Reconceptualising the Rule of Law in Global Governance, Resources, Investment and Trade

"The relevance and importance of the rule of law to the international legal order cannot be doubted. Its significance was recently reaffirmed by the Declaration of the High-level Meeting of the General Assembly on the Rule of Law at the National and International Level, which made a solemn commitment to it on behalf of states and international organizations. In this edited collection, leading scholars and practitioners from the fields of global governance, resources, investment and trade, examine how the commitment to the rule of law manifests itself in the respective fields. The book looks at cutting-edge issues within each field and examines the questions arising from the interplay between them. With a clear three-part structure, it explores each area in detail and addresses contemporary challenges while trying to assure a commitment to the rule of law. The contributions also consider how the rule of law has been or should be reconceptualised. Taking a multi-disciplinary approach, the book will appeal to international lawyers from across the spectrum, including practitioners in the field of international investment and trade law."--Bloomsbury Publishing Cover Half-title Title Copyright Preface Contents Introduction Part I: Contemporary Challenges of Global Governance in the Spotlight Section 1: Actors and Processes Revisited 1 The Transparency of Global Governance I. PROBLÉMATIQUE AND CONCEPTS II. THE NORMATIVE QUALITY OF TRANSPARENCY III. THE VALUE AND FUNCTIONS OF TRANSPARENCY IV. DRAWBACKS OF TRANSPARENCY V. POLICY RECOMMENDATIONS VI. CONCLUSIONS 2 Between Flexibility and Stability: Ad Hoc Procedures and/or Judicial Institutions? I. INTRODUCTION II. FLEXIBILITY V STABILITY: THE ABILITY TO CHOOSE THE ARBITRAL TRIBUNAL III. FLEXIBILITY ON RULES OF PROCEDURES A. Length of Proceedings B. Terms of Reference of the Tribunal C. Number and Types of Parties IV. CHOOSING BETWEEN CONFIDENTIALITY AND PUBLICITY V. FLEXIBILITY ON APPLICABLE LAW VI. FLEXIBILITY V. STABILITY: THE BINDING NATURE OF THE AWARD, ENFORCEABILITY AND POST-JUDGMENT REMEDIES VII. CONCLUSION 3 Domestic Courts as Compliance Enforcers I. INTRODUCTION II. ENFORCEMENT OF INVESTMENT ARBITRAL AWARDS BY DOMESTIC COURTS A. ICSID Arbitral Awards B. Other Investment Arbitral Awards III. SOVEREIGN IMMUNITY FROM EXECUTION AS APPLIED BY DOMESTIC COURTS A. Expansive Interpretation of Sovereign Property B. Restrictive Interpretation of a Waiver of Sovereign Immunity IV. CONCLUDING REMARKS 4 Towards Reinforcing or Contesting the Vision of the Rule of Law? I. INTRODUCTION II. CHARACTERISTICS OF THE RULE OF LAW III. THE ISSUES A. Rule of Law as a Concept of the West B. Role of the Political System IV. PROSPECTS FOR GOVERNANCE A. Structural Aspects B. Elements of a Governance Approach V. CONCLUSION 5 Formation of International Custom and the Role of Non-State Actors I. THE IMPORTANCE OF STATE PRACTICE IN THE FORMATION OF INTERNATIONAL CUSTOMARY LAW A. Formation and Evidence of International Customary Law B. The ‘Modern’ Approach Weakness: The Evaluation of Negative or Controversial Practice C. A ‘Gordian’ Solution: Resorting to General Principles of International Law Rather Than to International Customary Rules II. BEYOND STATE PRACTICE: IS IT TIME TO TAKE INTO CONSIDERATION WHAT NON-STATE ACTORS DO? A. Non-state Actors’ Participation in the Formation of International Custom: Behind the Scenes of State Practice B. Towards a Limited Acceptance of the Role of Non-state Actors