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The area of business and human rights (BHR) has a gap in its means to effectively remedy human rights violations. In pursuit of implementing the third pillar of the UN Guiding Principles on Business and Human Rights, which focuses on providing an effective remedy to rightsholders affected by corporate human rights violations, it has been proposed to utilize arbitration as a new platform to deal with such violations. The Drafting Team that has instigated this initiative has prepared a set of procedural rules for BHR arbitration, called the Hague Rules. The Rules were officially launched on 12 December 2019. These arbitral rules are tailored to the specific needs of settling human rights disputes. In this article, the general idea of BHR arbitration will be analysed, and assessed in light of the normative concept of ‘effective’ remedy, using the Hague Rules as a focus point. This article will discuss not only what the Hague Rules would introduce to the general concept of BHR arbitration, but also what limitations might still remain in securing an effective remedy.
Chapter 15 offers new perspectives on the formative struggle to establish the League of Nations as an effective international organisation at the heart of the postwar order. It argues that in spite of the global conceptions they advanced its key architects intended the League to become the superstructure of a new transatlantic international order and security architecture. It analyses how far it was possible to find common ground between the most influential American and British blueprints for an integrative League and the markedly different French plans for an institution of the victors whose main purpose was supposed to be to protect France and constrain Germany. And it illuminates why ultimately the League of Nations came to be founded as a truncated organisation dominated by the principal victors of the Great War and initially excluding the vanquished, which were required to undergo a period of probation to become eligible for membership. Finally, it explains the far-reaching consequences this had and examines how far the League nonetheless had the potential to become the essential framework of a modern Atlantic and global order over time.
Chapter 4 examines the emergence of different internationalist aspirations on both sides of the Atlantic to supersede conflict-prone imperialist power politics and to advance towards a more pacific international order in the decades before the First World War. It compares the pursuits of liberal and both centrist and more radical socialist actors, non-governmental associations and newly important transnational networks like the burgeoning pacifist movement, the Second International and, notably, the new phalanx of those who demanded that power politics should be replaced by arbitration and authoritative covenants of international law – and who paved the way for the Hague Conventions of 1899 and 1907. It reassesses not only the guiding ideas of the vanguards of such aspirations but also the actual influence they had on transatlantic and global politics in this crucial phase, seeking to offer a systematic explanation of why these counterforces failed to civilise international politics and why ultimately they could not prevent the escalatory processes that caused the catastrophe of 1914.
Chapter 3 re-examines the “ascent” of the United States within the 19th century’s Eurocentric international order, retracing its special path from a fledgling and vulnerable republic to the status of an exceptional and exceptionalist world power. It focuses on the evolution of American ideas and ideologies in the sphere of international affairs, the rise of distinctive forms of US imperialism and unilateralism, and the emergence of core maxims of US international conduct such as those embodied in the ever more expansively defined Monroe Doctrine and the Open Door Doctrine. It then casts new light on ephemeral aspirations to establish a modern Atlantic order of empires – led by the United States and the British Empire – that were pursued after the Spanish-American war of 1898 and in the era of Theodore Roosevelt.
The award of the arbitrators in the Taba case has been subject to criticism on the grounds that the arbitrators based their decision on existing markers on the ground and refrained from examining when the markers had been placed and by whom and whether their siting was in accordance with the legal boundary. Nevertheless, it was a landmark case in that for the first, and so far only time, Israel and a neighbouring Arab State settled a border dispute by means of an international arbitration. States usually go to arbitration only on matters that they do not consider to be of fundamental importance and losing would not have far-reaching consequences. This is true of the Taba dispute, which involved a dispute of some 250 metres of shoreline. Professor Lapidoth summarises that for political and perhaps even psychological reasons the two parties attributed to this dispute much more weight than was objectively reasonable.
A small but influential number of States or their subdivisions have put substantial resources into establishing courts that operate outside of or have a special status within their traditional judicial systems. In instances, the judges of these courts are not citizens of the seats of the respective courts. The courts typically apply foreign law and do so in English. Why the removal of certain cases from local courts and local law or the establishment of new specialized courts within existing systems? An argument is that the new courts enhance the rule of law, both in the location of the court as well as regionally and even internationally. This chapter examines court rules and practices to assess the influence of international commercial courts on the rule of law.
The establishment of international financial centres has become a common strategy for rapidly modernising states. Such centres assist host states with attracting capital, generating income from taxes, contributing to the development of innovative economies and increasing the role of states in global governance. Overall, financial centres, and their systems of dispute resolution, can positively contribute to promoting foreign investment. The creation of the Astana International Financial Centre (AIFC) with its AIFC Court and International Arbitration Centre (IAC) is one recent example of an initiative to assist a rapidly developing frontier market, Kazakhstan, to become a more competitive economy regionally as well as globally. This chapter offers a perspective of what has been achieved in Kazakhstan with a view to assisting other frontier markets, including in Central Asia, to create their own international dispute resolution systems.
