Suchergebnisse

While international investment law is one of the most dynamic and thriving fields of international law, it is increasingly criticised for failing to strike a fair balance between private property rights and the public interest. Proportionality is a tool to resolve conflicts between competing rights and interests. This book assesses its current role, its potential, and its limits in investor-state arbitration

"Although a State's treatment of foreign investors has long been regulated by international law, it is only recently that international investment law has emerged as an independent discipline in its own right. In recent decades, the practical success of investment arbitration has allowed international investment law to develop both its own cadre of academic and professional specialists and its own legal doctrines. This book analyses the structure of international investment law, as it has developed through the practice of investment arbitration in order to see how a variety of international investment law doctrines should be understood and applied. The book demonstrates how a structural analysis can shed light on several major controversies within investment law and also examines what an 'investment' actually is. The book offers an original interpretative approach to the resolution of problems in international investment law, and so is one of the few books within the field to attempt to give investment law a solid theoretical basis. It also focuses on only a select number of problems, rather than attempting to deliver the universal coverage currently popular for investment law books. As a result, those issues that are addressed get a detailed discussion rarely available in competing texts.

Arbitration — Jurisdiction — United Nations Convention on the Law of the Sea, 1982 — Part XV and Annex VII — Dispute Settlement Mechanism — Existence of a dispute — UNCLOS Article 288(1) — Extent of jurisdiction — Whether extending to allegations of breaches of human rightsArbitration — Admissibility — United Nations Convention on the Law of the Sea, 1982 — Part XV and Annex VII — Standing of flag State to invoke responsibility of coastal State — UNCLOS Article 49(3) — Diplomatic protection — Exhaustion of local remedies — Whether applicant's claims being preponderantly for direct or indirect injury — Effect of settlement agreement between respondent and third party — Requirement to exchange views — UNCLOS Article 283Arbitration — Applicable law — United Nations Convention on the Law of the Sea, 1982 — Part XV and Annex VII — Whether arbitration tribunal empowered to apply international human rights law — UNCLOS Article 293 — Requirement of reasonableness — Necessity and proportionality — UNCLOS Article 300 — Good faith — Abuse of rightsDamages — Compensation — Material damage for lost earnings, value of cargo, payment to secure release of vessel, vessel repairs, classification expenses, administrative expenses, reputational losses — Non-material damage for prosecution and detention of persons — Quantum of compensation deferred — Declaratory judgment — Finding of wrongful conduct — No formal apology requiredEnvironment — Marine pollution — UNCLOS Article 225 — Risk to marine environment — Ship-to-ship transfer of oilSea — Archipelagic waters — UNCLOS Article 49(3) — Sovereignty of coastal State — Right of coastal State to enforce domestic law — Measures must be reasonable — Principles of necessity and proportionality applySea — Arrest and detention of vessel — UNCLOS Article 94 — Right of flag State to notice of arrest and detentionSea — Innocent passage — UNCLOS Article 25(1) — Right of coastal State to prevent non-innocent passage — Inapplicability to vessel not engaged in passage96Sea — Territorial sea — UNCLOS Articles 2(3) and 49(3) — Distinction between enforcement jurisdiction of coastal State in territorial sea and in archipelagic waters

AbstractThe law applicable to arbitration is not the law applicable in arbitration. The latter determines arbitrators' decisions. The former refers to the source of their authority: the legal order that governs arbitration. According to the territorialist thesis, an arbitration can have no foundation other than that of the legal order of the particular State in which the arbitration takes place. This outdated conception is disproved by the simple factual observation that a plurality of legal orders may give effect to arbitration. Some French scholars promote the notion of an autonomous arbitral order. Inasmuch as they ultimately seek to establish this order by positing its recognition by the very State orders from which they claim autonomy, their idea is circular and in effect no more than a dressed-up variant of ordinary horizontal pluralism. But the model of horizontal pluralism fails to account for important orderings of arbitral activity. Arbitration in modern society is accurately perceived as a complex, three-dimensional form of pluralism, in which legal orders (i) are not exclusively those of States and (ii) frequently overlap.

A resume of the monograph "International Arbitration and EU Law" edited by José R. Mata Dona and Nikos Lavranos, in which examines the intersection of EU law and international arbitration based on the experience of leading practitioners in both commercial and investment treaty arbitration law. Надане резюме монографії "Міжнародний арбітраж та законодавство ЄС" за редакцією Жозе Р. Мата Дона і Нікос Лавранос, в якій розглядається питання перетину законодавства ЄС та міжнародного арбітражу на основі досвіду провідних практиків як комерційного, так і інвестиційного арбітражного договору.