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Good Governance and Modern International Financial Institutions

AIIB Yearbook of International Law 2018

Series:

Edited by Peter Quayle and Xuan Gao

This first volume of the AIIB Yearbook of International Law (AYIL), edited by Peter Quayle and Xuan Gao, is based upon the inaugural 2017 AIIB Legal Conference, both titled, Good Governance and Modern International Financial Institutions (IFIs). Following a Preface by the General Counsel of the AIIB and General Editor of AYIL, Gerard Sanders, and an Introduction by the Editors, this volume of AYIL draws upon expertise from other IFIs, international law and governance practitioners, and eminent academics. It is divided into three parts to reflect a series of dimensions to the good governance of IFIs. Firstly, the role of the membership of IFIs as expressed through their executive governance organs. Second, the legal basis of governance of IFIs. And third, the interaction around governance between IFIs and external stakeholders.
This volume concludes with the text of the 2017 AIIB Law Lecture, delivered by the United Nations Under-Secretary-General for Legal Affairs and Legal Counsel, Miguel de Serpa Soares on the subject of ‘The Necessity of Cooperation between International Organizations’ and a summary report on the proceedings of the 2017 AIIB Legal Conference.
The first volume of AYIL was launched at the Annual Meeting of the Board of Governors of the AIIB in Mumbai, India, June 2018.

Cees Verburg

Abstract

The Energy Charter Treaty is a multilateral trade and investment agreement that is currently the most often-invoked investment agreement worldwide. A review of the case law under the treaty shows that its provisions have been interpreted and applied inconsistently by arbitral tribunals and domestic courts. Considering the financial and reputational consequences of investment arbitration for both the investor and the State, a lack of ‘legal certainty’ adversely affects all parties involved. This article identifies various inconsistencies, some of the causes, and proposes solutions that could enhance legal certainty in investor-State dispute settlement under the treaty. This is a timely contribution as the Energy Charter Conference has recently taken the first steps to modernise the treaty by approving a list of topics for reform, and is now considering tools to implement future reform measures.

Coming Up Short: Policewomen and Indirect Height Discrimination in eu Law

By Uladzislau Belavusau, Senior Researcher in European Law, T.M.C. Asser Institute (The Hague) – University of Amsterdam, The Netherlands

Uladzislau Belavusau

Discrimination of Young Workers: To be Justified or not to be Justified?

By Beryl ter Haar, Assistant Professor European and International Labour Law and Academic Coordinator Adv. ll.m. Global and European Labour Law, Leiden University, The Netherlands

Beryl ter Haar

Seline Trevisanut and Nikolaos Giannopoulos

Abstract

At the international law level, the regulation of offshore energy projects does not fall neatly into one global regime. On the contrary, it is subject to a plethora of overlapping legal regimes, including the law of the sea, international environmental law, international economic law, and international energy law. The present article addresses the question how regime interaction affects investment protection in the offshore energy sector. Specifically, it investigates whether cross-fertilization between regimes also has ‘positive’ effects on the protection of investments in offshore energy or whether fragmentation consists of both a perceived and actual challenge. We submit that, even though regime interaction poses challenges to investment protection, the influence of the overlapping legal frameworks is not necessarily a ‘threat’ to investment protection. To the contrary, regime interaction can contribute to widen the objectives of international investment law.

Stephan W. Schill, Christian J. Tams and Rainer Hofmann

Abstract

This article provides background and introduces into the overarching themes of the contributions to the Special Issue dealing with investment protection in areas beyond territorial jurisdiction at sea and in outer space. It explains that fast-paced commercialization, evolving technological advances, and the inevitable need for regulatory intervention make the oceans and space into an increasingly important topic in international investment law. At the same time, investment lawyers, as well as experts in the law of the sea and space law, have largely ignored the legal issues foreign investments raise in these spaces. The article sketches out a framework for addressing the underlying issues from an investment law perspective, pointing out both familiar conceptual approaches and novel challenges.

Julien Chaisse and Jędrzej Górski

Geraldo Vidigal and Beatriz Stevens

Abstract

This article assesses the contribution of Brazil’s new bilateral treaties on investment, labelled Cooperation and Investment Facilitation Agreements (CIFAs), to the international legal framework for transnational investment. With its CIFAs, nine of which were concluded since 2015, Brazil offers an innovative model of International Investment Agreement (IIA) which does not contain investor-state dispute settlement (ISDS). Instead, CIFAs establish a system that combines dispute prevention mechanisms, creating institutions to ensure continued communication and foster cooperation, and state-to-state arbitration (inspired by dispute settlement provisions common in trade agreements and codified in the World Trade Organization’s Dispute Settlement Understanding). Like recent initiatives put forward by India and the European Union, CIFAs aim not only to regulate bilateral relations but also to positively influence the current debates relating to the reform of the international investment regime. Whether they will become an alternative to the current ISDS-dominated framework will be determined by practice.