Journal articles on the topic 'State dispute Settlement'
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1
KANG, Taewook. "Problems of Investor-State Dispute Settlement (ISDS)." Journal of Advanced Research in Law and Economics 10, no. 2 (March 31, 2020): 561. http://dx.doi.org/10.14505//jarle.v10.2(40).16.
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The research deals with Problems of Investor-State Dispute Settlement (ISDS) focused on Investment Arbitration. The author especially focuses on the problems under BIT (Bilateral Investment Treaties) and FTA (Free Trade Agreements. Mentioned in this article, International investment disputes are generated due to host countries and foreign investors. ISDS is Dispute settlements between investors and countries. This is not suit proceedings but arbitration proceedings. That is, ‘activities of the third party to arbitrate and settle disputes by intervening between parties in dispute. ’However, Dispute Settlement through this way, is it really reasonable and fair system? If it is indeed fair and reasonable system, advanced countries like the United States and Australia would not have abandoned it. Therefore, the investment arbitration system is never a dispute settlement proceeding that has been verified and stabilized internationally.
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Marmazov, Vasyl, and Pavlo Pushkar. "The Right of Access to Non-State Dispute Resolution in the Legal Order of Larger Europe: A Yardstick to Harmonise Approaches to State and Non-State Dispute Settlement in Ukraine." NaUKMA Research Papers. Law 7 (July 20, 2021): 33–43. http://dx.doi.org/10.18523/2617-2607.2021.7.33-43.
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The Ukrainian legal thought has traditionally regarded the right of access to justice as a right of access to the State court, or to State managed or controlled procedures for dispute settlement. One of the main reasons for that was that the non-state, or uncontrolled by the State dispute settlement was not formally permitted, prohibition being imposed by the Soviet system and even to a certain extent during the period of domination on parts of the territory of the modern Ukraine, of the various externally imposed requirements of various legal systems in force at the material time. Non-state dispute settlement in its traditional forms, mainly based on the custom, was also left outside the attention in the pre-Soviet times and could not find its dignified place between accessible schemes and instruments for dispute settlement. Moreover, the understanding that justice delivery for the parties to the dispute should remain within State monopoly, became commonly accepted as from 1996. The adoption of the Constitution of Ukraine to a certain extent perverted approach to settlement of conflicts, focusing on the main role for the State courts, to these ends. In particular, the courts are having “direct jurisdiction” over any dispute, this led to perception of pre-trial settlements as unnecessary, even as regards those that remained in force, notably, the commissions on labour disputes that were recognized in the case-law of the European Court as equating in legal force to binding and enforceable legal instruments. Thus, the traditional historical approach to seeing judicial examination of disputes as an exceptional step in dispute settlement, in the absence of agreement or settlement by the parties, notably through mediation, arbitration or conciliation, variousforms of third party involvement, steadily disappeared. However, alternative examination of disputes is returning back to its original standing. It is gaining its place in the discussions on the judicial reform and reform of the system for settlement of disputes. This reform is far from being finalised and possibly has not even started in practice. The new approach to settlement of disputes, aimed at breaking the principle of State monopoly on examination of disputes and seeing State dispute settlement by court as an exception, is still not firmly entrenched into the mentality of lawyers, public servants, judges, law enforcement employees and politicians in Ukraine. Thus, the article suggests and points out to importance of taking into account with these changes of a wider European perspective. Such a perspective should relate not only to theoretical and practical advantages of the non-state dispute settlement, but also provides that the privatisation of the dispute settlement procedures and breaking the state monopoly on it, is a part of wider international obligations, also being a part of the supranational legal order of the European Union. This obligation of Ukraine is also seen as part of the requirements stemming from the Council of Europe law. Both the EU law and the Council of Europe provide for extensive soft law recommendations, legal principles, which are formed by the case-law of the European Court of Human Rights. Such an approach provides that alternative means of dispute settlement, including arbitration, do not run contrary to the principles of human rights with regard to fair judicial proceedings. On the contrary, they could be seen as a highly relevant actual means of dispute settlement for any modern European society, built on the principles of respect to rule of law and human rights.
3
Dong, Limin. "Why International Conciliation Can Resolve Maritime Disputes: A Study Based on the Jan Mayen Case." Sustainability 15, no. 3 (January 18, 2023): 1830. http://dx.doi.org/10.3390/su15031830.
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The settlement of maritime disputes is an important issue faced by many countries. Choosing an appropriate settlement method is the primary task of policy makers. International conciliation, which results from careful and systematic evaluation, could become the primary choice of dispute settlement. During conciliation, parties have dominant and final decision-making power over the settlement of disputes, and there is flexibility in the application of law and procedural rules. The Conciliation Commission provides independent third-party advice, and the political and time costs of dispute settlements are relatively low. These are core advantages of conciliation that attract the attention of decision makers. The willingness and diplomatic relations of disputing parties, existence of external pressure, economization of delimitation, and capacity of the Commission are key factors that affect the success of conciliation. The roles these factors play depend on their controllability and the strength of the disputing parties. The effects of dispute settlement with the assistance of the Conciliation Commission are systemic. The successful settlement of maritime disputes between Norway and Iceland in the context of the Cold War not only demonstrated that conciliation is of great value in resolving maritime disputes and promoting inter-state relations but also had considerable uniqueness. Many questions regarding international conciliation cannot be clearly answered by the Jan Mayen Case. Increased state practice and further in-depth research are needed.
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Khan, Ali Nawaz, Zaheer Iqbal Cheema, and Jawwad Riaz. "Role of Actors and Factors for the Emergence of Contemporary Regime of Investor-State Dispute Settlement." Global Management Sciences Review V, no. IV (December 30, 2020): 40–47. http://dx.doi.org/10.31703/gmsr.2020(v-iv).05.
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Dispute resolution mechanism happened to be the fundamental aspect of the protectionist discourse of foreign investment. The consistent efforts were rolled out on behalf of international economic organizations such as UNO, OECD and IBRD of World Bank Group for the establishment of an impartial forum for the settlement of investment disputes. The opposite approaches of capital-exporting developed economies and less developed recipients of foreign capital lead certain attempts to failure to build consensus for dispute resolution mechanism relating to foreign investments. The World Bank started its effort for a specialized forum for investor-state dispute settlements in 1961. This effort remained successful in building consensus for exclusive jurisdiction for investment disputes. The members of the World Bank Group adopted the international convention on the settlement of investment disputes between states and nationals of other states, 1965, i.e. ICSID Convention. The paper has concluded that the efforts of international organizations and the large-scale recognition of the ICSID mechanism have ensured the legitimacy of the system.
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Jyoti and A. S. Sidhu. "Satisfaction of Textile Workers with Awards/Settlements: An Empirical Analysis." Management and Labour Studies 30, no. 3 (August 2005): 236–46. http://dx.doi.org/10.1177/0258042x0503000303.
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The Indian industrial relations model is based on the free enterprise-cum-planning-cum-growing public sector-cum parliamentary democracy model of growth. For the purpose of securing peace in industry and to give a fair deal to the workers, Indian industrial relations system has also designed different organs for the settlement of industrial disputes. Two methods are generally followed in the state of Punjab as well as in the country as a whole to deal with the industrial disputes viz., (1) Direct settlement, and (2) Third party settlement. A number of studies have been carried out to evaluate the performance of dispute settlement at the state and national levels. However authors feel that efficiency is not the only criterion to analyse the performance of dispute settlement machinery. Effectiveness, i.e., whether it makes parties, especially the workers, satisfied with those awards/settlements, can be another criterion to evaluate the performance of dispute settlement machinery. The present study has been carried out to address this question. For this purpose an attempt has been made to identify the factors which discriminates the satisfied/dissatisfied group of workers with awards/ settlements. Stepwise discriminant analysis has found that out of thirteen variables only three variables, i.e., marital status of workers, awareness about past agreements, and preference for the method of settlement, have emerged as significant variables to predict the profile of satisfied workers in textile industry of Punjab. Hence, the null hypothesis that no significant difference exists in the profile of two groups in regard to their satisfaction level is rejected.