in the Formation of International Custom III. CONCLUDING REMARKS Section 2: Factors and Structures Reconsidered 6 Disaster Relief in International Law I. DISASTER RELIEF AND INTERNATIONAL ORGANIZATION II. THE ACTORS AND THE LAW OF DISASTER RELIEF III. SOVEREIGNTY V COOPERATION IN DISASTER RELIEF IV. WHAT IS THE ROLE OF ‘RESPONSIBILITY TO PROTECT’? V. THE EMERGING RIGHT TO HUMANITARIAN ASSISTANCE VI. THE FUTURE OF DISASTER RESPONSE 7 After 60 Years: The International Legal Regime Protecting Stateless Persons—Stocktaking and New Tendencies I. SETTING THE SCENE II. INTRODUCTION INTO THE WORLD OF ‘LEGAL GHOSTS’ III. RESPONSES OF THE INTERNATIONAL COMMUNITY TO TACKLE STATELESSNESS IV. SCOPE AND CONTENT OF THE 1954 NEW YORK CONVENTION: AN OVERVIEW V. SUBSEQUENT DEVELOPMENTS OF THE PROTECTION REGIME UNDER INTERNATIONAL LAW A. Horizontal Issues B. Specific Domains VI. DE LEGE FERENDA PROPOSALS: NEW TENDENCIES VII. CONCLUSIONS 8 Responsibility to Protect (R2P) and Minorities I. INTRODUCTION II. THE EVOLUTION OF R2P A. The Concept of Humanitarian Intervention B. From Humanitarian Intervention to R2P C. The UN Secretary General’s Contribution towards the Development of R2P D. Behaviour of States towards R2P after the WSOD E. Responsibility while Protecting (RWP) III. R2P AND MINORITIES A. Why Minorities? B. WSOD Crimes vis-à-vis Minorities IV. FUTURE OF R2P 9 Governance of Financial Crises: A Role for the International Protection of Economic and Social Rights? I. INTRODUCTORY REMARKS II. COOPERATION AND COHERENCE AMONG INSTITUTIONS DEALING WITH HUMAN RIGHTS AND WITH FINANCIAL ISSUES IN CRISIS MANAGEMENT III. CRISIS GOVERNANCE THROUGH SOCIAL DIALOGUE AND CIVIL SOCIETY PARTICIPATION IV. CONCLUDING OBSERVATIONS 10 Recent Regulatory Initiatives in the Ratings Industry: CRA III and the ESMA Proposals on Structured Finance, the Performance of Agencies and their Fee Arrangements I. INTRODUCTION II. THE IDENTITY OF THE RATINGS MARKET A. A Highly Concentrated Market B. Over-reliance on Ratings C. The Systemic Impact of Sovereign and Structured Finance Ratings D. Conflicts of Interest and Survival of the ‘Issuer Pays’ Remuneration Model III. THE RECENT REGULATORY NOVELTIES AND PROPOSALS A. Invigorating Competition among the Rating Agencies B. Paving the Way for Reducing Over-reliance on Ratings C. Tackling the Systemic Importance of Sovereign Ratings and of Structured Finance Ratings D. Expanding the Regulation of the Agencies’ Conflicts of Interest IV. CONCLUSION 11 The Odious Debt Doctrine: The Past and the Challenges of the Present I. INTRODUCTION II. CATEGORIES OF ODIOUS DEBTS III. RECENT CASES FOR APPLYING THE ODIOUS DEBT DOCTRINE IV. REASONS OF THE ODIOUS DEBT DOCTRINE’S IMPRACTICALITY A. Lack of the People’s Consent B. Lack of Benefit to the People C. Creditor’s Awareness V. CONCLUSIONS Part II: International Legal Facets of the Modern Race towards Resources Section 1: Protecting the Past 12 ‘Return of Cultural Treasures to their Countries of Origin’: Principle or Trend in Cultural Property Law? I. INTRODUCTION II. GROUNDS FOR RETURN A. Law and International Customary Rules B. Ethics C. Practice and Public Feeling III. TIME LIMITATIONS IV. CONCLUSIONS 13 The Cultural Heritage of Mankind beyond UNESCO: The Case of International Financial Institutions I. INTRODUCTION II. UNESCO AND THE CULTURAL HERITAGE OF MANKIND A. The Normative Framework B. Protecting the Cultural Heritage of Universal Value in Practice III. MEETING THE FINANCIAL CHALLENGES OF WORLD CULTURAL HERITAGE A. Preserving World Cultural Heritage: Think