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Abstract: With an extraordinary increase in the number of BITs and the development of the ICSID allowing direct investor-state arbitrations of alleged violations of BITs, international investment law has expanded tremendously over the past two decades and afforded investors with unprecedented protections. This contributed to the initiation of more than forty ICSID cases against Argentina for its measures taken in response to the 2001-2002 financial crises. Among them, four cases decided by early 2008 are of particular significance, in part because of ICSID Tribunals' treatment of Argentina's claims of treaty-based NPM and the necessity principle under customary international law. As analyzed in this article, the resulting jurisprudence is deeply problematic: not only is the reasoning seriously flawed, but the four ICSID Tribunals' rulings also lack consistency even in the face of identical factual circumstances. In turn, this poses a serious challenge to the legitimacy and viability of the BIT regime and the ICSID system more generally, and hence a deep rethinking of various proposed solutions is urgently needed to restore confidence in the system.
bilateral investment treaty (BIT), non-precluded measure (NPM), ICSID, financial crisis, necessity defense, investor-state arbitration, self-judging, good faith, state responsibility
Abstract: This essay examines the jurisprudence of the International Center for the Settlement of Investment Disputes (ICSID) arbitral tribunals in a series of cases brought against the Republic of Argentina in the wake of the 2001-2002 Argentine financial collapse. The essay considers the ICSID tribunals' treatment of non-precluded measures provisions in Argentina's bilateral investment treaties (BITs) and the customary law defense of necessity and argues that the ICSID tribunals have sought to radically narrow the opportunities available to states to craft policy responses to emergency situations while strengthening investor protections beyond the intent of the states parties to the BITs under which these cases have been brought. The essay critiques this line of jurisprudence and suggests that the September 2007 Report of the Annulment Committee in the case of CMS v. Argentina may be read as an effort from within the ICSID system itself to question the legitimacy and structure of current investor-state arbitration.
Banking & Finance, Dispute Resolution, International Law, Law & Economics, Bilateral Investment Treaties (BITs), International Center for the Settlement of Investment Disputes (ICSID), Argentina, Argentine financial collapse, Arbitration, Legitimacy, Investor protection, sovereign debt
Abstract: When threatened by crises such as global terrorism, financial collapse, pandemic diseases, and natural disasters, states may resort to measures that harm the interests of foreign investors protected under the bilateral investment treaty (BIT) regime. Many such BITs, however, contain heretofore under-studied clauses that preclude liability for state actions taken in response to exceptional circumstances. These non-precluded measures (NPM) clauses effectively transfer the risk of and costs associated with state action in exceptional circumstances from the host-states of international investments to the investors. In two recent cases brought against Argentina in response to the Argentine financial crisis, ICSID tribunals have interpreted the NPM clause in the U.S.-Argentina BIT in radically different ways, with one tribunal holding Argentina liable and the other excusing Argentina from compensating investors. This article provides the first detailed study of NPM clauses in international investment law. It argues that NPM clauses are, in fact, a widespread element of the international law of foreign investment. To guide states, investors, and arbitral tribunals, the article offers a framework for the interpretation of NPM clauses, based on the practice of key states including the U.S., Germany, and India. In so doing, the article imports the margin of appreciation doctrine from European human rights law into international investment arbitration as a mechanism for determining the scope of deference to be accorded to critical state policies by ad hoc arbitral tribunals. More generally, the article argues that the risk-allocation function performed by NPM clauses is of considerable significance to the depth of international legal cooperation, the response of states to international crises, and the flow of international investments.
International Law, International Trade, economic crises, foreign investors, BIT, bilateral investment treaty regime, NPM clauses, non-precluded measure clauses, risk allocation, margin of appreciation doctrine
Abstract: When the International Criminal Court (ICC) was established in 2002, States, NGOs, and the international community had extraordinarily high expectations that the Court could bring an end to impunity and provide broad-based accountability for international crimes. Nearly five years later, those expectations appear unfulfilled, due to political constraints, resource limitations, and the inability of the ICC to apprehend suspects. This article offers a novel solution to the misalignment of resources, expectations, and legal mandate of the ICC, arguing that the Court must more actively engage with national governments and encourage States to undertake their own prosecutions of international crimes. The article shifts basic understandings of the ICC's role through a policy of Proactive Complementarity, whereby the international Court would encourage and, at times, assist States undertaking domestic prosecutions of international crimes. The article examines the legal mandate for such a policy, considers the political constraints on the Court, offers a practical framework for the implementation of Proactive Complementarity in the range of circumstances the ICC is likely to face, and documents early examples of Proactive Complementarity in the ICC's initial operations. Overall, the Article argues that encouraging national prosecutions within the "Rome System of Justice" and shifting burdens back to national governments offers the best and perhaps the only way for the ICC to meet its mandate and help end impunity.
ICC, international crimes, Proactive Complementarity, Rome System of Justice
Abstract: The ICC Pre-Trial Chamber II (PTC) has recently initiated an inquiry into the admissibility of the case against the leadership of the Lords Resistance Army (LRA) in the Uganda situation. In an effort to resolve the conflict in northern Uganda, the government signed a preliminary agreement in 2006 with the LRA providing for domestic prosecution of the indictees. This article examines the issues regarding both the nature of challenging admissibility generally and particular issues that arise from such challenges in the context of state self-referrals. The article proposes three different visions of admissibility that may arise in an admissibility challenge and applies them to the current PTC examination as well as a possible challenge by Uganda. The article suggests a framework for analysis and considers the role of the Court in shaping the contours of acceptable domestic justice.