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Kelam, Ivica. "Investor to State Dispute Settlement." Synthesis philosophica 34, no. 1 (2019): 59–71. http://dx.doi.org/10.21464/sp34105.
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Until recently, international trade agreements did not cause any public reaction and were considered irrelevant to everyday life. The experience of the existing international trade agreements from NAFTA, through TPP, to TTIP and CETA, which are in the process of negotiations or ratification, has shown that they have a huge impact on the daily lives of citizens and affect the entire society and economy. These agreements are negotiated and concluded by neglecting ethical principles, democratic procedures, and human rights, where only economic interests are taken into account. In this paper we will explore how these agreements undermine universal ethical principles and democratic standards through the ISDS mechanism, imposing the economic interest of large capital against the welfare of society, the individual, and the environment. We will refer particularly to the work of Alfred-Maurice de Zayas, the United Nations Independent Expert on the Promotion of a Democratic and Equitable International Order (also known as Special Rapporteur), who in his reports to the United Nations General Assembly and in media appearances fiercely criticises the ISDS mechanism and its implementation in agreements such as CETA and TTIP.
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Kugler, Kholofelo. "The AfCFTA’s Success Depends on Effective Dispute Settlement Mechanisms for the Private Sector." Global Trade and Customs Journal 16, Issue 11/12 (November 1, 2021): 558–63. http://dx.doi.org/10.54648/gtcj2021070.
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The state-to-state nature of the dispute settlement mechanism (DSM) of the Agreement Establishing the African Continental Free Trade Area (AfCFTA) could serve as a barrier to ensuring dispute resolution under this regional trade agreement. African countries’ low participation in trade dispute resolution at the World Trade Organization (WTO) and within their own regional economic communities (RECs) indicates that these countries either do not have the capacity to resolve trade issues through contentious litigation or those types of dispute settlement mechanisms are not suited to their needs. However, it is important that the AfCFTA ecosystem provides effective and efficient dispute settlement options for the commercial operators that will seek to take advantage of the benefits of the trade agreement. The AfCFTA non-tariff barrier (NTB) Online Monitoring Mechanism is a welcomed addition to the options available to the private sector. However, AfCFTA State Parties must resolve the complaints lodged on that platform swiftly and adequately. In the absence of continental or regional dispute resolution options, it is foreseen that domestic courts will play a large role in adjudicating AfCFTA-related disputes. Therefore, the options that State Parties could avail to private parties include establishing or capacitating commercial courts and arbitration centres to effectively adjudicate AfCFTA-related disputes. Africa, AfCFTA, dispute settlement, DSU, state-to-state, private sector, direct access, domestic courts, arbitration
8
ALLEE, TODD L., and PAUL K. HUTH. "Legitimizing Dispute Settlement: International Legal Rulings as Domestic Political Cover." American Political Science Review 100, no. 2 (May 2006): 219–34. http://dx.doi.org/10.1017/s0003055406062125.
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We develop and test a general argument about the conditions under which state leaders are most likely to choose legal dispute resolution over bilateral negotiations as a means to settle international disputes. Our central claim is that leaders who anticipate significant domestic audience costs for the making of voluntary, negotiated concessions are likely to seek the “political cover” of an international legal ruling. In such cases, it will be easier for leaders to justify the making of concessions if they are mandated as part of a ruling by an international court or arbitration body. We test a series of domestic-level hypotheses using a dataset comprised of nearly 1,500 rounds of talks concerning disputed territorial claims. Our multivariate analyses indicate that state leaders opt for legal dispute resolution when they are highly accountable to domestic political opposition, as well as when the dispute is highly salient to domestic audiences.
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Lee, Jaemin. "Dispute Settlement Mechanisms in U.S. FTAs with Korea, Panama, Peru and Colombia: Basic Designs, Key Characteristics and Implications." British Journal of American Legal Studies 5, no. 2 (December 1, 2016): 487–504. http://dx.doi.org/10.1515/bjals-2016-0017.
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Abstract The United States concluded free trade agreements (FTAs) with Korea, Peru, Panama and Colombia in late 2000s. Since the four FTAs were negotiated and concluded largely contemporaneously, key traits and characteristics of the agreements are similarly formulated. In light of this, dispute settlement mechanisms (state-to-state dispute settlement proceedings, investor-state dispute settlement proceedings, and Joint Committees) of the four FTAs also share commonalities. At the same time, new ideas and suggestions are explored in the four FTAs. While issues and disputes under the four FTAs have arguably not been ripe for the constitution of dispute settlement proceedings under the FTAs at the moment, sooner or later they are likely to end up in the dockets of the respective proceedings. The key elements of the four FTAs’ dispute settlement mechanisms are also adopted in other FTAs that the United States have concluded afterwards including most recently the Trans-Pacific Partnership, since these elements are reflective of the general scheme of the United States in their FTAs. What remains to be seen is how the general scheme of dispute settlement proceedings can be applied and implemented in actual settings when the FTAs produce increasing numbers of disputes in the future. In particular, marked disparity in human and financial resources between the United States and the four FTA’s parties may bring about disparate impacts and consequences among contracting parties. Continued attention needs to be paid to the development concerning implementation of the four FTAs, in particular their dispute settlement proceedings.
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Serdiuk, Olexandr Vasiliovich, and Georgiy Viktorovich Grabchak. "Problematic issues of submitting of counterclaims in International centre for settlement of investment disputes." Problems of Legality, no. 155 (December 20, 2021): 238–53. http://dx.doi.org/10.21564/2414-990x.155.239558.
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The counterclaim institute is one of crucial legal defense options during the dispute settlement in domestic and international jurisdictions; investment arbitration is not an exception. The most famous dispute settlement platform is International centre for settlement of investment disputes (ICSID). One of the key ideas of establishment of such a dispute settlement instrument was an implementation of autonomous and objective system of Investor-states dispte sttlement (ISDS) by the “independent forum”. While procedural rights of ISDS parties are conceptually equal. However, the concept of equal procedural rights of ISDS parties has not been translated into reality. Notwithstanding the fact that the counterclaim institute is an important instrument of ensuring the objectivity and comprehensiveness of the dispute settlement, tribunal`s approaches are “restrictive” and “cautious”.Taking into account that States are “perpetual respondent” in ICSID, problematic issues of submitting of counterclaims influence the realization of interest of the State in ICSID. Problematic issues of submitting of counterclaims clearly show the imbalance of the exercise of procedural rights by the respondent-state.The article is intended to draw the attention of readers to problematic issues of submitting of counterclaims in ICSID and on the alternative view of the isuue.
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Glodić, Duško. "Mirno rješavanje međudržavnih sporova – određeni aspekti upotrebe diplomatskih i pravnih sredstava / Peacefull Settlement of Interstate Disputes – Certain Aspects of the Use of Diplomatic and Judicial Means." Годишњак факултета правних наука - АПЕИРОН 6, no. 6 (July 11, 2016): 151. http://dx.doi.org/10.7251/gfp1606151g.
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Development of inter-state relationships may lead to the point where diverging attitudes of States appear regarding a concrete issue. In certain situations, this divergence can be treated as a dispute, either of diplomatic or legal nature. All States are due to settle their disputes by peaceful means, which further implies their duty to undertake measures to overcome the dispute. The use of force is, in principle forbidden in the dispute settlement. The International Law and diplomacy have developed a number of means for dispute settlement. Those means are grouped in two sets: diplomatic and judicial means. The practice shows the use of different means, but it is not unusual that several means may be used to settle the same dispute, either consecutively or simultaneously. This paper attempts to assess whether it is possible to identify a set of rules in the International Law that are encouraging use of particular dispute settlement means. The paper concludes that concensualism is the governing principle of dispute settlement under the International law, which connotes that the parties to a dispute, either ex ante or ex post have to agree, explicitly or implicitly, what dispute settlement means to apply in the concrete case. Given the prevailing significance of concensualism, as the governing principle in the area of dispute settlement, it is difficult to identify some general rules which would define what means to use at what stage. It is quite impossible to pre-determine what dispute settlement means would be used by the parties in a concrete settlement process. Never the less, certain level of predictability exists if the parties agreed in advance on the manner in which disputes are to be settled. The findings and conclusions in this paper are based on the exploration of available cases from the international practice and writings by scholars.
