ABSTRACT This article uses computational methods to analyse the development of the international investment law regime, seeking to understand how, when, and by whom change in treaty language occurs. The study uses a novel computational method to explore the influence of different states on the language of international investment treaties and the spread of language patterns. The analysis reveals a hegemony of Western European, rather than North American influence, and further highlights a clear early mover advantage for obtaining language spread. The article discusses the implications of these findings for the investment treaty system, particularly the limited impact of hard negotiating power compared to early entrance and convincing legal language.
{"title":"Treaty influencers: a computational analysis of the development of international investment law","authors":"Runar Hilleren Lie","doi":"10.1093/jiel/jgad029","DOIUrl":"https://doi.org/10.1093/jiel/jgad029","url":null,"abstract":"ABSTRACT This article uses computational methods to analyse the development of the international investment law regime, seeking to understand how, when, and by whom change in treaty language occurs. The study uses a novel computational method to explore the influence of different states on the language of international investment treaties and the spread of language patterns. The analysis reveals a hegemony of Western European, rather than North American influence, and further highlights a clear early mover advantage for obtaining language spread. The article discusses the implications of these findings for the investment treaty system, particularly the limited impact of hard negotiating power compared to early entrance and convincing legal language.","PeriodicalId":46864,"journal":{"name":"Journal of International Economic Law","volume":"44 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135298953","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
ABSTRACT Private bodies involved in global regulatory governance shape and monitor economic behaviour. Their regulatory power has greatly increased over the last several decades. Thanks to an impressive apparatus of standard-setting, they have transformed economic activity. The dominance of private bodies in standard-setting has continued despite crises to which they themselves have contributed. Existing literature suggests that the State ‘orchestrates’ private regulatory activity, thereby retaining a high level of control. Yet, this article shows that the opposite has occurred: crises, broadly defined as disruptive events, make private bodies more resilient or generate new transnational ones. The lack of State control has ushered in a new era of private authority. Private bodies use crises as opportunities to reorganize and become more assertive in norm-creation, overriding and substituting State powers. Free from organizational hierarchies, formal accountability structures, scrutiny, pressure, and obligations, private bodies expand their regulatory domain, enhance their collective memory and identity, and grow stronger through crises. Future empirical work on the interaction between public regulatory and supervisory authorities and private rule-makers can make a difference in ensuring that private rule-making serves the public interest.
{"title":"Transnational economic activism and private regulatory power","authors":"Panagiotis Delimatsis","doi":"10.1093/jiel/jgad028","DOIUrl":"https://doi.org/10.1093/jiel/jgad028","url":null,"abstract":"ABSTRACT Private bodies involved in global regulatory governance shape and monitor economic behaviour. Their regulatory power has greatly increased over the last several decades. Thanks to an impressive apparatus of standard-setting, they have transformed economic activity. The dominance of private bodies in standard-setting has continued despite crises to which they themselves have contributed. Existing literature suggests that the State ‘orchestrates’ private regulatory activity, thereby retaining a high level of control. Yet, this article shows that the opposite has occurred: crises, broadly defined as disruptive events, make private bodies more resilient or generate new transnational ones. The lack of State control has ushered in a new era of private authority. Private bodies use crises as opportunities to reorganize and become more assertive in norm-creation, overriding and substituting State powers. Free from organizational hierarchies, formal accountability structures, scrutiny, pressure, and obligations, private bodies expand their regulatory domain, enhance their collective memory and identity, and grow stronger through crises. Future empirical work on the interaction between public regulatory and supervisory authorities and private rule-makers can make a difference in ensuring that private rule-making serves the public interest.","PeriodicalId":46864,"journal":{"name":"Journal of International Economic Law","volume":"100 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135200266","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
ABSTRACT Energy governance at the international level is fraught with difficulties due to the ‘competition among purposes’ between different bodies of international law. In this paper, we extend this thesis to argue that the same tension may be found in domestic energy governance. Drawing from China’s experience in the governance of climate change and energy transition, we analyse how the misalignment of incentives between different actors and the incomplete market reform led to a drastic shift in policy in 2021. We also compare the different approaches in China’s energy governance and trade governance and draw some general lessons on how developing countries might overcome such governance problems.