Abstract: In December 2003, the Government of Uganda referred the situation in conflict-torn northern Uganda to the nascent International Criminal Court. It was the first referral by a State Party under Article 14 of the Rome Statute of ICC and led to the indictment of five leaders of the Lord's Resistance Army (LRA). Four years later, Uganda found itself in the midst of promising peace negotiations with the LRA. A major obstacle to a final agreement was the refusal of the indicted leaders to face ICC justice. Seeking to peacefully resolve the conflict, the Government signed a preliminary agreement in which it would assume the prosecution of the indictees. Under the principle of complementarity embedded in Article 17 of the Rome Statute, the ICC cannot prosecute where a jurisdictional state has undertaken investigation or prosecution, unless the State's action is in an attempt to shield the accused from justice. However, with the case against the LRA leaders already deemed admissible, an admissibility challenge would be necessary to withdraw the ICC indictments. This paper examines the various and complex issues regarding both the nature of challenging admissibility generally and particular issues that arise from such challenges in the context of State self-referrals. The article proposes three different visions of complementarity as a means of understanding the boundaries within which the Court may situate a decision, and applies them to the hypothetical situation of an admissibility challenge to the LRA indictments. The options of both the indictees and Uganda are explored and the prospects for a successful challenge are examined. The paper concludes by suggesting a critical role for the Court in both resolving conflict and shaping the contours of acceptable domestic efforts to bring those responsible for grave crimes to justice.
Uganda, International Criminal Court, ICC, admissibility, Lord's Resistance Army (LRA), complementarity, international law and procedure, State self-referral, human rights law
Abstract: International criminal tribunals are often criticized for having minimal influence on the states over which they exercise jurisdiction. This article argues that the International Criminal Tribunal for the Former Yugoslavia has had a far more positive impact on domestic governance in Bosnia & Herzegovina than previously assumed by both the academic and policy communities. The article develops a theoretical model to explain the impact of international criminal tribunals on domestic governance and tests that model against the ICTY's influence in Bosnia. More specifically, the article advances the claim that the nature of the tribunal's jurisdictional relationship with domestic judicial institutions and the incentives for national and international officials created by that jurisdiction interacted with changing preferences of domestic actors, thereby catalyzing judicial reform and institutional development in Bosnia. Based on an in-depth study of the ICTY's interactions with Bosnia from 1994 to 2006, the article presents new empirical evidence of the Tribunal's early effect of freezing out the activation of the domestic judiciary in Bosnia and its later role in the establishment of the new State Court of Bosnia & Herzegovina with war crimes jurisdiction The article attributes the variance in the Tribunal's influence over time in large part to changes in its jurisdictional relationship with national courts brought about by the ICTY's Completion Strategy and suggests the significance of a tribunal's institutional design, and particularly its jurisdictional relationship, for the direction and intensity of its influence on domestic institutional development.
ICTY, International Criminal Court, Complementarity, Norm Leadership, Rules of the Road Program, Domestic courts, Office of the High Representative, Domestic judicial reform, Jurisdiction, Multilevel global governance, State Court of Bosnia & Herzegovina
Abstract: Though international criminal justice has developed into a flourishing judicial system over the last two decades, scholars have neglected institutional design and procedure questions. International criminal-procedure scholarship has developed in isolation from its domestic counterpart but could learn much realism from it. Given its current focus on atrocities like genocide, international criminal law's main purpose should be not only to inflict retribution, but also to restore wounded communities by bringing the truth to light. The international justice system needs more ideological balance, more stable career paths, and civil-service expertise. It also needs to draw on the domestic experience of federalism to cultivate cooperation with national authorities and to select fewer cases for international prosecution. Revised plea bargaining and sentencing rules could learn from domestic lessons and pitfalls, husbanding scarce resources and minimizing haggling while still buying needed cooperation. Finally, in blending adversarial and inquisitorial systems, international criminal justice has jettisoned too many safeguards of either one. It needs to reform discovery, speedy-trial rules, witness preparation, cross-examination, and victims' rights in light of domestic experience. Just as international criminal law can benefit from domestic realism, domestic law could incorporate more international idealism and accountability, creating healthy political pressures to discipline and publicize enforcement decisions.
Criminal Law and Procedure, International Law, institutional design, retribution, ideology, federalism, international cooperation, plea bargaining, sentencing, adversarial system, inquisitorial system, safeguards, discovery, speedy trial, witness preparation, victims rights, ICC, International Crime
Abstract: International arbitration and, particularly, investor-state arbitration is rapidly shifting to include disputes of a public law nature. Yet, arbitral tribunals continue to apply standards of review derived from the private law origins of international arbitration, have not recognized the new public law context of these disputes, and have failed to develop a coherent jurisprudence with regard to the applicable standard for reviewing a state's public regulatory activities. This problematic approach is evidenced by a recent series of cases brought by foreign investors against Argentina challenging the economic recovery program launched after a massive financial collapse and has called into question the legitimacy of investor-state arbitration more generally. A comparative analysis of public law standards of review from both other international courts and the domestic systems of the U.S. and Germany demonstrates that arbitral tribunals have a variety of standards of review from which they could borrow to develop a coherent jurisprudence. While any consistently applied public law standard of review that recognizes the competing public interests at stake in this new form of international arbitration would be preferable to the status quo, we argue that for reasons of institutional capacity, expertise, and embeddedness, the margin of appreciation as developed by the European Court of Human Rights may offer the best path forward. The consistent application of a margin of appreciation when reviewing public law regulatory activities of states would allow arbitral tribunals to grant appropriate deference to national authorities while simultaneously protecting investor rights, thereby helping to close the growing legitimacy gap in investor-state arbitration.
Bilateral investment treaties, International Center for the Settlement of Investment Disputes (ICSID), International arbitration, standards of review, margin of appreciation, public law regulatory activities of states, foreign investors, protection of investor rights
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