Pub Date : 2017-12-06DOI: 10.1163/22119000-12340083
J. P. Bohoslavsky
{"title":"The Doctrine of Odious Debt in International Law. A Restatement, written by Jeff King","authors":"J. P. Bohoslavsky","doi":"10.1163/22119000-12340083","DOIUrl":"https://doi.org/10.1163/22119000-12340083","url":null,"abstract":"","PeriodicalId":163787,"journal":{"name":"The journal of world investment and trade","volume":"14 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-12-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133794780","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 : 2017-12-06DOI: 10.1163/22119000-12340066
M. D. Nguyen, Thi Thu Trang Nguyen
Integration into the global market brings both challenges and opportunities for the Vietnamese legal system. As investment dispute prevention and settlement has not received much attention from the Vietnamese government, Vietnam experienced difficulties in dispute resolution when faced with investment claims. The reluctance to recognise and enforce foreign arbitral awards in Vietnam to protect local parties has resulted in a number of commercial disputes escalating into investment treaty claims. These experiences have, however, allowed Vietnam to identify defects in its legal framework, human resources and governance, and prompted the government to take measures to reduce the risk of being sued by foreign investors. Even though the effectiveness of these measures has not yet been proven, investment disputes have brought opportunities as well as challenges for Vietnam.
{"title":"International Investment Dispute Resolution in Vietnam: Opportunities and Challenges","authors":"M. D. Nguyen, Thi Thu Trang Nguyen","doi":"10.1163/22119000-12340066","DOIUrl":"https://doi.org/10.1163/22119000-12340066","url":null,"abstract":"Integration into the global market brings both challenges and opportunities for the Vietnamese legal system. As investment dispute prevention and settlement has not received much attention from the Vietnamese government, Vietnam experienced difficulties in dispute resolution when faced with investment claims. The reluctance to recognise and enforce foreign arbitral awards in Vietnam to protect local parties has resulted in a number of commercial disputes escalating into investment treaty claims. These experiences have, however, allowed Vietnam to identify defects in its legal framework, human resources and governance, and prompted the government to take measures to reduce the risk of being sued by foreign investors. Even though the effectiveness of these measures has not yet been proven, investment disputes have brought opportunities as well as challenges for Vietnam.","PeriodicalId":163787,"journal":{"name":"The journal of world investment and trade","volume":"91 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-12-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133714015","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 : 2017-12-06DOI: 10.1163/22119000-12340085
C. Proctor
{"title":"Money in the Western Legal Tradition: Middle Ages to Bretton Woods , edited by David Fox and Wolfgang Ernst","authors":"C. Proctor","doi":"10.1163/22119000-12340085","DOIUrl":"https://doi.org/10.1163/22119000-12340085","url":null,"abstract":"","PeriodicalId":163787,"journal":{"name":"The journal of world investment and trade","volume":"24 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-12-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129012881","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 : 2017-08-08DOI: 10.1163/22119000-12340057
J. Voss, Barbara von Gayling-Westphal
{"title":"A Swiss Perspective on Contract Claims vs. Treaty Claims: Decision of the Swiss Federal Supreme Court (First Civil Law Court) of 6 October 2015","authors":"J. Voss, Barbara von Gayling-Westphal","doi":"10.1163/22119000-12340057","DOIUrl":"https://doi.org/10.1163/22119000-12340057","url":null,"abstract":"","PeriodicalId":163787,"journal":{"name":"The journal of world investment and trade","volume":"83 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":"126193083","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 : 2017-08-08DOI: 10.1163/22119000-12340054
T. Cottier, R. Echandi, Rachel Liechti-McKee, Tetyana Payosova, C. Sieber
Originally based upon the principle of equity, proportionality is predominantly used in the field of human rights protection, the use of force and countermeasures, humanitarian law, maritime boundary law, trade law and investment protection. The article finds that components of proportionality are shared and variably applied in these areas. The main challenge relates to weighing and balancing of interests in judicial review, reflecting upon the varied status and authority of international tribunals. The article submits that proportionality or necessity in terms of assessing the relationship of means and end, seeking least intrusive measures, is well-established and qualifies as a self-standing rule of customary international law. It should be termed strict proportionality. However, The Principle of Proportionality in International Law 629 Journal of World Investment & Trade 18 (2017) 628–672 the component of weighing and balancing interests amounts to a general principle of law and applies in context. It informs the interpretation of the law at hand and is subject to varying standards of review.
{"title":"The Principle of Proportionality in International Law: Foundations and Variations","authors":"T. Cottier, R. Echandi, Rachel Liechti-McKee, Tetyana Payosova, C. Sieber","doi":"10.1163/22119000-12340054","DOIUrl":"https://doi.org/10.1163/22119000-12340054","url":null,"abstract":"Originally based upon the principle of equity, proportionality is predominantly used in the field of human rights protection, the use of force and countermeasures, humanitarian law, maritime boundary law, trade law and investment protection. The article finds that components of proportionality are shared and variably applied in these areas. The main challenge relates to weighing and balancing of interests in judicial review, reflecting upon the varied status and authority of international tribunals. The article submits that proportionality or necessity in terms of assessing the relationship of means and end, seeking least intrusive measures, is well-established and qualifies as a self-standing rule of customary international law. It should be termed strict proportionality. However, The Principle of Proportionality in International Law 629 Journal of World Investment & Trade 18 (2017) 628–672 the component of weighing and balancing interests amounts to a general principle of law and applies in context. It informs the interpretation of the law at hand and is subject to varying standards of review.","PeriodicalId":163787,"journal":{"name":"The journal of world investment and trade","volume":"40 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":"128739795","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 : 2017-08-08DOI: 10.1163/22119000-12340055
Gonzalo. Villalta Puig, Sabrina Leung Tsam Tai
The China (Shanghai) Pilot Free Trade Zone (PFTZ) is the first free trade zone of the People’s Republic of China (PRC). It seeks to reform the national economy and open it up to foreign investment. This article argues that the suite of legal instruments that establish the PFTZ – the Framework Plan, the Negative List, the Decision, and the Management Method – are legally uncertain and that their legal uncertainty could cause disputes between PFTZ investors and the PRC. To address the problem of legal uncertainty, the article proposes, first, the adoption of a rational connection to the PFTZ as the test for jurisdiction of the PFTZ Court and the PFTZ Court of Arbitration; secondly, the enactment of the Negative List and the Decision as laws in order to clarify their legal status; and, thirdly, a reform of the PFTZ dispute settlement mechanism under the Management Method into an arbitral system.
