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Author: Hugo Siblesz

Abstract

This chapter addresses the role of international organizations in promoting the legitimacy in and effectiveness of alternative dispute resolution regimes. Defining legitimacy as the right to rule, allowing the parties to accept and comply with the rulings of dispute resolution regimes, the chapter argues that international institutions initially possess very little ‘source legitimacy’ or ‘constitutive legitimacy’ and are sometimes seen as lacking ‘process legitimacy’ or ‘outcome legitimacy’. Using the framework of source, process, and outcome, the chapter argues that international organizations can play a strategic role in enhancing the source and process legitimacy of alternative dispute settlement regimes, and therefore the effectiveness of these regimes by embodying and endorsing in their work key values such as procedural justice, neutrality, and independence. The chapter further suggests that international organizations have an incredibly powerful role in supplementing the legitimacy of alternative dispute resolution regimes through avenues that are created by virtue of their institutional work and knowledge.

In: International Organizations and the Promotion of Effective Dispute Resolution
Author: Locknie Hsu

Abstract

This chapter posits that international organizations (IOs) can be positive role models in the promotion of effective dispute resolution in a number of ways. The Asian Infrastructure Investment Bank, an IO which is of relatively recent vintage, has the advantage of being able to study and absorb best practices in all international and specialist dispute settlement tribunals. It also stands poised to articulate a set of best aspirations and to transform them through implementation into reality.

In: International Organizations and the Promotion of Effective Dispute Resolution

Abstract

This chapter provides an overview of arbitration conducted pursuant to the arbitration rules of the London Court of International Arbitration (lcia) and specifically identifies why the arbitrator appointment and challenge mechanisms set out thereunder enable a robust, efficient and transparent arbitral procedure. It also looks to the lcia’s practice of publishing vital information about lcia arbitration, including in respect of the average duration and costs of an arbitration, and calls for the broader dissemination of such information by all arbitral institutions to inform and benefit users.

In: International Organizations and the Promotion of Effective Dispute Resolution
Author: Wenwen Liang

Abstract

This chapter is not intended to challenge the legitimacy of the role played by the World Bank in the establishment of the International Centre for Settlement of Investment Disputes (icsid). Instead, the purpose is to identify and look into the key legality and legitimacy concerns about icsid’s establishment from an international law perspective, taking into consideration the evolving legality and legitimacy discourses over the last decades. In particular, it examines the features and background of icsid’s creation, the role of the World Bank therein, the legal basis of such a role under international institutional law and the law of treaties, and the procedures employed by the World Bank in its formulation of the icsid Convention. This chapter sheds some light on how similar initiatives of international organizations may be undertaken to comply with legality and legitimacy requirements, in order to better recommend themselves to member States.

In: International Organizations and the Promotion of Effective Dispute Resolution
Author: Asif H. Qureshi

Abstract

This chapter focuses on dispute settlement in the field of international trade within the World Trade Organization (wto) along with the contribution of the wto to the resolution of foreign trade disputes in domestic systems. This discourse is set under the shadow of the current impasse in the wto, precipitated by the United States’ blocking of appointments of Members of the Appellate Body of the wto. In particular the chapter sheds light on the reasons for the US decision to block future appointments and possible legal analysis of the US actions. In this discourse the notion of a ‘trade war’ is explored along with the capacity of the wto to manage a trade war. The chapter concludes with the suggestion for a holistic approach to manage the current and future such crisis–with particular reference to the interface of the national security defence, both within the domestic and international legal regimes, with dispute settlement processes. This chapter does not purport to be exhaustive of the issues raised.

In: International Organizations and the Promotion of Effective Dispute Resolution
Authors: 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.

In: Brill Research Perspectives in International Investment Law and Arbitration
Author: 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.

Volume 3 (2018), Published under the auspices of Queen Mary University of London and EFILA
Free access to the 3rd Annual EFILA Lecture by Christopher Greenwood (until 1 June 2020).

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.
Creation, Evolution and Enforcement
Editors: 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.

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.

In: Brill Research Perspectives in International Investment Law and Arbitration