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International Investment Law Symposium

International Investment Law Symposium LLM Perspectives Online Publications

The EC’s Proposal for a Permanent Investment Court System: Politics, Pitfalls, and Perils

“For those who see the need for greater ‘order’ in the ‘international order’, the impulse towards constitutionalism offers both an agenda and an opportunity. But whose agenda, and whose opportunity?”01Malcolm Evans & Panos Koutrakos, Beyond The Established Legal Orders: Policy Interconnections between the EU and the Rest of the World 4 (2011). Introduction The ongoing Transatlantic Trade and Investment Partnership (TTIP) negotiations haven given rise to intense public debate about the costs and benefits of ad hoc investor-state dispute settlement (ISDS) arbitration. This paper contrasts ISDS in its current ad hoc arbitration format with the European Commission’s (EC) recent proposal…

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International Investment Law Symposium LLM Perspectives Online Publications

International Arbitral Tribunals and Corruption: Not so Duty Free

“Big money, big names, and a mega scandal. The story of the World Duty Free complex must rank as one of the most extraordinary investment disputes in Kenya’s history. It involves claims of bribes on a scale that dwarfs anything mentioned in the Goldenberg commission,01Moi Ordered Goldenberg Payment (Feb. 17, 2004), http://news.bbc.co.uk/2/hi/africa/3495689.stm. The Goldenberg Commission was established to investigate the Goldenberg scandal, a political scandal in the 1990s involving Daniel arap Moi’s government subsidies of gold exports, which far exceeded the standard arrangements at the time. Subsidies paid to Goldenberg International amounted to 35% more than their foreign currency earnings.…

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International Investment Law Symposium LLM Perspectives Online Publications

Losing Credibility Of Tribunals’ Interpretations: The Standards Of Review Of “Denial Of Justice” Lacking In Relationships With Treaty Wording

I. Introduction Today, no one would doubt that investment arbitrations have become an indispensable part of international investment treaties, or that investment arbitrations are a leading reason why states conclude international investment treaties. As the total number of investment treaties have increased, so too have the total number of arbitration cases.01United Nations Conference on Trade and Development, World Investment Report 2015, 136 (2015). In the past few years (2008–15), 410 new IIAs have been concluded, and 316 new ISDS cases have been registered. Although the relationship between those two numbers is not clear, it appears evident that States are growing…

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International Investment Law Symposium LLM Perspectives Online Publications

A Fiercely Contested No-Man’s Land Of International Arbitration: Consent Arbitration In Bilateral Investment Treaties And The Frontiers Of The Application Of MFN Clauses To Dispute Settlement Provisions

1. Introduction The application of the Most Favoured Nation (“MFN”) clause to investor-State dispute settlement provisions is an unsettled question in investment treaty arbitration. This stems from the fact that Bilateral Investment Treaties (“BITs”) invariably use different language to draft MFN clauses, making it necessary to interpret any given treaty on a case-by-case basis. Tribunals have found dispute resolution clauses in BITs to be procedural in nature, which is treated differently than substantive clauses on the specific issue of MFN clause application. This was the approach already promulgated in the case of Maffezini v Spain,01Emilio Agustín Maffezini v. The Kingdom…

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International Investment Law Symposium Online Publications

The Protection Of Migrant Workers Under The International Investment Law Regime

In a globalized world, labor, goods, and capital are traveling across borders at increasing rates. Labor migration, and the subsequent flow of capital in the form of remittances to workers families, is central to the economies of many countries across the globe.01Remittances represent the portion of income that migrant workers send back to their families and home communities and are therefore closely linked to migrant work. The volume and speed of remittances greatly impacts the migrants’ ‘host States’, and nations ‘sending’ migrant workers. The World Bank reported that the volume of remittances from international migrants amounted to $601 billion in…

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International Investment Law Symposium Online Publications

More Guidance Necessary? Limiting State Vulnerability to Investor-State Disputes by Reducing the Grounds for Non-Enforcement of Commercial Awards

This comment explores the relationship between the domestic enforcement of commercial international arbitral awards and a State’s exposure to investor-State arbitral claims. This exploration begins in Part I with a survey of the multilateral framework that governs the enforcement of foreign arbitral awards. Part II compares the legal infrastructure for enforcement in several domestic jurisdictions by highlighting the differences in the amount of judicial discretion to deny enforcement, particularly with respect to awards annulled in the seat. Part III analyzes the feasibility of investor-State claims based on the non-enforcement of an arbitral award by assessing the arguments in two such…

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