{"title":"China (Shanghai) Pilot Free Trade Zone investor-state dispute settlement : an uncertain experiment","authors":"Gonzalo. Villalta Puig, Sabrina Leung Tsam Tai","doi":"10.1163/22119000-12340055","DOIUrl":"https://doi.org/10.1163/22119000-12340055","url":null,"abstract":"The China (Shanghai) Pilot Free Trade Zone (PFTZ) is the first free trade zone of the People’s Republic of China (PRC). It seeks to reform the national economy and open it up to foreign investment. This article argues that the suite of legal instruments that establish the PFTZ – the Framework Plan, the Negative List, the Decision, and the Management Method – are legally uncertain and that their legal uncertainty could cause disputes between PFTZ investors and the PRC. To address the problem of legal uncertainty, the article proposes, first, the adoption of a rational connection to the PFTZ as the test for jurisdiction of the PFTZ Court and the PFTZ Court of Arbitration; secondly, the enactment of the Negative List and the Decision as laws in order to clarify their legal status; and, thirdly, a reform of the PFTZ dispute settlement mechanism under the Management Method into an arbitral system.","PeriodicalId":163787,"journal":{"name":"The journal of world investment and trade","volume":"2 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":"121315215","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 : 2017-08-08DOI: 10.1163/22119000-12340059
V. Heiskanen
{"title":"Questions of Jurisdiction and Admissibility before International Courts, written by Yuval Shany","authors":"V. Heiskanen","doi":"10.1163/22119000-12340059","DOIUrl":"https://doi.org/10.1163/22119000-12340059","url":null,"abstract":"","PeriodicalId":163787,"journal":{"name":"The journal of world investment and trade","volume":"75 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":"134639949","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 : 2017-08-08DOI: 10.1163/22119000-12340060
I. Torterola
{"title":"International Investment Law in Latin America, Problems and Prospects, written by Attila Tanzi, Alessandra Asteriti, Rodrigo Polanco Lazo and Paolo Turrini","authors":"I. Torterola","doi":"10.1163/22119000-12340060","DOIUrl":"https://doi.org/10.1163/22119000-12340060","url":null,"abstract":"","PeriodicalId":163787,"journal":{"name":"The journal of world investment and trade","volume":"61 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":"128983549","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 : 2017-08-08DOI: 10.1163/22119000-12340053
N. Calamita
In its recent treaties, the European Union (EU) has established a new model of investor-State dispute settlement (ISDS). The EU’s new model entails the replacement of ad hoc arbitration with standing, treaty-based investment tribunals, staffed with judges appointed by the states parties. Awards produced by the EU’s new process will be subject to appellate review on issues of law and fact. The EU has indicated that it will pursue a treaty to multilateralize its new tribunal system. This article addresses the compatibility of the EU’s new ISDS model with existing instruments of the investment treaty regime: first, whether the introduction of an appellate mechanism or, indeed, the total reworking of ISDS to establish investment tribunals, renders instruments like the ICSID Convention and the New York Convention inapplicable to the modified process of ISDS; second, how the integration of any appellate mechanism with existing international investment treaties might technically be achieved.
{"title":"The (In)Compatibility of Appellate Mechanisms with Existing Instruments of the Investment Treaty Regime","authors":"N. Calamita","doi":"10.1163/22119000-12340053","DOIUrl":"https://doi.org/10.1163/22119000-12340053","url":null,"abstract":"In its recent treaties, the European Union (EU) has established a new model of investor-State dispute settlement (ISDS). The EU’s new model entails the replacement of ad hoc arbitration with standing, treaty-based investment tribunals, staffed with judges appointed by the states parties. Awards produced by the EU’s new process will be subject to appellate review on issues of law and fact. The EU has indicated that it will pursue a treaty to multilateralize its new tribunal system. This article addresses the compatibility of the EU’s new ISDS model with existing instruments of the investment treaty regime: first, whether the introduction of an appellate mechanism or, indeed, the total reworking of ISDS to establish investment tribunals, renders instruments like the ICSID Convention and the New York Convention inapplicable to the modified process of ISDS; second, how the integration of any appellate mechanism with existing international investment treaties might technically be achieved.","PeriodicalId":163787,"journal":{"name":"The journal of world investment and trade","volume":"46 34 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":"115456597","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 : 2017-08-08DOI: 10.1163/22119000-12340058
Joshua Paine
{"title":"Failure to Take Reasonable Environmental Measures as a Breach of Investment Treaty","authors":"Joshua Paine","doi":"10.1163/22119000-12340058","DOIUrl":"https://doi.org/10.1163/22119000-12340058","url":null,"abstract":"","PeriodicalId":163787,"journal":{"name":"The journal of world investment and trade","volume":"22 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":"114872410","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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