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| 1 |
ID:
136538
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| Summary/Abstract |
Abuse of process has been regularly invoked before international arbitral tribunals to dismiss INVESTMENT claims. Because of its multifaceted character, the concept deserves a careful analysis in the light of international and comparative law. In investment arbitration, it is mentioned sometimes as a mere preoccupation justifying the teleological interpretation of a treaty, sometimes as the motive for the adoption of a new arbitration rule, and sometimes as a legal principle limiting access to arbitration. This article studies the different situations deemed to be abusive in the practice of investment tribunals, ranging from frivolous claims to conduct undermining the integrity of the arbitral procedure. An overall analysis reveals the main features of abuse of process as a legal principle, and its potentialities for the emergence of a system of investment arbitration.
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| 2 |
ID:
136540
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This article argues for a new way of addressing contemporary international law that is more adequate to both vital dynamic trends towards “regionalism” within international law, relations and politics, and the emergent possibility of a far more pluralistic “multipolar” legal order that—in both theory and practice—contrasts markedly with US-dominated hegemonic modes of regulation and high-handed unilateralism. To advance our argument, we draws upon classic Schmittian forms of Grossraum theory concerned to adapt traditional state-centric and purely horizontal conceptual types of international law interpretations to a form of international relations structured around regional ensembles, such as the European Union, NATO, the African Union, and the Shanghai Cooperation Organisation (SCO). These historical trends are emerging out of an encompassing contemporary developmental tendency, including the decline in the traditional nation state posited as having equal status, and both the proliferation of new regional bodies and the strengthening of existing ones. Arguably, the emergence of the SCO from 2001 signals a new phase in multilateralism in the post-Cold War period that, when treated as a case study, allows us to “test out” the credibility of key aspects of Grossraum theory.
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| 3 |
ID:
136533
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October 24th is the United Nations Day. On this day sixty-nine years ago, the Charter of the United Nations, the instrument of international law with the most far-reaching impact on world peace and security in the modern history of international relations, officially came into effect. On this very day, there is every necessity for us to review the purposes and principles of the UN Charter, reaffirm the commitment to maintaining peace and international rule of law, reject the law of the jungle where the strong do what they want and the weak suffer what they must, and uphold international rule of law, equity and justice.
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| 4 |
ID:
136534
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| Summary/Abstract |
The recent decision of the World TRADE Organization's Appellate Body (AB) in China-Rare Earths1 has put an end to the high-profile disputes over China's policies to restrict the exportation of rare earths and other raw materials. China has lost the case, and is expected to remove the export restrictions in compliance with the WTO decision. Despite resolution of the disputes, however, the AB's decision has failed to clarify a systemic issue at the heart of the disputes, namely, the relationship between the WTO agreements on one hand, and an accession protocol whose provisions modify the application of the WTO agreements to the acceded Member, on the other. In addition, the AB chose not to address the dissenting opinion from the Panel below and the views of several third parties that disagreed with the AB's prior ruling on the same legal issue in China-Raw Materials,2 thereby forgoing the opportunity to reexamine and possibly reverse its controversial ruling. The AB's decision thus raises some serious issues about judicial authority in WTO law.
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| 5 |
ID:
136539
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This article looks at the positioning and role of the Organisation of Islamic Cooperation (OIC) in relation to Public International Law, and how the OIC has sought to resolve two competing tensions: first, the defence and better promotion of the interests of generally Muslim States on the secular global stage; and second, effective representation of the interests of Muslims globally, following the collapse of the Ottoman Caliphate after the end of the First World War. The study is historical, contextual, and is written from a TWAIL perspective. It uses the case study of human rights to illustrate how historical tensions exacerbated by colonial structures through the frameworks of International Law have been resolved by a subordinated, Third World international organisation, and the state interests those resolutions have favoured. The article is partially descriptive, in response to the relative silence and lack of academic interest in the workings of the OIC. But it is also normative - an attempt to draw out a more pluralist, participative and inclusive form of Public International Law which, in traditional formulations, have and continue to marginalise the religious and Muslim voice.
