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Unveiling the ‘author’ of international law — The ‘legal effect’ of ICJ’s advisory opinions Journal of International Dispute Settlement (IF 0.9) Pub Date : 2024-07-19 Vahid Rezadoost
While it is universally accepted that the advisory opinions rendered by the International Court of Justice (ICJ or Court) are not binding as such, scholarly discourse continues to ponder upon whether these opinions can confer any definitive legal effects. The scope of the legal implications stemming from such opinions is considerably broad, encompassing statements of solely evidentiary significance
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Sun from Behind the Clouds: the Appeals Board of the European Centre for Medium-Range Weather Forecasts Journal of International Dispute Settlement (IF 0.9) Pub Date : 2024-05-17 Graham Butler
One of the lesser-known regional international organizations in Europe is the European Centre for Medium-Range Weather Forecasts (ECMWF). It has a mandate to undertake tasks such as the production of weather forecasts, conduct scientific research to improve meteorological projections, maintain extensive datasets, and to better coordinate European meteorological infrastructure. The Centre has three
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The use of MFN clauses in investment arbitration: the problem of importation Journal of International Dispute Settlement (IF 0.9) Pub Date : 2024-03-29 José Pedro Villablanca Gutiérrez
The nature of most-favoured-nation clauses (MFN clauses) is a constant source of debate and controversy. While the traditional position has been that they allow an investor to import provisions from another International Investment Agreement (IIA)—a practice that has been defined by some as ‘importation’1—there is a new trend that considers this a misuse of MFN clauses. This article endorses the latter
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Continental shelf delimitation beyond 200 nautical miles: Mauritius/Maldives and the forking paths in the jurisprudence Journal of International Dispute Settlement (IF 0.9) Pub Date : 2024-03-23 Xuexia Liao
The jurisprudence concerning the continental shelf delimitation beyond 200 nautical miles (nm) over the past decade converged on distinguishing delineation from delimitation, which justifies the appropriateness of the judiciary to delimit the continental shelf beyond 200 nm in the absence of the recommendations issued by the Commission on the Limits of the Continental Shelf (CLCS). Mauritius/Maldives
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The legitimation of international adjudication Journal of International Dispute Settlement (IF 0.9) Pub Date : 2024-01-24 Zuzanna Godzimirska
Drawing on insights and methods from International Law, International Relations and Linguistics, the article untangles the discursive legitimation efforts of international adjudicative bodies. Adopting a mixed-methods approach that combines supervised learning methods, corpus methods and Critical Discourse Analysis it analyses the language of legitimation in the jurisprudence of the International Court
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Reflecting on the rule of law contestations narratives in the world trading system Journal of International Dispute Settlement (IF 0.9) Pub Date : 2024-01-21 Ngangjoh Hodu Yenkong
Contestations have emerged over the nearly three decades of the World Trade Organization (WTO) regarding the narratives on the rule of law (ROL) as a central tenet of the Multilateral Trading System. One of such contestation is whether the idea of ROL was ever internalized in the WTO at its formation or has been exaggerated. This article critically explores this narrative and locates it in the context
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Independence and impartiality through the lens of incompatible activities, disqualification and challenge: the ICJ, ITLOS, and inter-State arbitration Journal of International Dispute Settlement (IF 0.9) Pub Date : 2024-01-06 Elena Ivanova
The members of the international courts and tribunals are expected to be independent and impartial. Their constituent instruments normally contain rules which aim at ensuring the independence and impartiality of judges and arbitrators. Such rules typically include provisions addressing activities incompatible with the judicial office, bars to the participation of a judge or an arbitrator in a particular
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The effects of third-party intervention in the adjudication of maritime delimitation disputes Journal of International Dispute Settlement (IF 0.9) Pub Date : 2023-12-10 Stephany Aw
Although the adjudication of a maritime boundary dispute is usually a bilateral process, it is also often the case that third States have an interest in the delimitation to be carried out. Coupled with the potential for the delimitation decisions of courts and tribunals to impact their maritime claims or entitlements, this raises the concern that third State interests could be prejudiced by such a
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International sanctions enacted against Russia as overriding mandatory rules—on which foot should international arbitrators stand? Journal of International Dispute Settlement (IF 0.9) Pub Date : 2023-11-12 Maxime Chevalier
