International Investment Dispute Settlement in the 21st Century: Does the Preservation of the Public Interest Require an Alternative to the Arbitral Model?

2012 ◽  
Author(s):  
Nicolas Hachez ◽  
Jan Wouters
Keyword(s):  
21St Century ◽  
Public Interest ◽  
Dispute Settlement ◽  
International Investment ◽  
The Public

The Public Interest Safeguards in Arbitration in Ghana

2020 ◽  
Vol 28 (4) ◽  
pp. 677-696
Author(s):  
Dominic Npoanlari Dagbanja
Keyword(s):  
Public Interest ◽  
Dispute Settlement ◽  
International Investment ◽  
Public Institutions ◽  
The Public ◽  
Critical Scholarship ◽  
International Investment Agreements ◽  
Regulatory Measures ◽  
Investment Agreements

Investor-state dispute settlement (ISDS) claims mostly challenge public interest regulatory measures. This has led to efforts to reform international investment agreements (IIAs), with some states terminating them. Orthodox capital protection-centred scholarship maintains support for IIAs, claiming they are necessary to attract investment for development. Policy space-centred critical scholarship rejects or is critical of IIAs saying their limitations on regulatory autonomy are unjustifiable because private capital alone cannot lead to development. An assessment of public interest safeguards in public-private arbitration in national constitutions and statutes is missing in this scholarship. Accordingly, I analyse the constitutional foundations of public-private arbitration in Ghana and show that in conformity with the constitutional role of public institutions, arbitration legislation safeguards the public interest. Therefore for Ghana and similarly placed African states to retain their right to regulate, arbitral tribunals must respect and uphold the protections accorded the public interest constitutionally and in arbitration legislation.

Investor-State dispute settlement (ISDS) cases and India: affronting regulatory autonomy or indicting capricious state behaviour?

2021 ◽  
Vol ahead-of-print (ahead-of-print) ◽  
Author(s):  
Prabhash Ranjan
Keyword(s):  
Public Interest ◽  
Dispute Settlement ◽  
Due Process ◽  
International Investment ◽  
Public Power ◽  
Foreign Investors ◽  
Content Type ◽  
International Investment Law ◽  
Global Context ◽  
State Behaviour

Purpose The dominant narrative in the investor-State dispute settlement (ISDS) system is that it enables powerful corporations to encroach upon the regulatory power of developing countries aimed at pursuing compelling public interest objectives. The example of Phillip Morris, the tobacco giant, suing Uruguay’s public health measures is cited as the most significant example to prove this thesis. The other side of the story that States abuse their public power to undermine the protected rights of foreign investors does not get much attention. Design/methodology/approach This paper reviews all the ISDS cases that India has lost to ascertain the reason why these claims were brought against India in the first place. The approach of the paper is to study these ISDS cases to find out whether these cases arose due to abuse of the State’s public power or affronted India’s regulatory autonomy. Findings Against this global context, this paper studies the ISDS claims brought against India, one of the highest respondent-State in ISDS, to show that they arose due to India’s capricious behaviour. Analysis of these cases reveals that India acted in bad faith and abused its public power by either amending laws retroactively or by scrapping licences without following due process or going back on specific and written assurances that induced investors to invest. In none of these cases, the foreign investors challenged India’s regulatory measures aimed at advancing the genuine public interest. The absence of a “Phillip Morris moment” in India’s ISDS story is a stark reminder that one should give due weight to the equally compelling narrative that ISDS claims are also a result of abuse of public power by States. Originality/value The originality value of this paper arises from the fact that this is the first comprehensive study of ISDS cases brought against India and provides full documentation within the larger global context of rising ISDS cases. The paper contributes to the debate on international investment law by showing that in the case of India most of the ISDS cases brought were due to India abusing its public power and was not an affront on India’s regulatory autonomy.

scholarly journals Must We Protect Foreign Investors?

2018 ◽  
Vol 5 (2) ◽  
pp. 205-225 ◽  
Author(s):  
Johannes Kniess
Keyword(s):  
Public Interest ◽  
Dispute Settlement ◽  
General Rule ◽  
Prima Facie ◽  
Moral Rights ◽  
Foreign Investors ◽  
The Public ◽  
Investment Protection ◽  
Socially Disadvantaged ◽  
Trade And Investment

Abstract Investment protection clauses, and the investor-state dispute settlement (ISDS) mechanisms they enable, have become a common feature of international agreements on trade and investment. Intended to promote foreign investment, these protections may also discourage governments from regulating in the public interest. This raises challenging normative questions about the rights of investors and distributive justice. In this paper, I argue that a global investment regime that disadvantages developing countries and socially disadvantaged groups is prima facie unfair. This conclusion must be defended against the claim that investors have certain independent moral rights to have their property protected, regardless of the distributive consequences. Granting the premise that such investor rights exist, I argue that these cannot plausibly ground a general rule against public interest regulation that undermines the value of property. I conclude that even if foreign investors have rights that must be safeguarded, the current investment regime must be reformed.