Globally, Pay Locally B. International Financial Institutions and the Cultural Heritage of Mankind IV. CLOSING REMARKS Section 2: Sharing the Present and Safeguarding the Future 14 Something Fishy about Fisheries: High Seas Fisheries and the Common Resource Conundrum I. INTRODUCTION II. CLEARLY DEFINED BOUNDARIES III. CONGRUENCE BETWEEN RULES AND LOCAL CONDITIONS IV. COLLECTIVE-CHOICE ARRANGEMENTS V. MONITORING VI. GRADUATED SANCTIONS VII. CONFLICT-RESOLUTION MECHANISMS VIII. MINIMAL RECOGNITION OF RIGHTS TO ORGANIZE IX. NESTED ENTERPRISES X. CONCLUSION 15 Biodiversity, Marine Protected Areas and Areas beyond National Jurisdiction I. INTRODUCTION II. MARINE PROTECTED AREAS UNDER THE LAW OF THE SEA CONVENTION A. In the Exclusive Economic Zone B. In the Area C. Protection of Straddling Stocks and Highly Migratory Species III. MARINE PROTECTED AREAS UNDER THE AUSPICES OF THE IMO A. MARPOL Special Areas B. Particularly Sensitive Sea Areas IV. REGIONAL SEAS A. UNEP—Mediterranean Action Plan B. OSPAR V. THE WAY FORWARD VI. CONCLUSION 16 Turkish Objections to Exclusive Economic Zone Agreements Concluded by Cyprus I. INTRODUCTION II. MARITIME DELIMITATION AGREEMENTS CONCLUDED BY CYPRUS III. THE TURKISH OBJECTIONS IV. LEGAL ANALYSIS OF THE TURKISH OBJECTIONS A. The Exclusive Economic Zone Concept B. The Problem of Third Parties C. The Cyprus Question and the Representation of its Inhabitants V. CONCLUSION 17 Towards the Acceptance of the Equidistance Rule in the Delimitation of the Continental Shelf and the Exclusive Economic Zone: The Role of International Jurisprudence I. INTRODUCTION II. INITIAL APPROACH: EMPHASIS ON FLEXIBILITY A. The 1958 Geneva Convention on the Continental Shelf and the North Sea Continental Shelf Case B. The 1982 Law of the Sea Convention III. THE GRADUAL ACCEPTANCE OF THE PRIORITY OF THE EQUIDISTANCE METHOD IV. EMPHASIS ON LEGAL CERTAINTY: TOWARDS THE ACCEPTANCE OF EQUIDISTANCE AS A RULE OF INTERNATIONAL LAW V. CONCLUSION 18 Collective Responsibility for Water in Central Asia I. INTRODUCTION II. LEGAL AND INSTITUTIONAL FRAMEWORK III. THE RULE OF EQUITABLE AND REASONABLE UTILIZATION IV. THE ROLE OF VITAL HUMAN NEEDS AND ENVIRONMENTAL PROTECTION V. REQUIREMENT OF COOPERATION VI. CONFLICTING WATER NEEDS VII. CONCLUSION 19 International Law, Governance and Trade of Water Services I. INTRODUCTION II. A WATER CRISIS III. INTERNATIONAL TRADE AND LIBERALIZATION OF WATER SERVICES—A SOLUTION TO THE WATER CRISIS? IV. INTERNATIONAL TRADE LAW AND WATER GOVERNANCE: TOWARDS SUSTAINABLE DEVELOPMENT AND PROTECTION OF HUMAN RIGHTS V. CONCLUSION Part III: Towards a New Order for International Investment and Trade Section 1: International Arbitration at a Crossroads 20 The Rule of Law in International Investment Arbitration I. INTRODUCTION II. INTERNATIONAL INVESTMENT ARBITRATION AS AN EXPRESSION OF THE RULE OF LAW III. THE RULE OF LAW IN INTERNATIONAL INVESTMENT ARBITRATION A. Independence and Impartiality of Arbitrators B. Basic Procedural Fairness C. Access to Investment Arbitration D. Consistent Outcomes of Investment Decisions E. Transparency IV. CONCLUSION 21 Three Pillars of International Public Policy I. INTRODUCTION II. FOUNDATION FOR APPLICATION OF INTERNATIONAL PUBLIC POLICY BY ARBITRAL TRIBUNALS III. RESPECT FOR THE AGREED FORUM IV. PROHIBITION OF CORRUPT CONTRACTS V. FAIRNESS OF PROCESS AND INDEPENDENCE/ IMPARTIALITY OF ARBITRATORS 22 Abuse of Rights in Modern International Investment Arbitration: The Rule of Law Revisited? The Practitioner’s View I. INTRODUCTION II. DOGMATIC UNDERPINNINGS III. THE