Pub Date : 2021-04-22DOI: 10.1163/22119000-12340209
Toni Marzal
The present article seeks to critically rethink the key issue of how compensation and damages are and should be calculated in the context of investor-State arbitration – the ‘quantum’ question, as is commonly referred to in arbitral practice. We will make three main claims: first that such calculations are premised on a fundamental consensus that presents the work of arbitrators in this area as essentially uncontroversial fact-finding operations and has led to an inflation of awards, second that this consensus is in reality built on a series of myths and unjustifiable assumptions, and third that the realization that this is so should lay the ground for more acceptable calculations.
{"title":"Quantum (In)Justice: Rethinking the Calculation of Compensation and Damages in ISDS","authors":"Toni Marzal","doi":"10.1163/22119000-12340209","DOIUrl":"https://doi.org/10.1163/22119000-12340209","url":null,"abstract":"The present article seeks to critically rethink the key issue of how compensation and damages are and should be calculated in the context of investor-State arbitration – the ‘quantum’ question, as is commonly referred to in arbitral practice. We will make three main claims: first that such calculations are premised on a fundamental consensus that presents the work of arbitrators in this area as essentially uncontroversial fact-finding operations and has led to an inflation of awards, second that this consensus is in reality built on a series of myths and unjustifiable assumptions, and third that the realization that this is so should lay the ground for more acceptable calculations.","PeriodicalId":163787,"journal":{"name":"The journal of world investment and trade","volume":"35 6","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-04-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114039509","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 : 2021-04-22DOI: 10.1163/22119000-12340208
A. Bahri, Ana Sofia Charvel
Mexico has by far the world’s highest death rate linked to obesity and other chronic diseases. As a response to the growing pandemic of obesity, Mexico has adopted a new compulsory front-of-pack labeling regulation for pre-packaged foods and non-alcoholic beverages. This article provides an assessment of the regulation’s consistency with international trade law and the arguments that might be invoked by either side in a hypothetical trade dispute on this matter.
{"title":"The Mexican Front-of-Pack Labeling Reform: Is It Compatible with International Trade Law?","authors":"A. Bahri, Ana Sofia Charvel","doi":"10.1163/22119000-12340208","DOIUrl":"https://doi.org/10.1163/22119000-12340208","url":null,"abstract":"\u0000Mexico has by far the world’s highest death rate linked to obesity and other chronic diseases. As a response to the growing pandemic of obesity, Mexico has adopted a new compulsory front-of-pack labeling regulation for pre-packaged foods and non-alcoholic beverages. This article provides an assessment of the regulation’s consistency with international trade law and the arguments that might be invoked by either side in a hypothetical trade dispute on this matter.","PeriodicalId":163787,"journal":{"name":"The journal of world investment and trade","volume":"4 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-04-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126157728","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 : 2021-02-23DOI: 10.1163/22119000-12340205
Saar A Pauker, Ben L. Winston
The ad hoc Committee in Eiser Infrastructure Limited and Energía Solar Luxembourg SÀRL v Kingdom of Spain, annulled a unanimous ICSID award in its entirety, inter alia, on the ground that the tribunal was not properly constituted (Article 52(1)(a) of the ICSID Convention). The Committee found a ‘manifest appearance of bias’ with regard the claimant nominated arbitrator because the latter did not disclose his professional relationships with a Claimants’ expert, who testified before the Tribunal. The decision contains doctrinal findings which may reinforce and broaden arbitrators’ duty of disclosure. Nevertheless, the outcome of the decision – where proceedings, which began in 2013, at considerable expense to the parties, were annulled in full – seems unreasonable and inefficient. Moreover, some parts of the Committee‘s reasoning, as well as its decision to annul the award without giving the arbitrator an opportunity to refute the allegations raised against him, are questionable.
