Pub Date : 2017-08-08DOI: 10.1163/22119000-12340056
Ori Pomson
This article is a response to an article published in this Journal by Professor Patrick Dumberry, criticising the Yukos tribunal’s conclusion that the clean hands doctrine does not constitute a general principle of law and is not a bar to an investor’s claim. Dumberry submits that strong arguments exist for considering the clean hands doctrine a general principle of law, and that tribunals, by barring claims concerning investments made contrary to host states’ laws, have been applying the doctrine. The present article contends that the Yukos tribunal is quite accurate. First, it submits that there are different forms of the clean hands doctrine, not all of which have received much support in international jurisprudence. Second, it argues that, in light of contemporary law in certain municipal legal systems, the different forms of the clean hands doctrine seemingly do not constitute general principles of law.
{"title":"The Clean Hands Doctrine in the Yukos Awards: A Response to Patrick Dumberry","authors":"Ori Pomson","doi":"10.1163/22119000-12340056","DOIUrl":"https://doi.org/10.1163/22119000-12340056","url":null,"abstract":"This article is a response to an article published in this Journal by Professor Patrick Dumberry, criticising the Yukos tribunal’s conclusion that the clean hands doctrine does not constitute a general principle of law and is not a bar to an investor’s claim. Dumberry submits that strong arguments exist for considering the clean hands doctrine a general principle of law, and that tribunals, by barring claims concerning investments made contrary to host states’ laws, have been applying the doctrine. The present article contends that the Yukos tribunal is quite accurate. First, it submits that there are different forms of the clean hands doctrine, not all of which have received much support in international jurisprudence. Second, it argues that, in light of contemporary law in certain municipal legal systems, the different forms of the clean hands doctrine seemingly do not constitute general principles of law.","PeriodicalId":163787,"journal":{"name":"The journal of world investment and trade","volume":"133 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-08-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114924614","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 : 2017-02-09DOI: 10.1163/22119000-12340042
Michelle Q. Zang
{"title":"The WTO and International Investment Law: Converging Systems, written by Jürgen Kurtz","authors":"Michelle Q. Zang","doi":"10.1163/22119000-12340042","DOIUrl":"https://doi.org/10.1163/22119000-12340042","url":null,"abstract":"","PeriodicalId":163787,"journal":{"name":"The journal of world investment and trade","volume":"2531 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-02-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128679127","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 : 2017-02-09DOI: 10.1163/22119000-12340041
Siegfried Fina, Gabriel M. Lentner
This article examines the potential challenges for the protection of intellectual property rights (IPRs) through International Investment Agreements (IIAs) in light of the new generation of IIAs negotiated by the European Union (EU). It argues that it will be difficult in practice to succeed in enforcing IPRs through IIAs. The article will do so by examining in detail the criteria international tribunals have required in order to consider IPRs covered investments, and then analyzing the key protection standards considering the interaction between investment treaties and the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). Because negotiators have reacted to the legal issues raised in this context with new and innovative treaty language, this article will further examine these issues based on the EU’s IIAs. Their drafting practice should be taken as an indication that existing IIAs should be interpreted rather narrowly in respect of the protection of IPRs.
{"title":"The European Union’s New Generation of International Investment Agreements and Its Implications for the Protection of Intellectual Property Rights","authors":"Siegfried Fina, Gabriel M. Lentner","doi":"10.1163/22119000-12340041","DOIUrl":"https://doi.org/10.1163/22119000-12340041","url":null,"abstract":"This article examines the potential challenges for the protection of intellectual property rights (IPRs) through International Investment Agreements (IIAs) in light of the new generation of IIAs negotiated by the European Union (EU). It argues that it will be difficult in practice to succeed in enforcing IPRs through IIAs. The article will do so by examining in detail the criteria international tribunals have required in order to consider IPRs covered investments, and then analyzing the key protection standards considering the interaction between investment treaties and the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). Because negotiators have reacted to the legal issues raised in this context with new and innovative treaty language, this article will further examine these issues based on the EU’s IIAs. Their drafting practice should be taken as an indication that existing IIAs should be interpreted rather narrowly in respect of the protection of IPRs.","PeriodicalId":163787,"journal":{"name":"The journal of world investment and trade","volume":"31 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-02-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133823947","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 : 2017-02-09DOI: 10.1163/22119000-12340035
J. Baumgartner
Corporate restructuring is a practice arbitral tribunals have been increasingly confronted with in recent years. In their attempt to draw a line between ‘legitimate nationality planning’ and ‘abusive treaty shopping’, arbitral tribunals have over the years developed a line of jurisprudence that focuses on the timing of the corporate restructuring: rejecting jurisdiction ratione temporis if a dispute already existed at the time of the restructuring, respectively finding the claim inadmissible on grounds of abuse of rights/abuse of process if the dispute was foreseeable. Thus, the question invariably arises when a dispute has come into being respectively when it is foreseeable. However, arbitral tribunals have applied existing international jurisprudence on the notion of dispute only inconsistently. The present article critically analyses the application of the ‘pre-existing/foreseeable dispute’ jurisprudence in the recent Philip Morris v Australia award and other restructuring arbitral decisions.
