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International economic law is a field of public international law that regulates crossborder transactions in goods, services, and capital, as well as monetary relations between states. This chapter focuses on the branches of international economic law that govern international trade, international investment, and international monetary law. It sets out the historical background, fundamental rules, and dispute settlement systems in the areas of international trade law and international investment law, and it concludes by introducing international monetary law. International trade and international investment law share some fundamental principles, such as non-discrimination, although most favored nation treatment and national treatment take somewhat different forms in the two bodies of law. This chapter covers the Bretton Woods institutions, namely the World Bank and the International Monetary Fund (IMF), as well as the World Trade Organization (WTO).
The absence of ISDS cases against China may mean that investors are deprived of adequate and effective remedies for resolving investment disputes. Based on [type of empirical research], the authors find support for the view that the procedures offered by Chinese IIAs and legislation promote dispute resolution that is mutually satisfactory among investors and closely related public officials. However, they also find a possible trade-off in the sense that such solutions might depend on and promote corruption. Against this background, they explore how ISDS could contribute to combating corruption. [Abstract needs to be filled out and follow a logic of legitimacy critique, research method, finding/caveats – not currently clear]
The aim of Chapter 7 is to explain the patterns identified in Chapter 6. In particular, it looks into the characteristics of the WTO and the ECT treaty regimes to explain why the EU is the optimal respondent in trade disputes, whereas Member States are exclusive respondents in investment arbitration.
In recent years, the backlash against the negotiations of a Transatlantic Trade and Investment Partnership (TTIP) between the European Union (EU) and the United States, the conclusion of the Canada-EU Comprehensive Economic and Trade Agreement (CETA), including the proposal on a multilateral investment court, the conclusion of the negotiations of the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP) and the United States’ formal withdrawal from the Agreement have given new momentum to the public discussion between treaty protection to foreign investors vis-à-vis the States’ sovereign right to design and implement regulation to achieve economic development.
This Chapter focuses on the situation where acts by the rebels or the government are committed in the context of the insurgent’s struggle for the establishment of a new government. When the rebels are successful, the new government remains responsible for the acts committed by the previous government while fighting the rebels. Also, the acts committed by the rebels during the insurgency are attributable to the State after their victory. When the rebels are not successful, the acts committed by them are not attributable to the State once the insurgency has failed. There are two ‘exceptions’ to this principle involving lawful ‘routine activities’ performed by the rebels and expropriation act committed by them which results in some benefits for the State. The rebels are always responsible for their own wrongful acts. A State is always responsible for its own failure to exercise its due diligence obligation to protect third States and foreigners during the insurgency. Responsibility arises as a result of a State’s failure to discharge its due diligence obligation of vigilance, prevention and punishment in relation to the conduct of rebels.
The doctrine and case law on expropriation in international investment law (IIL) is an unsettled area due to a variety of factors such as the diversity of interests between capital-importing and capital-exporting states, the divergence in legal, economic and cultural concepts of property rights, and, more importantly, the regulatory role of the state in cross-border investment activities. Although China has been an active “treaty-maker” in the universe of international investment arbitration, evidenced by its nearly 130 BITs, the notion of expropriation in these BITs is in a state of flux. This chapter scrutinizes the expropriation clauses in China’s BITs, in particular the Peru–China BIT and the Peru–China FTA, by reference to the final award of Tza Yap Shum v. The Republic of Peru, the first Chinese BIT arbitration case. This chapter attempts, in a comparative context, to understand the underlying rationality of China’s evolving stance on expropriation in both global and domestic contexts.
With the internationalisation of production processes and multiplication of jurisdictions involved in these processes, global supply chains can be easily interrupted through weakest links. The fragmentation of production processes and internationalisation of supply chains complicate coordination and risk management, which necessitate a fresh look of the governance mechanism. Competition law plays a critical role in ensuring supply is not disrupted through anti-competitive practices, such as export-cartel and abuse of dominant power in horizontal and vertical agreements. In linking export restrictions to investment law and policies, two types of investment are most relevant: resource-seeking and strategic asset-seeking investments. The interaction of export restrictions and investment law and policies can be observed from two perspectives: producers v. consumers; outbound v. inbound. A country imposing export restrictions on resources or strategic assets, such as critical components, may use trade and investment measuresm) simultaneously to prevent foreign countries or enterprises from accessing them.
