Sovereign Choices and Sovereign Constraints

Sovereign Choices and Sovereign Constraints

Author: Gus Van Harten

Publisher: OUP Oxford

ISBN: 9780191667961

Category: Law

Page: 224

View: 843

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Investment arbitrators rely on sovereignty for their legal status just as investor-state disputes usually stem from disagreements about the role of the state in society. As a result, investment arbitration is a vehicle for the exercise of sovereign authority and a site for contesting sovereign choices. This book investigates and evaluates the decision-making record and policy trajectory of international investment arbitration, from theoretical, doctrinal, and empirical perspectives. It analyses the extent to which the system used to resolve disputes impacts on the role of government, affecting diverse constituencies, as opposed to limiting itself to case-specific disputes between a single business enterprise and state entity. The book provides a comprehensive review of known awards in order to determine the types of government measures that have triggered disputes. It investigates how investment arbitrators have exercised their authority in recent case law. It provides a review of the approaches adopted in the reasoning of investment treaty tribunals on questions of judicial deference and respect for sovereign decision-makers. In doing so, it determines whether investment tribunals have taken a predominantly assertive approach to investor protection, without regard to their relative lack of accountability, capacity, or proximity in some cases. This approach does not sit comfortably with the relative restraint seen by domestic and international courts in similar contexts. The book argues that the unique characteristics of investment treaty arbitration make the experience of domestic judicial review more pertinent to international investment arbitration than to any other contexts for international adjudication. However, it argues that mediating devices in some form should be incorporated into the process in order to solve the tension between the extensive scope and potency of international investment arbitration as an important site of global governance, and the challenges of the review function in reviewing decisions which have strong claims to having comprehensive regulatory expertise, inclusive decision-making, electoral or other public accountability, or greater proximity to the underlying facts and context. Online Appendices

Sovereign Choices and Sovereign Constraints

Sovereign Choices and Sovereign Constraints

Author: Gus Van Harten

Publisher: Oxford University Press

ISBN: 9780199678648

Category: Law

Page: 217

View: 414

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The role of investment arbitration is a controversial issue, as it is increasingly seen as a system in which private arbitrators adjudicate on the public law decisions of states. This book provides an empirical study of the function of investment arbitration, how it is impacting on international law, and the ways in which it is in need of reform.

Choice of Law for American Courts

Choice of Law for American Courts

Author: Edwin Scott Fruehwald

Publisher: Greenwood Publishing Group

ISBN: 0313317534

Category: Law

Page: 192

View: 660

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In the early 20th century, a fairly uniform multilateralist method of choice of law existed. In the 1920s and 1930s, however, scholars and courts began to reject this method. Viewed as too mechanical, the method sometimes resulted in a choice of law of a state with only a tenuous connection to the issue at hand. This study proposes a new multilateralist method of choice of law that will alleviate the confusion currently existing in American choice of law. It rejects the state courts use of four different approaches to choice of law and instead advocates the adoption of an approach that is forum- and content-neutral and that respects the rights of both individuals and states.

Sold Down the Yangtze

Sold Down the Yangtze

Author: Gus Van Harten

Publisher: James Lorimer & Company

ISBN: 9781459410725

Category: Business & Economics

Page: 370

View: 926

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When legal experts finally saw the terms of the investment deal Canada had signed with China, they could hardly believe what their eyes. The deal was unprecedented -- Canada had never given so much away to a trading partner. But Ottawa did not allow a full public review, and ultimately ratified the deal in 2014 with no changes. And the government moved forward with other trade deals that contain many of the same flaws. In this book, investment treaty expert Gus Van Harten offers the first-ever independent take on the details of the China-Canada investment deal and what it means for Canadians. Many of the deal's provisions are so extreme that readers may find it almost impossible to believe that the Canadian government agreed to them. He explains how this agreement, and others like it, give multinational corporations and rich investors superpowers over governments. Secretive courts staffed by private lawyers, not judges, are able to order governments to pay these investors billions for policies and decisions they object to. In simple language and easy to follow analysis, Van Harten offers a window into this secretive and obscure world. He documents the many ways Canadians lose out in the China-Canada deal, and how taxpayers may find themselves footing the bill for billions of dollars to Chinese investors who object to the actions of democratically-elected municipal, provincial and federal governments. This deal -- in place for a minimum 15 years -- includes terms that may well turn up in other trade and investment agreements. Gus Van Harten offers practical steps for a better, more informed public debate on this vital topic.