{"title":"The Significance of the Notion of Dispute and Its Foreseeability in an Investment Claim Involving a Corporate Restructuring","authors":"J. Baumgartner","doi":"10.1163/22119000-12340035","DOIUrl":"https://doi.org/10.1163/22119000-12340035","url":null,"abstract":"Corporate restructuring is a practice arbitral tribunals have been increasingly confronted with in recent years. In their attempt to draw a line between ‘legitimate nationality planning’ and ‘abusive treaty shopping’, arbitral tribunals have over the years developed a line of jurisprudence that focuses on the timing of the corporate restructuring: rejecting jurisdiction ratione temporis if a dispute already existed at the time of the restructuring, respectively finding the claim inadmissible on grounds of abuse of rights/abuse of process if the dispute was foreseeable. Thus, the question invariably arises when a dispute has come into being respectively when it is foreseeable. However, arbitral tribunals have applied existing international jurisprudence on the notion of dispute only inconsistently. The present article critically analyses the application of the ‘pre-existing/foreseeable dispute’ jurisprudence in the recent Philip Morris v Australia award and other restructuring arbitral decisions.","PeriodicalId":163787,"journal":{"name":"The journal of world investment and trade","volume":"85 1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-02-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133785952","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 : 2017-02-09DOI: 10.1163/22119000-12340043
Gregory Messenger
{"title":"Equity and Equitable Principles in the World Trade Organization: Addressing Conflicts and Overlaps Between the WTO and Other Regimes, written by Anastasios Gourgourinis","authors":"Gregory Messenger","doi":"10.1163/22119000-12340043","DOIUrl":"https://doi.org/10.1163/22119000-12340043","url":null,"abstract":"","PeriodicalId":163787,"journal":{"name":"The journal of world investment and trade","volume":"12 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-02-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132830209","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 : 2017-02-09DOI: 10.1163/22119000-12340036
Rachel Frid de Vries
{"title":"Stability Shaken? Israeli High Court of Justice Strikes Down the Stabilization Clause in the Israeli Government’s Gas Plan: HCJ 4374/15, The Movement for Quality Government in Israel v Prime Minister, Judgment, 27 March 2016","authors":"Rachel Frid de Vries","doi":"10.1163/22119000-12340036","DOIUrl":"https://doi.org/10.1163/22119000-12340036","url":null,"abstract":"","PeriodicalId":163787,"journal":{"name":"The journal of world investment and trade","volume":"88 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-02-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132097180","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 : 2017-02-09DOI: 10.1163/22119000-12340037
M. Koskenniemi
M. Sornarajah’s recent analysis of investment arbitration as an offshoot of ‘neoliberalism’ is basically correct. But it attaches too much importance to the bias of the arbitrators and the procedural problems in arbitral practice. The controversy over the Trans-Pacific Partnership (TPP), the Transatlantic Trade and Investment Partnership (TTIP) and investment arbitration generally is not about the niceties of arbitral procedure, the discretion of arbitrators or the pros and cons of the European Union proposed ‘investment court’. The significance of investment arbitration has to do with the many ways in which already the very presence of a ‘dis-embedded’ and one-sided system of claims automatically skews public policies in favour of foreign investors. The juristic debate is but the surface of struggle over the role of public power and democratic governance of domestic and global economy.
