Document production, and with it e-discovery, presents unique opportunities but also challenges for parties and tribunals seeking fair, efficient and effective investor-state arbitration proceedings. Despite the prevalence of electronically stored information and the potential utility of technology-assisted review techniques, e-discovery procedures in investor-state arbitration are relatively underdeveloped. Applicable procedural rules and guidelines are largely silent as to the mechanics of e-discovery. Analysis of investor-state arbitration decisions indicates a further reticence on the part of parties and investor-state tribunals to squarely address issues of e-discovery proactively. This means that the use, selection and scope of e-discovery are left almost entirely to parties and tribunals to navigate on a case-by-case and largely ad hoc basis. Given the likely increasing relevance of e-discovery in international investor-state arbitration, this article considers how parties and tribunals might be supported to become better equipped to accommodate e-discovery appropriately in investor-state arbitration.
{"title":"E-Discovery in Investment Treaty Arbitration: Practice, Procedures, Challenges and Opportunities","authors":"Esmé Shirlow","doi":"10.1093/JNLIDS/IDAA019","DOIUrl":"https://doi.org/10.1093/JNLIDS/IDAA019","url":null,"abstract":"\u0000 Document production, and with it e-discovery, presents unique opportunities but also challenges for parties and tribunals seeking fair, efficient and effective investor-state arbitration proceedings. Despite the prevalence of electronically stored information and the potential utility of technology-assisted review techniques, e-discovery procedures in investor-state arbitration are relatively underdeveloped. Applicable procedural rules and guidelines are largely silent as to the mechanics of e-discovery. Analysis of investor-state arbitration decisions indicates a further reticence on the part of parties and investor-state tribunals to squarely address issues of e-discovery proactively. This means that the use, selection and scope of e-discovery are left almost entirely to parties and tribunals to navigate on a case-by-case and largely ad hoc basis. Given the likely increasing relevance of e-discovery in international investor-state arbitration, this article considers how parties and tribunals might be supported to become better equipped to accommodate e-discovery appropriately in investor-state arbitration.","PeriodicalId":44660,"journal":{"name":"Journal of International Dispute Settlement","volume":"14 1","pages":"549-588"},"PeriodicalIF":0.8,"publicationDate":"2021-02-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"74361084","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}
This article aims to explore alternative dispute resolution mechanisms, which are relevant to sectional titles schemes disputes. The alternative dispute resolution mechanisms will be discussed as an innovative trend to resolve disputes, especially in foreign jurisdictions. In South Africa there are challenges that confront South Africa because litigation is in many instances the cause of the break-down of relationships and may cause a rift and hinder development within a particular scheme. This article aims to address, on the one hand, particular pitfalls in sectional title scheme litigation, and on the other hand to address possible solutions through alternative dispute resolution mechanisms.
{"title":"An Analysis of Sectional Title Dispute Resolution in South Africa","authors":"Rashri Baboolal-Frank","doi":"10.1093/JNLIDS/IDAA023","DOIUrl":"https://doi.org/10.1093/JNLIDS/IDAA023","url":null,"abstract":"\u0000 This article aims to explore alternative dispute resolution mechanisms, which are relevant to sectional titles schemes disputes. The alternative dispute resolution mechanisms will be discussed as an innovative trend to resolve disputes, especially in foreign jurisdictions. In South Africa there are challenges that confront South Africa because litigation is in many instances the cause of the break-down of relationships and may cause a rift and hinder development within a particular scheme. This article aims to address, on the one hand, particular pitfalls in sectional title scheme litigation, and on the other hand to address possible solutions through alternative dispute resolution mechanisms.","PeriodicalId":44660,"journal":{"name":"Journal of International Dispute Settlement","volume":"44 1","pages":"659-670"},"PeriodicalIF":0.8,"publicationDate":"2021-02-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"88587266","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}
In the framework of the empirical turn in international law, international lawyers are increasingly turning to specific linguistic theories to gain insights into language-related processes in international law, such as interpretation or law-making. The present article addresses these current, selective approaches by offering a broad overview and taxonomy of the most prominent and relevant directions of research in linguistics. It addresses in turn discourse analysis and text linguistics, syntax, semantics, pragmatics, historical linguistics and etymology, lexicography, corpus linguistics and computational linguistics, sociolinguistics and forensic linguistics, loosely following the phases of the ‘life cycle’ of international law in which they could most fruitfully be used to study and practise international law.