{"title":"Competition among purposes: The Chinese Experience in the Governance of Climate Change and Energy Transition","authors":"Henry Gao, Weihuan Zhou","doi":"10.1093/jiel/jgad027","DOIUrl":"https://doi.org/10.1093/jiel/jgad027","url":null,"abstract":"ABSTRACT Energy governance at the international level is fraught with difficulties due to the ‘competition among purposes’ between different bodies of international law. In this paper, we extend this thesis to argue that the same tension may be found in domestic energy governance. Drawing from China’s experience in the governance of climate change and energy transition, we analyse how the misalignment of incentives between different actors and the incomplete market reform led to a drastic shift in policy in 2021. We also compare the different approaches in China’s energy governance and trade governance and draw some general lessons on how developing countries might overcome such governance problems.","PeriodicalId":46864,"journal":{"name":"Journal of International Economic Law","volume":"173 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-08-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"136248839","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"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 show that the mainstream discourse of the international law of foreign investment protection has adjusted itself to changing historical circumstances in a way that brings to light its strategic and ideological character. It argues, in particular, that the justifications offered in defence of foreign investment protection under international law appear to have been pretextual rather than principled, having been offered to provide reasons capable of flying at a particular point in time in light of the attending circumstances rather than to serve as an analytically sound, empirically grounded, and diachronically consistent framework.
{"title":"‘These are my principles. If you don’t like them I have others.’ On justifications of foreign investment protection under international law","authors":"Fuad Zarbiyev","doi":"10.1093/jiel/jgad025","DOIUrl":"https://doi.org/10.1093/jiel/jgad025","url":null,"abstract":"\u0000 This article aims to show that the mainstream discourse of the international law of foreign investment protection has adjusted itself to changing historical circumstances in a way that brings to light its strategic and ideological character. It argues, in particular, that the justifications offered in defence of foreign investment protection under international law appear to have been pretextual rather than principled, having been offered to provide reasons capable of flying at a particular point in time in light of the attending circumstances rather than to serve as an analytically sound, empirically grounded, and diachronically consistent framework.","PeriodicalId":46864,"journal":{"name":"Journal of International Economic Law","volume":" ","pages":""},"PeriodicalIF":3.1,"publicationDate":"2023-08-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43015459","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Much attention has been placed on how trade agreements integrate and benefit from a non-binding International Labour Organization (ILO) declaration. That declaration lists the fundamental labour principles to which all the ILO’s members, and thus the trade parties, have already consented. However, until now, it has been unclear whether and to what extent that integration, in turn, benefits the ILO’s regime. Comparing standard-setting negotiations at the ILO in 1998 and 2022, this article argues that the hardening of non-binding labour rights in binding trade agreements stagnates and complicates new labour standards. The ILO’s members now demand a saving clause expressly decoupling their new non-binding standard from their binding trade commitments. The implications of those negotiations for the future standard setting are wide-ranging and significant. As states become more aware of the potential binding nature of their non-binding standards, they are decoupling the ILO’s regime from their trade regime and shrinking the reach of the ILO’s fundamental principles in the process. This article draws from labour-adjacent standards integrated into trade agreements to show how states may mitigate that feedback loop.
{"title":"Integrating non-binding labour standards in binding trade agreements: The ILO’s feedback loop","authors":"Desirée LeClercq","doi":"10.1093/jiel/jgad026","DOIUrl":"https://doi.org/10.1093/jiel/jgad026","url":null,"abstract":"\u0000 Much attention has been placed on how trade agreements integrate and benefit from a non-binding International Labour Organization (ILO) declaration. That declaration lists the fundamental labour principles to which all the ILO’s members, and thus the trade parties, have already consented. However, until now, it has been unclear whether and to what extent that integration, in turn, benefits the ILO’s regime. Comparing standard-setting negotiations at the ILO in 1998 and 2022, this article argues that the hardening of non-binding labour rights in binding trade agreements stagnates and complicates new labour standards. The ILO’s members now demand a saving clause expressly decoupling their new non-binding standard from their binding trade commitments. The implications of those negotiations for the future standard setting are wide-ranging and significant. As states become more aware of the potential binding nature of their non-binding standards, they are decoupling the ILO’s regime from their trade regime and shrinking the reach of the ILO’s fundamental principles in the process. This article draws from labour-adjacent standards integrated into trade agreements to show how states may mitigate that feedback loop.","PeriodicalId":46864,"journal":{"name":"Journal of International Economic Law","volume":" ","pages":""},"PeriodicalIF":3.1,"publicationDate":"2023-08-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44261094","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
In contrast to international investment tribunals, World Trade Organization (WTO) adjudicators have been reluctant to acknowledge the inherent right to regulate under international law explicitly. Policy-based considerations arising from such a right have not been viewed as a standalone component under interpretive analyses in WTO dispute settlement. Instead, they have been integrated only to the extent they find expression in the treaty. This article explores how, on occasion, WTO adjudicators have departed from this orthodox approach by choosing to proactively interpret the WTO Covered Agreements in a way that presupposes a States’ right to regulate, even where this may seem contrary to, or unsupported by, the treaty text. In these cases, the question has not been whether such a right subsists within substantive WTO disciplines, but rather how such a right can be read into these disciplines in a manner that comports with the ordinary rules of treaty interpretation. While this unorthodox approach has resulted in interpretations that appear unclear and uncertain, these outcomes are ultimately explicable in terms of a general principle of regulatory autonomy that can form the basis for more principled interpretive choices.