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| 6 |
ID:
136537
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The ICJ's decision addresses facts and themes related to the question whether or not a maritime boundary extended to 200-nautical miles had been set between Chile and Peru. Thus, the ICJ decision is deeply interwoven with the history of the maritime zone of 200–nautical miles and its Latin American roots. The task of the Court was to ascertain whether a delimited boundary had been agreed, and if that had been the case, whether it has been established in connection with the long standing proclamations of an extended maritime zone of 200 nautical miles, first unilaterally and then multilaterally by the 1952 Santiago Declaration on the Maritime Zone and further agreements. The explicit reference to a delimitation line embedded in successive agreements was settled in favor of an implicit agreement enshrined in the terms of the 1954 Agreement of a Maritime Frontier Zone, preceded by a subtle crystallization of a delimitation process prior to it. The point was deduced from Article I of the 1954 Agreement which explicitly states that “A special zone is hereby established, at a distance of 12 nautical miles from the coast, extending to a breadth of 10 nautical miles on either side of the parallel which constitutes the maritime boundary between the two countries”.
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| 7 |
ID:
136535
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| Summary/Abstract |
The Arbitration Law, Civil Procedure Law, judicial interpretations and cases of the Supreme People's Court serve as the windows through which the current arbitration system in China can be observed. The Arbitration Law primarily regulates the internal relationships, whilst the Civil Procedure Law focuses on the external relationships of arbitration. The judicial interpretations and cases of the Supreme People's Court are a “live” and active part of China's dispute resolution system. Although not a source of law, changes in the arbitration rules of the major arbitration commissions in China also reflect changes in the arbitration system in China.
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| 8 |
ID:
136541
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| Summary/Abstract |
The principle of the right of nations to self-determination includes the right to secession only for those nations that are not under the authority of “a government representing the whole people belonging to the territory without distinction as to race, creed or colour” (Friendly Relations Declaration, 1970). Thus, the right to secession arises when a nation is excluded from the internal political dialogue, when its will is not taken into account when making policy decisions
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| 9 |
ID:
136536
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| Summary/Abstract |
This article first highlights in Part I the procedural posture of the South China Sea Arbitration (the Philippines v. China) case and the affirmative duty of the Arbitral Tribunal under Article 9 of Annex VII to the UNCLOS, faced with the absence of China, to investigate conscientiously its own jurisdiction by taking notice of all available information and materials whether or not they are submitted to the Tribunal. Part II summarizes the Philippines' claims and highlights their nature as well as the delimitation geographical framework and the delimitation situation in this matter. The Philippines “skillfully” fragments a big dispute with China into various free-standing-appearing entitlement claims and activities claims in order to conceal the sovereignty-delimitation nature of the dispute or claims. Part III discusses the jurisdictional obstacles or objections ratione temporis and ratione materiae. The dispute is outside the jurisdiction of Section 2 courts and tribunals, because it predated the entry into force of the UNCLOS with respect to China. Furthermore, the Philippines' claims are essentially land territorial sovereignty matters, not concerning the interpretation or application of the UNCLOS, or are dependent on the resolution of land territorial sovereignty claims. Part IV discusses the jurisdictional obstacles or objections based on Article 298 of the UNCLOS and China's 2006 optional exceptions declaration as well as the Philippines' related Understanding. When defragmented as they must be because of the delimitation geographical framework and/or delimitation situation, the Philippines' claims constitute one delimitation dispute with China. In any event, a dispute “concerning” the interpretation or application of the provisions on delimitation or “relating to” “delimitation” within the meaning of Article 298 has a broader scope than a delimitation dispute, however strict a reading one gives to that term. All these issues have been excluded by China from the jurisdiction of Section 2 courts and tribunals. Such a defragmentation approach must be applied by the Tribunal. In addition, the “nine dash line” claims may present disputes involving historic title or historic rights as relevant circumstances in a potential delimitation between the Philippines and China, all being excluded matters. The Philippines' Understanding may also serve to exclude this case from the Tribunal's jurisdiction. Part V summarizes the arguments made in this article.
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| 10 |
ID:
136542
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| Summary/Abstract |
Xi Jinping's conception of “true maritime power” is intertwined with a set of complex issues: internal factors concerning the legitimacy of Xi's regime and external factors such as territorial disputes in the East China Sea and the South China Sea (ESCSs) which concern sovereignty. The nations of the region must consider the implications of China's approach and its impact on the region: Is it possible to influence China by standing together?
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