Pub Date : 2020-10-14DOI: 10.1163/22119000-12340195
Martin Campbell
In 2016, Chile became the first country in Latin America to implement comprehensive regulations aimed at preventing obesity and diet-related non-communicable diseases. It introduced innovative measures including a mandatory front-of-pack nutrition labelling scheme for food products high in sodium, free sugars, fats, and calories, and strict advertising and marketing restrictions of unhealthy foods to children under 14 years of age. However, food-exporting countries have questioned the lawfulness of these measures in the context of the World Trade Organization’s Technical Barriers to Trade Committee, and multinational food companies have filed several complaints before Chilean courts challenging their implementation. This article provides an overview of specific legal issues discussed in domestic courts and examines Chile’s measures under the rules of international investment law. It assesses whether they would withstand a treaty claim based on indirect expropriation, breach of the national treatment standard, and breach of the fair and equitable treatment standard.
{"title":"NCD Prevention and International Investment Law in Latin America: Chile’s Experience in Preventing Obesity and Unhealthy Diets","authors":"Martin Campbell","doi":"10.1163/22119000-12340195","DOIUrl":"https://doi.org/10.1163/22119000-12340195","url":null,"abstract":"\u0000In 2016, Chile became the first country in Latin America to implement comprehensive regulations aimed at preventing obesity and diet-related non-communicable diseases. It introduced innovative measures including a mandatory front-of-pack nutrition labelling scheme for food products high in sodium, free sugars, fats, and calories, and strict advertising and marketing restrictions of unhealthy foods to children under 14 years of age. However, food-exporting countries have questioned the lawfulness of these measures in the context of the World Trade Organization’s Technical Barriers to Trade Committee, and multinational food companies have filed several complaints before Chilean courts challenging their implementation. This article provides an overview of specific legal issues discussed in domestic courts and examines Chile’s measures under the rules of international investment law. It assesses whether they would withstand a treaty claim based on indirect expropriation, breach of the national treatment standard, and breach of the fair and equitable treatment standard.","PeriodicalId":163787,"journal":{"name":"The journal of world investment and trade","volume":"15 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":"127781993","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: 10.1163/22119000-12340194
Oleksandra Vytiaganets
This article engages with the ongoing debate on regulatory chill in the context of the international investment regime. By analyzing trends in tobacco legislation and delineating empirical findings on policymaking, it examines the hypothesis that international investment agreements affect tobacco control legislation and lead to regulatory chill in Ukraine. The article finds no direct evidence of a causal linkage between the State’s investment treaty commitments and the level of tobacco regulatory standards. Instead, it argues that the regulatory deterrence is likely to be attributed to other determinants, including strong tobacco lobby, the State’s dependency on foreign direct investment and related capital flight concerns. In addition, it observes similar dynamics in relation to the pharmaceutical and food industries.
{"title":"Smoking Chills? Tobacco Regulatory Chill, Foreign Investment, and the NCD Crisis in the Post-Soviet Space: A Case Study from Ukraine","authors":"Oleksandra Vytiaganets","doi":"10.1163/22119000-12340194","DOIUrl":"https://doi.org/10.1163/22119000-12340194","url":null,"abstract":"\u0000This article engages with the ongoing debate on regulatory chill in the context of the international investment regime. By analyzing trends in tobacco legislation and delineating empirical findings on policymaking, it examines the hypothesis that international investment agreements affect tobacco control legislation and lead to regulatory chill in Ukraine. The article finds no direct evidence of a causal linkage between the State’s investment treaty commitments and the level of tobacco regulatory standards. Instead, it argues that the regulatory deterrence is likely to be attributed to other determinants, including strong tobacco lobby, the State’s dependency on foreign direct investment and related capital flight concerns. In addition, it observes similar dynamics in relation to the pharmaceutical and food industries.","PeriodicalId":163787,"journal":{"name":"The journal of world investment and trade","volume":"107 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":"132744866","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 : 2020-08-28DOI: 10.1163/22119000-12340188
J. Marcoux
International investment arbitration has been criticized for its general reluctance to consider human rights concerns related to foreign investors’ activities. By contrast, arbitration tribunals have relied on transnational public policy to prevent a claimant whose investment is tainted with illegality from obtaining redress. This article explores how human rights norms could be conceptualized as part of transnational public policy to impose obligations on foreign investors. It proceeds in three steps. First, it addresses the role of transnational public policy in investment arbitration. Second, the article identifies the material sources considered by tribunals to delimit the content of the doctrine. Third, it focuses on three norms – the protection of fundamental human rights, a corporate responsibility to respect human rights and the right of Indigenous Peoples to be consulted – for which tribunals have found an international consensus and that could be conceptualized as norms of transnational public policy.