{"title":"It’s not the Cases, It’s the System: M. Sornarajah, Resistance and Change in the International Law on Foreign Investment. Cambridge: Cambridge University Press, 2015. Pp. xx + 437. £80. ISBN 9781107096622.","authors":"M. Koskenniemi","doi":"10.1163/22119000-12340037","DOIUrl":"https://doi.org/10.1163/22119000-12340037","url":null,"abstract":"M. Sornarajah’s recent analysis of investment arbitration as an offshoot of ‘neoliberalism’ is basically correct. But it attaches too much importance to the bias of the arbitrators and the procedural problems in arbitral practice. The controversy over the Trans-Pacific Partnership (TPP), the Transatlantic Trade and Investment Partnership (TTIP) and investment arbitration generally is not about the niceties of arbitral procedure, the discretion of arbitrators or the pros and cons of the European Union proposed ‘investment court’. The significance of investment arbitration has to do with the many ways in which already the very presence of a ‘dis-embedded’ and one-sided system of claims automatically skews public policies in favour of foreign investors. The juristic debate is but the surface of struggle over the role of public power and democratic governance of domestic and global economy.","PeriodicalId":163787,"journal":{"name":"The journal of world investment and trade","volume":"34 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-02-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130764249","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 : 2017-02-09DOI: 10.1163/22119000-12340040
Tobia Cantelmo
The present article deals with the issue of the power of reconsideration of ICSID tribunals. In 2014, the majority in ConocoPhillips v. Venezuela rejected Respondent’s Request for Reconsideration, ruling that an interim decision had res judicata effect. However, in a powerful dissent in that case, Professor Abi-Saab argued that the tribunal in fact possessed an inherent power of reconsideration. The following year, the ICSID tribunal in Perenco v. Ecuador unanimously endorsed the reasoning of the majority in ConocoPhillips. While judicial economy is potentially undermined if interim decisions can later be revisited, the question is how to strike the proper balance between judicial efficiency and fundamental fairness. As this article shows, the most sensible position, recently taken by the ICSID tribunal in SCB HK v. TANESCO – and one that still promotes judicial economy – is to recognize a limited power of reconsideration during the period until a final judgment has been rendered.
{"title":"The Inherent Power of Reconsideration in Recent ICSID Case Law","authors":"Tobia Cantelmo","doi":"10.1163/22119000-12340040","DOIUrl":"https://doi.org/10.1163/22119000-12340040","url":null,"abstract":"The present article deals with the issue of the power of reconsideration of ICSID tribunals. In 2014, the majority in ConocoPhillips v. Venezuela rejected Respondent’s Request for Reconsideration, ruling that an interim decision had res judicata effect. However, in a powerful dissent in that case, Professor Abi-Saab argued that the tribunal in fact possessed an inherent power of reconsideration. The following year, the ICSID tribunal in Perenco v. Ecuador unanimously endorsed the reasoning of the majority in ConocoPhillips. While judicial economy is potentially undermined if interim decisions can later be revisited, the question is how to strike the proper balance between judicial efficiency and fundamental fairness. As this article shows, the most sensible position, recently taken by the ICSID tribunal in SCB HK v. TANESCO – and one that still promotes judicial economy – is to recognize a limited power of reconsideration during the period until a final judgment has been rendered.","PeriodicalId":163787,"journal":{"name":"The journal of world investment and trade","volume":"29 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-02-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128512942","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 : 2017-02-09DOI: 10.1163/22119000-12340038
J. Hepburn, L. Nottage
{"title":"A Procedural Win for Public Health Measures: Philip Morris Asia Ltd v. Commonwealth of Australia, PCA Case No. 2012–12, Award on Jurisdiction and Admissibility, 17 December 2015 (Karl-Heinz Böckstiegel, Gabrielle Kaufmann-Kohler, Donald M. McRae)","authors":"J. Hepburn, L. Nottage","doi":"10.1163/22119000-12340038","DOIUrl":"https://doi.org/10.1163/22119000-12340038","url":null,"abstract":"","PeriodicalId":163787,"journal":{"name":"The journal of world investment and trade","volume":"54 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-02-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121185636","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 : 2017-01-24DOI: 10.1163/22119000-12340031
A. Keene
This article presents a recent study of the incorporation of general environmental exceptions – modelled on GATT Art XX or GATS Art XIV – in international investment agreements (IIAs), as based on a survey of 113 IIAs signed between 2010 and 2015. It uses the results of this survey to argue that the jurisprudence of the WTO cannot be assumed to offer a definitive interpretation of such exceptions, instead assessing how variations in the text and context of the general environmental exceptions in IIAs might limit or broaden the scope of the protected environmental policy space, and arguing for a treaty-by-treaty approach in terms of interpretation.
{"title":"The Incorporation and Interpretation of WTO-Style Environmental Exceptions in International Investment Agreements","authors":"A. Keene","doi":"10.1163/22119000-12340031","DOIUrl":"https://doi.org/10.1163/22119000-12340031","url":null,"abstract":"This article presents a recent study of the incorporation of general environmental exceptions – modelled on GATT Art XX or GATS Art XIV – in international investment agreements (IIAs), as based on a survey of 113 IIAs signed between 2010 and 2015. It uses the results of this survey to argue that the jurisprudence of the WTO cannot be assumed to offer a definitive interpretation of such exceptions, instead assessing how variations in the text and context of the general environmental exceptions in IIAs might limit or broaden the scope of the protected environmental policy space, and arguing for a treaty-by-treaty approach in terms of interpretation.","PeriodicalId":163787,"journal":{"name":"The journal of world investment and trade","volume":"18 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-01-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129947214","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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