Abstract New international commercial courts can be analysed by examining how their features differ from those of their domestic counterpart courts and from those of international commercial arbitration. This conceptual tool is termed delocalization. Higher and lower levels of featural differences, or delocalization, may affect a new court’s reception, whether local actors can participate in the new court and the new court’s relations with the domestic courts. These factors influence the extent and speed of a new court’s integration into the legal landscape as an institutional transplant. A delocalization analysis can also help track the new and domestic courts’ continuing influence over each other and the adoption, sharing or abandonment of features over time.
{"title":"New international commercial courts: a delocalized approach","authors":"Sean David Yates","doi":"10.1093/jnlids/idad024","DOIUrl":"https://doi.org/10.1093/jnlids/idad024","url":null,"abstract":"Abstract New international commercial courts can be analysed by examining how their features differ from those of their domestic counterpart courts and from those of international commercial arbitration. This conceptual tool is termed delocalization. Higher and lower levels of featural differences, or delocalization, may affect a new court’s reception, whether local actors can participate in the new court and the new court’s relations with the domestic courts. These factors influence the extent and speed of a new court’s integration into the legal landscape as an institutional transplant. A delocalization analysis can also help track the new and domestic courts’ continuing influence over each other and the adoption, sharing or abandonment of features over time.","PeriodicalId":44660,"journal":{"name":"Journal of International Dispute Settlement","volume":"65 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-10-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135303807","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Abstract Over the past decade, non-participation in inter-state cases has been on the rise. While previous research on the topic has centred around the impact of states' non-participation, this article delves into the reasons behind non-participation. By analysing states’ public statements, diplomatic documents, informal correspondence with adjudicators, as well as commentators’ views, this article describes the evolution of reasons for non-participation. The research reveals that over time, more states refer to jurisdictional objections, doubts about the impartiality of adjudicators and concerns about the strategic use of judicial proceedings for achieving political goals as reasons for non-participation. Moreover, the reasons behind non-participation have become increasingly diverse. These findings suggest a growing sense of distrust and suspicion towards the use of international courts and tribunals to resolve inter-state disputes.
{"title":"Why states refuse to participate in judicial proceedings: uncovering key reasons and historical evolution","authors":"Ying Sun","doi":"10.1093/jnlids/idad020","DOIUrl":"https://doi.org/10.1093/jnlids/idad020","url":null,"abstract":"Abstract Over the past decade, non-participation in inter-state cases has been on the rise. While previous research on the topic has centred around the impact of states' non-participation, this article delves into the reasons behind non-participation. By analysing states’ public statements, diplomatic documents, informal correspondence with adjudicators, as well as commentators’ views, this article describes the evolution of reasons for non-participation. The research reveals that over time, more states refer to jurisdictional objections, doubts about the impartiality of adjudicators and concerns about the strategic use of judicial proceedings for achieving political goals as reasons for non-participation. Moreover, the reasons behind non-participation have become increasingly diverse. These findings suggest a growing sense of distrust and suspicion towards the use of international courts and tribunals to resolve inter-state disputes.","PeriodicalId":44660,"journal":{"name":"Journal of International Dispute Settlement","volume":"2014 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-09-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135967137","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Abstract The lack of diversity in the appointment of tribunal members in investment arbitration has long been subject to criticism. This article analyses the design of adjudicator appointment mechanisms and challenges the mainstream view that investment arbitration is modelled after the structures and procedures of commercial arbitration. Instead, drafters of the Convention on the Settlement of Investment Disputes Between States and Nationals of Other States (ICSID Convention) largely drew inspiration from the Permanent Court of Arbitration and the International Court of Justice. Following this institutional pedigree, the development of the equitable representation requirement is linked to the growing appreciation of the public aspects of the international judicial function. Nevertheless, drafters adopted Article 14(2) of the ICSID Convention mainly to facilitate the performance of the private function of dispute resolution. Through the historical lens, controversies surrounding different approaches for addressing diversity concerns in the ongoing investor–State dispute settlement reform are essentially surface products of deeper disagreements on the private and public aspects of the judicial function.
