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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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Nicolás M. Perrone

Abstract

This article examines an influential narrative of foreign investor rights and the international investment regime. It draws on twenty-five of the World Investment Reports (WIRs) issued by the United Nations Conference on Trade and Development (1991–2015). It argues that the justifications provided by these reports have contributed to shaping a global commodity conception of property. These WIRs describe foreign investor rights following a narrative of wealth maximisation by transnational corporations (TNCs), and focus on a TNC-assisted restructuring of host states and local communities. Since the mid-2000s, these reports have balanced this narrative because of the increasing consensus that international investment treaties unduly constrain regulatory space. Ultimately, however, this article shows that the recent WIRs promote an approach to public regulation that is not inconsistent with a global commodity conception of property.

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One Window into the State of Insiders’ Arbitration Scholarship

David D. Caron, Stephan W. Schill, Abby Cohen Smutny and Epaminontas E. Triantafilou (eds.), Practicing Virtue: Inside International Arbitration. Oxford: Oxford University Press, 2015. Pp. 816. $245. ISBN 9780198739807.

Bryant G. Garth

Abstract

This book, dedicated to Charles N. Brower, a prominent international arbitrator, provides a window into the field of international commercial arbitration. It is a depiction and embodiment of the state of what can be called ‘insiders’ international arbitration. It purports to be about ‘practicing virtue,’ providing keys to the actual work of international arbitrators as depicted by an important segment of them. But the scholarship of arbitrators performs multiple functions, including self-promotion, criticism of competitors from outside, unification of the field, and bolstering the legitimacy of the field, among others. The book is therefore not only about the practice of virtue as this community sees it. It is also about ‘dealing in virtue’ – seeking to maintain the market for precisely what this group has to offer.

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Joshua Paine

Abstract

This article analyses the various ways in which investment law raises questions of change. It distinguishes between changes in international investment norms, and changes in a host state’s regulatory system which is subject to the control of such norms, and explains how these different manifestations of change relate to the distinct yet interrelated issues of interpretation and application. The article explains why, given features of the contemporary investment regime, on questions of interpretation, concerning the content of international investment norms, arbitrators operate within wider processes of law-development over which states, as treaty masters, also exercise significant influence. In contrast, arbitrators dominate the process of applying international investment norms to particular investor-state disputes to determine whether changes in a host state’s regulatory system breach applicable investment norms. This claim is demonstrated in relation to the two most prominent investment treaty standards: fair and equitable treatment, and the protection against indirect expropriation.

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Arie Reich

Abstract

This article discusses Israel’s BITs regime and policy and analyzes its central features. It argues that time has come to use BITs as a tool to attract FDI to the country, in particular to the energy sector. It shows that until now, Israel has concluded BITs mainly as a means to protect Israeli investors in developing and transition countries. The article argues that this policy needs to change to keep up with current trends in International Investment Law and on the background of the important developments over the last few years in Israel’s energy sector. It describes the long saga of the regulatory changes in relation to the natural gas sector, ever since the discovery of huge offshore gas fields, including the Supreme Court’s rulings on the changes of the tax regime and on the stabilization clause, and analyses its impact on the investment climate based on original data.

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Tuğba Karagöz

Abstract

This article analyses the investor-centeredness in the regulatory and operative framework of political risk insurance arrangements. The dominant approach to the concept of political risk is profoundly market oriented and the operation of political risk arrangements, based on this approach, involves mechanisms of investment climate surveillance and supervision that further foster investor-centered values. This article argues that the authority of the agents that provide political risk insurance is dependent on the continued promotion of such values. In order to maintain their underwriting business, investment insurers are responsive to investors’ demand for a favorable investment climate in the host country and financial securities in the event of loss or damage – even when these demands are not legitimate. This is illustrated with reference to the operation of a major political risk insurance provider, the U.S. government agency Overseas Private Investment Corporation.

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Matthew Happold and Relja Radović

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This article considers the extent to which foreign investors in Member States of the Economic Community of West African States (ECOWAS) might be able to use the ECOWAS Court of Justice to protect their investments against actions of their host States. It does so taking into account the ECOWAS Supplementary Act on Investments and the jurisprudence of the Court of Justice on, in particular, the extent of its substantive jurisdiction. Although it is not suggested that the Court of Justice would be better forum than an international arbitral tribunal, it is argued that it has considerable advantages over national courts.