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Huang, Jie (Jeanne), and Jiaxiang Hu. "Dispute Resolution Mechanisms and Organizations in the Implementation of One Belt, One Road Initiative: Whence and Whither." Journal of World Trade 52, Issue 5 (October 1, 2018): 815–37. http://dx.doi.org/10.54648/trad2018035.
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The existing dispute settlement mechanisms in the treaties concluded by China and under Chinese domestic law are insufficient to resolve all disputes related to the ‘One Belt, One Road (OBOR)’ Initiative. It is critically important for China to design dispute settlement mechanisms and organizations to facilitate the OBOR Initiative. This article suggests, for trade disputes, the first choice should be to refer the disputes between WTO members to the Dispute Settlement Body. The regional trade regimes may function as supplements. Investment disputes may be submitted to investor-state dispute resolution mechanisms including the ICSID under BITs. In the case of financial disputes, the newly established Asian Infrastructure Investment Bank may provide a platform for its members to settle their disputes. As for those countries which have neither acceded to the WTO nor joined other regional trade regimes, nor signed any FTAs or BITs with China, China may settle the disputes with them through government agreements like protocols, or refer the disputes either to domestic judicial bodies or to arbitration. The purpose for this is to ensure that dispute settlement under the OBOR Initiative will be more economical, efficient and enforceable.
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Ubilava, Ana. "Amicable Settlements in Investor-State Disputes: Empirical Analysis of Patterns and Perceived Problems." Journal of World Investment & Trade 21, no. 4 (August 10, 2020): 528–57. http://dx.doi.org/10.1163/22119000-12340183.
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Abstract This article empirically analyses investor-State arbitration cases that settle amicably after the arbitration has commenced but before the final award is rendered. The study investigates whether, and to what extent, some common criticisms of amicable settlements are evident in practice. It examines four questions that correspond to the major critiques of amicable settlements in investor-State dispute resolution: (1) Are certain types of investor-State disputes unsuitable to be settled amicably? (2) Do amicable settlements impede transparency? (3) Do amicable settlements pay less compared to when investors win? (4) Is the non-enforceability of settlement agreements a problem in practice? The findings suggest that in practice, not all of these purported problematic aspects of dispute resolution mechanisms that result in amicable settlements are as evident as is commonly believed.
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Tamlander, Matias. "Proposed Regulation of Third-Party Funding in Investor-State Dispute Settlement." Helsinki Law Review 14, no. 1 (February 8, 2021): 74–87. http://dx.doi.org/10.33344/vol14iss1pp74-87.
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Third-party litigation funding is increasingly used to finance legal claims in investor-state dispute settlement, with financiers funding investor claims against sovereign states in exchange for a share of potentially substantial compensation rendered in eventual arbitral awards. A chiefly unregulated phenomenon, third-party funding has been perceived especially controversial in the context of the investment arbitration regime, a system some allege is already ingrained with inequities. Third-party funding raises numerous policy questions, such as conflicts of interests, disclosure, costs of the proceedings, and even the entire permissibility of the practice in investor-state dispute settlement. This review raises various issues and concerns related to third-party funding in investor-state dispute settlement and presents the regulatory efforts and criticism thereof with regards to the reform of rules of both the International Centre for Settlement of Investment Disputes and the United Nations Commission on International Trade Law.
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Kopti, Ala’a. "Investor-state Dispute under International Investment Law." International Journal of Economics, Business and Management Research 06, no. 04 (2022): 95–106. http://dx.doi.org/10.51505/ijebmr.2022.6408.
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Since the last century international investment law has been developing along with the increasing number of international investment agreements such as bilateral investment treaties aiming at efficient protection for foreign direct investment. The idea to introduce comprehensive protection for foreign direct investment appeared with the States started to perceive that foreign direct investment is a must for the prosperity of economic development of the countries. Since the international investment regime has emerged it started to become universal and uniform in the international economy. The establishment of the International Centre for Settlement of Investment Disputes was a crucial step for the protection of foreign direct investment in the international investment regime. The investor-state dispute settlement system has been developing through innovations introduced by parties of the international investment regime. However, Investor-State arbitration has remained as one of the most efficient mechanisms in the investor-state dispute settlement system throughout the years.
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Yu, Huan, and Mingyan Nie. "Article: Space Dispute Settlement in Asia in the Context of the Belt & Road Initiative: An Appraisal from China’s Perspective." Air and Space Law 47, Issue 6 (September 1, 2022): 553–76. http://dx.doi.org/10.54648/aila2022034.
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Conducting a space cooperation program in the context of the Belt & Road (B&R) initiative provides China opportunities to further extend the scale of space cooperation in Asia and break through the current predicament of the Asia-Pacific Space Cooperation Organization (APSCO). A more comprehensive mechanism to address the potential state-to-state and commercial space disputes is essential. To efficiently avoid and resolve disputes among the Member States, APSCO needs to improve the ‘fair return’ principle and the dispute settlement arrangement contained in its Convention. As to conflicts between APSCO and the non-Member States, dispute settlement clauses are obliged to be reached between APSCO and China. For commercial disputes, China should establish a specialized arbitration branch as a constituent of the B&R comprehensive dispute settlement mechanism. Disputes arising in space infrastructure investments need to be treated separately. For this reason, a special branch for settling investor-state disputes should be created under the Asian Infrastructure Investment Bank (AIIB) as advocated in this article. B&R Initiative, B&R-SIC, Space Disputes in Asia, Asian Space Cooperation, APSCO, Commercial Space Activities
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Ківалов, C. В. "СУТНІСТЬ ТА ОСОБЛИВОСТІ ДОСУДОВОГО ВРЕГУЛЮВАННЯ АДМІНІСТРАТИВНО-ПРАВОВИХ СПОРІВ." Наукові праці Національного університету “Одеська юридична академія” 14 (May 22, 2019): 5–18. http://dx.doi.org/10.32837/npnuola.v14i0.309.
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У статті проаналізовано поняття, сутність та особливості досудового урегулювання адміністративно-правових спорів. Особливу увагу приділено співвідношенню понять «способи, альтернативні правосуддю» й «альтернативне вирішення спорів». Здійснено поділ досудових способів за такими критеріями: 1) за суб'єктом, що здійснює процедуру вирішення спору: а) державні процедури врегулювання спору; б) недержавні процедури врегулювання спору; 2) за методом врегулювання спору: а) примирювальні (компромісні) процедури; б) правовїдновлювальні процедури; в) змішані процедури. Визначено, що найбільш поширеними методами досудового вирішення спорів с переговори, посередництво, арбітраж.
The paper analyzes the concept, essence, and characteristics of pre-trial settlement of administrative legal disputes. Particular attention is paid to the relationship between the concepts "methods alternative to justice" and "alternative dispute resolution". The author carries out the classification of pre-trial methods according to the following criteria: 1) by the entity that carries out the procedure for dispute settlement: a) state dispute settlement procedures; b) non-state dispute settlement procedures; 2) by the method of settlement of the dispute: a) conciliation (compromise) procedures; b) procedures for restoration of rights; c) mixed procedures. It is determined that the most common methods of pre-trial dispute resolution are: negotiation, mediation, arbitration.