{"title":"Equitable representation on international benches and the appointment of tribunal members in investor–State dispute settlement: a historical perspective","authors":"Yanwen Zhang","doi":"10.1093/jnlids/idad021","DOIUrl":"https://doi.org/10.1093/jnlids/idad021","url":null,"abstract":"Abstract The lack of diversity in the appointment of tribunal members in investment arbitration has long been subject to criticism. This article analyses the design of adjudicator appointment mechanisms and challenges the mainstream view that investment arbitration is modelled after the structures and procedures of commercial arbitration. Instead, drafters of the Convention on the Settlement of Investment Disputes Between States and Nationals of Other States (ICSID Convention) largely drew inspiration from the Permanent Court of Arbitration and the International Court of Justice. Following this institutional pedigree, the development of the equitable representation requirement is linked to the growing appreciation of the public aspects of the international judicial function. Nevertheless, drafters adopted Article 14(2) of the ICSID Convention mainly to facilitate the performance of the private function of dispute resolution. Through the historical lens, controversies surrounding different approaches for addressing diversity concerns in the ongoing investor–State dispute settlement reform are essentially surface products of deeper disagreements on the private and public aspects of the judicial function.","PeriodicalId":44660,"journal":{"name":"Journal of International Dispute Settlement","volume":"23 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-09-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135394341","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Correction to: Cutting off the King’s Head: Rethinking Authority in International Law","authors":"","doi":"10.1093/jnlids/idad018","DOIUrl":"https://doi.org/10.1093/jnlids/idad018","url":null,"abstract":"","PeriodicalId":44660,"journal":{"name":"Journal of International Dispute Settlement","volume":"13 1","pages":""},"PeriodicalIF":0.8,"publicationDate":"2023-08-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"88901251","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Journal Article Affects, Emotions, and the Cartesian Epistemology of International Law Get access Jean d’Aspremont Jean d’Aspremont Email: Jean.daspremont@manchester.ac.uk https://orcid.org/0000-0002-0121-2334 Search for other works by this author on: Oxford Academic Google Scholar Journal of International Dispute Settlement, Volume 14, Issue 3, September 2023, Pages 281–284, https://doi.org/10.1093/jnlids/idad019 Published: 22 August 2023
期刊文章影响、情感与国际法的笛卡尔认认论获取Jean d 'Aspremont Jean d 'Aspremont电子邮件:Jean.daspremont@manchester.ac.uk https://orcid.org/0000-0002-0121-2334搜索作者其他作品:牛津学术谷歌学者国际争端解决杂志，第14卷第3期，2023年9月，281-284页，https://doi.org/10.1093/jnlids/idad019出版日期:2023年8月22日
{"title":"Affects, Emotions, and the Cartesian Epistemology of International Law","authors":"Jean d’Aspremont","doi":"10.1093/jnlids/idad019","DOIUrl":"https://doi.org/10.1093/jnlids/idad019","url":null,"abstract":"Journal Article Affects, Emotions, and the Cartesian Epistemology of International Law Get access Jean d’Aspremont Jean d’Aspremont Email: Jean.daspremont@manchester.ac.uk https://orcid.org/0000-0002-0121-2334 Search for other works by this author on: Oxford Academic Google Scholar Journal of International Dispute Settlement, Volume 14, Issue 3, September 2023, Pages 281–284, https://doi.org/10.1093/jnlids/idad019 Published: 22 August 2023","PeriodicalId":44660,"journal":{"name":"Journal of International Dispute Settlement","volume":"63 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-08-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135716133","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
International investment law is facing significant challenges in combating corruption in investment activities. The existing scholarly discussions are mostly centred upon the triangular relationship between the foreign investor, the host State and the investment arbitration tribunal. The role of another important body—the home State—has been under-examined, which seems to be better placed to implement measures to effectively govern investors’ (mis)conduct and ensure responsible investments. After identifying the low rate of substantiated corrupt acts in investment arbitration and the lack of a robust corruption prevention system in investment treaties, this article argues that participation of home States in arbitration proceedings can help mitigate those arduous evidentiary challenges and facilitate the fact-finding process. Home States should also impose obligations of delivering periodic corruption risk assessments on investors through domestic legislation and investment treaties.
