(This article was originally published in ITN Quarterly, December 2016, International Institute for Sustainable Development here.)
India has bilateral investment treaties (BITs) or bilateral investment promotion agreements (BIPAs) in force with 72 countries. The initial duration of these agreements with 25 countries has not yet expired. The Government of India (Government) has recently begun negotiations with these countries proposing a Joint Interpretative Statement (Statement) containing clarifications similar to the text of India’s new Model BIT. We highlight below nine of the clarifications included in the Statement.Read More »
In 1995, a former Secretary General of the ICC International Court of Arbitration, Stephen R. Bond, in an article, noted that the users of international commercial arbitration “almost invariably” mentioned the fact that the arbitral proceedings and the resulting award do not enter into the public domain as a feature which attracted parties to it. Whether confidentiality is an essential feature of international arbitration cannot be stated with certainty, considering how the New York Convention and the UNCITRAL Model Law on International Commercial Arbitration do not expressly recognize it.Read More »
Unlike the process of law making in domestic legal regimes, the process of law making in international law is decentralized and horizontal. There is no legislature in the international legal system. The General Assembly of the United Nations serves as a forum for deliberations by the entire membership of the United Nations and some of the activities there do contribute towards creation of a law. Yet its roles, functions and powers are not entirely comparable with a legislature at the domestic law level. Absence of a centralized legislature or a vertical system does not imply that there is no process of law making. The process of law making – unconventional as compared to domestic system is set out in Article 38 (1) of the Statute of the International Court of Justice. The sources of law specified therein: custom, treaty, general principles and subsidiary sources (judicial decisions and writings of publicists) specify the sources but do not discuss the legislative process in international law.
The arbitral tribunal of Prof. Piero Bernardini (President), Mr. Gary Born, Judge Prof. James Crawford in Philip Morris v. Oriental Republic of Uruguay (ICSID Case No. Arb/10/7) has finally ruled on merits, dismissing the claims presented by Philip Morris (“PM”) and awarding costs to the tune of US$ 7 million to Uruguay. This award will have huge implications on the tobacco industry and countries like India who are seeking to regulate tobacco consumption through plain packaging measures as it was reportedly the first time a tobacco group had taken on a country for its anti-tobacco laws. Many are characterising Uruguay’s victory as something that will change the world. In this post, I will only focus on the claim of expropriation and the other claims of denial of justice, fair and equitable treatment and impairment of use and enjoyment of investments will be discussed in subsequent posts. Read More »
(Legal) Multipolarity Revisited: What Lies Beyond Westphalia?
This brief introduction to such an ambitious thematic must undoubtedly commence by positing its adherence to the (non-legal) core concept of ‘grand strategy’ and its realist avatars in international economic law. More precisely, it shall be argued that – at a certain level – the normative sphere is instrumentalised by competing nomothetic actors in order to enhance their power position and joint economic security, in a troubled multipolar world.Read More »
A key area of exposition both in Public International Law and Investment Arbitration is what constitutes an ‘act of state’.( ‘State Responsibility and Attribution’ in Schreuer,. and Dolzer, Principles of international investment law (2008), 195-205) The Draft Articles on State Responsibility has been a ground-breaking work in codifying the rules of attribution of responsibility to the states. A related issue in this regard is the attribution of liability to a State in cases of breach of its treaty obligations by its political sub-divisions.Read More »
Ms. Samira Sulejmanovic is the Head of Unit for Bilateral Trade Relations, Ministry of Foreign Trade and Economic Relations of Bosnia & Herzegovina. She oversees the negotiation and implementation of international agreements (trade and economic cooperation, FTAs and PTAs, bilateral investment promotion agreements) and monitors and studies the conditions and various phenomena in bilateral trade cooperation.Read More »