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Authors: Crina Baltag and Ylli Dautaj

Abstract

The global environmental disruption caused by human activity is firmly entrenched as a scientific fact. The present paper looks at the Investor-State Dispute Settlement (ISDS) system and inquires whether this is the most suitable transnational venue for resolving investment disputes that have an environmental component. This culminates essentially in whether arbitration is a legitimate forum and whether privately appointed arbitrators appropriately can resolve environmental-related disputes. These disputes are bound to increase in frequency because host-States are also partaking in global efforts to respond to environmental challenges.

This paper makes several points. First, ISDS is the best equipped venue for addressing investment disputes that have an environmental or natural resources component. Second, the “regulatory chill” and the alleged “investor bias” arguments are unsubstantiated whereas, a balance must be struck between backlash, legitimacy, and workability. Third, ISDS will eventually and inevitably facilitate green-investors, while holding States accountable for green-undertakings, and therefore continue to effectively enforce the rule of law globally. Fourth, arbitrators must adapt to their role of handling disputes at the intersection of international investment law and environmental law; this means that a thorough thick rule of law must effectively be implemented. Fifth, International Investment Agreements (IIA s) should be reconsidered or interpreted in order to accommodate for investors’ obligations, as well as widening the scope of States’ regulatory powers. Finally, ISDS will only remain the best alternative if it sticks to its fundamental elements, in particular by utilizing the regime’s flexibility to allow counterclaims from host States. Only such reform-proposals that preserve and enhance the fundamental elements of international arbitration should be seriously considered.

In: Brill Research Perspectives in International Investment Law and Arbitration
The Evolving Institutions and Mechanisms
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.
In: Dispute Resolution in the People’s Republic of China
In: Dispute Resolution in the People’s Republic of China
In: Dispute Resolution in the People’s Republic of China
In: Dispute Resolution in the People’s Republic of China
In: Dispute Resolution in the People’s Republic of China
In: Dispute Resolution in the People’s Republic of China
In: Dispute Resolution in the People’s Republic of China
In: Dispute Resolution in the People’s Republic of China