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Rob Howse
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Sorry, I left a detail out of my blog-it was already getting long-that is important in relation to your observations. Valasek's hours were very heavy late in the case, when one would Imagine the exercise of formulating and drafting the award to be occuring. This is made clear in van den Berg's pleading. Valasek doesn't appear to have been that much involved til then. I have no precise basis for comparing Valasek's level of legal acumen to that of SCOTUS clerks. I was assuming for purposes of argument that it would be equal. Given who those clerks are, this is very flattering to Mr. Valasek, and along the lines you suggest he may well be worthy of it.
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Thanks for this helpful comment. I'm currently drafting a paper about the design of a multilateral investment court and trying to think of how domestic law should be treated by that court. The reason I don't think Bilcon is a good example of a difficult case is that in Bilcon there was discrimination/politically motivated conduct outside the normal process of interpretation and application of the law. (Disclosure: I consulted to investor's counsel in that case). One difficult case might be where different domestic courts or tribunals have come to varying conclusions on the meaning of the law but no court of last resort has resolved those differences. I have a couple of institutional ideas about how a world investment court could be handled to deal with that kind of situation. A cruder more old-fashioned alternative is as India has done to go back to some version of exhaustion of domestic remedies (which of course you don't have in NAFTA and many other investment agreements). However, if we can't get a better institutional design in a world court for investment, maybe we need to go back to exhaustion of domestic remedies.
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I think probably the host state could block for some time the appointment and even if appointed the operation of the tribunal. Given the sensitvity and legitimacy woes of ISDS these days I'm very doubtful that in these circumstances an appointing authority and/or arbitral facility would stick its neck out to try to get a tribunal up and running in the face of the total non cooperation of the host state, based on the absence of a perfected offer to arbitrate.
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There is also a suggestion by the Appellate Body of the WTO in Hormones I that general principles of law of civilized nations could include some international norms not just ones directly drawn from municipal law systems (see discussion of precautionary principle in that judgment) The Appellate Body also thought that custom and general principles in that sense could overlap. But what the Exxon annulment committee is trying to do is to exclude custom and perhaps also conventional intl law as sources for general principles of international law. As i explain that is a totally unwarranted reading of the expression, probably aimed at shutting down the invocation of human rights in investment arbitration.
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I disagree. The offer to the investor has a different legal effect than the promise to the other state to continue to offer. The later simply invokes the international responsibility of the state to the other state not the remedy that an arbitral tribunal can be constituted without an agreement to arbitrate. In any case should there be any attempt to constitute such a tribunal the host state could and should consider the measures I suggest in my early post such as non cooperation with the tribunal including no payment of fees, and if necessary making it an offense to participate in such a tribunal under domestic penal law. Sent from my iPhone
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Federico, thanks for your response. Take a look again at my post. You are right that in most cases the investment treaty would have to be interpreted so as to create an obligation under the treaty-from one state to the other-to provide a continuing offer (to those who are investors within the meaning of the treaty) to arbitrate. But the jurisdiction of the arbitral tribunal must be based also on an agreement between the potential parties to arbitration. A treaty does not establish such agreement because it is only an inter-state agreement. Thus, to understand how such an agreement exists, we must characterize the arbitration clause in the treaty as an offer to investors to arbitrate which the individual investor accepts by signalling an intent to go to arbitration, typically by filing a notice. If a state withdraws the offer to arbitrate before such acceptance there can be no such agreement and therefore no basis for the jurisdiction of an arbitral tribunal. BUT, and this is where you are right, usually by withdrawing the offer, the state in question (as I do explain in the post) will be in breach of its obligation to the other state(s) parties to the treaty to continue to offer to arbitrate. If the other state is not also moving to the multilateral court and itself withdrawing consent, then it may object to the withdrawal by the state that is moving to the multilateral court. This objection could result in an eventual denunciation or renegotiation of the treaty, or state-to-state dispute settlement in some relevant forum. While provisions on state-to-state dispute settlement vary from treaty to treaty, I doubt that the outcome of such dispute settlement could be the kind of specific performance that would directly empower an arbitral tribunal. So you see, what I am NOT saying is that, as a general matter, a state could withdraw consent to arbitrate WITHOUT creating a breach in its obligation to the other state under the treaty. It is just that the fact of the breach of state-to-state obligations doesn't make the withdrawal of consent ineffective in shutting down the possibility of an investor going to an arbitral tribunal.
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Great. Please do. I would love to see. Best, Rob Sent from my iPhone
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Yes the tribunal is confusing and contradictory in sometimes misstating its approach as due diligence not absolute liability. The selective facts you point to are wholly inadequate to evaluating the extremely serious and complex security conditions in the Sinai and the challenges that Egypt's forces are under.
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You are simply incorrect. It was not a "holistic" decision. The issue of terrorism was decided under the crazy interpretation of full protection and security that I mentioned.
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A good question but in this case the expropriation and the full protection and security analyses were different. The former dealt with a change in the tax regime applicable to the investor.
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Yes, and so in terms of background one would want a good mix of judges who not only know international but may have been judges of courts reviewing exercises of regulatory authority domestically or have been members of regulatory agencies,tribunals,commissions in their home countries.That's different than the old arbitration idea of governing law/law of seat, irrelevant to mission of true global court. Sent from my iPhone
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Perhaps I wasn't clear on this point-I would imagine that it is very likely that reciprocity would be a condition of consent for the reservation. So, yes, the US would also be giving up its own investors being able to sue the New Zealand government, for example. I don't think frankly that is giving up very much if anything.
