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| 1 |
ID:
156863
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| 2 |
ID:
114562
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2012.
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| Summary/Abstract |
Since its accession to the WTO on 11 December 2001, China has been involved in eight cases as complainant, 23 as respondent, and 89 as a third party. Against all pre-entry predictions, the China-related cases have not overburdened the WTO dispute settlement system, as if all parties were implicitly respecting a latent period before engaging in commercial hostilities. Often portrayed as a "passive rule taker" in the immediate aftermath of its accession, China was not only learning by attentively watching other members' strategies, but also benefiting from the benevolent attitude of its main trading partners, the US and the EU. Moreover, its participation in 89 WTO disputes as third party is not a trivial detail nor is it a sign of passivity, but rather one of cautious preparation that corresponded to the time needed to properly apprehend its new legal tools and all rights thereunder.
While there are many ways of approaching such an already vast body of decisions and related legal and economic literature, this article tries to reflect the uniqueness of the Chinese trade regime and the impact of such a peculiar mix between economic libreralisation and maintenance of the state on other WTO Members in addressing the following questions: the transitional product-specific safeguard measures adopted in reaction to a market disruption caused by Chinese imports, the antidumping and countervailing duties issue, and the restrictions on exportations or importations imposed by China for economic, but also societal and political reasons.
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| 3 |
ID:
124566
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2013.
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| Summary/Abstract |
Conciliation is an age-old peaceful means of dispute settlement. The UN Convention on the Law of the Sea provides for both voluntary and compulsory conciliation. The importance of conciliation under UNCLOS is obvious, yet it has received little focused attention.
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| 4 |
ID:
109959
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2012.
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This article addresses the principles that should guide commanders, and the rules they must adhere to, when dealing with community disputes in Afghanistan. An important feature of these principles and rules is that they have been developed to ensure that coalition forces minimize the harm caused to the local population; and that members of the coalition do not violate their own laws and policies. The principles and rules have also been developed to be consistent with counterinsurgency guidance as practiced in Afghanistan. The article concludes with a number of 'Dos and Don'ts' concerning dispute settlement that are relevant for coalition forces dealing with disputes at the tactical level. The article also has two appendices, which are intended to guide commanders to better understand dispute settlement systems in Afghanistan.
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| 5 |
ID:
082135
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2008.
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| Summary/Abstract |
The issue of dispute settlement is problematic in the international system because it may conflict with sovereignty. States may find, however, that in order to facilitate cooperation, they should delegate some authority to resolve disputes to a third party. This article seeks to provide a measure for dispute settlement authority and some explanation for the delegation aspect of international cooperation by examining why states agree to grant dispute settlement authority to a particular kind of institutional arrangement, conventional international governmental organizations (IGOs). The analysis reveals that states tend to enter into IGO agreements with a higher degree of dispute settlement authority when members have a greater incentive to defect due either to the large number of other parties to the agreement, or due to greater cooperative demands as provided by the agreement
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| 6 |
ID:
163447
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This comment offers some brief observations on ideas that may promote the settlement of disputes that may arise from the Belt and Road Initiative, such as a possible standing investment court, a unified appellate mechanism or a legal aid mechanism as system components, a “lawyer for the situation” spirit for lawyering, an emphasis on a friendly style of dispute settlement, and a style of directly providing for rules of interpretation as part of the applicable law
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| 7 |
ID:
113859
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2012.
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After prolonged lobbying, the Protection of Women from Domestic Violence Act of 2005 was implemented in India in October 2006. The Act soon gave rise to cases. This article is based on a preliminary study using questionnaire-based interviews of litigants in Delhi who were involved in cases under the Act. Primary data, taken from all the Delhi Metropolitan Magistrates Courts at that time, concern the background of those who used the law, the litigation process, implementation of the law and the forms of violence addressed. The article seeks to assess the effectiveness of this new legislation and examines specifically what kinds of people bring actions under this new gender-specific law. In addition, qualitative assessment of the perceptions of different kinds of violence by complainants and respondents provides deeper insights into ongoing and potential contestations over gender-based violence.
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| 8 |
ID:
164173
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We introduce the new, substantially updated, and revised version of the Dyadic Militarized Interstate Disputes (MIDs) dataset. We discuss the underlying logic of constructing dyadic MIDs and demonstrate that these operations generate significant differences between the actual occurrence and properties of MID dyads and those extracted from machine-generated programs such as EUGene, or from the MID participant dataset. We provide some descriptive measures of dyadic MIDs over the period of 1816 to 2010 and compare some of the key dyadic results on the correlates of MIDs using different datasets. We discuss the theoretical and empirical implications of our results.