CASE LAW OF THE WORLD COURT IV. THE TREATIFICATION OF RIGHTS IN FOREIGN INVESTMENT DISPUTES AND THE RULE OF LAW V. THE TRIBUNALS’ CASE LAW IN INVESTMENT ARBITRATION VI. CONCLUDING REMARKS 23 Abstract Interpretations in International Investment Law I. INTRODUCTION II. THE NOTION OF ABSTRACT INTERPRETATIONS A . Definition B. Examples III. THE NORMATIVE FRAMEWORK FOR ABSTRACT INTERPRETATIONS A . Abstract Interpretations Have Elements That Are Analytically Similar to Law Making B. States Have Delegated Law Making Powers to Authoritative Interpretation Mechanisms C. States Have Not Delegated Similar Law Making Powers to Arbitral Tribunals IV. CONCLUDING REMARKS Section 2: International Trade in Transformation 24 Regionalism and the Constitutionalization of the WTO I. INTRODUCTION II. THE RELATIONSHIP BETWEEN TREATIES ON THE SAME SUBJECT MATTER IN GENERAL INTERNATIONAL LAW III. THE CONFLICT CLAUSES FOR RTAS IN THE WTO AGREEMENTS IV. THE RELATIONSHIP BETWEEN WTO LAW AND RTAS IN WTO BODIES V. DOES A WTO PRIMACY FOLLOW FROM A CONSTITUTIONAL RELATIONSHIP WITHIN THE WTO? VI. REGIONALISM AND THE PRIMACY OF EU LAW OVER NATIONAL LAW VII. PRIMACY OF THE WTO OVER RTAS AND PROSPECTS FOR THE CONSTITUTIONALIZATION OF THE WTO A. Stumbling or Building Blocks? B. Primacy of WTO Law and Visions for its Constitutionalization VIII. CONCLUSION 25 OPEC Production Quotas and the World Trade Organization I. INTRODUCTION II. OPEC’S CONTROL OF OIL PRICES III. OPEC AND THE WTO IV. HISTORY OF CASES AGAINST OPEC A. US Domestic Cases Concerning OPEC B. US Cases Concerning OPEC and WTO V. POSSIBLE TREATMENT OF OPEC PRODUCTION QUOTAS UNDER THE WTO FRAMEWORK A. General Elimination of Quantitative Restrictions: GATT Article XI:1 B. Essential and Temporary Measures to Prevent a Critical Shortage: GATT Article XI:2 C. The Conservation of Exhaustible Natural Resources: GATT Article XX(g) VI. CONCLUSIONS 26 The Role of the WTO in Addressing Regulatory Pricing Policies in the Energy Sector I. INTRODUCTION II. EFFECTS AND RATIONALE OF DUAL PRICING PRACTICES: HOW MUCH COMPARABILITY WITH EXPORT TAXES? III. RELEVANT WTO DISCIPLINES A. GATT Provisions Relevant to Dual Pricing B. ‘WTO-plus’ Commitments on Dual Pricing Undertaken by Newly Acceding Energy-Producing Members C. Article XI:1 GATT and Existing WTO-plus Obligations on Energy Export Taxes IV. OPTIONS FOR REINFORCING THE TREATMENT OF ENERGY DUAL PRICING IN THE WTO LEGAL FRAMEWORK V. CONCLUSIONS 27 Legitimate Countermeasures in International Trade Law and their Illegality in International Investment Law I. INTRODUCTION II. COUNTERMEASURES IN INTERNATIONAL LAW III. COUNTERMEASURES IN INTERNATIONAL TRADE LAW A. WTO DSU as Lex Specialis B. Requirements for a Lawful Trade Countermeasure IV. COUNTERMEASURES IN INTERNATIONAL INVESTMENT LAW A. The Facts of the US–Mexico Sugar War B. Contextualizing the NAFTA Dispute Settlement Bodies C. Countermeasures Analysis by Investor-State Arbitration Tribunals V. RESOLVING THE TENSION ON COUNTERMEASURES BETWEEN TRADE AND INVESTMENT LAW A. Revisiting the Nature of Individual Rights in International Investment Law B. Issuance of Joint Interpretation of the Treaty by the State Parties C. Write into BITs and IIAs a Clause that Exempts WTO Authorized Countermeasures VI. CONCLUSION 28 Duplicating the Trade Law ‘Spaghetti Bowl’? Increasing Regionalization and Overlap of Investment Treaties—a Review of State Practice I. INTRODUCTION II. ACCOMMODATING REGIONALISM: AN OVERVIEW OF STATE PRACTICE A. Africa B. Middle East and Central Asia C. South and East Asia D. Americas