Over the last decades, the role of international arbitrators has evolved from dealing with purely private interests to promoting the rule of law worldwide and safeguarding the interests of the international community. Following the armed conflict in Ukraine, a plurality of States has enacted international sanctions against Russia, which are currently impacting the performance of many international
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Compensation in the jurisprudence of the International Court of Justice: towards an equitable approach Journal of International Dispute Settlement (IF 0.9) Pub Date : 2023-10-16 Yang Liu
Article 36(2) of the International Law Commission’s Article on Responsibility of States for Internationally Wrongful Acts (ARSIWA) provides that the responsible state shall compensate for all financially assessable damage. However, ARSIWA provides no guidance as to how such a broad rule should be applied in practice, which creates significant ambiguities for adjudicators in charge of adjudicating compensation
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New international commercial courts: a delocalized approach Journal of International Dispute Settlement (IF 0.9) Pub Date : 2023-10-07 Sean David Yates
New international commercial courts can be analysed by examining how their features differ from those of their domestic counterpart courts and from those of international commercial arbitration. This conceptual tool is termed delocalization. Higher and lower levels of featural differences, or delocalization, may affect a new court’s reception, whether local actors can participate in the new court and
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Returning the Home State to the Global Anti-Corruption Campaign Journal of International Dispute Settlement (IF 0.9) Pub Date : 2023-07-12 Yueming Yan
International investment law is facing significant challenges in combating corruption in investment activities. The existing scholarly discussions are mostly centred upon the triangular relationship between the foreign investor, the host State and the investment arbitration tribunal. The role of another important body—the home State—has been under-examined, which seems to be better placed to implement
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A tale of policy carve-outs and general exceptions: Eco Oro v Colombia as a case study Journal of International Dispute Settlement (IF 0.9) Pub Date : 2023-07-09 Güneş Ünüvar
The Eco Oro v. Colombia Decision has garnered immediate public and academic attention and generated immense controversy. One of the reasons for its notoriety was the arbitral tribunal’s unconventional take on the general exceptions clause of the Canada–Colombia Free Trade Agreement and its contention that, even when a challenged measure fulfils the requirements of this exception, a host state’s duty
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Cutting off the Kind’s Head: Rethinking Authority in International Law Journal of International Dispute Settlement (IF 0.9) Pub Date : 2023-07-08 Fuad Zarbiyev
The renewed attention to the concept of authority in the literature of international law and international relations has allowed to gain a better understanding of the phenomenon of authority in international affairs. But even recent works remain focused on ‘authority figures’ in the form of persons, offices and institutions. Building on an approach proposed by Kim Scheppele and Karol Soltan, this article
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Article 17.6(ii) of the WTO Anti-Dumping Agreement: Waiting for Chekhov’s Gun to Go Off Journal of International Dispute Settlement (IF 0.9) Pub Date : 2023-06-29 Yury Rovnov
Article 17.6(ii) of the WTO Anti-Dumping Agreement is a one-of-a-kind treaty norm that sets out a deferential standard of review for issues of law by requiring panels to accept any ‘permissible’ interpretation. The Appellate Body’s approach to analysis under Article 17.6(ii), which precluded a finding of two competing interpretations being permissible, has long remained a point of criticism by the
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On the request for an advisory opinion on climate change under UNCLOS before the International Tribunal for the Law of the Sea Journal of International Dispute Settlement (IF 0.9) Pub Date : 2023-06-13 Monica Feria-Tinta
Sinking Islands form part of the dystopian reality faced by a world increasingly affected by climate breakdown today. As reported, around the world, ‘many islands are slowly but surely being submerged’. This article enquires into the potential role that the International Tribunal for the Law of the Sea (ITLOS) may have, in its advisory capacity, in tackling the effects of climate change. In particular
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The resolution of professional tennis disputes Journal of International Dispute Settlement (IF 0.9) Pub Date : 2023-06-01 Ilias Bantekas