Substantive Protection under Investment Treaties

Substantive Protection under Investment Treaties

Author: Jonathan Bonnitcha

Publisher: Cambridge University Press

ISBN: 9781316061312

Category: Law

Page:

View: 478

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Substantive Protection under Investment Treaties provides the first systematic analysis of the consequences of the substantive protections that investment treaties provide to foreign investors. It proposes a new framework for identifying and evaluating the costs and benefits of differing levels of investment treaty protection, and uses this framework to evaluate the levels of protection for foreign investors implied by different interpretations of the fair and equitable treatment and indirect expropriation provisions of investment treaties. The author examines the arguments and assumptions of both supporters and critics of investment treaties, seeks to test whether they are coherent and borne out by evidence, and concludes that the 'economic' justifications for investment treaty protections are much weaker than is generally assumed. As such, the 'economic' objectives of investment treaties are not necessarily in tension with other 'non-economic' objectives. These findings have important implications for the drafting and interpretation of investment treaties.

Water Services Disputes in International Arbitration

Water Services Disputes in International Arbitration

Author: Xu Qian

Publisher: Kluwer Law International B.V.

ISBN: 9789403522050

Category: Law

Page: 304

View: 152

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Water Services Disputes in International Arbitration Reconsidering the Nexus of Investment Protection, Environment, and Human Rights by Xu Qian The argument that universal access to water is a human right is based on the fact that life on Earth cannot exist without water. Yet the enormous cost of building and maintaining water service infrastructure, purifying, monitoring quality, and providing sanitation services is beyond the means of many of the States most in need. Foreign investment is thus mandated—hence the often acrimonious tension manifest in investor-State disputes over water rights. This book offers the first in-depth analysis of both international treaty norms and their interpretation by arbitral tribunals applicable to investment in water and sanitation services, complete with thoroughly researched recommendations for those arbitral practitioners in the eye of the storm. Like no previous study the book clearly reveals how to reconcile the economic and fundamental human interests arising from investment in water and sanitation services under the international investment regime. Among many vital issues, the author highlights the importance of the following: legitimacy of a State’s alleged regulatory objectives, the suitability of the measures undertaken to achieve the objective, and whether there are less restrictive means available; legal framework and stability of the State; applicable law, changes in law, and emergency circumstances; economic issues such as water pricing; profit-driven private companies’ reluctance to serve the poor; investment tribunals’ generation of a “regulatory and jurisprudential regime” on water and sanitation services; and determination of liability in relation to expropriation, fair and equitable treatment, and necessity. Arguing that the current investment treaty and arbitral case law framework can regulate water and sanitation services if certain interpretations are favored by adjudicators, the author offers viable, sustainable, and reasonable legal solutions. A detailed annex presents cases decided before a variety of arbitral tribunals, as well as relevant WTO and ICJ cases, and reviews critical literature in the field. The increasing number of cases involved with States’ regulatory measures shows that stakes around water services generate specific legal problems which are new in the world of international economic law. As an incisive investigation of what has been called the “incursion of investment tribunal decisions into the regulatory autonomy of host States,” this profound and innovative analysis provides a coherent and consistent method of review that provides greater certainty to both States and investors and deters abuse of power. It will be welcomed by policymakers and stakeholders interested in the implications of “globalization” of water services for the capacity to adapt to climate change and will suggest ways to enable States to better manage vital water services, even after privatization to foreign companies.