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| 9 |
ID:
178352
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The United Nations Convention on the Law of the Sea (UNCLOS) is heralded as a constitution for the oceans and, as part of this, provides for a compulsory dispute settlement procedure entailing binding decisions. However, case law and academic commentary have highlighted significant issues in definitively identifying other agreements that could preclude these compulsory procedures—a concept permitted by the Convention in certain circumstances. This article begins to explore this challenge by contending that the type of agreement plays a significant role in whether or not it could be determined to be an “exclusionary agreement.” In doing so, the article conducts a systematic interpretation of Articles 281 and 282 UNCLOS, underpinned by the application of relevant provisions in the Vienna Convention on the Law of Treaties. This provides a conclusive basis as to whether the status of an agreement as an “ad hoc agreement” (specific; adopted for the dispute) or an “existing agreement” (general; adopted prior to the dispute) holds any significance in the context of these articles.
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| 10 |
ID:
121434
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2013.
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The geopolitics of the Arctic region is viewed as a race for resources between coastal states. Yet, alarmist assessments are tempered by the reality that the most economically viable hydrocarbon reserves are entirely contained within the uncontested EEZs of the littoral states. Given this situation, confrontational rhetoric coming from Ottawa and Moscow seems not only troubling but peculiar. This article attempts to explain this peculiarity. It argues that leaders in both states seem willing to emphasise the ideational salience of disputed space to domestic audiences while downplaying their cooperative track record. The article finds mixed evidence of the instrumental use of national identity politics in Arctic issues, which often conflate distinct elements of Arctic geopolitics. While this dynamic has not yet prevented cooperation over disputed boundaries, perpetuation of these narratives may erode domestic support for dispute settlement.
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| 11 |
ID:
165120
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This article investigates the effect of dispute settlement decisions under the 1982 United Nations Convention on the Law of the Sea (UNCLOS) and whether and how states, particularly great powers, comply with these decisions. State practice suggests that an overwhelming majority of the decisions by UNCLOS dispute settlement bodies have been implemented. Significantly, not only small states but also the permanent members of the United Nations Security Council have complied with UNCLOS dispute settlement decisions even when they “lost” in the proceedings that were unilaterally initiated against them.
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| 12 |
ID:
090980
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2009.
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In patent, institutional design matters, and goals matter to institutional design. This article concerns the institutional design of mechanisms that can be used by third parties to challenge the validity of proposed or granted patents in the patent office-oppositions, revocations and similar processes. This article traces the various goals of these mechanisms, and how those goals have changed over time. It argues that recent economic and legal literature, which has influenced proposals for reforming these systems, is altogether too neat and tidy, treating public interest participants as interfering busybodies. It is better to acknowledge and embrace groups like Peer to Patent and the Public Patent Foundation, and think about how, in the long term, we can adjust aspects of the patent system to incorporate public input without too much sacrifice to politics and uncertainty.
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| 13 |
ID:
157486
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Relations between Pakistan and Afghanistan have mostly been hostile since 1947. The animosity has grown in complexity from various territorial disputes to frequent allegations of cross-border terrorism in the post-9/11 era. This article first makes a case for involving Jirgas, a traditional dispute resolution mechanism among Pashtuns, for improving peace dialogues between both countries. It presents evidence of the traditional acceptability of Jirgas by Pashtuns on both sides of the border and assesses previous official bilateral attempts of using Jirgas. It then proceeds to propose some new policy recommendations focused on national reconstruction of Afghanistan, which include involvement of the Taliban as an important local stakeholder. The dual key argument then becomes, first, that since Jirgas have long-standing local legitimacy and acceptability both in Afghanistan and Pakistan, using the strength of their social recognition would allow higher-level bilateral negotiations between the neighbours, enhancing the effectiveness of new and locally more credible forms of multi-track diplomacy. Second, reinvigorating the Jirga system would allow the Afghan people themselves to engage in fuller multi-dimensional debates on sustainable modalities for their own future, on terms to be set by them, not outsiders.
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| 14 |
ID:
141481
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This brief paper comments on the clinical isolation and one-sided tendencies in the Philippines' oral arguments in the South China Sea arbitration, with illustrations from its arguments on (1) negotiation as the agreed exclusive choice for dispute settlement, (2) sovereignty matters, (3) the optional exception of delimitation-related disputes; (4) the optional exception of military activities disputes; and (5) environmental claims.
