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Dispute Resolution in the People’s Republic of China

The Evolving Institutions and Mechanisms

Zhiqiong June Wang and Jianfu Chen

Dispute resolution reforms in China in the last decade or so have all centred around the strategy of establishing an integrated dispute resolution system as part of China’s modern governance system. This new integrated system, referred to as the ‘Mechanism for Pluralist Dispute Resolution (PDR)’ in China, serves as a dispute resolution system as well as a comprehensive social control mechanism. This book is the first academic attempt to explain the methods of civil and commercial dispute resolution in China from the perspective of PDR. It systematically and critically examines the development of China’s dispute resolution system, with each chapter analysing in detail the development and transformation of the different institutions, mechanisms and processes in their historical, politico-economic and comparative context.

Kabir Duggal and Wendy W. Cai

Abstract

Principles of Evidence in Public International Law as Applied by Investor-State Tribunals explores the fundamental principles of evidence and how these principles relating to burden of proof and standards of proof are derived.

By tracing the applications of major principles recognized by the International Court of Justice and applied by investor-state tribunal jurisprudence, the authors offer valuable insight into the interpretation, understanding, and nuances of indispensable principles of evidence, an area that has been ignored in both investor-state arbitration and public international law more generally. Each principle is analyzed through historical and modern lenses to provide clarity and cohesion in understanding how fundamental principles of evidence will affect evidentiary dispositions of parties in investment arbitration and public international law cases.

The Future of International Competition Law Enforcement

An Assessment of the EU’s Cooperation Efforts

Series:

Valerie Demedts

While forces of globalization have created a genuine global marketplace, global rules safeguarding the competitive process in this marketplace have not emerged. International cooperation among national regulators and enforcers is therefore needed to create a competitive global business-environment. The Future of International Competition Law Enforcement, using the variety of legal instruments available to the EU as a point of departure, undertakes an original assessment of the EU's cooperation agreements in the field of competition law The work’s focus is on the bilateral sphere, often labelled as a mere 'interim-solution' awaiting a global agreement; further attention is given to competition provisions in free trade agreements as well as the main multilateral initiatives in this field, in order to determine their relative value.

Chiara Giorgetti

Abstract

This book explores and assesses two essential features in investor state dispute resolution (ISDS): the selection and the removal of arbitrators. Both topics have received increasing scrutiny and criticism, that have in turn generated calls for reforms. In its first part, this book explains the selection of arbitrators procedurally and comparatively under the most-often used arbitration rules. It then reviews critically the necessary and desirable qualities for arbitrators’ selection and appointment, and addresses some important and related policy issues, such diversity and repeat appointments. Finally, it discusses the recent calls to review the methodologies used to appoint arbitrators, and specifically the proposal by the European Commission to create a permanent tribunal to resolve international investment disputes, the UNCITRAL Working Group III Reform Process and the rules amendment proposal undertaken by the Secretariat of the International Center for Settlement of Investment Disputes (ICSID Secretariat). In its second part, the book addresses the companion and similarly important issue of challenging and removing arbitrators. It does so by reviewing first the provisions that are appplied under a variety of arbitration rules to remove arbitrators who fail to possess the necessary qualities to sit in arbitral proceedings. It then evaluates the reasons for challenge and discusses some important cases that addressed challenges. The book assesses appointments and removals in a multifaceted and comprehensive way, and includes a critical assessment of the reasons and calls for reform of the ISDS system.

Brody K. Greenwald and Jennifer A. Ivers

Abstract

In Addressing Corruption Allegations in International Arbitration, Brody K. Greenwald and Jennifer A. Ivers provide a comprehensive overview of the key issues that arise in international arbitrations involving allegations of corruption drawing upon their significant experience in these high-stakes cases, including in the only two reported investment treaty cases dismissed specifically as a result of corruption. Their monograph is a valuable resource guide that analyzes, among other things, the public policy against corruption, the requirements for establishing corruption, issues relating to the burden and standard of proof, how corruption has been proved in practice, and the legal consequences where corruption is established. Mr. Greenwald and Ms. Ivers also assess issues that arise where a sovereign State raises an arbitration defense based on alleged corruption, but does not prosecute the alleged wrongdoers in its domestic courts.