The China Triangle

The China Triangle

Author: Kevin P. Gallagher

Publisher: Oxford University Press

ISBN: 9780190246754

Category: Political Science

Page: 240

View: 653

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Since 1980, China has evolved from a poor and mostly rural society into one of the largest economies in the world. As it grew into a major industrial power, it demanded enormous amounts of steel for new factories and cities, copper for electronic wires, petroleum for cars and manufacturing plants, and soybeans and cattle to feed its workers. By the 1990s, many Latin American countries were riding China's coattails and beginning to prosper from the new demand. Ever since China entered the World Trade Organization at the turn of the century, Latin America supplied China with more and more of the primary commodities it needs and more. That in turn has produced one the most impressive periods of economic growth on the continent in fifty years. And it was more evenly spread too - a region infamous for its extreme inequality saw it decline by a couple of percentage points over the course of the era. In The China Triangle, Kevin P. Gallagher traces the development of the China-Latin America trade over time and covers how it has affected the centuries-old (and highly unequal) US-Latin American relationship. He argues that despite these opportunities Latin American nations have little to show for riding the coattails of the 'China Boom' and now face significant challenges in the next decades as China's economy slows down and shifts more toward consumption and services. While the Latin American region saw significant economic growth due to China's rise over the past decades, Latin Americans saved very little of the windfall profits it earned even as the region saw a significant hollowing of its industrial base. What is more, commodity-led growth during the China boom reignited social and environmental conflicts across the region. Scholars and reporters have covered the Chinese expansion into East Asia, Southeast Asia, Australasia, Africa, the US, and Europe. Yet China's penetration Latin America is as little understood as it is significant-especially for America given its longstanding ties to the region. Gallagher provides a clear overview of China's growing economic ties with Latin America and points to ways that Latin American nations, China, and even the United States can act in order to make the next decades of China-Latin America economic activity more prosperous for all involved.

Security

Security

Author: David A. Welch

Publisher: Cambridge University Press

ISBN: 9781009270106

Category: Political Science

Page: 295

View: 509

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Presents a philosophical approach to the concept of 'security', and offers practical guidance to help states better allocate resources (time, effort, money, talent) better to various security problems.

The Trouble with Foreign Investor Protection

The Trouble with Foreign Investor Protection

Author: Gus Van Harten

Publisher: Oxford University Press

ISBN: 9780192635907

Category: Law

Page: 208

View: 889

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Governments are rightly discussing reform of investment treaties, and of the incredibly powerful system of 'investor-state dispute settlement' (ISDS) upon which they rest. At their core, ISDS treaties are flawed because they very firmly institute wealth-based inequality under international law. In this book, Van Harten explores these claims in the light of the history of early ISDS treaties showing their ties to decolonization and, at times, extreme violence and authoritarianism. Focusing on early ISDS lawsuits and rulings, it is revealed how a small group of lawyers and arbitrators worked to create the legal foundations for massive growth of ISDS since 2000. ISDS-based protections are examined in detail to demonstrate how they give exceptional advantages to the wealthy. Various examples are also offered of how the protections have been used to reconfigure state decision-making and shift sovereign minds in favour of foreign investors. Lastly, the ongoing efforts of governments to reform ISDS are surveyed, with a call to go further or, best of all, to withdraw from the treaties. This book is essential reading for anyone wanting to know more about the shady world of investment protection.

Critical Perspectives on Food Sovereignty

Critical Perspectives on Food Sovereignty

Author: Marc Edelman

Publisher: Routledge

ISBN: 9781317424529

Category: Science

Page: 370

View: 383

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This volume is a pioneering contribution to the study of food politics and critical agrarian studies, where food sovereignty has emerged as a pivotal concept over the past few decades, with a wide variety of social movements, on-the-ground experiments, and policy innovations flying under its broad banner. Despite its large and growing popularity, the history, theoretical foundations, and political program of food sovereignty have only occasionally received in-depth analysis and critical scrutiny. This collection brings together both longstanding scholars in critical agrarian studies, such as Philip McMichael, Bina Agarwal, Henry Bernstein, Jan Douwe van der Ploeg, and Marc Edelman, as well as a dynamic roster of early- and mid-career researchers. The ultimate aim is to advance this important frontier of research and organizing, and put food sovereignty on stronger footing as a mobilizing frame, a policy objective, and a plan of action for the human future. This volume was published as part one of the special double issue celebrating the 40th anniversary of the Journal of Peasant Studies.

International Investment Protection and Constitutional Law

International Investment Protection and Constitutional Law

Author: Stephan W. Schill

Publisher: Edward Elgar Publishing

ISBN: 9781839100420

Category: Law

Page: 393

View: 774

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This book develops a conceptual framework that captures not only the tensions between constitutional values that are common to liberal democracies – human rights, democracy, and the rule of law – and the investment treaty regime, but also the potential for co-existence and complementarity.