The regulatory landscape of professional tennis is scattered across several entities, each administering its own tournaments. This article focuses on disputes involving professional tennis players. In this context, it identifies two major areas of disputes, namely regulatory (encompassing disciplinary, doping and corruption offences) and contractual. The latter are chiefly resolved through litigation
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Keeping score: an empirical analysis of the interventions in Ukraine v Russia Journal of International Dispute Settlement (IF 0.9) Pub Date : 2023-06-01 Kyra Wigard, Ori Pomson, Juliette McIntyre
The Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide (Ukraine v Russia) case involves an unprecedented number of Article 63 declarations of intervention. We consider the specific arguments made in individual declarations, but also the mass nature of the declarations. In order to do this in a systematic manner, we employ empirical methods to identify
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The ICJ judgment on Nicaragua v Colombia (2022): applying an established jurisdictional test or a problematic invention? Journal of International Dispute Settlement (IF 0.9) Pub Date : 2023-05-17 Pranav Ganesan, Laia Roxane Guardiola
In April 2022, the ICJ pronounced its judgments on the merits in Alleged Violations of Sovereign Rights and Maritime Spaces in the Caribbean Sea (Nicaragua v Colombia). While the judgment makes interesting contributions to the law of the sea jurisprudence, the Court’s problematic finding on jurisdiction ratione temporis is the subject of this paper. Applying what it refers to as ‘continuity’ and ‘connexity’
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The quadrilemma: appointing adjudicators in future investor–state dispute settlement Journal of International Dispute Settlement (IF 0.9) Pub Date : 2023-05-11 Malcolm Langford, Daniel Behn, Maria Chiara Malaguti
Concern with the selection and appointment of arbitrators has been central in the ‘legitimacy crisis’ surrounding investor–state dispute settlement (ISDS). The regime has been criticized for the outsized role of litigating parties in appointment, absence of transparency in the appointment procedure, potential for conflicts of interests, lack of diversity, and little emphasis on public international
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Environmental accountability: a case for international conciliation? Journal of International Dispute Settlement (IF 0.9) Pub Date : 2023-04-22 Tensin Studer
In the past, conciliation mechanisms have scarcely been applied in an inter-state context. It is not surprising that there have been no publicly known environmental conciliations yet. However, in international environmental law, where different dispute settlement mechanisms are still evolving, conciliation might gain currency in the future. This article aims to promote international conciliation to
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The investor-state dispute settlement reform process: design, dilemmas and discontents Journal of International Dispute Settlement (IF 0.9) Pub Date : 2023-04-06 Julian Arato, Kathleen Claussen, Malcolm Langford
This Special Issue takes the pulse of the UN Commission on International Trade Law process on reforming investor-state dispute settlement (ISDS) at its midway point. It features contributions by members of the Academic Forum on ISDS, engaging with various topics on the negotiating table, as well as some that are off the table or hovering in-between. Together, these articles seek to address questions
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The ‘Arbitralization’ of Courts: The Role of International Commercial Arbitration in the Establishment and the Procedural Design of International Commercial Courts Journal of International Dispute Settlement (IF 0.9) Pub Date : 2023-03-13 Georgia Antonopoulou
International commercial arbitration is the most preferred dispute resolution method in cross-border commercial disputes. It has been, however, claimed that arbitration has lost its flexibility by becoming increasingly formal and by incorporating litigation practices. In academic literature, this trend has been termed the ‘judicialization’ of international commercial arbitration. This article argues
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Reforming shareholder claims in investor-state dispute settlement Journal of International Dispute Settlement (IF 0.9) Pub Date : 2023-03-08 Julian Arato, Kathleen Claussen, Jaemin Lee, Giovanni Zarra
Investor-state dispute settlement (ISDS) stands alone in empowering shareholders to bring claims for shareholder reflective loss (SRL)—meaning claims over harms allegedly inflicted upon the company, but which somehow affect share value. National systems of corporate law and public international law regimes generally bar SRL claims for strong policy reasons bearing on the efficiency and fairness of
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Pleading for international law: assessing the influence of party to proceedings on legal change in international courts Journal of International Dispute Settlement (IF 0.9) Pub Date : 2023-02-11 William Hamilton Byrne, Zuzanna Godzimirska