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Khan, Ali Nawaz, Naveed Ahmad, and Bakht Munir. "Jurisdictional Determinants Of Investor-State Dispute Settlement: A Contemporary Critique." Global Economics Review V, no. IV (December 30, 2020): 47–57. http://dx.doi.org/10.31703/ger.2020(v-iv).05.
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International Convention for the Settlement of Investment Disputes (ICSID) has incorporated a specialized jurisdiction under the auspicious of the World Bank Group. The convention has promulgated a standing offer for the investors of the contracting states to invoke ICSID jurisdiction on the fulfilment of some determinants. ICSID tribunals have amplified the application of these determinants to the extent to overshadow the legitimate rights of sovereign states. The magnification of standards of determinants of investor-state dispute settlement has caused unpredictability of ICSID jurisdiction. Uniform and predictable standards of determinant have the potential to strengthen and promote this mechanism of institutional settlement of investment disputes.
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J. Mwakaje, Saudin, and Nuhu S. Mkumbukwa. "The New Arbitration Law in Tanzania: An Appraisal of Its Salient Features and Implications for Investment Disputes Settlement." Journal of International Arbitration 39, Issue 1 (February 1, 2022): 129–61. http://dx.doi.org/10.54648/joia2022006.
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Preference for arbitration as an option for dispute settlement is steadily on the rise, partly because of its perceived efficacious proceedings and enforceability. In 2020, Tanzania enacted a new legislation on arbitration with a detailed and defined framework, cascading through the entire qualifying process of arbitrators, initiating the arbitration proceedings, enforcement and recognition of foreign arbitral awards. This article analyses the corpus of the new legislation, its pertinent structural features, the gaps, and future prospects. The analysis is predicated on the ramifications of the new arbitration law for investment dispute settlements, particularly, state versus investors disputes, as envisaged under the national investment legislation. It concludes by highlighting several aspects which need to be revisited, such as the independence of arbitrators, duty to refer disputes to arbitration, and determination of arbitration costs. Further, a case is made for amendment of the existing national investment legislation in respect of dispute settlement provisions in order to create a harmonious arbitration regime in Tanzania. Tanzania arbitration law, implications to investment disputes, enforcement of foreign arbitral awards
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DUMEBI, Anthony Ideh, and Adedoyinsola Olajumoke SHONUGA,. "THE ROLE OF THE STATE IN INDUSTRIAL DISPUTE SETTLEMENT MECHANISMS IN NIGERIA." LASU Journal of Employment Relations & Human Resource Management 1, no. 1 (December 1, 2018): 44–52. http://dx.doi.org/10.36108/ljerhrm/8102.01.0160.
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Disputes and dispute resolutions are part and parcel of any functional industrial relations system. Therefore, the need to resolve them equitably, efficiently and effectively for the benefit of the actors is of paramount importance. The objective of this study is to examine the State intervention in dispute settlement and its contributions in peaceful resolution of disputes in Nigeria. The paper adopted the qualitative research approach. Relevant data were collected from the Lagos offices of the Federal Ministry of Labour and Employment, the Industrial Arbitration Panel and the National Industrial Court. The study found that the various pieces of legislation enacted by the State have positively impacted on the settlement of Industrial Disputes in Nigeria. However, it was observed that despite the positive contributions, there are still some areas for improvement. The study therefore made the following recommendations; that the powers of the Minister of Labour and Employment should be restricted to create an enabling industrial relations environment for the actors and that the parties to disputes should be allowed the choice of which method of disputes settlement to use among other recommendations.
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Yuspin, Wardah, and Abdul Aziz. "Business Dispute Settlement Through Mediation in State Courts and Arbitration Institutions." International Journal of Social Science Research and Review 5, no. 10 (October 7, 2022): 352–58. http://dx.doi.org/10.47814/ijssrr.v5i10.600.
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In social life, there are often differences in perceptions between humans, causing problems or disputes, whether minor or serious. Likewise in the relationship of economic activities or more commonly known as business relations. Not infrequently humans experience a clash and differences of opinion that lead to disputes. Various problems will always arise in business as long as humans run their business solely for profit, so there are often differences of opinion because the parties will not be harmed which will eventually lead to disputes. In the end, dispute resolution, especially business disputes, is often resolved through a trial in court through a lawsuit by one of the parties who feel aggrieved. However, what was expected from the settlement turned out to be unsatisfactory for the parties because the settlement through litigation sometimes took a long time to obtain legal certainty so that it actually harmed business people because of the loss of time, energy and materials. As an alternative to resolving business disputes, business actors have a tendency to avoid disputes in court and choose to use mediation or through arbitration institutions. This study will briefly describe the comparison of business dispute resolution through court mediation with settlement through arbitration institutions. The research was conducted through descriptive empirical legal research.
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Chi, Manjiao. "Trade-Plus Effects of WTO Dispute Settlement on China: An Ideal or Illusion?" Journal of World Trade 47, Issue 6 (December 1, 2013): 1349–84. http://dx.doi.org/10.54648/trad2013045.
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China has actively participated in WTO dispute settlement over the past decade. It was hoped that China's WTO accession and participation in WTO dispute settlement could provide an external force to further China's reform. Due chiefly to the expansionist trend of the WTO regime and China's non-market economy, party-state regime and highly politicized WTO accession strategy, WTO dispute settlement sometimes exerts effects on China that are beyond the area of trade. Although China is sensitive and vulnerable to such trade-plus effects, a case study of China's relevant WTO disputes shows that, in general, China has successfully accommodated such effects to date. Therefore, despite its positive role in helping China improve trade governance, WTO dispute settlement has insofar played a limited role in furthering non-trade reform in China.
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Guiguo, Wang. "Chinese Mechanisms for Resolving Investor-State Disputes." Jindal Journal of International Affairs 1, no. 1 (October 1, 2011): 204–33. http://dx.doi.org/10.54945/jjia.v1i1.16.
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This article addresses China’s responsibility in resolving investor-State disputes as it is the second-largest FDI recipient after the United States. It questions why China thus far has rarely been involved as a respondent in international arbitration or any other dispute resolution mechanisms in relation to foreign investment. It attempts to examine China’s national system and practice for resolving disputes between foreign investors and the host State and investigates cultural and political reasons for why China has almost never been called to international arbitration to resolve disputes with foreign investors. Finally, it suggests some future directions of investment dispute settlement and calls for China taking more responsibilities in world affairs.
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Afriana, Anita, and Efa Laela Fakhriah. "UNDERSTANDING THE PLURALITY OF CONSUMER DISPUTE RESOLUTION IN INDONESIA: A COMPARATIVE STUDY WITH SINGAPORE." Yuridika 34, no. 1 (January 1, 2019): 1. http://dx.doi.org/10.20473/ydk.v34i1.9091.
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Globalization has impacted many aspects of human life, one of which is an acceleration of trade transactions between producers and consumers. Despite of numerous advantageous that it brings, globalization also has a potential to cause various disadvantageous and loss to the consumers that ultimately lead to consumer disputes. In general, consumer disputes involve small amount of loss and complaint filed by the consumers for material compensation. In Indonesia, consumer dispute resolution is carried out not only by the Consumer Dispute Settlement Board (BPSK) but also through the courts. Recently, there are many newly-established consumer dispute settlement institutions. This article is part of a completed study discussing a plurality of consumer dispute settlement in Indonesia and a comparative analysis with the one available in Singapore. The study applies normative juridical research method and qualitative juridical analysis, it can be concluded that the plurality of consumer dispute settlement in Indonesia has led to convoluted mechanisms and procedures in settling disputes. This leads to a lack of legal certainty. The comparative law study being the instrument of this study is a critical instrument in the framework of legal reformation. Result shows that in Singapore, consumer disputes are resolved by a Small Claims Procedure method on State Court and through CASE as a private non-litigation agency with specific consumer characteristics and disputes.