荷蘭2019年雙邊投資條約範本之法律分析－投資者權利與地主國公共利益的平衡

2020 ◽  
Vol 21 (21) ◽  
pp. 1-95
Author(s):  
林韋仲 林韋仲
Keyword(s):  
Public Interest ◽  
Free Trade Agreements ◽  
International Investment ◽  
Investment Environment ◽  
The Public ◽  
Host State ◽  
International Investment Agreements ◽  
Investment Agreements ◽  
Scope Of Protection ◽  
Dutch Model

傳統上，國際投資協定被認為是維護投資法律環境與鼓勵外國直接投資的重要法律工具。因此，當今國家締結有為數眾多的雙邊投資條約，或是於自由貿易協定中訂定投資專章。與此同時，各國通過有雙邊投資條約範本，以作為建構其保護與促進外國投資活動之法律網絡的基礎。然而，由於近年來投資者權利與地主國公共利益兩者的衝突不斷增加，國際投資協定因此開始進行改革，以平衡投資者與地主國之間的權利義務關係，而此趨勢亦展現在各國對於雙邊投資條約範本的修正。荷蘭於2019年通過之《投資互惠促進及保護協定範本》為近年來國際間所通過的新雙邊投資條約範本，其目的在取代2004年之《投資鼓勵及互惠保護協定範本》，以作為日後荷蘭與其他非歐盟成員國締結或修改雙邊投資條約的基礎文件。本文擬探討2019年荷蘭雙邊投資條約範本於何種程度上展現出對於國際投資協定過去單方面保護投資者權利的修正，以及其是否有助於地主國規制權的行使以確保公共利益。International investment agreements (IIAs) are traditionally regarded as important instruments for creating a stable investment environment and promoting foreign direct investment (FDI). As a result, States conclude a number of bilateral investment treaties (BITs) and include free trade agreements (FTAs) with investment provisions. States also adopt Model BITs as the bases for developing their extensive networks for the protection and promotion of foreign investment. However, with the conflict between the protection of the investor's rights and the public interest of the host State arise, IIAs concluded in recent years not only narrow down the scope of protection the investor used to enjoy, but also seek to ensure the host State's regulatory space for the public interest. This trend has also reflected in the amendment of Model BITs.Investment adopted by the Netherlands in 2019 (the 2019 Dutch Model BIT) aims at replacing the 2004 Model Agreement on Encouragement and Reciprocal Protection of Investment and will become the basic instrument for the Dutch Government to conclude BITs with non-EU countries. This article explores the extent to which the 2019 Dutch Model BIT has reflected the growing trend mentioned above, thereby achieving a better balance between the investor's right and the public interest of the host State.

scholarly journals PENYELESAIAN SENGKETA PENGADAAN TANAH GUNA PEMBANGUNAN BANDAR UDARA INTERNASIONAL BERBASIS NILAI KEADILAN SOSIAL

NOTARIUS ◽  
2019 ◽  
Vol 12 (1) ◽  
pp. 83
Author(s):  
Mia Permata Sari ◽  
Suteki Suteki
Keyword(s):  
Social Justice ◽  
Dispute Resolution ◽  
Rule Of Law ◽  
Public Interest ◽  
Alternative Dispute Resolution ◽  
Dispute Settlement ◽  
Land Acquisition ◽  
The Rule Of Law ◽  
The Public ◽  
Land Dispute

In resolving land acquisition disputes for the public interest, it is fitting for the state to pay attention to values outside of the rule of law itself, including the value of social justice and the value of benefits to guarantee the basic rights of affected communities. This study aims to find out what factors cause the settlement of land acquisition disputes in terms of juridical aspects not reflecting the value of justice and benefit for the parties and formulating land acquisition dispute resolution models in a legal socio perspective that can realize the value of social justice and benefits for party. an appropriate method is needed that can accommodate the value of social justice and the benefits in resolving the dispute, among others, promoting the Consensus Meeting and the Need for Alternative Dispute Resolution (ADR) as an alternative solution. In addition, the need to calculate non-physical losses in the assessment of compensation for people who have lost their livelihoods due to land acquisition projects Keywords: Land Acquisition, Land Dispute Settlement, Public Interest AbstrakDalam penyelesaian sengketa pengadaan tanah untuk kepentingan umum sudah sepatutnya negara memperhatikan nilai-nilai diluar daripada aturan hukum itu sendiri, diantaranya nilai keadilan sosial dan nilai kemanfaatan untuk menjamin hak-hak dasar masyarakat terdampak. Penelitian ini bertujuan untuk  untuk mengetahui faktor apa saja yang menyebabkan penyelesaian sengketa pengadaan tanah tersebut ditinjau dari aspek yuridis belum mencerminkan nilai keadilan dan kemanfaatan bagi para pihak sertaa merumuskan model penyelesaian sengketa pengadaan tanah dalam perspektif socio legal yang dapat mewujudkan nilai keadilan sosial dan kemanfaatan bagi para pihak. dibutuhkan suatu metode yang tepat yang dapat mengakomodasi nilai keadilan sosial dan kemanfaatan dalam penyelesaian sengketa tersebut diantaranya mengedepankan Musyawarah Mufakat dan Perlunya Alternative Dispute Resolution (ADR) sebagai solusi alternatif.. Selain itu, perlunya memperhitungkan kerugian non fisik dalam penilaian ganti rugi sehingga, terdapat solusi bagi masyarakat yang kehilangan mata pencaharianya akibat proyek pengadaan tanah Kata Kunci : Pengadaan Tanah, Penyelesaian Sengketa Tanah , Kepentingan Umum 

