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International Investment Law Symposium LLM Perspectives Online Publications

Playing By The Tribunals’ Rules: A Solution For Resolving The Conflict Between Rules And Practice In IIA Interpretation

I. Introduction In her extremely comprehensive treatise on the interpretation of investment treaties, Trinh Hai Yen highlighted a serious problem with International Investment Agreements (“IIA”): IIAs have had a very tumultuous history with the Vienna Convention on the Law of Treaties (“VCLT”) as far as the application of Article 31 and 32, the customary standard for dealing with the interpretation of treaties, is concerned.01Trinh Hei Yen, The Interpretation of Investment Treaties 64 (2014). In most instances, arbitral tribunals have not applied these rules properly despite making explicit references to these provisions of the VCLT in their awards.02Michael Reisman and Mahnoush…

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International Investment Law Symposium LLM Perspectives Online Publications

Can the E.U. Proposal to Establish an Investment Court Through TTIP Inform the Establishment of an Appeal Mechanism in ICSID?

1. Introduction The negotiations between the E.U. and the U.S. on the Transatlantic Trade and Investment Partnership (TTIP) have sparked new public debates on the legitimacy of arbitration as an investor-state dispute settlement mechanism. Investor-state arbitration has been subject to increasing criticism in recent years.01Steven Finizio, The European Commission’s Draft TTIP and the Proposed Investment Court System, Lexis PSL Arb., Sept. 30, 2015. Practitioners are concerned with the lack of consistency among arbitral awards and the absence of a procedure to correct erroneous decisions. Critics also maintain that arbitrators are inherently biased against states.02John Beechy, Investment Arbitration, TTIP – Myths…

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International Investment Law Symposium LLM Perspectives Online Publications

Denunciation of ICSID: Does it Really Mean no ICSID Arbitration?

I. Introduction The ICSID Convention (also known as the “Washington Convention”) is a multilateral treaty that created the institution known as “ICSID” or “the Centre,” as a platform to resolve investment disputes. The executive directors of the International Bank of Reconstruction and Development (“World Bank”) approved the final draft of the agreement, known as the Convention on the Settlement of Investment Disputes between States and Nationals of Other States, and the president of the World Bank disseminated the convention to its Member States for signature on 18 March 1965.01International Centre for Settlement of Investment Disputes, Wikipedia, https://en.wikipedia.org/wiki/International_Centre_for_Settlement_of_Investment_Disputes (last visited Feb.…

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International Investment Law Symposium LLM Perspectives Online Publications

Non-Action as an Indirect Expropriation

This paper is based on the final paper of the class “International Investment Law” taught by Professor William W. Burke-White in the 2016 spring semester. The author would like to thank Professor Burke-White and the other class participants for their invaluable instructions, guidance and comments. All errors and omissions are the author’s alone. The author can be reached at yuraychang@hotmail.com. I. Introduction Indirect expropriation, including creeping expropriation and consequential expropriation, is a relatively vague concept, and there is no clear applicable rule under customary international law addressing the relationship between these concepts. This paper illustrates the intricacies of these concepts…

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LLM Perspectives Online Publications

Huawei v. ZTE: Integrating Good Faith Without Foregoing the Right to Enforce Your FRAND-Encumbered Standard-Essential Patents

Despite the lack of harmonious EU-wide contract rules, the Court of Justice's injunction analysis in Huawei v. ZTE is well-aligned with US contract law principles. By imposing behavioral standards via principles of "good faith" and "fair dealing," Huawei addresses several dangers and abuses of SEPs, FRAND terms, and license negotiations.…

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