{"title":"Transnational Public Policy as a Vehicle to Impose Human Rights Obligations in International Investment Arbitration","authors":"J. Marcoux","doi":"10.1163/22119000-12340188","DOIUrl":"https://doi.org/10.1163/22119000-12340188","url":null,"abstract":"\u0000International investment arbitration has been criticized for its general reluctance to consider human rights concerns related to foreign investors’ activities. By contrast, arbitration tribunals have relied on transnational public policy to prevent a claimant whose investment is tainted with illegality from obtaining redress. This article explores how human rights norms could be conceptualized as part of transnational public policy to impose obligations on foreign investors. It proceeds in three steps. First, it addresses the role of transnational public policy in investment arbitration. Second, the article identifies the material sources considered by tribunals to delimit the content of the doctrine. Third, it focuses on three norms – the protection of fundamental human rights, a corporate responsibility to respect human rights and the right of Indigenous Peoples to be consulted – for which tribunals have found an international consensus and that could be conceptualized as norms of transnational public policy.","PeriodicalId":163787,"journal":{"name":"The journal of world investment and trade","volume":"15 1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-08-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129498876","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 : 2020-08-10DOI: 10.1163/22119000-12340182
P. Dumberry
The question of the scope and application of the doctrine of clean hands by investment tribunals is controversial. This article examines how scholars, international courts and tribunals and investment tribunals have analysed the concept. I will show that while the doctrine has rarely been used by international tribunals, they have nonetheless recognised and applied the clean hands doctrine in several awards. I will critically assess the reasoning of the Yukos award and, most importantly, the recent South American Silver Limited award, which have both held that the clean hands doctrine is not a general principle of law. I will argue, like many writers, that the doctrine should be considered as a general principle of international law. The article examines this concept and describes how such principles emerge on the international plane in a manner different from general principles grounded in the domestic laws of States.
{"title":"The Clean Hands Doctrine as a General Principle of International Law","authors":"P. Dumberry","doi":"10.1163/22119000-12340182","DOIUrl":"https://doi.org/10.1163/22119000-12340182","url":null,"abstract":"\u0000The question of the scope and application of the doctrine of clean hands by investment tribunals is controversial. This article examines how scholars, international courts and tribunals and investment tribunals have analysed the concept. I will show that while the doctrine has rarely been used by international tribunals, they have nonetheless recognised and applied the clean hands doctrine in several awards. I will critically assess the reasoning of the Yukos award and, most importantly, the recent South American Silver Limited award, which have both held that the clean hands doctrine is not a general principle of law. I will argue, like many writers, that the doctrine should be considered as a general principle of international law. The article examines this concept and describes how such principles emerge on the international plane in a manner different from general principles grounded in the domestic laws of States.","PeriodicalId":163787,"journal":{"name":"The journal of world investment and trade","volume":"12 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-08-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123842351","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 : 2020-08-10DOI: 10.1163/22119000-12340184
A. A. Gözlügöl
Umbrella clauses have sparked one of the great debates in international investment law as regards their proper construction. This article argues that a particular line of reasoning and interpretation appears to be unduly focusing on the effects of such clauses in the process of construing them. In other words, what seems to occur in the interpretation of umbrella clauses is that some tribunals, frightened by the far-reaching consequences, construe such clauses more narrowly. I call this phenomenon ‘adverse effects analysis’ and demonstrate that it is inconsistent with the proper construction of umbrella clauses in accordance with the rules of interpretation in the Vienna Convention on the Law of Treaties (VCLT). In this course, the effects of umbrella clauses in practice are also put forward along with an analysis of them under ‘manifest absurdity or unreasonableness test’ pursuant to Article 32(b) of VCLT.
{"title":"The Effects of Umbrella Clauses: Their Relevance in Interpretation and in Practice","authors":"A. A. Gözlügöl","doi":"10.1163/22119000-12340184","DOIUrl":"https://doi.org/10.1163/22119000-12340184","url":null,"abstract":"\u0000Umbrella clauses have sparked one of the great debates in international investment law as regards their proper construction. This article argues that a particular line of reasoning and interpretation appears to be unduly focusing on the effects of such clauses in the process of construing them. In other words, what seems to occur in the interpretation of umbrella clauses is that some tribunals, frightened by the far-reaching consequences, construe such clauses more narrowly. I call this phenomenon ‘adverse effects analysis’ and demonstrate that it is inconsistent with the proper construction of umbrella clauses in accordance with the rules of interpretation in the Vienna Convention on the Law of Treaties (VCLT). In this course, the effects of umbrella clauses in practice are also put forward along with an analysis of them under ‘manifest absurdity or unreasonableness test’ pursuant to Article 32(b) of VCLT.","PeriodicalId":163787,"journal":{"name":"The journal of world investment and trade","volume":"2 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-08-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133929404","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 : 2020-08-10DOI: 10.1163/22119000-12340185
Amalie Giødesen Thystrup
Gender equality is front and centre in the United Nations’ 2030 Sustainable Development Goals’ SDG 5. We are yet to understand how electronic commerce can incorporate gender equality considering this aspiration. The article offers a way. It presents a framework for understanding the multiplicity of gender gaps in e-commerce and provides an analysis of key regulatory and policy challenges women face in e-commerce. The article examines the legal-political implications of different approaches to incorporating gender into trade policy and then advances a multi-level approach to incorporating gender-inclusive e-commerce regulation into trade policy. On this basis, the article formulates policy recommendations for how to incorporate gender-inclusive e-commerce regulation into trade policy that works for development.
