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Toward a Principled Treatment of Double Compensation
This book presents the first comprehensive analysis of the risk of double compensation, often called double recovery, in the investor-State dispute settlement (ISDS) system and proposes a practical solution to the problems which double compensation creates. The book responds to all the key questions that legal counsel, arbitrators, judges, and scholars facing the double compensation issue may have, including:
- What requirements must be met for the problem to arise?
- What have others said and done about the problem?
- What is the most effective way to tackle it?
Toward a Principled Treatment of Double Compensation
This book presents the first comprehensive analysis of the risk of double compensation, often called double recovery, in the investor-State dispute settlement (ISDS) system and proposes a practical solution to the problems which double compensation creates. The book responds to all the key questions that legal counsel, arbitrators, judges, and scholars facing the double compensation issue may have, including:
- What requirements must be met for the problem to arise?
- What have others said and done about the problem?
- What is the most effective way to tackle it?
Blockchain is the first global mechanism for the transfer and storage of value. Despite being conceived as an alternative to state and law, the technology and its use cases raise many legal questions, most notably, regarding jurisdiction and applicable law with respect to transactions and assets recorded on the blockchain. The issue is complex given the decentralised nature of the network. In this volume, academics and practitioners from various countries try to provide detailed answers to these questions as they relate to stablecoins, crypto-assets, crypto derivatives, Central Bank Digital Currencies, and Decentralised Autonomous Organisations (DAOs), as well as specific transactions and issues, such as property rights and bankruptcy. With specific chapters on national approaches (Germany, Japan, Liechtenstein, Switzerland, United States), the volume explores the need and possibility for legal harmonisation of these issues through global fora, such as the Hague Conference on Private International Law (HCCH).
Blockchain is the first global mechanism for the transfer and storage of value. Despite being conceived as an alternative to state and law, the technology and its use cases raise many legal questions, most notably, regarding jurisdiction and applicable law with respect to transactions and assets recorded on the blockchain. The issue is complex given the decentralised nature of the network. In this volume, academics and practitioners from various countries try to provide detailed answers to these questions as they relate to stablecoins, crypto-assets, crypto derivatives, Central Bank Digital Currencies, and Decentralised Autonomous Organisations (DAOs), as well as specific transactions and issues, such as property rights and bankruptcy. With specific chapters on national approaches (Germany, Japan, Liechtenstein, Switzerland, United States), the volume explores the need and possibility for legal harmonisation of these issues through global fora, such as the Hague Conference on Private International Law (HCCH).
Towards a ‘Complete Remedy System’ Counterbalancing Jurisdictional Immunity
In the broader context of the accountability of international organisations, this book focuses on the obligation of the United Nations - like many other organisations - to ‘make provisions for appropriate modes of settlement of [...] disputes of a private law character’ to which it is a party. The book advocates a systematic approach in conformity with the rule of law in discharging that obligation. That is needed to increase the legitimacy of international organisations, while bolstering their jurisdictional immunity. The book develops the basic features of a comprehensive dispute settlement mechanism, complemented by a new United Nations convention.
Towards a ‘Complete Remedy System’ Counterbalancing Jurisdictional Immunity
In the broader context of the accountability of international organisations, this book focuses on the obligation of the United Nations - like many other organisations - to ‘make provisions for appropriate modes of settlement of [...] disputes of a private law character’ to which it is a party. The book advocates a systematic approach in conformity with the rule of law in discharging that obligation. That is needed to increase the legitimacy of international organisations, while bolstering their jurisdictional immunity. The book develops the basic features of a comprehensive dispute settlement mechanism, complemented by a new United Nations convention.
The Nijhoff International Investment Law Series presents important, high-quality and original research in the field of international investment law. Although formally a part of international law generally, international investment law has become an independent field of research, crossing the boundaries between public international law, international commercial law, and domestic public law. The Series therefore covers international investment law in a relatively broad sense, including research on the substantive aspects of international investment law and the dispute settlement aspects, i.e., international investment arbitration.
The Series also covers research on interactions between international investment law and other areas of international law and domestic law, both private and public, including international economic and trade law, general public international law, international commercial law and arbitration, international environmental law, human rights, or domestic constitutional and administrative law. It is open to doctrinal analysis as well as theoretical, conceptual, and interdisciplinary approaches to international investment law, including law and economics analysis, empirical analysis, historical analysis, political science analysis, or normative analysis.
The Series will consider Works in, although not limited to, the following areas:
• Standards of treatment
• International investment arbitration
• Regionalism in international investment law
• Interaction between international investment law and domestic law
• Private law approaches to international investment law and arbitration
• Public law approaches to international investment law and arbitration
• Compensation and reparation in international investment law
• Responsibility and accountability of multinational corporations in international investment law
• International investment law and sustainable development
• Industry-specific or country-specific studies
• Doctrinal, conceptual, and interdisciplinary approaches
Proposals may be submitted to Publishing Director Marie Sheldon at Sheldon@brill.com.
The Series also covers research on interactions between international investment law and other areas of international law and domestic law, both private and public, including international economic and trade law, general public international law, international commercial law and arbitration, international environmental law, human rights, or domestic constitutional and administrative law. It is open to doctrinal analysis as well as theoretical, conceptual, and interdisciplinary approaches to international investment law, including law and economics analysis, empirical analysis, historical analysis, political science analysis, or normative analysis.