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Sarmiento, María Gabriela. "The UNASUR Centre for the Settlement of Investment Disputes and Venezuela: Will Both Ever See the Light at the End of the Tunnel?" Journal of World Investment & Trade 17, no. 4 (August 19, 2016): 658–80. http://dx.doi.org/10.1163/22119000-12340008.
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One of the objectives of the Union of South American Nations (UNASUR) is the creation of a regional dispute settlement centre to replace the International Centre for Settlement of Investment Disputes (ICSID). To that end, UNASUR formed the High Level Experts Working Group on the Settlement of Investment Disputes whose efforts have thus far culminated in the November 2014 Draft Constitutive Agreement on the UNASUR Centre. This article analyses les enjeux politiques, it reviews the measures taken and the actions envisioned by UNASUR to change the much-criticised current system of investor-State dispute settlement (ISDS), and describes in detail the 2014 Draft Constitutive Agreement. In addition, it examines the inherent conflict within UNASUR’s mandate: advance integration in the region, while respecting State sovereignty. That tension is particularly evident in the case of Venezuela, used in this article as an example for the challenges facing the UNASUR Centre.
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Sianturi, Michael, Ari Dwi Putra, and Muhammad Fernanda. "Analysis of Patterns for Settlement of Dispute Rights to Land of Indigenous Law Communities." Return : Study of Management, Economic and Bussines 1, no. 02 (October 20, 2022): 72–84. http://dx.doi.org/10.57096/return.v1i02.15.
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Backgrounds: Solution Dispute on soil Public law custom conducted through discussion for consensus with each other honor the position of each party that also involves Local Government .
aim: for analyze pattern solution dispute right on soil Public law custom
Methods: use p approach comparative approach _ this conducted with stage studies comparison law .
Findings: Solution disputes that can taken in solution dispute soil ulayat is through discussion for consensus and solution through track law that is lawsuit to State Administrative Court for get certainty law and protection for the parties to the dispute . Cooperation between government and society law custom required in complete dispute right what happened _ so that could give sense of justice for Public law custom procedural law in force in Indonesia
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Lunina, Olena S., and Volodymyr Yu Poplavskyi. "MEDIATION AS A METHOD OF PRE-TRIAL SETTLEMENT OF PUBLIC LEGAL DISPUTES IN THE FIELD OF STATE REGISTRATION." Bulletin of Alfred Nobel University Series "Law" 2, no. 5 (December 14, 2022): 55–61. http://dx.doi.org/10.32342/2709-6408-2022-2-5-6.
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The article is devoted to the study of such a method of pre-trial settlement of public legal disputes in the field of state registration as mediation. It is emphasized that the creation of opportunities for the development of alternative (non-judicial) methods of dispute resolution is one of the main tasks of a democratic, legal state, which tries to ensure the protection and guarantee of the rights of all subjects of law at the appropriate level. This creates an obligation for the state to promote the development of such non-state institutions, such as, in particular, intermediaries (mediators), who help to settle the dispute without bringing it to court. It has been determined that mediation is the activity of professional intermediaries who direct participants of legal dispute into compromise and settlement of the dispute independently by the participants. The article considers peculiarities of mediation procedure in administrative court. Existing additional difficulties in administrative proceedings for the mediation procedure were considered. The content of the draft law of Ukraine «On mediation» concerning such complications has been analyzed. The existing division of the mediation procedure at this stage was examined. It has been observed that the practice of settling conflicts between authorities and private individuals in pre-trial proceedings tends to indicate a reluctance on the part of the authorities to compromise, not only because of the legal nature of their decisions, but also because of certain, so to say, established business practices for quite some time. This is a fundamental reluctance of the authorities to compromise. It is indicated the legislative and factual prerequisites for the application of the mediation agreement in the settlement of public law disputes in the field of state registration, which combines the advantages of both the mediation procedure (economy in terms of time and money, significant relief of the judicial system) and the trial procedure (application guarantees of subjective rights, freedoms, legitimate interests at the level of administration of justice). The author has submitted proposals on improvement of administrative legislation aimed at settlement of mediation as a way of pre-trial settlement of public-legal disputes in the sphere of state registration.
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Weghmann, Vera, and David Hall. "The unsustainable political economy of investor–state dispute settlement mechanisms1." International Review of Administrative Sciences 87, no. 3 (May 6, 2021): 480–96. http://dx.doi.org/10.1177/00208523211007898.
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Investor–state dispute settlement mechanisms were intended to protect companies from the Global North against expropriation by Global South countries. Since 2000, investor–state dispute settlement mechanisms have increasingly been used against Northern countries to obtain compensation for and constrain policy decisions around nationalisation and remunicipalisation, as well as around the environmental or social regulation of service provision that threatens commercial interests. Social movements and governments alike resisted investor–state dispute settlement mechanisms, and despite the power wielded by multinational companies, the global trend is now to exclude investor–state dispute settlement mechanisms from new investment treaties. The purpose of this article is to provide a political-economy analysis of the processes of supporting and contesting the role of investor–state dispute settlement mechanisms in international treaties, processes that include activity at national, sub-national and international levels. The ensuing conflicts are analysed in terms of post-colonial contradictions over sovereignty under globalisation, continued contestation over the role of the public sector and climate change policies. Points for practitioners The probability of investor success with investor–state dispute settlement mechanism claims should not be overestimated, and investor assessments of the basis and prospects for such cases should be subject to critical scrutiny. Governments should be aware of widespread popular antagonism towards investor–state dispute settlement mechanisms and global trends to remove such clauses from agreements. They should also review all bilateral investment treaties, free trade agreements and the Energy Charter Treaty that the country has ratified to assess the potential relative advantages of retention or leaving.
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Mazaraki, Nataliia Anatoliivna. "EFFECTIVE SYSTEM OF COMMERCIAL DISPUTES RESOLUTION AS A PREREQUISITE OF ECONOMIC PROGRESS." SCIENTIFIC BULLETIN OF POLISSIA 1, no. 2(14) (March 1, 2018): 180–87. http://dx.doi.org/10.25140/2410-9576-2018-2-2(14)-180-187.
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Urgency of the research. The current state of the jus-tice system in Ukraine does not provide a quick and justified resolution of disputes that is particularly acute for business circles. Given the lack of qualitative changes in the area of justice in the course of ongoing reform of the judiciary and procedural legislation, the preservation of a critically low level of trust in the judiciary, the state should offer the soci-ery a new social contract on the procedure for resolving legal disputes in the state, which must necessarily include the institutionalization of alternative methods of resolution disputes, first of all, mediation. Target setting. The introduction of alternative meth-ods of dispute resolution should be based on an argumen-tated conceptual model that will ensure an effective and fair solution to legal disputes. Actual scientific researches and issues analysis. The scientific works of leading foreign and domestic re-searchers Yu. Prytyka, V. Reznikovf, Y. Demchenko, G. Braun, A. Marriot, R. Reuben are devoted to separate as-pects of the settlement of commercial disputes and the for-mation of a system of alternative dispute resolution. Uninvestigated parts of general matters defining. At present, there is no national concept for resolving commercial disputes, the place of alternative dispute resolu-tion, in particular mediation, in the legal system of Ukraine has not been formulated. The research objective. There is a need to formu-late a new concept of a dispute resolution system that would ensure that citizens and legal entities have a real choice of an effective and fair dispute resolution procedure. The statement of basic materials. The formation of the Ukrainian concept of the dispute settlement system must necessarily take into account the national socio-cultural and legal features. The necessity of institutionaliza-tion of mediation is proved by the adoption of the relevant law and the use of mediation procedures by public authori-ties in state-investor disputes and disputes with business entities. Conclusions. The introduction of alternative methods of resolving disputes in the legal system of Ukraine should ensure an effective and justified settlement of disputes and, as a consequence, create the preconditions for economic growth.
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Stanojević, Sanja. "Advantages of arbitration over court resolution of employment disputes." Pravo i privreda 59, no. 1 (2021): 19–34. http://dx.doi.org/10.5937/pip2101019s.