{"title":"International Law and Linguistics: Pieces of an Interdisciplinary Puzzle","authors":"B. Pirker, Jennifer Smolka","doi":"10.1093/JNLIDS/IDAA020","DOIUrl":"https://doi.org/10.1093/JNLIDS/IDAA020","url":null,"abstract":"\u0000 In the framework of the empirical turn in international law, international lawyers are increasingly turning to specific linguistic theories to gain insights into language-related processes in international law, such as interpretation or law-making. The present article addresses these current, selective approaches by offering a broad overview and taxonomy of the most prominent and relevant directions of research in linguistics. It addresses in turn discourse analysis and text linguistics, syntax, semantics, pragmatics, historical linguistics and etymology, lexicography, corpus linguistics and computational linguistics, sociolinguistics and forensic linguistics, loosely following the phases of the ‘life cycle’ of international law in which they could most fruitfully be used to study and practise international law.","PeriodicalId":44660,"journal":{"name":"Journal of International Dispute Settlement","volume":"48 1","pages":"501-521"},"PeriodicalIF":0.8,"publicationDate":"2021-02-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"85193696","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":"Dispute Settlement at the World Trade Organization, the Comprehensive and Progressive Agreement for Trans-Pacific Partnership, and the Pacific Alliance","authors":"Natalia Gallardo-Salazar, Jaime Tijmes-Ihl","doi":"10.1093/JNLIDS/IDAA021","DOIUrl":"https://doi.org/10.1093/JNLIDS/IDAA021","url":null,"abstract":"","PeriodicalId":44660,"journal":{"name":"Journal of International Dispute Settlement","volume":"343 1","pages":"638-658"},"PeriodicalIF":0.8,"publicationDate":"2021-02-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"79585236","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}
Arbitral tribunals in the field of investment treaty arbitration have generated rules governing their own jurisdiction. This article examines the effect of the controlling role of domestic courts on the development of arbitral jurisdictional regulation, tracking the treatment of arbitrator-made jurisdictional rules by domestic courts reviewing investment arbitral decisions. The article finds that domestic courts have not been resistant to but rather supportive of the proliferation of arbitrator-made jurisdictional rules. First, domestic courts have relied on such rules and treated their development as parts of interpretative exercises and as part of the arbitral judicial function. Second, domestic courts have engaged in discourses on the appropriateness of arbitrator-made jurisdictional rules in substance. This practice contradicts the expectation that domestic courts would contest arbitral jurisdictional regulation and shows the potential of domestic courts to contribute to the production of nuanced rules governing the jurisdiction of investment arbitral tribunals.