Scholars increasingly seek to understand the driving forces behind change in international law. However, these analyses often tend to provide external forms of analysis that presume change can be identified without engaging with the actors or looking at the law. This article takes the role of party pleadings in international dispute settlement as a means through which we can assess the influence of
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International commercial courts and EU law: easing the tension Journal of International Dispute Settlement (IF 0.9) Pub Date : 2023-01-14 Pietro Ortolani, Bas van Zelst
International commercial courts (ICCts) are hybrid dispute resolution fora, whose features often differ from the ones of ‘ordinary’ courts. Thus, the legal nature of ICCts is not always clear. The authors submit that it is doubtful whether an ICCt should be qualified as a self-standing adjudicative body, or as a chamber of a larger court. This, in turn, may undermine the applicability of the European
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OECD National Contact Point Specific Instances: When ‘Soft Law’ Bites? Journal of International Dispute Settlement (IF 0.9) Pub Date : 2022-08-08 Laurie Achtouk-Spivak, Robert Garden
This article explores procedures before National Contact Points (NCPs) that are tasked with the implementation of the OECD Guidelines for Multinational Enterprises, and their use as a mechanism for the resolution of disputes between corporates and stakeholders in their business conduct. The fruit of a ‘soft law’ framework, NCPs offer a non-judicial mechanism in which the parties may use NCPs’ ‘good
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The Origins and Operation of the General Principles of Law as Gap fillers Journal of International Dispute Settlement (IF 0.9) Pub Date : 2022-08-05 Yilin Wang
The gap-filling function is a prominent feature of general principles of law (GPL). However, there are several questions surrounding the prominence and characterization of this function. In light of this, this article revisits the origins of the GPL and their gap-filling function to understand why it gained prominence, and what it means to international law. By tracing the debates of the Advisory Committee
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Reconsidering International Compensation in Historical Context Journal of International Dispute Settlement (IF 0.9) Pub Date : 2022-07-14 Ashley Barnes
There is growing interest in the push for individuals to seek direct remedies, notably compensation, for violations of international law. Yet, there is more for scholars to glean from the historical antecedents of compensation for individuals as a recurring idea in international law. The notion of ‘international claims’ can be traced back to the late 18th century. International claims commissions began
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Mediation in Future Investor–State Dispute Settlement Journal of International Dispute Settlement (IF 0.9) Pub Date : 2022-07-12 Catherine Kessedjian, Anne van Aaken, Runar Lie, Loukas Mistelis, José Maria Reis
Mediation is an intensely discussed topic as a possibly promising venue for investor–State dispute settlement (ISDS) and conflict prevention. Given that mediation can be used within ‘cooling-off’ (amicable settlement) periods in International Investment Agreements, this article takes stock of those as well as explicit mediation rules which are on the rise in new IIAs. It draws lessons from the small
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Selection and Appointment in International Adjudication: Insights from Political Science Journal of International Dispute Settlement (IF 0.9) Pub Date : 2022-06-17 Olof Larsson, Theresa Squatrito, Øyvind Stiansen, Taylor St John
This article summarizes insights from political science and empirical legal scholarship concerning selection and appointment of adjudicators to permanent international courts (ICs). This scholarship suggests that designers of ICs face challenging trade-offs in balancing judicial independence and accountability, as well as in promoting descriptive representation and necessary qualifications on the bench
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Provisional Measures after Ukraine v Russia (2022) Journal of International Dispute Settlement (IF 0.9) Pub Date : 2022-05-10 Andreas Kulick
On 16 March 2022, among others measures, the International Court of Justice (ICJ) ordered the Russian Federation to suspend immediately its military operations in Ukraine. The Order is remarkable for several reasons and, so it is submitted, potentially will entail considerable consequences in international adjudication, before and beyond the ICJ, as well as with respect to international law at large
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Advancing Predictability via a Judicialized Investment Court? A Fresh Look Through the Lens of Constructivism Journal of International Dispute Settlement (IF 0.9) Pub Date : 2022-04-26 Chen Yu
Abstract It has long been debated whether a multilateral court with an appellate mechanism should be established to reinforce the doctrine of precedent and improve the predictability of international investment law. Predictability is widely considered a fundamental canon of law. This article, however, cautions that the pursuit of predictability must be examined against the broader institutional context