This Article studies the change in behavior over time for the professional actors in the international investment arbitration system. Using the results from a large-scale computational analysis, I find indications that the actors have increased their use of citations and their use of terms that originate outside of the litigated treaties. In light of these findings, I argue that the actors are increasingly challenging the insulated structural outset of international investment law with a more systemic approach to legal reasoning. Subsequently, I explore if theories from the realm of cognitive science may provide explanations for why the actors are changing their behavior and what consequences such cognitive mechanisms may have on the systems development.
This chapter begins by elaborating on the concept of a dispute, before providing a historical perspective on the evolution of the requirement to settle disputes peacefully. The chapter then explores diplomatic as well as legal methods of dispute settlement. Diplomatic forms of dispute settlement (also known as political or non-legal forms of dispute settlement) include negotiation, mediation, inquiry, and conciliation. Legal forms of dispute settlement include arbitration and adjudication. Resort by states to dispute settlement procedures, and in particular legal methods of dispute settlement, has grown exponentially in the last decades. Since the 1990s, the International Court of Justice has had an increasingly active docket of cases, and, in addition, the Permanent Court of Arbitration has undergone a sort of renaissance. The focus of this chapter will be on the settlement of inter-state disputes, as opposed to disputes between states and non-state actors or between non-state actors.
A number of questions arise when disputes occur between corporations in two different countries to be settled by arbitration in a third country. First, if a dispute arises, and one of the parties refuses to arbitrate, where is such an arbitration agreement to be enforced? Second, which court will have such jurisdiction? Third, if there is an arbitration that leads to an award of damages and costs, how is that award to be enforced against the losing party if the losing party refuses to voluntarily implement the award? Fourth, again, which court has such jurisdiction? It was in these circumstances that various international rules, treaties and conventions were enacted. Hwang traces the success of two remarkable uniform law instruments – the New York Convention and the UNCITRAL Model Law on International Commercial Arbitration – the cornerstones of international commercial arbitration. He notes the reasons for their relative success and widespread adoption, and while highlighting shortcomings, reflects whether these are fundamental enough to require revision of the instruments. Hwang concludes that while not perfect, nothing ever is: both instruments are exemplary in their goal to harmonise and improve arbitration laws.
Many of the WTO covered agreements contain special rules and procedures that apply to dispute settlement proceedings in disputes arising out of those agreements. For example, the WTO Anti-dumping Agreement contains a controversial and much-analyzed standard of review to be applied by WTO panels in anti-dumping disputes. These rules usually apply in addition to the normal rules under the WTO Dispute Settlement Understanding. This chapter analyzes all of the special rules and procedures contained in each of the covered agreements. It also describes the special procedures applicable to developing countries under the 1966 Understanding and the developing country provisions of the DSU. Finally, the chapter discusses arbitration under the DSU, with a particular focus on the sui generis Bananas Arbitrations.
The starting point is the observation that some states are and have been unhappy with certain BITs that include ISDS provisions. Based on a dataset on renegotiated and terminated BITs, the authors ask if this is the case. The initial evidence indicates that states have not made a systematic effort over the years to recalibrate their BITs for the purpose of preserving more regulatory space. In fact, most renegotiations either leave ISDS provisions unchanged or render them more investor-friendly. Nevertheless, the authors find that this is beginning to change, as recent renegotiations are more likely to circumscribe ISDS in ways that preserve more state regulatory space.
This chapter provides an account of ways that experimental methods can be used to uncover and identify decision-making biases. Investment arbitration tribunals derive their legitimacy from different normative, sociological and political processes than standing courts. In great part, these tribunals rely on tacit norms of behaviour among arbitration professionals. Understanding what factors affect how arbitrators make decisions in these kinds of adjudicative settings is essential in assessing critiques concerning the quality or correctness of their decisions and especially their independence and impartiality. The authors describe a promising alternative empirical strategy that utilizes survey experiments conducted on arbitration professionals to test bias claims. It discusses also how researchers can design experimental vignettes to mimic specific aspects of the arbitration process that are difficult to observe or manipulate in the real world context.
The legitimacy of ISDS appears to depend in part on an expectation that it benefits smaller businesses, not just large multinationals and the super-wealthy. This chapter collects data on size and wealth of the foreign investors that have brought claims and received monetary awards due to ISDS. Categories for the size and wealth of foreign investors are compared to the size of damage awards, which helps determine that the primary beneficiaries in ISDS cases have been companies with annual revenue exceeding US$1 billion and individuals with net wealth in excess of US$100 million. The main finding is that the beneficiaries of ISDS-ordered financial transfers, in the aggregate, have overwhelmingly been wealthy individual investors and large companies – and especially extra-large companies. The authors also note that the awards gained by small companies are not so different from their legal costs.
