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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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International Investment Law Symposium Online Publications

Recognizing an Investment: An Argument for Access to the Investor-State Dispute Settlement Mechanisms for Non-Governmental Organizations

Introduction Why are Non-Governmental Organizations (“NGOs”) treated differently than traditional commercial investments, and should they be able access the protections from illegal State interference provided by bilateral investment treaties? This paper examines the space for NGOs in the international investment system and argues that they should be covered as foreign investments in bilateral investment treaties. Part I of this paper addresses the need for international and impartial protections for NGOs by examining some of the challenges faced by civil society groups in Ethiopia, Russia, and Egypt. Part II explores the potential benefits of the international investor-State dispute settlement mechanism for…

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International Investment Law Symposium Online Publications

The Ambivalent Changes In Foreign Investment Market Condition Of South Korea In The Post-IMF Era

Lawrence Lee is a third-year student at the University of Pennsylvania Law School. Prior to attending the law school, he received a PhD from University of California, Los Angeles and a BA from University of California, Berkeley. The author wishes to thank Professor William Burke-White for the valuable guidance provided during the course of writing this Comment. Introduction In November 2011, a liberal lawmaker exploded tear gas in front of the speaker’s chair at the National Assembly of South Korea (“Korea”) in a futile attempt to stop the conservative majority party from ratifying the South Korea-U.S. Free Trade Agreement (the…

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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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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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