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Application of the Principle of Unity in the Legal Settlement of Sovereignty Disputes over Islands and Other Maritime Features Journal of International Dispute Settlement (IF 0.9) Pub Date : 2022-03-21 Lingjie Kong, Congcong Liu
The legal principle of ‘unity’ has been frequently invoked by States to claim sovereignty of islands and other insular features. It has been used by the adjudicators in diverse ways and with differing results. With a view to clarifying the legal paradigm of the principle of ‘unity’, this article undertakes an analysis of the relevant jurisprudence in this field. This leads to the identification of
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Individual Opinions as an Agent of International Legal Development? Journal of International Dispute Settlement (IF 0.9) Pub Date : 2022-02-02 Ke Song, Xuechan Ma
This article analyses the role of individual opinions as an agent of international legal development, which has been little explored in academic literature. This article selects influential individual opinions primarily by looking at endorsements by subsequent judicial cases. The analysis concludes that individual opinions are likely to be influential under two circumstances: (i) where individual opinions
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The ‘Open System’ and Its Gatekeepers: From Complexity in International Law, a Seminar in Honour of James Crawford Journal of International Dispute Settlement (IF 0.9) Pub Date : 2022-02-01 Thomas D Grant
No account of international law in the modern era would be intelligible without an account of the non-State actor in international law. However, States in no small part continue to set the terms by which others now share the stage. How States set the terms—and how to address the problems arising from the terms they set—are central questions for international law and the organs that apply it. The roles
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Admissibility of Counterclaims: The Practice of UNCLOS Tribunals Journal of International Dispute Settlement (IF 0.9) Pub Date : 2022-01-25 Sandrine de Herdt
This article considers the admissibility and procedural aspects relating to the filing of counterclaims in international law, with particular reference to bodies exercising jurisdiction under the United Nations Convention on the Law of the Sea —namely the International Court of Justice, International Tribunal for the Law of the Sea and Arbitral Tribunal instituted under Annex VII to this Convention
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Enhancing Conflict Resolution ‘ASEAN Way’: The Dispute Settlement System of the Regional Comprehensive Economic Partnership Journal of International Dispute Settlement (IF 0.9) Pub Date : 2022-01-14 Massimo Lando
This article examines the dispute settlement system of the Regional Comprehensive Economic Partnership (RCEP), adopted under the auspices of ASEAN on 15 November 2020. RCEP’s Chapter 19 on dispute settlement confirms and enhances the so-called ‘ASEAN way’, which promotes flexibility, consensus and the avoidance of direct confrontation in resolving inter-State controversies. This article discusses how
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Much More than a Footnote (or Three): Frank C. Hendryx and an Untold Story of Petroleum Concessions and the Genesis of ICSID Journal of International Dispute Settlement (IF 0.9) Pub Date : 2021-11-19 Boue J.
En ce temps s’esmut contens entre les gros et les menus … car les menus vouloient faire à leure entente, et le gros ne le pouoient souffrir.—Jean Froissart, Chroniques
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Towards Greater Investor Accountability: Indirect Actions, Direct Actions by States and Direct Actions by Individuals Journal of International Dispute Settlement (IF 0.9) Pub Date : 2021-11-12 Martin Jarrett, Sergio Puig, Steven Ratner
Investor accountability in international investment law (IIL) has been gaining increasing traction in recent years. Most visibly, some states have included investor obligations in their investment treaties, while others have made them part of their model treaties. While highly significant for the substance of IIL, these duties need adequate procedural tools to enforce them. Otherwise, investor obligations
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From Traction to Treaty-Bound: Jus Cogens, Erga Omnes and Corporate Subjectivity in International Investment Arbitration Journal of International Dispute Settlement (IF 0.9) Pub Date : 2021-11-10 Crow K, Lorenzoni-Escobar L.
AbstractThis article suggests that the arbitral use of jus cogens and erga omnes is slowly producing a ‘presumption of applicability’ in investor–state arbitration tribunals tasked with determining whether international law applies to investors. Looking backward from two recent counterclaims at tribunals established under investor–state dispute settlement (ISDS) clauses in international investment
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State Responsibility for the Conduct of Rebels in Situations of Unsuccessful Civil Wars: A Critical Analysis of the Cengiz v Libya Case Journal of International Dispute Settlement (IF 0.9) Pub Date : 2021-11-10 Dumberry P.
