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UNCITRAL and ISDS Reforms: Concerns about Consistency, Predictability and Correctness

Published on June 5, 2018        Author:  and

As explained in a previous post, we have put together four posts that compile the most relevant quotes from the first two meetings of the UNCITRAL Working Group sessions on states’ concerns about investor-state dispute settlement. To facilitate discussions about the desirability of reforms and their potential nature, we have organized these quotes into key themes that emerged during the meetings. This blog sets out quotes about predictability, consistency and correctness. The other blogs deal with concerns about:

  1. Facts versus Perceptions and Systemic Problems or Solutions 
  2. Arbitral Appointments, Incentives and Legitimacy 
  3. Costs, Transparency, Third Party Funding and Counterclaims

We avoid editorializing because we think that it is important for other stakeholders to hear states’ concerns expressed in their own words. We have grouped states’ concerns under headings but otherwise have kept the interventions on each sub-topic in the order in which they were made. For an analytical framework for understanding these reform dynamics, see Anthea Roberts, Incremental, Systemic, and Paradigmatic Reform of Investor-State Arbitration, 112 AJIL _ (2018) (forthcoming).

  1. Inconsistency and lack of predictability:

EUROPEAN UNION – on the relationship between costs and consistency and predictability: “We think that the system has an effect of increasing those costs and hence by looking at the system we may be able to identify ways to gradually bring about reductions and these costs. We see this happening in three ways. The first way is because the system as it currently functions does not bring about predictability and does not bring about consistency. What does this mean. It means that in any given case before any freshly constituted ad hoc tribunal, a lawyer who is doing his or her job properly will make any possible argument that can be made legally in that particular situation. It doesn’t matter if that particular legal argument has been dismissed on multiple occasions by other tribunals. It may be the case that that particular ad hoc tribunal will accept the argumentation and so any diligent lawyer will have to make that argument again. So we think increasing and dealing with the issue of predictability and consistency will help address the issue of costs.” Read the rest of this entry…

 
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UNCITRAL and ISDS Reforms: What are States’ Concerns?

Published on June 5, 2018        Author:  and

What are states’ concerns about investor-state dispute settlement (ISDS)? To help answer that question, we have put together four posts that compile the most relevant quotes from the first two meetings of the UNCITRAL Working Group sessions. To facilitate discussions about the desirability of reforms and their potential nature, we have organized these quotes into key themes that emerged during the meetings.

As explained in a previous post, UNCITRAL granted Working Group III a mandate to: (i) identify and consider concerns regarding ISDS; (ii) consider whether reform was desirable in light of any identified concerns; and (iii) if the Working Group were to conclude that reform was desirable, develop any relevant solutions to be recommended to the Commission.

The mandate calls for the process to be “fully transparent” and thus recordings of the session are available online. These posts are in keeping with that call for transparency. They communicate states’ key concerns to other interested stakeholders, which is important given the disconnects that often exist between different communities in the field.

This post will list quotes about two general issues that emerged in the Working Group: whether states should be concerned with facts and perceptions, or just facts; and whether some of the problems identified were systemic in nature or called for systemic solutions. The next three blogs provide quotes about the concerns states raised with respect to the following topics:

  1. Consistency, Predictability and Correctness of Awards
  2. Arbitral Appointments, Incentives and Legitimacy
  3. Costs, Transparency, Third Party Funding and Counterclaims

Read the rest of this entry…

 
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Lost Between Law Enforcement and Active Hostilities: A First Glance at the Israeli Supreme Court Judgment on the Use of Lethal Force During the Gaza Border Demonstrations

Published on June 4, 2018        Author: 

In response to the ongoing violent clashes between the Israeli Defence Forces (IDF) and Palestinian protesters during the so-called ‘March of Return’ along the Gaza border fence several Israeli human rights organizations petitioned the Israeli Supreme Court, challenging the IDF’s rules of engagement, as well as their implementation. The arguments put forward by the petitioners and the Israeli Government, as well as the legal issues involved were  discussed in advance of the Court’s judgment by Eliav Lieblich and Yuval Shany (here and here). Last week, the Israeli Supreme Court, sitting as the High Court of Justice, handed down its decision, which unanimously rejected the petitions. Although the judgment seems to be flawed on several issues, it nevertheless includes a couple of interesting statements regarding the relationship between law enforcement operations and active hostilities in armed conflict. An initial analysis of the decision has been published by Amichai Cohen and I should say at the outset that I share some of his conclusions. Those aspects of the decision that relate to international law will probably spark mixed feelings. As mentioned by Cohen, the fact that the Court explicitly endorsed the ICRC’s Interpretive Guidance on Direct Participation in Hostilities is certainly a welcome development. However, the fact that the justices refused to discuss the applicability of international human rights law (IHRL) in situations of armed conflict; that they invented an obscure new law enforcement paradigm; and expanded the notion of ‘imminent threat’ to allow for the preventive use of lethal force, less so. Read the rest of this entry…