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As far as I can see, The TPA legislation does not call for ISDS much less investor-state arbitration in conventional form. The TPA law refers to providing meaningful procedures for resolving investment disputes as a US negotiating objective, and the improvement of the status quo, but that clearly allows for alternatives to ISDS. I am not impressed by the prior rejection of Senator Warren's amendment. Consider the ups and downs of the Iran deal before Congress; nothing is fixed in stone in this kind of high stakes politics, especially with a Presidential election looming.
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Thanks Simon. I agree that other TPP parties might well react by saying they won't offer ISDS to US investors if the US won't offer it them. But, as I suggest, I'm not sure this is such a serious problem. I'm not holding my breath that the Obama Administration will immediately take up this idea-if they are really confident they have to votes to push TPP through,and don't care that much about dividing the Party, then they might well not be tempted. But if they end up with less than the support they need, it could still be attractive as a last-ditch fix. At the very least, if Hillary Clinton or Senator Warren were to take up this idea, though, they would put the Administration very much on the defensive, I'd reckon.
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Doesn't it make a difference with the Stiglitz proposal that an importer only has to come up with a freely traded chit, rather than a specific "matching" export opportunity?
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Yes, in fact, this alternative agenda is developed to some extent by Dani himself in his book the Globalization Paradox. In my recent EJIL piece on the WTO Appellate Body, I suggest that the Appellate Body has in its interpretation of SPS and TBT developed an approach that minimizes second-guessing of general substantive policy choices
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To be clear, I didn't make the empirical claim you state: I only offered that it was one possibility that Sanders would be crushed the establishment, and played out that possibility. I intended it to be obvious that, in fact, I do not think anything is so hopelessly rigged and so it is entirely possible that Sanders could still win. I refer to narratives being constructed, and perhaps that was too subtle a way as signalling a certain distance from the claims in question-certainly, I don't have the kind of evidence that would allow be state that claim as a scholarly matter with any confidence at all. Also, I do emphasize that there are voters to whom Sanders and his movement simply doesn't appeal for good, understandable reasons. Thus, I don't buy into the story that but for the opposition of the establishment, he would be the obvious winner, either of the nomination or the general election. It is possible that Sanders might have lost in a normal nomination fight, without the establishment making efforts to shut him down early, or taking sides so blatantly. But if he does lose this is not now how it will be perceived by a very large, politically relevant part of the progressive voter population. I am willing to concede that my analysis might be different if the focus were on racial divisions between supporters of the different candidates. Because of certain normative commitments I have, and certain experiences also in other countries, I simply won't engage in a racialized discourse about politics. Of course, a highly debatable position. I mention it only to explain that I'm not omitting that analysis for result-driven reasons of not wanting to face "realities" harmful to my case.
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Thanks. Basically, what Schengen enables is eliminating, more or less, border controls. If Schengen collapses, border delays will affect trade in goods in significant ways.
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Marc, I agree with you more than you think. I don't particularly think of the divide as "ideological" in any strong sense of the word. It's true that sometimes the AB gets overloaded but often the only have a couple appeals on the docket. There aren't many nonlawyers on the AB though I agree with your implication that there should be none. Thanks for engaging. Rob Sent from my iPhone
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Simon, yes, but I believe only beginning with the 2004 US model BIT. The previous US model BIT on which many of the actual agreements by which the US is bound is based, did not have "considers". Take a look at Article X of the 1984 US model BIT. But you raise a very important point in regard to going forward, one which supports my proposal for specific language in TTIP and TPP.
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To be clear, the Saudi's have responded with cautious optimism to the diplomatic route. politi.co/1y3NaFb Of course, and this goes to my point about permanence, we do not know yet the future and especially the longer-term future so why would they not hedge their bets? But why would a period of verified restraint of Iran's nuclear program affect their conduct in the direction of making them more likely to go nuclear, given their generally positive reaction to the deal? I do think economic sanctions are at the center of the debate that Kissinger and Schultz are entering. Though I admit that in this one particular post of mine they aren't the major theme. To be continued.
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Jari, you are entirely correct about the preliminary understanding set out in the State Department press release I cited. My concept of "parallel unilateral declarations" was intended to refer to one possible way of conceptualizing a final Plan of Action that may be negotiated between now and the end of June. Thanks for giving me an opportunity to clarify this. Best, Rob
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I tend to agree with your comments about US behavior around TRIPs and TRIPS-plus issues. I hope that the importance of moving to a more positive space in the US-India relationship will counteract to some extent the influence of the pharma lobby. At worst, India could take thevUS to dispute settlement to hold it to the principles in the S 331 decision. Thanks for your response. Sent from my iPad
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If the drafters had wanted, they could easily have simply said that the actions in question must be taken by the General Council by July 31. But they didn't. Instead they required that the General Council meet for this purpose by July 31. There is simply no language in the decision that states that the meeting must achieve this purpose by July 31. There is certainly nothing there that would preclude or prohibit the General Council from continuing to meet after that date. Nevertheless, if one wants to read the decision in a teleological manner then one could say that it implies an obligation to take whatever action might be needed to facilitate acceptances of all WTO Members by the deadline of the end of July of 2015. This would be the obligation of result. And this seems to me consistent with not arbitrarily ending talks at midnight on July 31. Indeed, if we take seriously the decision as an obligation of result along these lines, then cutting off the talks and declaring an impasse would be be undermining that obligation of result. Sent from my iPad
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