AbstractBased on an analysis of State practice and case law, this article examines one basic principle embodied in Article 10 of the International Law Commission Articles (ILC) on State responsibility: the wrongful acts committed by rebels during an insurrection or a civil war are not attributable to the State once the government defeats the insurgency. The article examines how investment tribunals
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Damages and ISDS Reform: Between Procedure and Substance Journal of International Dispute Settlement (IF 0.9) Pub Date : 2021-11-05 Jonathan Bonnitcha, Malcolm Langford, Jose M Alvarez-Zarate, Daniel Behn
Monetary damages is the ordinary remedy in investor-state dispute settlement (ISDS). As such, arbitral practice relating to damages has direct, practical relevance for states and investors. The size of damages awards is also amongst the core critiques of ISDS. It is somewhat surprising, then, that the issue of damages has not figured prominently in discussions on reform of investment treaties and the
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Behavioural Compliance Theory Journal of International Dispute Settlement (IF 0.9) Pub Date : 2021-10-27 Daniel Peat, Veronika Fikfak, Eva van der Zee
Following in the wake of its social science siblings, international law scholarship is experiencing a ‘behavioural turn’. One particularly fruitful area in which to explore the utility of behavioural insights is compliance. The contributions to the present symposium represent some of the first efforts to explore how psychological influences may shape the compliance decision-making process and to study
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Perception and Process: Towards a Behavioural Theory of Compliance Journal of International Dispute Settlement (IF 0.9) Pub Date : 2021-10-26 Daniel Peat
Nowhere is the integration of behavioural insights into international legal theory more important than in relation to compliance. Such insights offer the potential to give us a more accurate understanding of how states behave, permitting both the development of more effective, empirically grounded normative propositions for legal and institutional change, as well as the creation of more convincing
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From Smart Contract Litigation to Blockchain Arbitration, a New Decentralized Approach Leading Towards the Blockchain Arbitral Order Journal of International Dispute Settlement (IF 0.9) Pub Date : 2021-10-09 Maxime Chevalier
Blockchain dispute resolution has led the crypto economy to the surge of a new form of dispute resolution: blockchain arbitration. Resolving disputes on-chain is becoming necessary as national and international legal frameworks are not adapted to the characteristics of blockchain transactions. More importantly, the legality of smart contracts is highly debated under various national laws. This new
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Corrigendum to idab005 “Judicial Interactions and Human Rights Contestations in Latin America” Journal of International Dispute Settlement (IF 0.9) Pub Date : 2021-10-04 Contesse J.
Text of the corrigendum (and description of changes to be made).
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Erratum to: How are Disputes Resolved under Bilateral Air Services Agreements? A Typology Journal of International Dispute Settlement (IF 0.9) Pub Date : 2021-10-04 Luping Zhang
Journal of International Dispute Settlement, 12(1), 151–172, https://doi.org/10.1093/jnlids/idab003
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Procedural Cross-Fertilization in International Commercial and Investment Arbitration: A Functional Approach Journal of International Dispute Settlement (IF 0.9) Pub Date : 2021-10-05 Tamar Meshel
This article examines the potential for beneficial procedural cross-fertilization between internationalcommercial and investment arbitration from a functional perspective. The article argues that botharbitration regimes share a ‘private’ dispute resolution function of resolving specific disputes, butonly investment arbitral tribunals also exercise a ‘public’ law-making function of developing the lawapplicable
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Standing the Test of Time: The Level Playing Field and Rebalancing Mechanism in the UK–EU Trade and Cooperation Agreement (TCA) Journal of International Dispute Settlement (IF 0.9) Pub Date : 2021-10-05 David Collins
This article explores the dispute settlement elements of the UK–European Union Trade and Cooperation Agreement’s (TCA) novel Level Playing Field (LPF) rebalancing obligations, consisting of a requirement not to lower standards in areas of labour, the environment and subsidy policy such that an adverse material impact results to trade or investment flows between the parties. The test for violations
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The ‘It’ Arbitrator: Why Do Corporations Not Act as Arbitrators? Journal of International Dispute Settlement (IF 0.9) Pub Date : 2021-09-08 João Ilhão Moreira, Riccardo Vecellio Segate
The international arbitrators’ service market is diverse, with arbitrators operating out of different structures, varying from multinational law firms to small arbitral boutiques. Yet, despite this heterogeneity, this market is dominated by individuals in the sense that legal persons are rarely, if ever, selected to act as arbitrators directly. Albeit the idea that an arbitrator must be a natural person
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An Equivocal or Unequivocal Bar for Determining Consent to Jurisdiction Journal of International Dispute Settlement (IF 0.9) Pub Date : 2021-09-08 Bjørn Kunoy