{"title":"Arbitral Jurisdictional Regulation in Investment Treaty Arbitration and Domestic Courts","authors":"Relja Radović","doi":"10.1093/JNLIDS/IDAB002","DOIUrl":"https://doi.org/10.1093/JNLIDS/IDAB002","url":null,"abstract":"\u0000 Arbitral tribunals in the field of investment treaty arbitration have generated rules governing their own jurisdiction. This article examines the effect of the controlling role of domestic courts on the development of arbitral jurisdictional regulation, tracking the treatment of arbitrator-made jurisdictional rules by domestic courts reviewing investment arbitral decisions. The article finds that domestic courts have not been resistant to but rather supportive of the proliferation of arbitrator-made jurisdictional rules. First, domestic courts have relied on such rules and treated their development as parts of interpretative exercises and as part of the arbitral judicial function. Second, domestic courts have engaged in discourses on the appropriateness of arbitrator-made jurisdictional rules in substance. This practice contradicts the expectation that domestic courts would contest arbitral jurisdictional regulation and shows the potential of domestic courts to contribute to the production of nuanced rules governing the jurisdiction of investment arbitral tribunals.","PeriodicalId":44660,"journal":{"name":"Journal of International Dispute Settlement","volume":"122 1","pages":""},"PeriodicalIF":0.8,"publicationDate":"2021-02-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"76823060","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}
Mass atrocities almost invariably involve the targeting of racial, ethnic, religious and/or political groups. Other groups, such as homosexuals, have also been vulnerable to targeted destruction. Both experience and international case law demonstrate that atrocity crimes have mostly been inflicted on minorities within minorities. With individuals being targeted on several personal grounds or due to overlapping identities (for example, women and girls belonging to ethnic or religious minorities) there is a strong case for both scholarship and international criminal judiciary to develop an expertise on intersectional discrimination in the context of international crimes that implicate discriminatory intent of a perpetrator. Yet, the International Criminal Court (ICC or Court) has tended to consider atrocities motivated by discrimination on isolated discriminatory grounds and independently from each other. As a prescriptive contribution, the present article challenges this trend by arguing that in more complex criminal cases the protected characteristics need to be considered together with, and not separately from, one another, in order to capture the multi-faceted experiences of mass abuses. Underlying the treatment of the subject matter are thus two basic questions: first, given a full respect for the principle of legality (nullum crimen sine lege), what are the possible avenues for international criminal adjudication to recognize intersectionality so as to overcome conceptual flaws and limitations of single-issue analysis of discrimination in cases involving core international crimes against minorities? For example, can Article 21(3) of the Rome Statute on the interpretation and application of substantive international criminal law in light of international human rights standards serve as a viable tool for the Court to evolve its jurisprudence on this particular issue? Second, how and to what extent should the Court take intersectionality into consideration in the formulation of charges; identification and interpretation of applicable law; determination of criminal sentence; ordering adequate remedies (reparations) for victims; and in considering such aspects as the gravity assessment, or the contextualisation of crimes? Answering these questions, the article shows that by applying, interpreting and, when need be, developing international criminal law in a way that utilizes intersectionality the ICC can make in these areas important jurisprudential contributions with far-reaching socio-legal implications.
{"title":"Law Development by the International Criminal Court as a Way to Enhance the Protection of Minorities—the Case for Intersectional Consideration of Mass Atrocities","authors":"Gregor Maučec","doi":"10.1093/JNLIDS/IDAA029","DOIUrl":"https://doi.org/10.1093/JNLIDS/IDAA029","url":null,"abstract":"\u0000 Mass atrocities almost invariably involve the targeting of racial, ethnic, religious and/or political groups. Other groups, such as homosexuals, have also been vulnerable to targeted destruction. Both experience and international case law demonstrate that atrocity crimes have mostly been inflicted on minorities within minorities. With individuals being targeted on several personal grounds or due to overlapping identities (for example, women and girls belonging to ethnic or religious minorities) there is a strong case for both scholarship and international criminal judiciary to develop an expertise on intersectional discrimination in the context of international crimes that implicate discriminatory intent of a perpetrator. Yet, the International Criminal Court (ICC or Court) has tended to consider atrocities motivated by discrimination on isolated discriminatory grounds and independently from each other. As a prescriptive contribution, the present article challenges this trend by arguing that in more complex criminal cases the protected characteristics need to be considered together with, and not separately from, one another, in order to capture