The question whether conditionality is sufficient for representation is answered in this chapter in the negative through the Ottoman case . The striking and unnoted similarities between the Ottoman land regime and that of England are examined here in detail. They show that a central feature of the Ottoman regime--that all land "belonged" to the sultan--has not received the appropriate comparative treatment. The chapter highlights the similarities between the understanding of private property and conditional state control of land in the Hanafi and Ottoman legal systems and that of England. It contrasts the western patrimonial concept of a fief to that of the Ottoman bureaucratic timar, to show that they are different types of rights. It analyzes the similarities in peasant rights over land. It also shows the strikingly similar responses to state control of land in the two systems, uses and vakifs, as well as the state responses to their expansion. The comparison shows that the two regimes do not differ so much in the type of property rights they secured--and certainly not in their absence in the Ottoman case--but in the capacity of the state to enforce them and to create centralized institutions that regulated them.
This chapter illustrates how the core progressive property tension between guarding against unfair exploitation and avoiding excessive constraint of legislative freedom translates into compensation doctrine. It considers the nature and degree of constitutional protection for security of value that has resulted from the Irish property rights guarantees, including a presumptive entitlement to full compensation for deprivations, and a presumptive lack of entitlement to compensation for regulatory interferences falling short of deprivation. That analysis demonstrates how constitutional property law can combine rule-based and contextual judicial decision-making to generate relatively predictable legal principle. It further illustrates the running theme of judicial deference to political decision-making concerning the mediation of property rights and social justice, since the courts have created space for legislative exceptions to presumptive compensation entitlements to secure social justice.
This chapter explores the question of a 'public purpose' requirement for the taking of property, and the nature of any 'right to keep' as an incident of ownership, through the prism of Irish constitutional property law. It illustrates how the progressively framed Irish constitutional property clauses have translated into a weak public purpose requirement that retains flexibility for the elected branches of government to determine that deprivation of property is warranted in a wide range of circumstances. It draws lessons from Irish constitutional property law for progressive property attempts to address the 'public purpose' question in ways that both preserve the State's ability to acquire or abrogate property rights in the public interest and protect owners' and their communities against unfair exploitation.
Property Rights and Social Justice analyses 'progressive property' in action by examining the role of constitutional property rights guarantees in mediating private ownership and social justice. It combines insights from property theory with enlightening doctrinal analysis of the interaction between property rights and social justice in the constitutional and broader legal context. It does so through the prism of the Irish Constitution's property guarantees, which uniquely in the English-speaking, common law world both protect property rights and requires their regulation by the State to secure social justice. Through this analysis, the book grounds key debates in contemporary property theory in fresh, illuminating doctrinal examples, and enhances global debates about the constitutional protection of property rights. It argues that primacy is perhaps inevitably afforded to political determinations about the appropriate mediation of property rights and social justice, meaning that the political impact of constitutionalisation needs to be disentangled from its strict legal effects.
Can a doctrinal scholarship which is based on the normativist-positivist framework espoused in this book do any better than mainstream legal scholarship? Starting from a critique of certain hyper-systematising approaches, the chapter introduces Kelsen’s idea of legal scholarship properly so called, one devoid of external influences because these make it impossible to correctly cognise the law. Reconstructed in this manner, doctrinal scholarship can provide a structural analysis of the law, both on the macro-level of system-coherence and on the micro-level as frame-determination. It can also give practical information on how awards have exercised their freedom within the frame of possible meanings.
Is arbitral investment case-law on expropriation precedential in a legally relevant sense? Orthodox approaches are marked by agreement on a narrow set of arguments, namely that international law is not a common law and arbitral awards do not have stare decisis power, that jurisprudence is hugely important and tribunals rely on it, and that there must therefore be a sort of de facto system of precedents in operation. In effect, ‘factual importance’ is fashioned into a source of legal authority. However, few arguments are given as to why this transfer from fact to law would occur and they do not provide a foundation for a general legal value for precedents. Yet the weight of arbitral jurisprudence is both too great to ignore and too helpful in discovering what ‘’ means in a pragmatic sense. Precedents are statements about general norms; outside the common law, judge-made law is merely an interpretation of a general norm in a judgment. Not even a constant tradition of decisions can turn such a statement into a norm.