The legal consequence of the principle of sovereign equality is the fact that the jurisdiction of international courts and tribunals in inter-State disputes is contingent on consent of the disputing States. Consent to jurisdiction may be expressed in different forms but requires in each instance the demonstration of unequivocal acceptance of consent. The case law is abundant on and under which circumstances
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Complying with Custom before the World Court: Towards a Relational Normativity Journal of International Dispute Settlement (IF 0.9) Pub Date : 2021-07-23 Matthias Vanhullebusch
Traditionally, institutional constraints informed the International Court of Justice’s ascertainment of the (non-) existence of customary norms in its decisions as it signals impartiality to uphold its legitimacy. Its reliance on (non-)legal elements underpinning the sources of the normativity of existing and future customary norms upon which it rules goes beyond the mutual acceptance of treaties and
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Disrupt the Gambler’s Nirvana: Security for Costs in Investment Arbitration Supported by Third-Party Funding Journal of International Dispute Settlement (IF 0.9) Pub Date : 2021-06-28 Xuan Shao
Third-party funding is a recent yet rapidly growing phenomenon in investment arbitration. While it enables investors lacking funds to pursue remedies against States, it exposes States to greater risk of inability to recover arbitration costs. Against this background, this article examines the legal principles on security for costs and, contrary to the view of several tribunals and commentators, it
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Inter-State Communication under ICERD: From ad hoc Conciliation to Collective Enforcement? Journal of International Dispute Settlement (IF 0.9) Pub Date : 2021-06-11 Dai Tamada
The International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) contains the inter-State communication procedure within which the Committee on the Elimination of Racial Discrimination (CERD) received the following three communications in 2018: Qatar v Saudi Arabia, Qatar v the United Arab Emirates, and Palestine v Israel. In these cases, CERD characterized this procedure
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The Potential of the Singapore Convention on Mediation for Art and Cultural Property Disputes Journal of International Dispute Settlement (IF 0.9) Pub Date : 2021-06-10 Attila M Tanzi, Paul Eric Mason
The article focuses on the applicability of the 2019 Singapore Convention (UN Convention on International Settlement Agreements Resulting from Mediation) to art and cultural property disputes. The latter are characterized by highly diversified cultural, commercial, political and legal frameworks, which provide the grounds upon which these disputes have to be addressed. A preliminary analysis tackles
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Adjudication at the Service of Diplomacy: The Enrica Lexie Case Journal of International Dispute Settlement (IF 0.9) Pub Date : 2021-06-10 Attila M Tanzi
The article addresses the Enrica Lexie case as an example of integration between adjudicative and diplomatic means of dispute settlement. It illustrates the case focusing on the Tribunal’s assessment of the scope of its jurisdiction and of the applicable law. The article is organised in four parts, next to the introduction. First, it places the case in the context of the relationship between adjudication
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Domestic Contestations against International Courts and Tribunals: Introduction to the Special Issue Journal of International Dispute Settlement (IF 0.9) Pub Date : 2021-06-03 Edouard Fromageau, Machiko Kanetake, Stephan Wittich, Andrea Gattini
Domestic authorities, including national courts, at times, resist accepting the decisions of international courts and tribunals. The formal division between the national and international legal orders creates space for domestic authorities to contest or avoid international binding judicial decisions. The present special issue examines domestic contestations in multiple fields of international law,
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International Arbitration and Cross-Border Insolvency—Friends or Foes? Revisiting the Role of Arbitration in Resolving Cross-border Insolvency-Related Disputes Journal of International Dispute Settlement (IF 0.9) Pub Date : 2021-05-17 Velislava Hristova, Andrés Eduardo Alvarado Garzón
In the midst of a global pandemic, whose economic consequences are still unfolding, cross-border insolvencies loom closer. Besides the ripple effect cross-border insolvency cases might have on the economy, another cause of concern lies in the complexity of resolving such cases. Against this backdrop, this contribution posits that international arbitration may facilitate the resolution of some of the
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Jurisdictional Conflicts between Investment Treaty and Commercial Arbitration—The Role of Lis Pendens Journal of International Dispute Settlement (IF 0.9) Pub Date : 2021-05-07 Harshad Pathak
The domain of international investment law is evolving. Today, an increasing number of treaty claims filed against states are based on allegations of a breach of contract. Investment treaty tribunals also tend to affirm jurisdiction over such claims, routinely ignoring that the underlying contract may contain an arbitration agreement in favour of commercial arbitration. This tendency creates a potential