia or the complainants. These areas represent core aspects of the ongoing appeals by Honduras and the Dominican Republic. Although Australia did not appeal, its own arguments before the Panel provide further insights into the Panel’s approach. The significance of the Panel Reports is heightened by the continuing United States blockage of appointments to the WTO Appellate Body.
{"title":"Third Strike: The WTO Panel Reports Upholding Australia's Tobacco Plain Packaging Scheme","authors":"Tania Voon","doi":"10.1163/22119000-12340125","DOIUrl":"https://doi.org/10.1163/22119000-12340125","url":null,"abstract":"\u0000Two of the four disputes against Australia’s tobacco plain packaging in the World Trade Organization (WTO) have been resolved, with the adoption of the Panel Reports upholding Australia’s tobacco plain packaging scheme with respect to Cuba and Indonesia. The fifth dispute, brought by Ukraine, was previously abandoned. The Panel’s decision deserves close examination, particularly regarding the balance between WTO Members’ legitimate policy objectives and restrictions on trade or on the use of trademarks. The Panel’s approach to the fundamental concepts of trade-restrictiveness and unjustifiability did not conform with the arguments of Australia or the complainants. These areas represent core aspects of the ongoing appeals by Honduras and the Dominican Republic. Although Australia did not appeal, its own arguments before the Panel provide further insights into the Panel’s approach. The significance of the Panel Reports is heightened by the continuing United States blockage of appointments to the WTO Appellate Body.","PeriodicalId":131289,"journal":{"name":"International Institutions: Laws","volume":"15 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-10-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131469711","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
When cargo owners engage transport intermediaries to arrange the logistics of carriage, these intermediaries regularly issue multimodal bills of lading and subcontract the actual carriage. This creates a gap in contractual privity between cargo owners and the actual carriers, which can affect the downstream subcontractors’ ability to enforce their standard terms against the cargo owners. While this is an international commercial problem, even among the major common law traditions courts have reacted with remarkably varied solutions. Courts in England and the broader Commonwealth have addressed the problem through a bailment framework, while courts in the United States have utilized a form of agency reasoning. This article examines these varying approaches and compares the innovative ways in which courts have responded to the challenges of multimodal subcontracting in international cargo transport.
{"title":"Privity and Subcontracting in Multimodal Transport — Diverging Solutions","authors":"Richard L. Kilpatrick","doi":"10.2139/SSRN.3220139","DOIUrl":"https://doi.org/10.2139/SSRN.3220139","url":null,"abstract":"When cargo owners engage transport intermediaries to arrange the logistics of carriage, these intermediaries regularly issue multimodal bills of lading and subcontract the actual carriage. This creates a gap in contractual privity between cargo owners and the actual carriers, which can affect the downstream subcontractors’ ability to enforce their standard terms against the cargo owners. While this is an international commercial problem, even among the major common law traditions courts have reacted with remarkably varied solutions. Courts in England and the broader Commonwealth have addressed the problem through a bailment framework, while courts in the United States have utilized a form of agency reasoning. This article examines these varying approaches and compares the innovative ways in which courts have responded to the challenges of multimodal subcontracting in international cargo transport.","PeriodicalId":131289,"journal":{"name":"International Institutions: Laws","volume":"27 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-07-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115881214","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This article examines the “public policy exception” by which domestic judges decline to recognize and enforce international arbitration awards, primarily under Article V (2) (b) of the New York Convention (1958). It explores litigation in China and New York, to identify reasons invoked by domestic courts to decline to enforce foreign arbitration awards on localized public policy grounds. It also examines due process grounds invoked by a Dutch court in refusing to enforce Russian judicial decisions annulling arbitration awards. The article considers the difficulties faced by domestic courts in delineating the concept of substantive and procedural justice clearly and reliably. It concludes by examining how states and their courts can develop shared conceptions of substantive and procedural due process that transcend national boundaries.
{"title":"Domestic Courts Declining to Recognize and Enforce Foreign Arbitral Awards: A Comparative Reflection","authors":"L. Trakman","doi":"10.2139/SSRN.3260936","DOIUrl":"https://doi.org/10.2139/SSRN.3260936","url":null,"abstract":"This article examines the “public policy exception” by which domestic judges decline to recognize and enforce international arbitration awards, primarily under Article V (2) (b) of the New York Convention (1958). It explores litigation in China and New York, to identify reasons invoked by domestic courts to decline to enforce foreign arbitration awards on localized public policy grounds. It also examines due process grounds invoked by a Dutch court in refusing to enforce Russian judicial decisions annulling arbitration awards. The article considers the difficulties faced by domestic courts in delineating the concept of substantive and procedural justice clearly and reliably. It concludes by examining how states and their courts can develop shared conceptions of substantive and procedural due process that transcend national boundaries.","PeriodicalId":131289,"journal":{"name":"International Institutions: Laws","volume":"140 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116638383","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
京公网安备 11010802042870号
京ICP备2023020795号-1
扫码关注我们
求助内容：
应助结果提醒方式：