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An employment dispute is a dispute between a single worker and the employer, or between a trade union and employer or association of employers. The division of employment disputes is important because it indicates the method of the settlement of labour disputes. According to Serbian legal system, employment disputes can be settled in court or using one of the alternative labour dispute resolution methods (arbitration, conciliation, mediation). Based on the Law on the Amicable Settlement of Employment Disputes, an institution for the peaceful settlement of labour disputes was established - State Agency for Amicable Settlement of Employment Disputes. Arbitration is always voluntary. The Agency is to be in charge only if both parties accept to solve the dispute using arbitration. An individual employment dispute can be solved using arbitration only if that is allowed by work contract or a general employer act. A collective dispute can also be solved using arbitration. If one of the parties does not want to use an alternative method for solving the problem, arbitration cannot be an option. In that case, the only way to protect its rights is in court. The process of settling a dispute in court before a judge is an extremely strict and formal procedure required by law. The court is obligated to determine relevant facts and make a decision based on them. The judgment is binding for the parties and can be forcedly executed. Protection of rights is accomplished when the judgment or arbitration decision is made and executed. The arbitration decision can be voluntarily executed, unlike the judgment that can be forcedly executed. The arbitration decision cannot be forcedly executed and that is the main disadvantage of the arbitration. The arbitration procedure needs to be improved in order to guarantee the protection of rights.
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Ciocchini, Pablo, and Stefanie Khoury. "Investor State Dispute Settlement: Institutionalising "Corporate Exceptionality"." Oñati Socio-legal Series 8, no. 6 (December 23, 2018): 976–1000. http://dx.doi.org/10.35295/osls.iisl/0000-0000-0000-0970.
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LEE, SE-IN. "Various Methods of Investor-State Dispute Settlement." Dong-A Journal of International Business Transactions Law 25 (April 30, 2019): 139–62. http://dx.doi.org/10.31839/ibt.2019.04.25.139.
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Wellhausen, Rachel L. "Recent Trends in Investor–State Dispute Settlement." Journal of International Dispute Settlement 7, no. 1 (January 25, 2016): 117–35. http://dx.doi.org/10.1093/jnlids/idv038.
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Álvarez Zárate, José Manuel, Crina Baltag, Daniel Behn, Jonathan Bonnitcha, Anna De Luca, Holger Hestermeyer, Malcolm Langford, et al. "Duration of Investor-State Dispute Settlement Proceedings." Journal of World Investment & Trade 21, no. 2-3 (June 22, 2020): 300–335. http://dx.doi.org/10.1163/22119000-12340174.
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Abstract Speed is often touted as an advantage of arbitration. In recent years, however, some have worried that investment arbitration risks losing this advantage. Concerns about the length of investor-State dispute settlement (ISDS) proceedings have also been raised in the discussion about ISDS reform. This article analyses the duration of ISDS proceedings applying a data-centric approach and evaluates the impact of proposed ISDS reforms on the duration of proceedings. After some terminological clarifications on when proceedings are ‘excessively’ long, the article sets out the evidence on the length of proceedings using several data-sets. As a comparator, we present data on the length of World Trade Organization (WTO) proceedings, even though we urge caution as to the usefulness of such a comparator. The article then discusses the impact of various reform proposals on the duration of proceedings, namely improving ISDS, adding an appellate mechanism, establishing a multilateral investment court and abolishing ISDS.
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Jones, Kent. "Patterns of Investor-State Dispute Settlement Decisions." International Advances in Economic Research 24, no. 1 (February 2018): 79–96. http://dx.doi.org/10.1007/s11294-018-9674-z.
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Legum, Barton. "The Multiple-Ministry Paradigm in Investor-State Dispute Settlement." BCDR International Arbitration Review 6, Issue 2 (December 1, 2019): 433–40. http://dx.doi.org/10.54648/bcdr2019011.
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Investor-State disputes generally begin as a difference between a local business (the investment) and the ministry responsible for the sector in which that business operates. In many governments, the situation changes when the business owner asserts a claim under an investment treaty.The assertion of the international claim can bring the dispute within the competence, or the sphere of interest, of one or more ministries in addition to the one with sectoral responsibility.This article refers to this scenario as the multiple-ministry paradigm. The accompanying injection of new actors into government decision-making has a number of implications for the design of a successful investor-State mediation process, which are explored in this article.
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Mahabbati, Suci, Isna Kartika Sari, and Rangga D. Saputra. "Kedudukan State-Owned Enterprises dalam Investor-State Dispute Settlement." MUAMALATUNA 13, no. 1 (June 30, 2021): 70. http://dx.doi.org/10.37035/mua.v13i1.4652.
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State-Owned Enterprises (SOEs) adalah badan usaha yang seluruh atau sebagian besar modalnya merupakan milik negara melalui penyertaan secara langsung yang berasal dari kekayaan negara yang dipisahkan. Tidak hanya mengejar keuntungan, SOEs juga memiliki kewajiban melayani tujuan sosial seperti menyelenggarakan kemanfaatan umum. SOEs tidak hanya beroperasi di dalam negeri tapi juga terus melakukan ekspansi dan merambah proyek-proyek investasi luar negeri. Terkait Foreign Direct Investment (FDI) terdapat risiko terjadi perselisihan antara investor asing dengan host state. Ketika terjadi sengketa, host state kerap berdalih dengan mengatakan bahwa SOEs mewakili negara sehingga SOEs tidak memiliki keabsahan untuk mengajukan gugatan ke lembaga arbitrase untuk menyelesaikan sengketa investasi antara investor dan host state. Penelitian ini menggunakan metode penelitian hukum normatif dengan tipe penelitian doktrinal. Penelitian ini membahas ruang lingkup ISDS itu sendiri sehingga diketahui hambatan dan solusi agar tidak timbul kerancuan terhadap status SOEs dalam ISDS.
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Hyams, Adam. "Preferential Trade Agreements and the World Trade Organization: Developments to the Dispute Settlement Understanding." Legal Issues of Economic Integration 44, Issue 3 (August 1, 2017): 237–64. http://dx.doi.org/10.54648/leie2017013.
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On 21 March 2016, at the 9th Annual Update on World Trade Organization (WTO) Dispute Settlement, former Chairman of the Special Session of the Dispute Settlement Body (DSB), Ambassador Ronald Saborío Soto, spoke on the Dispute Settlement Understanding (DSU) negotiations in light of recent dispute settlement experience. He expressed that changes to the DSU ought to promote the future efficiency and effectiveness of the WTO as a dispute settlement system. The proliferation of Preferential Trade Agreements (PTAs) has been a recurrent curiosity for the WTO, with provisions often competing and overlapping. Earlier work studying these interactions emphasizes uncertainty in the application of non-WTO law, including PTAs, to WTO disputes and highlights the WTO’s implicit claim to supremacy. The purpose of this article is to critically analyse the state-of-play of negotiations on improvements and clarifications of the DSU in addressing PTAs. It examines whether current DSU proposals meet the DSB’s intended objectives and suggests solutions where problematic uncertainties remain. The article concludes that PTAs have not been sufficiently regarded by negotiators and that more express measures are required in the DSU to clarify such uncertainties and harmonize with PTAs in order to preserve the WTO’s future legitimacy.
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Jalil, Abdul. "Tumpang Tindih Kewenangan dalam Penyelesaian Sengketa Perbankan Syariah." Jurnal Konstitusi 10, no. 4 (May 20, 2016): 627. http://dx.doi.org/10.31078/jk1044.