the multi-faceted experiences of mass abuses. Underlying the treatment of the subject matter are thus two basic questions: first, given a full respect for the principle of legality (nullum crimen sine lege), what are the possible avenues for international criminal adjudication to recognize intersectionality so as to overcome conceptual flaws and limitations of single-issue analysis of discrimination in cases involving core international crimes against minorities? For example, can Article 21(3) of the Rome Statute on the interpretation and application of substantive international criminal law in light of international human rights standards serve as a viable tool for the Court to evolve its jurisprudence on this particular issue? Second, how and to what extent should the Court take intersectionality into consideration in the formulation of charges; identification and interpretation of applicable law; determination of criminal sentence; ordering adequate remedies (reparations) for victims; and in considering such aspects as the gravity assessment, or the contextualisation of crimes? Answering these questions, the article shows that by applying, interpreting and, when need be, developing international criminal law in a way that utilizes intersectionality the ICC can make in these areas important jurisprudential contributions with far-reaching socio-legal implications.","PeriodicalId":44660,"journal":{"name":"Journal of International Dispute Settlement","volume":"87 1","pages":""},"PeriodicalIF":0.8,"publicationDate":"2021-01-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"78268391","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}
Despite the popularization of investor-state arbitration (ISA), administrative review remains a helpful local remedy for investment-state dispute settlement (ISDS) in some states. China has a complicated and comprehensive legal system of administrative review. It has concluded a large number of international investment agreements (IIAs), and nearly half of them contain an administrative review provision. These provisions could be considered as an expropriation review mechanism, a standalone ISDS option, an ISA supporting measure or a pre-ISA requirement. Given that administrative review has legal and practical limits, and that China’s national law on dispute settlement and foreign investment governance keeps changing, the attractiveness and significance of administrative review for ISDS are diminishing. In China’s recent IIA-making, there appears an emerging trend of abandoning administrative review. In the long run, it remains to be seen how China will balance local remedies and ISA in IIA-making and foreign investment governance in the future.
{"title":"Administrative Review Provisions in Chinese Investment Treaties: ‘Gilding the Lily’?","authors":"M. Chi, Zongyao Li","doi":"10.1093/JNLIDS/IDAA025","DOIUrl":"https://doi.org/10.1093/JNLIDS/IDAA025","url":null,"abstract":"\u0000 Despite the popularization of investor-state arbitration (ISA), administrative review remains a helpful local remedy for investment-state dispute settlement (ISDS) in some states. China has a complicated and comprehensive legal system of administrative review. It has concluded a large number of international investment agreements (IIAs), and nearly half of them contain an administrative review provision. These provisions could be considered as an expropriation review mechanism, a standalone ISDS option, an ISA supporting measure or a pre-ISA requirement. Given that administrative review has legal and practical limits, and that China’s national law on dispute settlement and foreign investment governance keeps changing, the attractiveness and significance of administrative review for ISDS are diminishing. In China’s recent IIA-making, there appears an emerging trend of abandoning administrative review. In the long run, it remains to be seen how China will balance local remedies and ISA in IIA-making and foreign investment governance in the future.","PeriodicalId":44660,"journal":{"name":"Journal of International Dispute Settlement","volume":"109 1","pages":""},"PeriodicalIF":0.8,"publicationDate":"2021-01-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"91284650","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":"OUP accepted manuscript","authors":"","doi":"10.1093/jnlids/idab033","DOIUrl":"https://doi.org/10.1093/jnlids/idab033","url":null,"abstract":"","PeriodicalId":44660,"journal":{"name":"Journal of International Dispute Settlement","volume":"44 1","pages":""},"PeriodicalIF":0.8,"publicationDate":"2021-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"79518676","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":"OUP accepted manuscript","authors":"","doi":"10.1093/jnlids/idab017","DOIUrl":"https://doi.org/10.1093/jnlids/idab017","url":null,"abstract":"","PeriodicalId":44660,"journal":{"name":"Journal of International Dispute Settlement","volume":"56 1","pages":""},"PeriodicalIF":0.8,"publicationDate":"2021-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"83478851","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":"OUP accepted manuscript","authors":"","doi":"10.1093/jnlids/idab032","DOIUrl":"https://doi.org/10.1093/jnlids/idab032","url":null,"abstract":"","PeriodicalId":44660,"journal":{"name":"Journal of International Dispute Settlement","volume":"38 1","pages":""},"PeriodicalIF":0.8,"publicationDate":"2021-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"75702628","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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