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The Corporation, Law and Capitalism

A Radical Perspective on the Role of Law in the Global Political Economy

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Grietje Baars

In The Corporation, Law and Capitalism, Baars offers a radical Marxist perspective on the role of law in the global political economy. Closing a major gap in historical-materialist scholarship, they demonstrate how the corporation, capitalism’s main engine from city-state and colonial times to the present multinational, is a masterpiece of legal technology. The symbiosis between law and capital becomes acutely apparent in the question of ‘corporate accountability’. Baars provides a detailed analysis of corporate human rights and war crimes trials, from the Nuremberg industrialists’ trials to current efforts. The book shows that precisely because of law’s relationship to capital, law cannot prevent or remedy the ‘externalities’ produced by corporate capitalism. This realisation will generate the space required to formulate a different answer to ‘the question of the corporation’, and to global corporate capitalism more broadly, outside of the law.
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Climate Border Adjustments and WTO Law

Extending the EU Emissions Trading System to Imported Goods and Services

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Ulrike Will

In Climate Border Adjustments and WTO Law, Ulrike Will develops a convincing reform proposal for a climate border adjustment (BA) on imports within the EU Emission Trading System (ETS). The proposed framework offers a realistic approach which would be immune to disputes at the WTO and comply with international climate agreements while remaining economically feasible and straightforward to implement.
The book offers a comprehensive analysis of the WTO cases that might have parallels to the unresolved case of BAs. It provides interpretations of vague legal terms of the applicable WTO agreements and guidance on how to balance between environmentally related and trade liberalising WTO rules. Typified constellations of BAs pave the way for a reform of the EU ETS Directive.
The inclusion of legal findings in the context of economic theory and climate science allows for a meaningful discussion of the functioning of the BA, relevant markets and competitive effects of specific design proposals. The proposed framework also takes into account the prevention of extra-jurisdictional effects.
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Edited by Photini Pazartzis and Panos Merkouris

In Permutations of Responsibility in International Law the concept of responsibility in international law is tackled from a multitude of angles. The various contributions, which emerged from the proceedings of the ILA Hellenic Branch Regional Conference (2012), examine both classical and modern issues relating to the nature of responsibility, both as responsibility for unlawful acts and liability for lawful acts, the multifariousness of actors whose actions (or omissions) may give rise to responsibility, and finally the plethora of responsibility-related issues that have emerged in different areas of international law, be it international law of the sea, trade and investment or human rights law.
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Piotr Szwedo

Cross-border Water Trade: Legal and Interdisciplinary Perspectives is a critical assessment of one of the growing problems faced by the international community — the global water deficit. Cross-border water trade is a solution that generates ethical and economic but also legal challenges. Economic, humanitarian and environmental approaches each highlight different and sometimes conflicting aspects of the international commercialization of water. Finding an equilibrium for all the dimensions required an interdisciplinary path incorporating certain perspectives of natural law. The significance of such theoretical underpinnings is not merely academic but also quite practical, with concrete consequences for the legal status of water and its fitness for international trade.
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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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Giammarco Rao

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This essay explores the possibility that a claim may be brought against the EU under the Energy Charter Treaty (ECT) for a breach by an EU Member State. The extent to which the EU might be held responsible is relevant in situations where the Member State is no longer a party to the ECT, such as Italy. This essay takes into account the impact of the Achmea judgment on Article 26 ECT and analyses whether an intra-EU dispute (i.e. against the EU) might still be brought under the ECT. Moreover, it attempts to address the issue of which parties can bring this claim and discusses how to allocate and attribute responsibility to the EU in case of a breach of the ECT by a Member State. Further, it considers the hypothetical case where a national court does not enforce an ECT award on the basis of the Achmea judgment. This author concludes that foreign investors in Italy, including ones from EU Member States, may bring a claim against the EU under the ECT when the breach is due to the implementation of EU binding decisions by EU Member States. Finally, the essay briefly deals with the jurisdictional immunity of the EU.

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Dorieke Overduin

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The Court of Justice of the EU (CJEU) has delivered a landmark decision by ruling that Article 8 of the BIT between the Netherlands and the Slovak Republic, providing for investor-state arbitration, is not compatible with EU law. The implications of this ruling go beyond this particular case, which can be considered a landmark decision for two reasons. First of all, the CJEU placed particular emphasis on the ecosystem of EU law, as enshrined in Articles 344 and 267 of the Treaty on the Functioning of the European Union (TFEU). Moreover, with this ruling, the CJEU has finally put an end to the legal uncertainty that has arisen regarding the place of so-called intra-EU BITS in the legal order of the EU. This case note provides the background to the case and a deeper analysis of the judgement following the three-step approach adopted by the CJEU, and will look ahead towards unaddressed questions that might be raised as a consequence of this ruling.

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Patrick Dumberry

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This article examines the following question: is a new successor State automatically bound by the multilateral treaties on investment promotion and protection to which the predecessor State was a party at the date of succession? The article critically assesses the continuity principle that was adopted under the 1978 Vienna Convention on succession to treaties in the context of the dissolution of a State and secession. It also examines the question of succession to the ICSID Convention, an example of a special category of multilateral treaties which create international organisations. It will be shown that there is no succession to the membership of an international organisation and that, accordingly, the practice of new States has been to adhere to the Center via a formal application (rather than by way of succession).

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Victoria Barausova

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This essay is a contribution to the debate on the implications of the recent decision of the CJEU in Slovak Republic v. Achmea on investment arbitration under intra-EU BITS. This essay critically examines the implications that the findings of the CJEU may have on the validity of State consent to arbitrate under treaties as a matter of public international law. The CJEU concluded that there is an inconsistency (or a treaty conflict) between provisions of intra-EU BITS containing an agreement to arbitrate and provisions of the TFEU. The resolution of such a treaty conflict in favour of the TFEU inevitably affects the validity of agreements to arbitrate contained in intra-EU BITS. This essay considers the public international law rules on treaty conflict, in particular, Article 30(3) of the VCLT, and concludes that this provision’s requirement that conflicting treaties must deal with the same subject matter, will become central in the analysis of any tribunal dealing with the issue in the future. This requirement may serve as a lifeline for investment arbitration in the aftermath of Slovak Republic v. Achmea. The essay also addresses the conflict provision of Article 351(1) of the TFEU to conclude that it is not applicable to the conflict with BITS, and would thus not affect the validity of the consent to arbitrate contained in intra-EU BITS.

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Régis Bismuth

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The European Commission’s Regulation proposal establishing a framework for screening FDI into the EU has been widely commented on from different perspectives. The purpose of this article is neither to carry out an exhaustive technical analysis of the proposal nor to assess its practical impact but rather to discuss a few points highlighting its limits, indecisiveness, contradictions as well as its ambiguities. This proposal, reflecting a change in the Commission’s stance on non-EU FDI flows, can be criticised on a number of grounds. While it has limited added value for Member States’ existing FDI screening mechanisms, it imposes on Member States an implied obligation to establish FDI screening mechanisms and could serve as the basis of a ‘soft’ blocking for the Commission. In addition, the framework envisaged by the proposal appears to rest on a questionable legal basis (Article 207 TFEU) and can be seen as a missed opportunity for not addressing the issue of competitive neutrality in FDI transactions.