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This paper is going to discuss the decision of the Constitutional Court No. 93/ PUU-X/2012 related to granting of the petition for judicial review of Law No. 21 Year 2008 concerning Islamic Banking (State Gazette of the Republic of Indonesia Year 2008 Number 94, namely Article 55 paragraph (2) and paragraph (3) governing the settlement of disputes with respect to Article 28D paragraph (1) of the 1945 Constitution, which says that the Act should guarantee legal certainty and justice and do not have binding legal force. While in Article 55 paragraph (1), described Sharia Banking Dispute resolution by the court within the Religious Courts, while paragraph (2), stated in terms of the parties’ dispute has betoken than those referred to in paragraph (1), the settlement of disputes in accordance with the contents of the Agreement, then, in paragraph (3) Settlement of disputes referred to in paragraph (2) must not conflict with Sharia. In addition to this, the paper will also question the extent of absolute authority of the Religious Courts institutions related to the settlement of economic disputes shari’a as stipulated in Law No. 3 of 2006 on Religious Courts .
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Brahmantya, Ida Bagus Bayu, I. Nyoman Suyatna, and Dewa Gde Rudy. "The dispute settlement by the court institution between the foundation and its management: A judicial review." International Journal of Research in Business and Social Science (2147- 4478) 11, no. 8 (November 13, 2022): 419–25. http://dx.doi.org/10.20525/ijrbs.v11i8.2175.
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Foundation legal entities have organs that carry out the functions of the foundation. The management of the foundation has responsibility for the legal entity of the foundation. This study aims to find out about disputes between foundations and foundation administrators in internal conflicts including the dismissal, replacement and appointment of foundation administrators and procedures for resolving disputes between foundations and foundation administrators through the general judiciary and state administration. If a board member is found to have acted detrimental to the foundation, then based on the decision of the supervisor's meeting, the board can be dismissed, this is a trigger for disputes that occur within the foundation. The settlement of this dispute can be resolved by filing a lawsuit by the management which is dismissed on the basis of unlawful acts committed by the foundation. This research is normative legal research with qualitative analysis. This study concludes disputes between foundations and foundation management are caused by the implementation of foundation activities that are not in accordance with applicable laws and regulations and the implementation of the foundation's articles of association and the household itself. Settlement of disputes between foundations and foundation administrators through judicial institutions is one alternative dispute resolution that can be used and is stated in the provisions concerning foundations, depending on the type of dispute, and the object of the dispute for dispute resolution before the court.
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Petersmann, Ernst-Ulrich. "Administration of Justice in the World Trade Organization: Did the WTO Appellate Body Commit 'Grave Injustice'?" Law & Practice of International Courts and Tribunals 8, no. 3 (2009): 329–74. http://dx.doi.org/10.1163/156918509x12537882648507.
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AbstractJudicial administration of justice through reasoned interpretation, application and clarification of legal principles and rules is among the oldest paradigms of 'constitutional justice'. The principles of procedural justice underlying WTO dispute settlement procedures, like the conformity of WTO dispute settlement rulings with principles of 'substantive justice', remain controversial. This contribution criticizes the recent, harsh condemnation of the WTO dispute settlement rulings in the Brazil Tyres case as 'committing grave injustice'. After recalling the customary law requirement of interpreting treaties and settling international disputes 'in conformity with principles of justice' and human rights, the contribution examines the WTO Appellate Body case-law from the perspective of diverse conceptions of 'conservative' and 'reformative justice', 'general' and 'particular justice', procedural and substantive justice, national and multilevel 'constitutional justice', and judicial protection of transnational rule-of-law for the benefit of citizens. The article concludes that the panel, appellate and arbitration reports in the Brazil Tyres dispute, like many other WTO Appellate Body reports, reflect a growing concern 'to administer justice' in WTO dispute settlement proceedings. WTO judges and investor-state arbitrators should follow the example of the ICJ and of European courts and clarify the 'principles of justice' justifying their settlement of international economic disputes so that 'justice is not only done, but also seen to be done', albeit subject to 'trial and error'. Legal practitioners should support – and, as part of the 'invisible college of international lawyers', hold accountable – the emergence of an 'international judiciary' as an 'epistemic community' committed to defending rule of law, peaceful settlement of disputes and 'principles of justice' in mutually beneficial economic cooperation among citizens across national frontiers.
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Nitschke, Frauke. "Amicable Investor-State Dispute Settlement at ICSID: Modernizing Conciliation and Introducing Mediation." BCDR International Arbitration Review 6, Issue 2 (December 1, 2019): 381–432. http://dx.doi.org/10.54648/bcdr2019010.
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The International Centre for Settlement of Investment Disputes (ICSID) has embarked on a comprehensive reform of its existing dispute settlement mechanism and also added a set of mediation rules to its service offerings. This article reviews the proposed amendments to the ICSID conciliation mechanism and ICSID’s proposed investment mediation framework. In relation to the proposed amendments to the ICSID conciliation mechanism, the article analyzes key differences and similarities between ICSID Convention arbitration and ICSID Convention conciliation, before providing an overview of the amendments proposed to the conciliation framework and offering some conclusions. Subsequently, the article reviews the background against which the ICSID Mediation Rules have been developed and sets out the key differences and similarities between ICSID’s existing conciliation process and the newly proposed mediation mechanism. The article then provides a comprehensive overview of the Mediation Rules before offering conclusions and a positive outlook for amicable investor-State Dispute Settlement.
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Цирина, Мадина, and Madina Tsirina. "THE LEGAL NATURE OF THE INTERNATIONAL CENTRE FOR SETTLEMENT OF INVESTMENT DISPUTES (ICSID)." Journal of Foreign Legislation and Comparative Law 3, no. 4 (August 23, 2017): 106–13. http://dx.doi.org/10.12737/article_598063fb2cc860.59765189.
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The article discusses the criteria of the definition of «investment» and protecting the rights of foreign investors (diplomatic protection, judicial protection). Special attention is paid to questions of investment dispute settlement in the framework of the International center for settlement of investment disputes (International Centre for Settlement of Investment Disputes, ICSID) under the Convention on the settlement of investment disputes between States and natural and legal persons of other States 1965 (Washington Convention 1965), the competence of which is the resolution of legal disputes arising from relations connected with foreign investments, that is, relations between a foreign person (investor) and the state.
The author provides a detailed analysis of the Washington Convention of 1965, concluded that its provisions cover how to operate an international legal institution (ICSID), as well as regulate the procedure of the settlement of investment disputes. It is noted that, despite the fact that the arbitration and conciliation used in the resolution of investment disputes, based on the norms of international public law, established under the Washington Convention of 1965 on settlement of investment disputes (ICSID), is an international body and the rules of dispute resolution are contained in the text of the international agreements – the Washington Convention of 1965, which is intended to apply precisely to private law disputes.
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Demirkol, Berk. "Reconsideration of Proper Remedies in Investment Arbitration in Light of Recent Cases: Should the Remedy Follow the Primary Obligation?" Journal of World Investment & Trade 22, no. 1 (January 14, 2021): 129–59. http://dx.doi.org/10.1163/22119000-12340198.
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Abstract Remedies available within a particular system are closely connected with the types and diversity of disputes brought to, and with the purpose and the structure of, the special dispute settlement mechanism. Investment arbitration is a mechanism for settlement of disputes between States and foreign investors who have made by definition mid- to long-term projects in the State concerned. Such claims are brought for the protection of private interests of investors, but they are mostly based on public international law obligations and subject to State responsibility principles. Institutional and procedural rules, as well as systemic features of investment arbitration play an important role in the determination of which remedies are available and provide suitable relief within this dispute settlement mechanism. The main argument of this article is that substantive characteristics of primary obligations should be taken into account, along with procedural considerations, in the determination of which remedies are available in investment treaty arbitration.
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Ardiansyah, Ardiansyah. "Transformation of Rules of Origin Dispute Settlement In Free Trade Agreement Scheme Through Mutual Agreement Procedure." Nurani: Jurnal Kajian Syari'ah dan Masyarakat 22, no. 2 (December 22, 2022): 305–14. http://dx.doi.org/10.19109/nurani.v22i2.14461.