{"title":"Returning the Home State to the Global Anti-Corruption Campaign","authors":"Yue Yan","doi":"10.1093/jnlids/idad016","DOIUrl":"https://doi.org/10.1093/jnlids/idad016","url":null,"abstract":"\u0000 International investment law is facing significant challenges in combating corruption in investment activities. The existing scholarly discussions are mostly centred upon the triangular relationship between the foreign investor, the host State and the investment arbitration tribunal. The role of another important body—the home State—has been under-examined, which seems to be better placed to implement measures to effectively govern investors’ (mis)conduct and ensure responsible investments. After identifying the low rate of substantiated corrupt acts in investment arbitration and the lack of a robust corruption prevention system in investment treaties, this article argues that participation of home States in arbitration proceedings can help mitigate those arduous evidentiary challenges and facilitate the fact-finding process. Home States should also impose obligations of delivering periodic corruption risk assessments on investors through domestic legislation and investment treaties.","PeriodicalId":44660,"journal":{"name":"Journal of International Dispute Settlement","volume":"23 1","pages":""},"PeriodicalIF":0.8,"publicationDate":"2023-07-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"79367388","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The Eco Oro v. Colombia Decision has garnered immediate public and academic attention and generated immense controversy. One of the reasons for its notoriety was the arbitral tribunal’s unconventional take on the general exceptions clause of the Canada–Colombia Free Trade Agreement and its contention that, even when a challenged measure fulfils the requirements of this exception, a host state’s duty to compensate remained. This conclusion has since been interpreted as an indication that, in spite of states’ attempts to carve certain regulatory and/or administrative measures motivated by public interest out of the protective scope of some recent international investment agreements (IIAs), such as environmental protection, arbitral tribunals continue to disregard these sensitivities. In light of this background, this article will focus on the parties’ arguments, the Tribunal’s analysis, as well as the interpretative implications of the Decision, focusing on indirect expropriation, the fair and equitable treatment, and the application of the general exception clause.
{"title":"A tale of policy carve-outs and general exceptions: Eco Oro v Colombia as a case study","authors":"Güneş Ünüvar","doi":"10.1093/jnlids/idad017","DOIUrl":"https://doi.org/10.1093/jnlids/idad017","url":null,"abstract":"\u0000 The Eco Oro v. Colombia Decision has garnered immediate public and academic attention and generated immense controversy. One of the reasons for its notoriety was the arbitral tribunal’s unconventional take on the general exceptions clause of the Canada–Colombia Free Trade Agreement and its contention that, even when a challenged measure fulfils the requirements of this exception, a host state’s duty to compensate remained. This conclusion has since been interpreted as an indication that, in spite of states’ attempts to carve certain regulatory and/or administrative measures motivated by public interest out of the protective scope of some recent international investment agreements (IIAs), such as environmental protection, arbitral tribunals continue to disregard these sensitivities. In light of this background, this article will focus on the parties’ arguments, the Tribunal’s analysis, as well as the interpretative implications of the Decision, focusing on indirect expropriation, the fair and equitable treatment, and the application of the general exception clause.","PeriodicalId":44660,"journal":{"name":"Journal of International Dispute Settlement","volume":"22 1","pages":""},"PeriodicalIF":0.8,"publicationDate":"2023-07-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"81464109","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The renewed attention to the concept of authority in the literature of international law and international relations has allowed to gain a better understanding of the phenomenon of authority in international affairs. But even recent works remain focused on ‘authority figures’ in the form of persons, offices and institutions. Building on an approach proposed by Kim Scheppele and Karol Soltan, this article frames authority as a matter of attractiveness in a choice situation, showing a way to go beyond the dominant actor-focused conception of authority. What it proposes, in particular, is to revisit the existing understanding of authority by shifting the focus from authority figures to authoritative resources. The practice of authority assertions and authority contestations in international law shows that rather than being ‘agent-centered’, claims and challenges to authority primarily turn around attributes that pass for ‘authoritative resources’ in the relevant contexts.