scholarly journals Contemporary Public Policy Issues in Industrial Relations

2005 ◽  
Vol 24 (1) ◽  
pp. 19-32
Author(s):  
Noël A. Hall
Keyword(s):  
Public Policy ◽  
Collective Bargaining ◽  
Public Interest ◽  
Dispute Settlement ◽  
Political Power ◽  
Industrial Relations ◽  
Present System ◽  
Policy Issues ◽  
The Public ◽  
The Impact

The present system of collective bargaining is more an exercise in the use of coercive economic and political power by labour and management than a process of rational, logical argument and existing conciliation procedures have proven inadequate in reflecting the public interest in dispute settlement. What then is the impact of B.C. Bill 33 ?

Mindsets as an Enhancement of 21st Century Accounting Education

2021 ◽  
Author(s):  
Natalia Mintchik ◽  
Sridhar Ramamoorti ◽  
Audrey A. Gramling
Keyword(s):  
21St Century ◽  
Public Interest ◽  
Accounting Education ◽  
Optimal Learning ◽  
Professional Skepticism ◽  
The Public ◽  
Academic Literature ◽  
Competency Based ◽  
Accounting Graduates ◽  
Pedagogical Approaches

To provide optimal learning and career outcomes for accounting graduates, we propose complementing competency-based frameworks of accounting education with the cultivation of relevant mindsets. Building on insights from research in cognitive psychology, organizational leadership, and education, we define a mindset as a combination of cognitive filters and processes through which professionals interpret their professional environments and execute their professional responsibilities. We review the professional and academic literature and identify five key mindsets relevant for accounting graduates. Given the overarching obligation of accountants to protect the public trust, we treat the "public interest mindset" (focus on "we" vs. "I," integrity, and professionalism) as foundational in the accounting profession. The four other key mindsets include: 1) growth; 2) professional skepticism; 3) analytical/digital; and 4) global. In addition to providing a definition and discussion of the relevance of each mindset to accounting, we suggest potential pedagogical approaches for integrating these mindsets into 21st-century accounting education.

Building national initiatives of compulsory licences

2015 ◽  
Vol 14 (1) ◽  
pp. 23-48 ◽  
Author(s):  
Thaddeus Manu
Keyword(s):  
Developing Countries ◽  
Public Interest ◽  
Dispute Settlement ◽  
World Trade Organisation ◽  
Patent Law ◽  
Content Type ◽  
Compulsory Licensing ◽  
The Public ◽  
National Initiatives ◽  
Bayer Corporation

Purpose – The purpose of this paper is to examine the extent to which developing countries could build national initiatives of compulsory licences. Design/methodology/approach – The focus of this article is only on developing countries. The author reflects on the Indian patent jurisprudence regarding the operational relationship between the general principles applicable to working of patented inventions locally and the grant of compulsory licences. The discussion that follows is based on a review of the case: Bayer Corporation versus Natco Pharma with a view to presenting a model for developing countries to maintain that the public interest principle of patent law is well-founded in their domestic patent regimes. Findings – The analysis confirms that failure to work locally continues to be abusive of the patent right under the Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement, and remains a valid condition on which to grant a compulsory licence. Thus, this reverses the often-contrary misconception that has become almost a unanimous assumption that failure to work basis for granting compulsory licensing would violate Article 27(1) of TRIPS and its enforcement provisions on patent. Originality/value – The author argues that as no member state has challenged the legality of Indian’s decision in the World Trade Organisation, under the dispute settlement understanding (DSU) system is more supportive of the contention that failure to work locally continues to be permissible under TRIPS and remains valid conditions on which member states can grant compulsory licences. This further adds weight to the understanding that nothing in the light of TRIPS would, in fact, preclude any possibility of developing countries amending their patent laws accordingly to maintain that the public interest principle underlining patent law is well-founded in their domestic patent regimes.

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