{"title":"Gender-Inclusive Governance for E-Commerce","authors":"Amalie Giødesen Thystrup","doi":"10.1163/22119000-12340185","DOIUrl":"https://doi.org/10.1163/22119000-12340185","url":null,"abstract":"\u0000Gender equality is front and centre in the United Nations’ 2030 Sustainable Development Goals’ SDG 5. We are yet to understand how electronic commerce can incorporate gender equality considering this aspiration. The article offers a way. It presents a framework for understanding the multiplicity of gender gaps in e-commerce and provides an analysis of key regulatory and policy challenges women face in e-commerce. The article examines the legal-political implications of different approaches to incorporating gender into trade policy and then advances a multi-level approach to incorporating gender-inclusive e-commerce regulation into trade policy. On this basis, the article formulates policy recommendations for how to incorporate gender-inclusive e-commerce regulation into trade policy that works for development.","PeriodicalId":163787,"journal":{"name":"The journal of world investment and trade","volume":"24 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-08-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115485511","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 : 2020-08-10DOI: 10.1163/22119000-12340186
S. Schwebel
{"title":"The Battle for International Law − South-North Perspectives on the Decolonization Era, edited by Jochen von Bernstorff and Philipp Dann","authors":"S. Schwebel","doi":"10.1163/22119000-12340186","DOIUrl":"https://doi.org/10.1163/22119000-12340186","url":null,"abstract":"","PeriodicalId":163787,"journal":{"name":"The journal of world investment and trade","volume":"55 2","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-08-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114127668","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 : 2020-08-10DOI: 10.1163/22119000-12340187
S. Lester, Huan Zhu
{"title":"China’s Implementation of the Rulings of the World Trade Organization, written by Weihuan Zhou","authors":"S. Lester, Huan Zhu","doi":"10.1163/22119000-12340187","DOIUrl":"https://doi.org/10.1163/22119000-12340187","url":null,"abstract":"","PeriodicalId":163787,"journal":{"name":"The journal of world investment and trade","volume":"55 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-08-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132500647","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 : 2020-06-25DOI: 10.1163/22119000-12340179
Matthias Vanhullebusch
The edited volume under discussion aims to shed light on China’s international investment strategy along the bilateral, regional and global prong. In doing so, the contributors have sought to answer whether China is a rule-shaper or rule-breaker of international investment norms and whether it will be further liberalizing its domestic market for foreign investment. Despite their comprehensive analysis of individual subject areas where tensions arise between China investment practice at home and overseas and international standards, the reasons for China’s contradictory normative conduct in its various investment relationships remain underexplored. This article calls for a reconceptualization of the sources from which international investment law derives its binding force, namely based on relational normativity. This approach can transcend anxieties about China’s past, present, and future investment strategies and strengthen the normativity of the international rule of law with one of the world’s most prominent economic players instead.
{"title":"China’s International Investment Strategy: Towards a Relational Normativity","authors":"Matthias Vanhullebusch","doi":"10.1163/22119000-12340179","DOIUrl":"https://doi.org/10.1163/22119000-12340179","url":null,"abstract":"\u0000The edited volume under discussion aims to shed light on China’s international investment strategy along the bilateral, regional and global prong. In doing so, the contributors have sought to answer whether China is a rule-shaper or rule-breaker of international investment norms and whether it will be further liberalizing its domestic market for foreign investment. Despite their comprehensive analysis of individual subject areas where tensions arise between China investment practice at home and overseas and international standards, the reasons for China’s contradictory normative conduct in its various investment relationships remain underexplored. This article calls for a reconceptualization of the sources from which international investment law derives its binding force, namely based on relational normativity. This approach can transcend anxieties about China’s past, present, and future investment strategies and strengthen the normativity of the international rule of law with one of the world’s most prominent economic players instead.","PeriodicalId":163787,"journal":{"name":"The journal of world investment and trade","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-06-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116281237","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 : 2020-06-22DOI: 10.1163/22119000-12340181
Luke A. Sobota, Charles T. Kotuby
{"title":"General Principles of Law and Investment Arbitration, edited by Andrea Gattini, Attila Tanzi and Filippo Fontanelli","authors":"Luke A. Sobota, Charles T. Kotuby","doi":"10.1163/22119000-12340181","DOIUrl":"https://doi.org/10.1163/22119000-12340181","url":null,"abstract":"","PeriodicalId":163787,"journal":{"name":"The journal of world investment and trade","volume":"14 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-06-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115098658","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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