{"title":"The right to regulate and the interpretation of the WTO Agreement","authors":"A. Mitchell","doi":"10.1093/jiel/jgad024","DOIUrl":"https://doi.org/10.1093/jiel/jgad024","url":null,"abstract":"\u0000 In contrast to international investment tribunals, World Trade Organization (WTO) adjudicators have been reluctant to acknowledge the inherent right to regulate under international law explicitly. Policy-based considerations arising from such a right have not been viewed as a standalone component under interpretive analyses in WTO dispute settlement. Instead, they have been integrated only to the extent they find expression in the treaty. This article explores how, on occasion, WTO adjudicators have departed from this orthodox approach by choosing to proactively interpret the WTO Covered Agreements in a way that presupposes a States’ right to regulate, even where this may seem contrary to, or unsupported by, the treaty text. In these cases, the question has not been whether such a right subsists within substantive WTO disciplines, but rather how such a right can be read into these disciplines in a manner that comports with the ordinary rules of treaty interpretation. While this unorthodox approach has resulted in interpretations that appear unclear and uncertain, these outcomes are ultimately explicable in terms of a general principle of regulatory autonomy that can form the basis for more principled interpretive choices.","PeriodicalId":46864,"journal":{"name":"Journal of International Economic Law","volume":" ","pages":""},"PeriodicalIF":3.1,"publicationDate":"2023-07-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49407460","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
With more than 3000 international investment agreements (IIAs) worldwide, states negotiate similar agreements multiple times with numerous partners. Accordingly, many states have developed template agreements known as ‘Model bilateral investment treaties (BITs)’. Nevertheless, concluded IIAs commonly deviate from the corresponding Model BITs, albeit to varying degrees. Investigating this variation, we examine the impact of Model Countries and their Partner Countries’ investor–state dispute settlement (ISDS) experience. Specifically, we argue that the Model Country adopts changes sought by the Partner Country during the negotiation process in order to accommodate the latter’s preferences, which were shaped by lessons learned from ISDS cases. Empirically, we introduce novel measures of divergence between Model BITs and IIAs, based on the concept and scheme of state regulatory space, with respect to several key aspects of investment rules. Coding a large number of Model BITs and IIAs on these variables and controlling for a host of alternative explanations, we find that the higher number of investment claims filed against the Partner Country, but not the Model Country, is associated with greater divergence between the Model Country’s Model BITs and its IIAs. This effect is especially noticeable with respect to important substantive investment rules.
{"title":"Last year’s model? Investment arbitration, negotiation, and the gap between Model BITs and IIAs","authors":"Yoram Z. Haftel, Morr Link, Tomer Broude","doi":"10.1093/jiel/jgad021","DOIUrl":"https://doi.org/10.1093/jiel/jgad021","url":null,"abstract":"\u0000 With more than 3000 international investment agreements (IIAs) worldwide, states negotiate similar agreements multiple times with numerous partners. Accordingly, many states have developed template agreements known as ‘Model bilateral investment treaties (BITs)’. Nevertheless, concluded IIAs commonly deviate from the corresponding Model BITs, albeit to varying degrees. Investigating this variation, we examine the impact of Model Countries and their Partner Countries’ investor–state dispute settlement (ISDS) experience. Specifically, we argue that the Model Country adopts changes sought by the Partner Country during the negotiation process in order to accommodate the latter’s preferences, which were shaped by lessons learned from ISDS cases. Empirically, we introduce novel measures of divergence between Model BITs and IIAs, based on the concept and scheme of state regulatory space, with respect to several key aspects of investment rules. Coding a large number of Model BITs and IIAs on these variables and controlling for a host of alternative explanations, we find that the higher number of investment claims filed against the Partner Country, but not the Model Country, is associated with greater divergence between the Model Country’s Model BITs and its IIAs. This effect is especially noticeable with respect to important substantive investment rules.","PeriodicalId":46864,"journal":{"name":"Journal of International Economic Law","volume":" ","pages":""},"PeriodicalIF":3.1,"publicationDate":"2023-06-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49390325","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"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: International Economic Law in the ‘Asian Century’","authors":"","doi":"10.1093/jiel/jgad022","DOIUrl":"https://doi.org/10.1093/jiel/jgad022","url":null,"abstract":"","PeriodicalId":46864,"journal":{"name":"Journal of International Economic Law","volume":" ","pages":""},"PeriodicalIF":3.1,"publicationDate":"2023-06-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48401367","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Journal Article Neoliberalism, Ordoliberalism and the Future of Economic Governance Get access The Oxford Handbook of Ordoliberalism. By THOMAS BIEBRICHER, WERNER BONEFELD, and PETER NEDERGAARD, Oxford: Oxford University Press, 2022. 