The Series will consider Works in, although not limited to, the following areas:
• Standards of treatment
• International investment arbitration
• Regionalism in international investment law
• Interaction between international investment law and domestic law
• Private law approaches to international investment law and arbitration
• Public law approaches to international investment law and arbitration
• Compensation and reparation in international investment law
• Responsibility and accountability of multinational corporations in international investment law
• International investment law and sustainable development
• Industry-specific or country-specific studies
• Doctrinal, conceptual, and interdisciplinary approaches
Proposals may be submitted to Publishing Director Marie Sheldon at Sheldon@brill.com.
Fernando Tupa addresses the sometimes-overlooked yet fundamental principle that consent to international arbitration is forum-specific, and explores its significance and practical consequences for investment tribunals. The author proposes that, if there is only consent “in principle” to international arbitration by the host State in an investment agreement due to the lack of a forum (or the unavailability of the forum contemplated therein), a foreign investor would not be entitled to unilaterally initiate an investment claim against the host State under said agreement, absent a subsequent agreement between the foreign investor and the host State on an arbitral forum. He also draws some conclusions and warns against the dangerous consequences of ignoring this basic principle.
Fernando Tupa addresses the sometimes-overlooked yet fundamental principle that consent to international arbitration is forum-specific, and explores its significance and practical consequences for investment tribunals. The author proposes that, if there is only consent “in principle” to international arbitration by the host State in an investment agreement due to the lack of a forum (or the unavailability of the forum contemplated therein), a foreign investor would not be entitled to unilaterally initiate an investment claim against the host State under said agreement, absent a subsequent agreement between the foreign investor and the host State on an arbitral forum. He also draws some conclusions and warns against the dangerous consequences of ignoring this basic principle.
Abstract
This monograph addresses the sometimes overlooked yet fundamental principle that consent to international arbitration is forum-specific, and explores its significance and practical consequences in investment arbitration. This monograph contends that if there is no arbitral forum mentioned in the relevant dispute settlement provision of an investment agreement, the forum specified therein becomes unavailable for some reason, or a subsequent agreement on a forum is required between the parties to the dispute, there is only consent “in principle” to international arbitration in the investment agreement. Such expression of “consent” is unenforceable and ineffective, which means that a foreign investor would not be entitled to unilaterally initiate an investment claim against the host State under said agreement absent a subsequent agreement between the foreign investor and the host State on an arbitral forum. This monograph also shows that there is an explicit requirement of a forum-specific consent in the arbitral rules of the often-used arbitral institutions. In addition, the most-favored nation clause in investment agreements could not be applied to overcome the lack of forum in dispute settlement provisions. Finally, this monograph proposes possible avenues to tackle the absence of an agreed-upon forum in an investor-State dispute settlement provision, draws some conclusions and warns against the dangerous consequences of ignoring this basic principle.
Abstract
This monograph addresses the sometimes overlooked yet fundamental principle that consent to international arbitration is forum-specific, and explores its significance and practical consequences in investment arbitration. This monograph contends that if there is no arbitral forum mentioned in the relevant dispute settlement provision of an investment agreement, the forum specified therein becomes unavailable for some reason, or a subsequent agreement on a forum is required between the parties to the dispute, there is only consent “in principle” to international arbitration in the investment agreement. Such expression of “consent” is unenforceable and ineffective, which means that a foreign investor would not be entitled to unilaterally initiate an investment claim against the host State under said agreement absent a subsequent agreement between the foreign investor and the host State on an arbitral forum. This monograph also shows that there is an explicit requirement of a forum-specific consent in the arbitral rules of the often-used arbitral institutions. In addition, the most-favored nation clause in investment agreements could not be applied to overcome the lack of forum in dispute settlement provisions. Finally, this monograph proposes possible avenues to tackle the absence of an agreed-upon forum in an investor-State dispute settlement provision, draws some conclusions and warns against the dangerous consequences of ignoring this basic principle.
Toward China’s Development Goals
China’s foreign investment legal regime encompasses domestic laws governing inward and outward investments, investment treaties and the Belt and Road Initiative. Can China’s foreign investment legal regime lead its two-way investments towards the country’s five development goals (building technological capacity, deepening integration into the global economy, promoting green development, protecting security, and participating in global economic governance and rule-making)? Yawen Zheng pioneers a systematic study of China’s foreign investment legal regime, finding that the regime has gradually made progress towards the development goals, but the effort is diluted by obstacles such as outdated treaties, conflicts with the West, and domestic political challenges.
Toward China’s Development Goals
China’s foreign investment legal regime encompasses domestic laws governing inward and outward investments, investment treaties and the Belt and Road Initiative. Can China’s foreign investment legal regime lead its two-way investments towards the country’s five development goals (building technological capacity, deepening integration into the global economy, promoting green development, protecting security, and participating in global economic governance and rule-making)? Yawen Zheng pioneers a systematic study of China’s foreign investment legal regime, finding that the regime has gradually made progress towards the development goals, but the effort is diluted by obstacles such as outdated treaties, conflicts with the West, and domestic political challenges.