在Eiser Infrastructure Limited和Energía Solar Luxembourg SÀRL诉西班牙王国案中，特设委员会完全废除了ICSID的一致裁决，除其他外，理由是仲裁庭的构成不合理(ICSID公约第52(1)(a)条)。委员会发现，申诉人提名的仲裁员“明显存在偏见”，因为后者没有披露他与在仲裁庭作证的申诉人专家的专业关系。该决定包含的理论结论可能会加强和扩大仲裁员的披露义务。尽管如此，该决定的结果似乎是不合理和低效的——2013年开始的诉讼程序，各方付出了相当大的代价，被全面撤销。此外，委员会推理的某些部分，以及它在没有给仲裁员机会反驳对他提出的指控的情况下就宣布裁决无效的决定，都是值得怀疑的。
{"title":"Eiser v Spain – Unprecedented Annulment of an ICSID Award for Improper Constitution of the Tribunal","authors":"Saar A Pauker, Ben L. Winston","doi":"10.1163/22119000-12340205","DOIUrl":"https://doi.org/10.1163/22119000-12340205","url":null,"abstract":"\u0000The ad hoc Committee in Eiser Infrastructure Limited and Energía Solar Luxembourg SÀRL v Kingdom of Spain, annulled a unanimous ICSID award in its entirety, inter alia, on the ground that the tribunal was not properly constituted (Article 52(1)(a) of the ICSID Convention). The Committee found a ‘manifest appearance of bias’ with regard the claimant nominated arbitrator because the latter did not disclose his professional relationships with a Claimants’ expert, who testified before the Tribunal. The decision contains doctrinal findings which may reinforce and broaden arbitrators’ duty of disclosure. Nevertheless, the outcome of the decision – where proceedings, which began in 2013, at considerable expense to the parties, were annulled in full – seems unreasonable and inefficient. Moreover, some parts of the Committee‘s reasoning, as well as its decision to annul the award without giving the arbitrator an opportunity to refute the allegations raised against him, are questionable.","PeriodicalId":163787,"journal":{"name":"The journal of world investment and trade","volume":"10 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-02-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121299461","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 : 2021-02-19DOI: 10.1163/22119000-12340204
Raúl F. Zúñiga Peralta
The Social License to Operate (SLO) is a non-legal term which has been widely conceptualised as meaning a particular set of interactions between investors and affected communities. Within the international investment law field, even though tribunals previously analysed situations of social conflict, the wording SLO had never been considered by an investment tribunal until Bear Creek Mining Corporation v Republic of Peru. This article argues that if the SLO of the investment is involved in a dispute, tribunals should thoroughly analyse the relationship between the investor and the affected community and establish (judicialise) a standard of review for the investor’s conduct which should only include those aspects of the relationship that might be considered as affecting or forming part of the national public interest. In addition, this article puts forth the criteria for the judicialisation of the SLO in investment disputes, drawing upon the Bear Creek scenario as relevant background.
{"title":"The Judicialisation of the Social License to Operate: Criteria for International Investment Law","authors":"Raúl F. Zúñiga Peralta","doi":"10.1163/22119000-12340204","DOIUrl":"https://doi.org/10.1163/22119000-12340204","url":null,"abstract":"\u0000The Social License to Operate (SLO) is a non-legal term which has been widely conceptualised as meaning a particular set of interactions between investors and affected communities. Within the international investment law field, even though tribunals previously analysed situations of social conflict, the wording SLO had never been considered by an investment tribunal until Bear Creek Mining Corporation v Republic of Peru. This article argues that if the SLO of the investment is involved in a dispute, tribunals should thoroughly analyse the relationship between the investor and the affected community and establish (judicialise) a standard of review for the investor’s conduct which should only include those aspects of the relationship that might be considered as affecting or forming part of the national public interest. In addition, this article puts forth the criteria for the judicialisation of the SLO in investment disputes, drawing upon the Bear Creek scenario as relevant background.","PeriodicalId":163787,"journal":{"name":"The journal of world investment and trade","volume":"18 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-02-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130905512","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 : 2021-02-19DOI: 10.1163/22119000-12340199
C. Lamm, Matthew N. Drossos
{"title":"Procedural Issues in International Investment Arbitration, written by Jeffery Commission and Rahim Moloo","authors":"C. Lamm, Matthew N. Drossos","doi":"10.1163/22119000-12340199","DOIUrl":"https://doi.org/10.1163/22119000-12340199","url":null,"abstract":"","PeriodicalId":163787,"journal":{"name":"The journal of world investment and trade","volume":"8 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-02-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125135271","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 : 2021-02-19DOI: 10.1163/22119000-12340202
E. Petersmann, Armin Steinbach
Reforms of international trade and investment law and institutions are hampered by conflicting economic paradigms. For instance, utilitarian Anglo-Saxon neo-liberalism (e.g. promoting self-regulatory market forces privileging the homo economicus), constitutional European ordo-liberalism (e.g. protecting multilevel, constitutional rights and judicial remedies of European Union citizens), and authoritarian state-capitalism (e.g. protecting totalitarian power monopolies of the communist party in China) pursue different legal and institutional designs of trade and investment agreements. Globalization and its transformation of national into transnational public goods (PG s) require extending constitutional and institutional economics to multilevel governance of transnational PG s in order to enhance the wealth of nations. Maintaining the worldwide legal and dispute settlement system of the World Trade Organization (WTO) – and interpreting its regional and national exception clauses broadly in order to reconcile diverse, national and regional institutions of economic integration and of ‘embedded liberalism’ – remains in the interest of all WTO member states.