 

Announcements: International Law and the Giulio Regeni’s Affair Talk; The EU as a Global Actor in Maritime Security; Upgrading Trade and Services in EU and International Economic Law; Leadership and Ethics in International Organizations; UN Audiovisual Library of International Law; Spanish Action Plan on Business and Human Rights Conference; CfA International Law for Asia-Pacific; CfA Origins of International Legal Thought

Published on June 3, 2018        Author: 

1. International Law and the Giulio Regeni’s Affair Talk. The International Law at Westminster (ILAW) research group invites you to the talk ‘International Law and the Giulio Regeni’s Affair’ on 14 June 2018, which will explore the international law issues pertaining to the kidnapping, torture, and murdering of the Italian researcher Giulio Regeni in Egypt. Attendance is free, but please register here. For the full programme and more info, please see here.  

2. Leiden Law School Conference: The EU as a Global Actor in Maritime Security. Leiden Law School hosts a conference on ‘The EU as a Global Actor in Maritime Security: Competences – Obligations – Accountability’. It takes place in the framework of the ILS 2.0 research project ‘Policing the high seas: maritime law-enforcement in a multi-actor environment’ and is organised by the Europa Institute in cooperation with four Interest Groups of the European Society of International Law (ESIL): the Interest Groups on the EU as a Global Actor, on Migration and Refugee Law, on International Human Rights Law, and on the Law of the Sea. The conference takes place on 25 – 26 October 2018 in Leiden. The aim is to explore what competences the EU has to act in the maritime domain, what obligations it is bound by when doing so, and how judicial oversight can be ensured. Studying the EU’s competences, obligations, and accountability will inform the broader discussion on the current and future role of the EU as a global actor in the maritime domain. We invite submissions of abstracts for papers that engage with these topics. Abstracts should not be longer than 500 words and submitted no later than 30 June 2018 via email to MaritimeSecurity@law.leidenuniv.nl. Travel and accommodation costs of speakers will be reimbursed. More information and a detailed Call for Papers are available here

3. Upgrading Trade and Services in EU and International Economic Law Conference. Radboud University Nijmegen (the Netherlands) is hosting a conference on “Upgrading Trade and Services in EU and International Economic Law”. Keynote speeches will be given by Prof. Sybe de Vries and Prof. Panagiotis Delimatsis. The conference will take place on 15 of June in Nijmegen, the Netherlands.  More information, and the possibility to sign up, can be found here  Read the rest of this entry…

Filed under: Announcements and Events
 
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MDAC v Belgium before the European Committee of Social Rights: The Right to Inclusive Education Pushed by the UN Convention on the Rights of Persons with Disabilities

Published on June 1, 2018        Author: 

Around the world, the great majority of disabled children are out-of-school. In Western countries, they are often educated in so-called ‘special schools’, which give them lower educational standards and impede their inclusion into society. In a recent case about the issue, the European Committee of Social Rights has found Belgium in breach of the European Social Charter. This case was lodged by Validity – formerly the Mental Disability Advocacy Center (MDAC). The parties were notified of the decision on 28 November 2017, but this decision was only made public on 29 March 2018.

The Charter, adopted in 1961, revised in 1996, and known for its à la carte provisions, contains two provisions on the right to education. Article 15(1) provides that States Parties must grant disabled people ‘education and vocational training in the framework of general schemes wherever possible’. Article 17(2), more generally, guarantees that children have access to ‘free primary and secondary education’. The Committee ruled that Belgium violated both of them.

This decision surely comes as a relief for the many parents of disabled children. I also want to stress an important point emerging from the MDAC v Belgium case. The outcome is proof of the filtering of international developments into the Council of Europe. Read the rest of this entry…

Filed under: EJIL Analysis, Human Rights