Irmgard Marboe

Abstract

The assessment of damages in investor-state arbitration involves complex legal and economic considerations. Particular challenges arise from the interdisciplinary nature of this endeavor. The present issue discusses some of the pertinent specificities in investor-state disputes reflecting the tensions between sovereignty and self-determination of states and their legal obligations towards foreign investors. These tensions are primarily present in the context of expropriation, but also commitments undertaken by states in bilateral investment treaties and contracts as well as changing economic circumstances need to be taken into consideration. The lack of valuation principles that are uniformly accepted and implemented leads to uncertainty and unpredictability in practice. The present volume analyses some of the most controversial and unsettled issues, including the choice of the valuation date, appropriate valuation methods, moral damages, and the awarding of interest.

Borzu Sabahi, Ian A. Laird and Giovanna E. Gismondi

Abstract

International Investment Law is one of the most dynamically growing fields of International Law as shown by the volume of Bilateral Investment Treaties (bits), and investment chapters in a growing numbers of regional and mega-regional trade agreements. This paper explores the origin, evolution and operation of International Investment Law. It discusses the main actors, the protections afforded to foreign investments and investors, and the content of modern bits. The legal issues and challenges International Investment Law faces today are brought into perspective. Particularly, this paper provides an assessment of the measures put forth by the European Union aimed at transforming the traditional investor-State arbitration system to an Investment Court System. An examination of the nafta re-negotiations is also presented, including the impact that ceta, a trade deal between the eu and Canada could have in the outcome of the current re-negotiations.

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Nathalie Najjar

Arbitration and International Trade in the Arab Countries by Nathalie Najjar is masterful compendium of arbitration law in the Arab countries. A true study of comparative law in the purest sense of the term, the work puts into perspective the solutions retained in the various laws concerned and highlights both their convergences and divergences. Focusing on the laws of sixteen States, the author examines international trade arbitration in the MENA region and assesses the value of these solutions in a way that seeks to guide a practice which remains extraordinarily heterogeneous. The book provides an analysis of a large number of legal sources, court decisions as well as a presentation of the attitude of the courts towards arbitration in the States studied. Traditional and modern sources of international arbitration are examined through the prism of the two requirements of international trade, freedom and safety, the same prism through which the whole law of arbitration is studied. The book thus constitutes an indispensable guide to any arbitration specialist called to work with the Arab countries, both as a practitioner and as a theoretician.

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Edited by Julien Chaisse and Luke Nottage

International Investment Treaties and Arbitration Across Asia brings together leading academics and practitioners to examine whether and how the Asian region has or may become a significant ‘rule maker’ in contemporary international investment law and dispute resolution. The editors introduce FDI trends and regulations, investment treaties and arbitration across Asia. Authors add country studies for the ten member states of the Association of Southeast Asian Nations as well as an overview of ASEAN treaties, or examine other potential ‘middle powers’ (Korea, Australia and New Zealand collectively) and the emerging ‘big players’ (China, Japan and India). Two early chapters present econometric studies of treaty impact on FDI flows, in aggregate as well as for Thailand, while two concluding chapters offer other normative and forward-looking perspectives.

Series:

Kabir Duggal and Wendy W. Cai

In Principles of Evidence in Public International Law as Applied by Investor-State Tribunals, Kabir Duggal and Wendy Cai explore the fundamental principles of evidence and how these principles relate to burden of proof and standard of proof. By tracing the applications of major principles recognized by the International Court of Justice and applied by investor-state tribunal jurisprudence, the authors offer valuable insight into the interpretation, understanding, and nuances of indispensable principles of evidence, an area that has been ignored in both investor-state arbitration and public international law more generally.