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| 15 |
ID:
093681
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2010.
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| Summary/Abstract |
How does variation in the strength of a court's jurisdiction and enforcement affect strategic behavior by states involved in international disputes? The authors construct a formal model and identify three important ways that legal institutions can have a deleterious effect on international cooperation by magnifying the bargaining problems arising from incomplete information about the quality of the legal claims. First, strong courts create less information revelation in pretrial bargaining. Second, strong courts reduce the likelihood of pretrial settlements between states. Third, strong courts lead to more brinksmanship over high-value assets, which leads to conflict if the court refuses to intervene. The authors argue that a key policy implication of their model is that attempts to strengthen international courts must be accompanied by increased precision of international law to ameliorate the deleterious effects of strong courts.
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| 16 |
ID:
098444
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2010.
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The author has taught international business negotiation in a wide variety of university courses and executive training programs throughout the world during the last three decades. He has taught international business negotiation both as an end in itself and as a means to teach law, an approach that he calls "the law in the shadow of negotiation." This article examines three fundamental dimensions of that experience: pedagogical goals, course content and teaching methods. His principal pedagogical goals in international business negotiation courses have been three-fold: better negotiation analysis, improved negotiation skills, and increased international business knowledge. Depending on the time available, the content of his international business negotiation courses covers three broad areas: the fundamentals of conflict analysis and the negotiation process, basic themes in international negotiation, such as the importance of negotiation, preparation and the management of internal negotiations, and the special obstacles faced in international business negotiation, such as cultural differences among the parties, the actual or potential role of governments in the negotiation process, and challenges to the stability of negotiated agreements. The author's teaching relies heavily on experiential methods and materials, such as exercises, simulations and cases, although more didactic methods also have a role.
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| 17 |
ID:
127355
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2014.
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| Summary/Abstract |
The establishment of the World Trade Organization (WTO) has been widely accepted as representing the legalisation of world trading rules. However, it is important to reflect on the limits of this legalisation thesis in terms of the interface between international and domestic policy processes. By locating trading disputes in a political analysis of policy implementation, it is argued that it is difficult to establish conceptually how the WTO dispute settlement system could have authority separate from and above the conventional international politics of trade policy relations. Instead, the article argues that case outcomes should be expected to be largely the product of domestic political institutions and policy processes, and how these intersect with developments in the WTO dispute settlement system. Brief studies of the Australian government's dispute settlement strategy and two high-profile WTO disputes-the US upland cotton and European Union sugar cases-serve to suggest that the authority of international trade law is not as significant as assumed by the legalisation thesis. Rather, domestic politics and institutions have an important impact on the outcome of trade disputes.
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| 18 |
ID:
188223
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The United Nations Convention on the Law of the Sea (UNCLOS) is credited for promoting order in the world’s oceans. This article evaluates UNCLOS in the context of maritime boundaries in areas of hydrocarbon potential. It uses a dataset of 109 maritime boundaries and finds that the most frequent maritime boundary resolution methodology was not a negotiated delimitation agreement, but a solution only indirectly referenced by UNCLOS: a Joint Development Area agreement with prescriptive resource sharing. This study also discovered that disputes that involve states that have chosen to opt out of compulsory dispute resolution procedures are more likely to remain unresolved than otherwise.
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| 19 |
ID:
099167
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2010.
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This article focuses on the significance of the US-China intellectual property panel report in terms of the light it shed on the interpretation of certain provisions on domestic enforcement contained in part III of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). The panel made several important observations in respect of certain TRIPS domestic enforcement provisions either reinforcing views previously held, adding further meaning or shedding new light on these provisions, explaining its reasoning, and including, on several occasions, an examination of the negotiating history of TRIPS. This article picks out certain key points of interpretation by way of illustrating the significant contribution made by the panel to TRIPS jurisprudence.
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| 20 |
ID:
110841
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2012.
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A principal aspect of the territorial and boundary delimitation disputes in the South China Sea is the so-called U-shaped line. This article addresses the genesis and substantiation of the U-shaped line claims as well as the possible change in positions of the governments of the Republic of China and the People's Republic of China with respect to the historical waters claim, which is an integral part of their U-shaped line positions. A legal analysis of the various communications of the South China Sea players with respect to the U-shaped line helps to clarify and identify the nature of four kinds of legal disputes. It is also possible to differentiate the various degrees of difficulty involved in settling each of these disputes.
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