Protecting investment in services: investor-state arbitration versus WTO dispute settlement
In: Global trade law series 38
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In: Global trade law series 38
In: International & comparative law quarterly: ICLQ, Band 34, Heft 1, S. 1
ISSN: 0020-5893
In: EU Law after the Financial Crisis (edited by Jessica Schmidt, Carlos Esplugues Mota and Rafael Arenas Garcia), (Cambridge: Intersentia, 2016), 237-252; ISBN: 978-1-89068-342-3
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In: 12 Santa Clara Journal of International Law 35 (2013)
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In: Dong-A Journal of International Business Transactions Law, Forthcoming
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In: Sydney Law School Research Paper No. 19/24
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Working paper
In: Max Planck Encyclopedia of International Procedural Law (Oxford University Press, 2019)
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In: Grotius Centre Working Paper Series No 2020/087-IEL
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In: Texas international law journal, Band 31, Heft 3, S. 451-494
ISSN: 0163-7479
In: Stephan Schill (ed), The Comparative Constitutional Law of Private-Public Arbitration (Oxford University Press, Forthcoming)
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Arbitration and adjudication aim at protecting rule-of-law, which was a life-long concern for Prof. Giorgio Bernini. The United Nations (UN) have defined 'rule of law at national and international levels' as 'a principle of governance in which all persons, institutions and entities, including the State itself, are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated, and which are consistent with internationally recognized human rights'. Such 'rule of law' has emerged in worldwide trade and investment law only since the 1990s with the 'judicialization' of GATT/WTO law and investor-state arbitration (ISA). Both the World Trade Organization (WTO) adjudication and ISA are today challenged: The power-oriented blockage of Appellate Body (AB) nominations by the USA has rendered the WTO AB dysfunctional; it re-introduced power-politics into the WTO dispute settlement system, limited by voluntary 'interim appellate arbitration'. ISA is rejected by some developing countries and inside the European Union as a threat to democratic constitutionalism. This contribution discusses these dialectic developments, i.e. ISA reforms aimed at strengthening 'public law adjudication' inside and beyond the European Union; the WTO appellate court system being transformed into voluntary arbitration in response to alleged 'judicial overreach'; and multilevel judicial cooperation inside the EU, where the German Constitutional Court has - for the first time since the beginning of European economic integration in the 1950s - refused complying with a judgment of the European Court of Justice (CJEU) on the ground that the CJEU and the European Central Bank exceeded their limited powers 'arbitrarily' due to their insufficient 'proportionality justification' of encroachment on national economic and fiscal policy powers. How can rule-of-law, constitutional and 'deliberative democracy' and judicial comity be protected in multilevel, judicial cooperation among national and international courts?
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In: International Journal for the Semiotics of Law, Band 3, Heft 1, S. 2018
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