Have International Investment Agreements (IIAs) generated or changed customary law? (1) Scholarship’s optimistic approach to the status of customary international law fails to distinguish the elements of custom-creation from their proofs. (2) IIAs are not instances of expropriation or non-expropriation, hence they cannot serve as state practice. Verbal acts are not practice of the content of that verbal act. (3) IIAs are not opinio iuris because it is unlikely that treaty parties express preferences regarding customary law by concluding a treaty. (4) If treaties are an opt-out from general international law, then IIAs are likely concluded to counter perceptions of custom and a fortiori not custom-building. Therefore, a customary international law on expropriation is unlikely to be shaped significantly by IIAs and even if they did shape it, the resulting norm would be highly unspecific.
In this chapter, the method of ‘frame-determination’ for IIA expropriation clauses is applied and three limits of the actus reus condition of typical IIA expropriation clauses are identified. (1) On the macro-structural level, concerning the interaction of IIA clauses with the rest of international law, facile references to customary international law are shown to be problematic: ‘’ in IIAs does not refer to a customary norm of certain validity and great specificity. (2) On the micro-structural level, the necessity of treating direct and indirect expropriation as fully equivalent is structurally inherent in typical IIAs. (3) All legality conditions are equal and cannot be doubled in the actus reus of indirect expropriation. The structure of typical IIA clauses does not support the majority of arguments based on ‘police powers’ or on a ‘right to regulate’.
This chapter deconstructs the main argument of orthodox doctrinal scholarship on regulatory expropriation. It argues that the strong impetus of orthodox scholarship to solve problems leads both those favouring strong investor protection and those arguing for a wide state freedom to regulate to see the problem in virtually the same terms and to develop the same solution. The problem identified is that neither of the two extremes is sustainable; the solution is that a balance has to be struck. Yet such a view is ideological, not legal, because it cannot contemplate and must deny a priori the possibility that IIA expropriation clauses are skewed in one direction or that the law does not provide for a balanced, proportional solution. Doctrinal scholarship, however, must analyse the law as it is, not as we may wish it to be.
Does judicial interpretation of IIAs produce epistemic ‘authority’? Interpretation can mean both the process of finding out what texts mean and guidance to the concretisation of abstract general norms in individual instances. In the second sense, interpretation is subconsciously used to narrow the freedom of deciders; a range of interpretative tools is used to generate a quasi-formal unity of meaning across IIAs. Systemic integration is the most used and most potent tool. It enjoins us to assume that meanings are identical, but this is baseless: taking into account external rules could just as easily be the basis for a divergence. However, customary law is less certain and precise than assumed. From the perspective of peer-accepted reasoning-before-decision, the interpreter takes meanings, not external rules, into account. Arbitral tribunals in fact interpret IIAs in light not of a customary norm but of other investment tribunals’ understanding of the meaning of other treaty norms. On that perspective, there is no distinction between interpretative tools. Interpretation cannot unify investment law because it does not change the law, only certain brute facts.
This chapter analyses the freedom for tribunals to decide cases within the frame of possible meanings. It discusses tribunal arguments and holdings by analysing and structuring extant jurisprudence for three topics: the ‘substantial deprivation’ standard, the pre-eminent measure of the intensity of measures in modern case-law; the controversy over the possibility of partial expropriation; and the distinction between compensation under IIAs and reparation under the law of state responsibility.
Expropriation is a hotly debated issue in international investment law. This is the first study to provide a detailed analysis of its norm-theoretical dimension, setting out the theoretical foundations underlying its understanding in contemporary legal scholarship and practice. Jörg Kammerhofer combines a doctrinal discussion with a theoretical analysis of the structure of the law in this area, undertaking a novel approach that critically re-evaluates existing case-law and writings. His approach critiques the arguments for a single expropriation norm based on custom, interpretation and arbitral precedents within international investment law, drawing also on generalist international legal thought, to show that both cosmopolitan and sovereigntist arguments are largely political, not legal. This innovative work will help scholars to understand the application of theory to investment law and help specialists in the field to improve their arguments.