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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.
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European Investment Law and Arbitration Review

Volume 3 (2018), Published under the auspices of Queen Mary University of London and EFILA

With the entrance of the European Union into the field of International Investment Law and Arbitration, a new specialist field of law, namely ‘European Investment Law and Arbitration’ is in the making. This new field of law draws on EU Law, Public International Law, International Investment Law, International Arbitration Law and Practice and International Economic Law, while other fields of law such as Energy Law are also relevant.
This Review is the first law yearbook that is specifically dedicated to the field of ‘European Investment Law and Arbitration’.

Published under the auspices of Queen Mary University of London and EFILA.

The European Investment Law and Arbitration Review is also available online.
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Shared Watercourses and Water Security in South Asia

Challenges of Negotiating and Enforcing Treaties

Series:

Salman M.A. Salman and Kishor Uprety

Shared water resources in South Asia face various challenges including scarcity, population growth, and climate change impacts on all the riparians. Consequently, national calls for water security have become louder. As a result, collaboration among the nations of South Asia for ensuring equitable sharing of such water resources has not been optimal. While most countries do not have reliable systems for data generation, those possessing some hydrological data consider them state secrets, restricting their exchange. Even when treaty obligations exist, data-sharing practices are ad hoc, and the range of information shared is limited. Thus, negotiating new transboundary water treaties amongst South Asia’s riparian countries has become a daunting task, and enforcing existing ones remains a real challenge.
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Non-State Actors and International Obligations

Creation, Evolution and Enforcement

Edited by James Summers and Alex Gough

Non-State Actors and International Obligations examines the contribution and relevance of non-state actors in the creation and implementation of international obligations. These actors have traditionally been marginalised within international law and ambiguities remain over their precise role. Nonetheless, they have become increasingly important in legal regimes as participants in their implementation and enforcement, and as potential holders of duties themselves. Chapters from academics and practitioners investigate different aspects of this relationship, including the sources of obligations, their implementation, human rights aspects, dispute settlement, responsibility and legal accountability.
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Damages in Investor-State Arbitration

Current Issues and Challenges

Series:

Irmgard Marboe

Damages in Investor-State Arbitration: Current Issues and Challenges addresses specificities of the assessment of damages in investor-state disputes, reflecting the tensions between the sovereignty and self-determination of states and their legal obligations towards foreign investors. These tensions are primarily present in the context of compensation for expropriation, but other commitments of host states undertaken in bilateral investment treaties and contracts with foreign investors may also be in conflict with changing political and economic circumstances. With this background, the calculation of damages becomes a complex endeavor in each case. The lack of valuation principles that are uniformly accepted and implemented leads to uncertainty and unpredictability in practice. The present analysis tries to identify the most important issues and challenges, such as the choice of the valuation date, appropriate valuation methods, moral damages, and the awarding of interest.
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Filippo Fontanelli

In Jurisdiction and Admissibility in Investment Arbitration, Filippo Fontanelli offers an analysis of the subject for practitioners and scholars. The author undertakes two converging studies: first, the practice of investment tribunals is surveyed to provide a representative overview of how jurisdiction and admissibility operate in arbitration proceedings. Second, these concepts are studied in the wider framework of public international law litigation, in the attempt to solve the definitional issues, or at least trace them back to their theoretical background.

The analysis shows that the confusion prevailing in investment arbitration is largely a legacy of the comparable confusion that affects the notions of jurisdiction and admissibility in all kinds of dispute settlement under international law. Whilst the confusion is often irrelevant in the practice, some instances arise where it affects the outcome of the proceedings. The essay discusses some of these instances and recommends adopting a novel approach, which hinges on judicial discretion as the critical element of admissibility.
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Fair and Equitable Treatment

Its Interaction with the Minimum Standard and Its Customary Status

Series:

Patrick Dumberry

The fair and equitable treatment (‘FET’) standard is a type of protection found in BITs which has become in the last decades one of the most controversial provisions examined by arbitral tribunals. This book first examines the interaction between the ‘minimum standard of treatment’ (MST) and the FET standard and the question why States started referring to the former in their BITs. It also addresses the question whether the FET should be considered as an autonomous standard of protection under BITs. This book also examines the controversial proposition that the FET standard should now be considered as a rule of customary international law. I will show that while the practice of States to include FET clauses in their BITs can be considered as general, widespread and representative, it remains that it is not uniform and consistent enough for the standard to have crystallised into a customary rule. States also lack the necessary opinio juris when including the clause in their BITs.
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International Investment Law and Arbitration

History, Modern Practice, and Future Prospects

Series:

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

International Investment Law and Arbitration: History, Modern Practice, and Future Prospects explores international law on foreign investment: its creation, functioning and evolution. Particularly, this paper presents a roadmap over the historical context within which investor-State arbitration developed. It provides an overview of the main actors, the protections afforded to foreign investors, the content of modern BITs, and the challenges facing the system today.
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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.
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Series:

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.