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LLM Perspectives

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 LLM Perspectives Online Publications

International Investment Law And Treaty Shopping Through Corporate Nationality Structuring

I. Introduction Today’s world is more interconnected than ever before in terms of international trade and investment with cross border capital flows. Consequently, a regime for the development and protection of cross border investments has developed globally. Over the past decade, there has been significant proliferation of international investment agreements (IIAs) on bilateral,01Bilateral investment treaties are hereinafter referred to as BITs. regional, and interregional levels that regulate the rights and obligations of investors and host States. IIAs, which protect foreign investors and permit them to bring disputes before an independent and impartial arbitral tribunal, serve to advance the investment climate…

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International Investment Law Symposium LLM Perspectives Online Publications

Connecting the Dots of Business and Health at International Fora: An Analysis of the Investor-State Arbitration of Tobacco Plain Packaging

I would like to thank Professor William Burke-White for his great teaching on international investment law in 2016 at Penn Law and Dr. James McGann’s comments that significantly improved the comment draft. Any errors are my own. I. Introduction Regulators in Australia may not have expected international lawsuits by foreign companies when they drafted laws to regulate tobacco packaging to protect public health, but that has certainly been one side effect. Since the Parliament of Australia passed the Plain Packaging Act (“PPA”) in 2011, big tobacco has been fighting against this legislation in various domestic and international judicial fora, including…

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