592pp. ISBN 9780198861201 Ernst-Ulrich Petersmann Ernst-Ulrich Petersmann Search for other works by this author on: Oxford Academic Google Scholar Journal of International Economic Law, jgad020, https://doi.org/10.1093/jiel/jgad020 Published: 30 May 2023 Article history Editorial decision: 15 May 2023 Received: 15 May 2023 Accepted: 15 May 2023 Corrected and typeset: 30 May 2023 Published: 30 May 2023
{"title":"Neoliberalism, Ordoliberalism and the Future of Economic Governance","authors":"Ernst-Ulrich Petersmann","doi":"10.1093/jiel/jgad020","DOIUrl":"https://doi.org/10.1093/jiel/jgad020","url":null,"abstract":"Journal Article Neoliberalism, Ordoliberalism and the Future of Economic Governance Get access The Oxford Handbook of Ordoliberalism. By THOMAS BIEBRICHER, WERNER BONEFELD, and PETER NEDERGAARD, Oxford: Oxford University Press, 2022. 592pp. ISBN 9780198861201 Ernst-Ulrich Petersmann Ernst-Ulrich Petersmann Search for other works by this author on: Oxford Academic Google Scholar Journal of International Economic Law, jgad020, https://doi.org/10.1093/jiel/jgad020 Published: 30 May 2023 Article history Editorial decision: 15 May 2023 Received: 15 May 2023 Accepted: 15 May 2023 Corrected and typeset: 30 May 2023 Published: 30 May 2023","PeriodicalId":46864,"journal":{"name":"Journal of International Economic Law","volume":"13 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-05-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135643155","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Over the past decades, a growing number of Chinese companies have been listed overseas, notably in the USA and Hong Kong. They are subject to the securities regulation of listing places and can be sued thereunder against their securities misconduct. As overseas-listed Chinese companies usually have their main assets located in China, it is important that Chinese courts recognize and enforce foreign securities judgments. However, there are many difficulties in this area, which undermine the efficacy of the regulation of cross-border securities transactions. In quest of solutions, this article assesses the possibility of suing Chinese companies in the offshore financial centres where they are incorporated, finding that there would be similar issues with judgment enforcement in China. It also examines the viability of using arbitration as an alternative, arguing that arbitration may only supplement, rather than substituting, court litigation for resolving securities disputes. China should consider signing a bilateral treaty with the USA, clarifying the principle of reciprocity, and ratifying the 2005 Hague Choice of Court Convention and even the 2019 Hague Judgment Convention. Hong Kong is also advised to expand its current judgment recognition arrangement with Mainland China to cover securities judgments and join the relevant international conventions.
{"title":"China’s recognition and enforcement of foreign securities judgments against overseas-listed Chinese companies","authors":"R. Huang, W. Gu","doi":"10.1093/jiel/jgad019","DOIUrl":"https://doi.org/10.1093/jiel/jgad019","url":null,"abstract":"\u0000 Over the past decades, a growing number of Chinese companies have been listed overseas, notably in the USA and Hong Kong. They are subject to the securities regulation of listing places and can be sued thereunder against their securities misconduct. As overseas-listed Chinese companies usually have their main assets located in China, it is important that Chinese courts recognize and enforce foreign securities judgments. However, there are many difficulties in this area, which undermine the efficacy of the regulation of cross-border securities transactions. In quest of solutions, this article assesses the possibility of suing Chinese companies in the offshore financial centres where they are incorporated, finding that there would be similar issues with judgment enforcement in China. It also examines the viability of using arbitration as an alternative, arguing that arbitration may only supplement, rather than substituting, court litigation for resolving securities disputes. China should consider signing a bilateral treaty with the USA, clarifying the principle of reciprocity, and ratifying the 2005 Hague Choice of Court Convention and even the 2019 Hague Judgment Convention. Hong Kong is also advised to expand its current judgment recognition arrangement with Mainland China to cover securities judgments and join the relevant international conventions.","PeriodicalId":46864,"journal":{"name":"Journal of International Economic Law","volume":" ","pages":""},"PeriodicalIF":3.1,"publicationDate":"2023-05-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47072567","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"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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