{"title":"Neo-Liberalism, State-Capitalism and Ordo-Liberalism: ‘Institutional Economics’ and ‘Constitutional Choices’ in Multilevel Trade Regulation","authors":"E. Petersmann, Armin Steinbach","doi":"10.1163/22119000-12340202","DOIUrl":"https://doi.org/10.1163/22119000-12340202","url":null,"abstract":"\u0000Reforms of international trade and investment law and institutions are hampered by conflicting economic paradigms. For instance, utilitarian Anglo-Saxon neo-liberalism (e.g. promoting self-regulatory market forces privileging the homo economicus), constitutional European ordo-liberalism (e.g. protecting multilevel, constitutional rights and judicial remedies of European Union citizens), and authoritarian state-capitalism (e.g. protecting totalitarian power monopolies of the communist party in China) pursue different legal and institutional designs of trade and investment agreements. Globalization and its transformation of national into transnational public goods (PG s) require extending constitutional and institutional economics to multilevel governance of transnational PG s in order to enhance the wealth of nations. Maintaining the worldwide legal and dispute settlement system of the World Trade Organization (WTO) – and interpreting its regional and national exception clauses broadly in order to reconcile diverse, national and regional institutions of economic integration and of ‘embedded liberalism’ – remains in the interest of all WTO member states.","PeriodicalId":163787,"journal":{"name":"The journal of world investment and trade","volume":"2 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-02-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131072507","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 : 2021-01-14DOI: 10.1163/22119000-12340198
B. Demirkol
Remedies available within a particular system are closely connected with the types and diversity of disputes brought to, and with the purpose and the structure of, the special dispute settlement mechanism. Investment arbitration is a mechanism for settlement of disputes between States and foreign investors who have made by definition mid- to long-term projects in the State concerned. Such claims are brought for the protection of private interests of investors, but they are mostly based on public international law obligations and subject to State responsibility principles. Institutional and procedural rules, as well as systemic features of investment arbitration play an important role in the determination of which remedies are available and provide suitable relief within this dispute settlement mechanism. The main argument of this article is that substantive characteristics of primary obligations should be taken into account, along with procedural considerations, in the determination of which remedies are available in investment treaty arbitration.
{"title":"Reconsideration of Proper Remedies in Investment Arbitration in Light of Recent Cases: Should the Remedy Follow the Primary Obligation?","authors":"B. Demirkol","doi":"10.1163/22119000-12340198","DOIUrl":"https://doi.org/10.1163/22119000-12340198","url":null,"abstract":"\u0000Remedies available within a particular system are closely connected with the types and diversity of disputes brought to, and with the purpose and the structure of, the special dispute settlement mechanism. Investment arbitration is a mechanism for settlement of disputes between States and foreign investors who have made by definition mid- to long-term projects in the State concerned. Such claims are brought for the protection of private interests of investors, but they are mostly based on public international law obligations and subject to State responsibility principles. Institutional and procedural rules, as well as systemic features of investment arbitration play an important role in the determination of which remedies are available and provide suitable relief within this dispute settlement mechanism. The main argument of this article is that substantive characteristics of primary obligations should be taken into account, along with procedural considerations, in the determination of which remedies are available in investment treaty arbitration.","PeriodicalId":163787,"journal":{"name":"The journal of world investment and trade","volume":"42 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-01-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127340806","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 : 2020-12-18DOI: 10.1163/22119000-12340201
I. V. Damme
{"title":"International Adjudication on Trial – The Effectiveness of the WTO Dispute Settlement System, written by Sivan Shlomo Agon","authors":"I. V. Damme","doi":"10.1163/22119000-12340201","DOIUrl":"https://doi.org/10.1163/22119000-12340201","url":null,"abstract":"","PeriodicalId":163787,"journal":{"name":"The journal of world investment and trade","volume":"53 2 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-12-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123711387","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 : 2020-10-14DOI: 10.1163/22119000-12340193
M. Melillo
This article analyses the evidentiary assessment made by the investment Tribunal in the case of Philip Morris with a view to drawing some lessons for the regulation of non-communicable diseases (NCD) prevention regulations on food, alcohol, and tobacco. After the introduction, the second Section describes why this dispute, like any dispute concerning NCD prevention measures more generally, raised particularly complex evidentiary challenges. The third Section introduces the provisions and features of the ‘evidence-based’ Framework Convention on Tobacco Control (FCTC) relevant to the dispute. The fourth Section describes the evidentiary assessment made by the Philip Morris Tribunal, highlighting how it relied extensively on the evidence stemming from or related to the FCTC rule in favour of Uruguay. Finally, the last Section draws lessons that the NCD prevention regulation can learn from Philip Morris for respondents in possible future investment disputes.