E. Europe F. Inter-regional Treaties G. Conclusion: Towards Consolidation or Fragmentation? III. WHY DO COUNTRIES OPT FOR PARALLEL TREATY LAYERS? IV. MANAGING THE ‘SPAGHETTI BOWL’ V. CONCLUSION 29 Most-Favoured Nation and National Treatment in the EU and US Regional Trade Agreements—Tools for Equal or Discriminatory Treatment? I. INTRODUCTION II. CHARACTERISTICS OF EU AND US REGIONAL TRADE AGREEMENTS III. NATIONAL TREATMENT AND MOST-FAVOURED NATION TREATMENT—CHARACTERISTICS OF CLAUSES IV. MOST-FAVOURED NATION CLAUSES IN RELATION TO GOODS V. NATIONAL TREATMENT IN RELATION TO TRADE IN GOODS VI. MOST-FAVOURED NATION CLAUSES IN RELATION TO TRADE IN SERVICES VII. NATIONAL TREATMENT IN RELATION TO TRADE IN SERVICES VIII. CONCLUSIONS 30 Recent Trends of Common Commercial Policy of the European Union: From Global to Regional (and Back?) in the Governance of International Economic Order I. INTRODUCTION II. COMMON COMMERCIAL POLICY IN CONTEXT III. THE NATURE AND SCOPE OF COMMON COMMERCIAL POLICY COMPETENCE: FROM ROME TO LISBON IV. THE ‘GLOBAL EUROPE’ STRATEGY: FROM GLOBAL TO REGIONAL V. THE NEW GENERATION FTAS: THE MODEL AGREEMENT WITH KOREA VI. ...AND THEIR EFFECTS IN EUROPEAN LEGAL ORDER VII. SOME INTERNAL GOVERNANCE CONSIDERATIONS VIII. CONCLUDING REMARKS Index The relevance and importance of the rule of law to the international legal order cannot be doubted. Its significance was recently reaffirmed by the Declaration of the High-level Meeting of the General Assembly on the Rule of Law at the National and International Level, which made a solemn commitment to it on behalf of states and international organizations. In this edited collection, leading scholars and practitioners from the fields of global governance, resources, investment and trade, examine how the commitment to the rule of law manifests itself in the respective fields. The book looks at cutting-edge issues within each field and examines the questions arising from the interplay between them. With a clear three-part structure, it explores each area in detail and addresses contemporary challenges while trying to assure a commitment to the rule of law. The contributions also consider how the rule of law has been or should be reconceptualised. Taking a multi-disciplinary approach, the book will appeal to international lawyers from across the spectrum, including practitioners in the field of international investment and trade law.-- Provided by publisher The relevance and importance of the rule of law to the international legal order cannot be doubted and was recently reaffirmed by the Declaration of the High-level Meeting of the General Assembly on the Rule of Law at the National and International Level's solemn commitment to it on behalf of states and international organizations. In this edited collection, leading scholars and practitioners from the fields of global governance, resources, investment and trade examine how the commitment to the rule of law manifests itself in the respective fields. The book looks at cutting-edge issues within each field and examines the questions arising from the interplay between them. With a clear three-part structure, it explores each area in detail and addresses contemporary challenges while trying to assure a commitment to the rule of law. The contributions also consider how the rule of law has been or should be reconceptualised. Taking a multi-disciplinary approach, the book will appeal to international lawyers from across the spectrum, including practitioners in the field of international investment and trade law.