{"title":"Cutting off the Kind’s Head: Rethinking Authority in International Law","authors":"Fuad Zarbiyev","doi":"10.1093/jnlids/idad014","DOIUrl":"https://doi.org/10.1093/jnlids/idad014","url":null,"abstract":"\u0000 The renewed attention to the concept of authority in the literature of international law and international relations has allowed to gain a better understanding of the phenomenon of authority in international affairs. But even recent works remain focused on ‘authority figures’ in the form of persons, offices and institutions. Building on an approach proposed by Kim Scheppele and Karol Soltan, this article frames authority as a matter of attractiveness in a choice situation, showing a way to go beyond the dominant actor-focused conception of authority. What it proposes, in particular, is to revisit the existing understanding of authority by shifting the focus from authority figures to authoritative resources. The practice of authority assertions and authority contestations in international law shows that rather than being ‘agent-centered’, claims and challenges to authority primarily turn around attributes that pass for ‘authoritative resources’ in the relevant contexts.","PeriodicalId":44660,"journal":{"name":"Journal of International Dispute Settlement","volume":"18 1","pages":""},"PeriodicalIF":0.8,"publicationDate":"2023-07-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"81693157","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Article 17.6(ii) of the WTO Anti-Dumping Agreement is a one-of-a-kind treaty norm that sets out a deferential standard of review for issues of law by requiring panels to accept any ‘permissible’ interpretation. The Appellate Body’s approach to analysis under Article 17.6(ii), which precluded a finding of two competing interpretations being permissible, has long remained a point of criticism by the USA, a frequent respondent in anti-dumping disputes. In the wake of the first arbitration award under the Multi-Party Interim Appeal Arbitration Aarrangement (MPIA), which seeks to give more effect to the deferential standard of review, this article emphasizes the unprecedented character of Article 17.6(ii) in international law, argues that expectations of how it would operate arose from a misapprehension of Chevron deference in US law and that the whole issue may be another reason for having a separate dispute settlement track for trade remedies.
{"title":"Article 17.6(ii) of the WTO Anti-Dumping Agreement: Waiting for Chekhov’s Gun to Go Off","authors":"Yury Rovnov","doi":"10.1093/jnlids/idad013","DOIUrl":"https://doi.org/10.1093/jnlids/idad013","url":null,"abstract":"\u0000 Article 17.6(ii) of the WTO Anti-Dumping Agreement is a one-of-a-kind treaty norm that sets out a deferential standard of review for issues of law by requiring panels to accept any ‘permissible’ interpretation. The Appellate Body’s approach to analysis under Article 17.6(ii), which precluded a finding of two competing interpretations being permissible, has long remained a point of criticism by the USA, a frequent respondent in anti-dumping disputes. In the wake of the first arbitration award under the Multi-Party Interim Appeal Arbitration Aarrangement (MPIA), which seeks to give more effect to the deferential standard of review, this article emphasizes the unprecedented character of Article 17.6(ii) in international law, argues that expectations of how it would operate arose from a misapprehension of Chevron deference in US law and that the whole issue may be another reason for having a separate dispute settlement track for trade remedies.","PeriodicalId":44660,"journal":{"name":"Journal of International Dispute Settlement","volume":"44 1","pages":""},"PeriodicalIF":0.8,"publicationDate":"2023-06-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"73794704","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Sinking Islands form part of the dystopian reality faced by a world increasingly affected by climate breakdown today. As reported, around the world, ‘many islands are slowly but surely being submerged’. This article enquires into the potential role that the International Tribunal for the Law of the Sea (ITLOS) may have, in its advisory capacity, in tackling the effects of climate change. In particular, this article deals with two broad issues: (i) it identifies the potential benefits and risks of an ITLOS Advisory Opinion on the issue of climate change under the United Nations Convention on the Law of the Sea (UNCLOS) and (ii) it examines the questions that COSIS recently posed to the tribunal, a number of sub-questions and relevant provisions under UNCLOS are further identified, and whether the Commission on Small Island States on Climate Change and International Law has complied with the procedural rules of ITLOS to trigger its advisory functions.
{"title":"On the request for an advisory opinion on climate change under UNCLOS before the International Tribunal for the Law of the Sea","authors":"Monica Feria-Tinta","doi":"10.1093/jnlids/idad012","DOIUrl":"https://doi.org/10.1093/jnlids/idad012","url":null,"abstract":"\u0000 Sinking Islands form part of the dystopian reality faced by a world increasingly affected by climate breakdown today. As reported, around the world, ‘many islands are slowly but surely being submerged’. This article enquires into the potential role that the International Tribunal for the Law of the Sea (ITLOS) may have, in its advisory capacity, in tackling the effects of climate change. In particular, this article deals with two broad issues: (i) it identifies the potential benefits and risks of an ITLOS Advisory Opinion on the issue of climate change under the United Nations Convention on the Law of the Sea (UNCLOS) and (ii) it examines the questions that COSIS recently posed to the tribunal, a number of sub-questions and relevant provisions under UNCLOS are further identified, and whether the Commission on Small Island States on Climate Change and International Law has complied with the procedural rules of ITLOS to trigger its advisory functions.","PeriodicalId":44660,"journal":{"name":"Journal of International Dispute Settlement","volume":"75 1","pages":""},"PeriodicalIF":0.8,"publicationDate":"2023-06-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"88364129","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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