Supporters of ISDS often justify the continued existence of ISDS on the basis that disputes are denationalized, thus keeping foreign investors out of domestic courts which may lack independence, be less efficient, or are biased against foreigners. This justification, unwittingly perhaps, strengthens a perception that foreign investors proceed directly to the international sphere. However, this chapter finds that many investors do avail themselves of domestic courts prior to an ISDS case and asks why this is the case. Looking at two states with transitional judiciaries and two states with well-functioning judiciaries, the author uncovers a rich data on the impressive scope of claims brought by foreign investors in the host states where they are investing; and Gáspár-Szilágyi concludes with some reflections on the role of domestic litigation in the legitimation of ISDS. (This abstract needs development)
The rapid growth in investor–state dispute settlement has sparked a decades-long legitimacy crisis in the international investment regime. The upshot is that concerns over foreign investor success in arbitration proceedings, from levels of compensation to lack of arbitral diversity and independence, has prompted wide-ranging reform efforts and even calls to abolish this treaty-based system. In the context of this historical and contemporary debate, the authors describe the importance of assessing empirically the claims and counter-claims about the regime’s absence of legitimacy. The chapter begins with an overview of the different types of legitimacy (normative, sociological, legitimation) and discusses how and to what extent empirical research can contribute to assessing legitimacy claims. The different chapters of the book, which is structured largely according to legitimacy categories, are then introduced and the piece concludes with some reflections on the overall themes and way forward for empirical research.
There is a critique that investment arbitration undermines or hampers the development of national legal institutions. By providing a forum for foreign investors separate and distinct from local courts, critics argue, ISDS removes any incentive for foreign investors to promote the development of local legal institutions. This chapter sets out an account of how investment arbitration might affect development of local legal institutions, in particular international commercial arbitration and, perhaps, domestic arbitration. The authors find that while both the number of investment agreements and investment arbitration proceedings to which a state is a party is negatively related to the rule of law in the state, the presence of an indicator for support for international commercial arbitration – adoption of the UNCITRAL Model Law on International Commercial Arbitration – essentially offsets that negative relationship.
Critics have raised concerns that investment arbitration tribunals treat like cases differently – raising problems of consistency – and different cases the same – creating problems of correctness. Using network analyses of case citations, this chapter examines an observable selection of what a tribunal considers to be ‘relevant’ precedent. The author finds that tribunals are more concerned with consistency than correctness, with many tribunals citing precedents based on textually dissimilar treaties. However, this is contrary to what states consider the priority in ISDS reform debates – in which correctness is higher than consistency in the hierarchy of policy preferences. The chapter concludes that states can resolve that mismatch by hard-coding their policy preferences into institutional design. It is argued that, as part of the ISDS reform, states should make the ordering between correctness and consistency considerations explicit when reshaping adjudicatory authority in future ISDS institutions.
Any assessment of the international investment regime and its legitimacy crisis requires a preliminary understanding of their important and relevant features. However, the sprawling nature of both defies most doctrinal and qualitative attempts at description. The regime is based on a decentralized network of legal instruments, different procedural mechanisms and ad hoc proceedings, while the accompanying chorus of critique and counter-critique is populated with multiple actors and interests across the world. This chapter seeks to capture this distinct and fragmented universe. First, the authors map consent to arbitration, not on a generic per signed bilateral investment treaty basis, but rather by tracking multilateral, bilateral and unilateral consents in force. Second, they provide a description and overview of the over 1,100 registered cases up to January 2020, focusing inter alia on case outcomes, rules, cases types, institution, parties, economic sector and legal basis. Third, they trace discontent with regime, charting the origin of legitimacy crisis and its maturing over time. It ends by discussing both state-led efforts at reform and the extent to which arbitrators themselves have adjusted reflexively to the backlash.
A key response to legitimacy concerns over investment arbitration has been to point to the contribution of investment treaties to significant increases in in-bound foreign investment. The authors return to this vexed question of whether treaties offer material benefits and the large literature on the topic. Through a mixed methods approach and heightened awareness of the synergies and tensions within and between methodological approaches, they: (1) analyse econometrically the impact of ISDS provisions on inbound FDI; (2) present new qualitative research on investor and host state practices and attitudes; and (3) argue that social psychological research on cultural risk cognition is useful for both framing and presenting research questions and findings. They conclude that whatever the results that emerge from empirical research findings, the form of presentation will determine whether they will be accepted by the public or fall victim to growing polarization in perceptions and positions.