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Dispute resolution has been regulated in a free trade agreement (FTA) so the dispute resolution procedure should follow the dispute resolution procedure established by the FTA (das sollen). However, FTA dispute settlement procedures are not widely used to resolve disputes between importers, exporters, and state authorities related to import duty rates on imported goods in the FTA scheme. Litigation procedures in each country are the only option (das sein). Normative juridical law research methods use a statute approach to FTAs and a comparative approach to dispute settlement in the field of international tax law. Research proves the weakness of FTA dispute resolution, namely the private sector and the business world as the main stakeholders in FTA schemes do not get the right to justice in disputes (access to justice) so that disputes are resolved through domestic litigation in each country. As a result, exporters and authorities of the exporting country who are not involved in the litigation process may be disadvantaged in court decisions in the importing country. Transformation of dispute resolution in FTA agreements through the mutual agreement procedure (MAP) as in international tax law (tax treaty) must be made to provide an opportunity for parties from both countries in FTA agreements, both the private sector and the competent authorities to submit objections.
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Callaerts, Raf, Wouter Vandorpe, and David Haverbeke. "Arbitration in the EU Energy Sector: Recent Developments and Case Law." European Energy and Environmental Law Review 26, Issue 6 (December 1, 2017): 154–71. http://dx.doi.org/10.54648/eelr2017021.
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This contribution focuses on arbitration in the European energy sector and sheds a light on some recent developments and cases. The contribution observes that under the current and evolving EU regulatory framework governing the energy sector different forms of dispute settlement are possible, with specific bodies for dispute settlement being developed in the Member States and certain competences for dispute settlement being allocated to the National Regulatory Authorities. With the focus being on arbitration, this contribution furthermore recognizes the importance of commercial arbitration or Investor State Dispute Settlement (ISDS) in the investments made in the energy sector and recognizes that classical discussions, such as on the balance between investor protection and the Member State's right to regulate are currently crucial: firstly because more and more dispute settlement cases are arising in relation to changes to regulatory frameworks such as support schemes that were designed to attract private investments in the first place, and secondly because many of these disputes in the energy sector occur in an intra-EU setting, in which the EU Commission is increasingly scrutinizing the dispute settlement possibilities. In light of various ongoing developments, the contribution provides some observations in two recent arbitral awards Charanne and Eiser Infrastructure and into a case in front of the European Court of Justice Gazprom OAO v. Lietuvos on the jurisdiction and the recognition and enforcement of arbitration clauses and awards in the EU.
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Upreti, Pratyush Nath. "Litigating Intellectual Property Issues in Investor-State Dispute Settlement: A Jurisdictional Conflict." Global Trade and Customs Journal 11, Issue 7/8 (July 1, 2016): 343–51. http://dx.doi.org/10.54648/gtcj2016046.
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This article attempts to show a jurisdictional conflict, while litigating intellectual property in investor-state dispute settlement (ISDS). At the global level, the World Trade Organization (WTO) dispute settlement body has jurisdiction to deal with any matters related to intellectual property. On the contrary, ISDS exclusively settles a dispute arising from an investment. The recent International Investment Agreements reveals that ‘intellectual property’ is part of the definition of investment, giving way for an investor to challenge intellectual property issues in ISDS. This departure of forum shifting from WTO Dispute Settlement Understanding to ISDS can be seen through the lenses of res judicata and doctrine of estoppel. However, the impact of such jurisdictional conflicts awaits future claimants.
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Tropin, Z. "PRACTICE OF INTERNATIONAL INVESTMENT ARBITRATIONS ON IMPLEMENTATION OF CERTAIN PROVISIONS OF THE ENERGY CHARTER TREATY." Actual Problems of International Relations, no. 136 (2018): 48–59. http://dx.doi.org/10.17721/apmv.2018.136.0.48-59.
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Practice of international arbitrations on implementation of investment provisions of Energy Charter Treaty («ECT») is considered in the article. Certain investment disputes which appeared on the earliest period of operation of this international agreement are considered. Respectively they are interesting when one would like to forecast application of ECT's provisions. Conclusions of arbitration tribunals in cases Ioannis Kardossopoulos (Greece) v. Georgia, Petrobart Ltd. (Gibraltar) v. Kirgizia, Plama Consortium Ltd. (Cyprus) v. Bulgaria and Nykomb Synergetics Technology Holding AB (Sweden) v. Republic of Latvia are analyzed in the article. Among other things author investigates such problematic issues of implementation of ECT investment provisions as: responsibility of state for the violations performed by state enterprises; interrelation of jurisdiction of national courts and international arbitration tribunals on settlement of international disputes under the ECT; provisional application of ECT and possibility to consider violation of investment provisions on the jurisdictional stage. An author shows that ECT investment arbitrations act on the general trend of investment dispute settlement. On the other hand and taking into account peculiarities and importance of ECT respective decisions may become significant for the general practice of investment dispute settlement.
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Konstantinidis, Ioannis. "Deciphering the OIC Investment Agreement in Light of the Itisaluna v. Republic of Iraq Award." International Review of Law 11, no. 1 (2022): 251–70. http://dx.doi.org/10.29117/irl.2022.0212.
Full textAbstract:
Promulgated in 1981, the purpose of the Agreement on Promotion and Protection and Guarantee of Investments among Member States of the Organization of the Islamic Conference (nowadays the Organization of Islamic Cooperation) (the “OIC Investment Agreement” or the “Agreement”) is to provide guidelines for the treatment of investments between member States of the Organization. The Agreement provides for investor compensation if the State hosting the investment breaches the Agreement’s substantive terms. Disputes arising under the OIC Investment Agreement are subject to the resolution provisions in Article 17, which provides for conciliation and arbitration. Although, since its entry into force, several investors have attempted to make use of its dispute resolution mechanism, since information on the outcome of these cases is limited. The two arbitral awards that are publicly available, in conjunction with recent practice followed by investors, reveal that the dispute settlement provisions of the Agreement are not free from ambiguity. In light of the recent Itisaluna Iraq LLC and others v. Republic of Iraq case, this article sets out to elucidate a series of problematic issues pertaining to the interpretation and the application of the Agreement’s dispute settlement provisions, as they have risen from publicly availably arbitral awards and other decisions. These include whether: a) the Agreement provides for investor-State dispute settlement; b) conciliation is a precondition to arbitration; and c) investors can use the Most Favored Nation clause (MFN) of the Agreement for dispute settlement purposes. These issues are of significance for pending and future cases under the OIC Investment Agreement. Given the ambiguities of the language of the OIC Investment Agreement, it is preferable that future claimants follow the OIC dispute settlement process as faithfully as possible. Such an approach will immunize them to a great degree from jurisdictional pitfalls of importing separate dispute resolution frameworks via MFN.
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Schill, Stephan W., and Geraldo Vidigal. "Designing Investment Dispute Settlement à la Carte: Insights from Comparative Institutional Design Analysis." Law & Practice of International Courts and Tribunals 18, no. 3 (February 7, 2020): 314–44. http://dx.doi.org/10.1163/15718034-12341407.
Full textAbstract:
Abstract The multilateral expression of the desire to reform investor-state dispute settlement (ISDS) at the United Nations Commission on International Trade Law (UNCITRAL) obscures the diverging preferences states have in respect of which future dispute settlement model to adopt. In order to garner broad acceptability, this article proposes that the reformed system could be designed as “dispute settlement à la carte”, with a Multilateral Investment Court coexisting with other forms of dispute resolution under the umbrella of one multilateral institution. With a view to showing that such a system is feasible, this article draws on comparative institutional design analysis, that is, a comparative assessment of dispute settlement design features across different international dispute settlement systems. This approach helps to explore what institutional design features are a useful source of inspiration for a future investment dispute settlement system that preserves flexibility for states in the choice of their preferred means of adjudication, while safeguarding legal certainty and promoting coherence in investment dispute settlement.