{"title":"Evidentiary Issues in Philip Morris v Uruguay: The Role of the Framework Convention for Tobacco Control and Lessons for NCD Prevention","authors":"M. Melillo","doi":"10.1163/22119000-12340193","DOIUrl":"https://doi.org/10.1163/22119000-12340193","url":null,"abstract":"\u0000This article analyses the evidentiary assessment made by the investment Tribunal in the case of Philip Morris with a view to drawing some lessons for the regulation of non-communicable diseases (NCD) prevention regulations on food, alcohol, and tobacco. After the introduction, the second Section describes why this dispute, like any dispute concerning NCD prevention measures more generally, raised particularly complex evidentiary challenges. The third Section introduces the provisions and features of the ‘evidence-based’ Framework Convention on Tobacco Control (FCTC) relevant to the dispute. The fourth Section describes the evidentiary assessment made by the Philip Morris Tribunal, highlighting how it relied extensively on the evidence stemming from or related to the FCTC rule in favour of Uruguay. Finally, the last Section draws lessons that the NCD prevention regulation can learn from Philip Morris for respondents in possible future investment disputes.","PeriodicalId":163787,"journal":{"name":"The journal of world investment and trade","volume":"59 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-10-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114173279","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 : 2020-10-14DOI: 10.1163/22119000-12340190
Amandine Garde, Jure Zrilič
It is increasingly acknowledged that non-communicable diseases (NCDs) create immense human and economic costs, disproportionately affecting developing countries. This article, which serves as an introduction to this Special Issue on international investment law and NCD prevention, outlines the international framework for the prevention of NCDs, noting the more advanced development of tobacco control policies compared to policies relating to other NCD risk factors, such as unhealthy diets and alcohol consumption. Drawing on the Philip Morris v Uruguay case, the article explains how international investment law and NCD prevention interact and the problems this interaction may raise for States willing to adopt robust NCD prevention strategies involving the regulation of the tobacco, alcohol and food industries. It concludes by introducing other contributions in this Special Issue and by highlighting the need to build legal expertise in this area.
{"title":"International Investment Law and Non-Communicable Diseases Prevention","authors":"Amandine Garde, Jure Zrilič","doi":"10.1163/22119000-12340190","DOIUrl":"https://doi.org/10.1163/22119000-12340190","url":null,"abstract":"\u0000It is increasingly acknowledged that non-communicable diseases (NCDs) create immense human and economic costs, disproportionately affecting developing countries. This article, which serves as an introduction to this Special Issue on international investment law and NCD prevention, outlines the international framework for the prevention of NCDs, noting the more advanced development of tobacco control policies compared to policies relating to other NCD risk factors, such as unhealthy diets and alcohol consumption. Drawing on the Philip Morris v Uruguay case, the article explains how international investment law and NCD prevention interact and the problems this interaction may raise for States willing to adopt robust NCD prevention strategies involving the regulation of the tobacco, alcohol and food industries. It concludes by introducing other contributions in this Special Issue and by highlighting the need to build legal expertise in this area.","PeriodicalId":163787,"journal":{"name":"The journal of world investment and trade","volume":"45 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-10-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"134157471","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}
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