Enforcement of Investment Arbitration Awards in the Context of Protectionism and Backlash

By: Christy Chidiac

Geopolitical context and international arbitration are intertwined. Contemporary political events illustrate an undeniable retreat of the most developed nations towards protectionism. In reaction to Brexit, many commentators concluded that enforceability of international commercial arbitration awards is safe thanks to the applicability of the New York Convention. Conversely, even if the enforcement of ICSID investment arbitration awards is automatic due to Article 54 of the ICSID Convention, its execution may depend on States willingness to render it efficient through the diverse applicable national laws on immunity from execution. After all, this decision falls within States sovereignty, and at the heart of States decisions, lies public opinion. Public disapproval towards globalization goes hand in hand with the growing mistrust for foreign investment and investment arbitration, as showed by the European protests to the recourse of Investor State mechanism as part of the TTIP or CETA. In this context, arbitration mechanisms are related to globalization and corporation’s governance, hence the fundamental risk is that limitations on arbitration may become popular. As Professor David Caron Caron asserts, State acts to reform the investment treaty regime are a response to, or even a form of, backlash against that regime. Procedural reforms of investment arbitration in the past fifteen years focused on an increase of transparency, including possibilities for public hearings, and publication of arbitral documents. Additional substantive reforms also took place, with more detailed treaties provisions. Moreover, commercial arbitration is not immune from the risk of growing mistrust, as it may adjudicate for illegal activities for instance, under protection of confidentiality. These observations raise questions about the possibility of rendering international arbitration more democratic. Moreover, may public opinion and political context not only affect the transparency but also the efficiency of international arbitration mechanisms? If so, how should the effects of contextual fluctuations on arbitration efficiency be countered? The recent evolution of French legislation illustrates these issues.

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MUCH ADO ABOUT NOTHING: LEGAL REFLECTIONS ON THE UNITED STATES ‘DRONES PLAYBOOK’:PART I

 

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Photo Credit: Doran

Guest Post by: Arthad Kurlekar & Arindrajit Basu

INTRODUCTION

On August 7th of this year, the Obama Administration finally declassified its internal guidelines (referred to as Presidential Policy Guidance’ or ‘PPG’), which supposedly details the United States’ parameters on the killing or capturing of alleged terrorists around the globe. The document provides some insight into the drone war bureaucracy leading to strikes in Pakistan, Yemen, and Somalia. Despite redactions at crucial junctures in the document, it ostensibly answers many questions posed by the global community regarding the lawfulness of these clandestine programs. A closer look, however, shows that the document largely plays implicit lip-service to principles of International Law without providing concrete evidence that illustrates how this normative framework is implemented in the decision-making process. In a two-part post, we seeks to deconstruct and analyze the lacunae in this document with reference to lethal targeting by considering two key principles of International Law: (1) The Principle of Distinction and (2) Sovereign Equality. The first post deals with distinction while the analysis on sovereign equality is left for the second post. We argue that the PPG fails on two counts: first it fails to provide a nuanced classification of the targets in accordance with IHL and second, it fails to operationalise IHL principles when carrying out targeted killings.

Continue reading MUCH ADO ABOUT NOTHING: LEGAL REFLECTIONS ON THE UNITED STATES ‘DRONES PLAYBOOK’:PART I

Taiwan at the Crossroads: To Breathe in the Air of Global Sky, or the Air of Her Independence?

By Huan-Ting Wu, J.S.D. candidate, University of California, Berkeley

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Photo Credit: Huan-Ting Wu of Taipei 101

 

Once every three years the International Civil Aviation Organization (ICAO), a UN specialized agency, meets. The Assembly just finished having its 39th Session in Montreal with Taiwan knocking on the door outside for months but not getting any answer back nor permission to enter. It is a sharp contrast compared with the situation in 2013, when Taiwan participated as an invited guest of the then-ICAO Council President, to attend the 38th Session of the ICAO Assembly.

Although excluded from ICAO since 1971 when they lost their seat in the UN, Taiwan still voluntarily follows the Convention on International Civil Aviation (the Convention), which has been one of the significant pivots of air traffic in East Asia, as well as the world:

The Taipei Flight Information Region (FIR) covers 180,000 square nautical miles and borders four other FIRs. In 2015, Taiwan’s Civil Aeronautics Administration handled fifty-eight million incoming and outgoing passengers. In addition, Taiwan’s Taoyuan International Airport in 2015 ranked eleventh in the world in passenger volume and sixth for cargo. Seventy-four airlines operate passenger and cargo flights in and out of Taiwan following 301 scheduled routes that connect the country to 135 cities globally.

However, constrained by the fact that Article 1 of the Convention defines contracting States as those that have “complete and exclusive sovereignty over the airspace above its territory,” Taiwan’s international status after 1971 makes it hard for them to take part in this UN-colored organization as a contracting State.

Given these legal hurdles, what made Taiwan’s presence in the 38th Session of the ICAO Assembly in 2013 workable? First, the U.S. government played an important role in the process. A Taiwanese researcher describes the U.S. as a “facilitator” of Taiwan’s international participation. Following the U.S. Department of State’s policy of “encouraging Taiwan’s meaningful participation in international organizations where its membership is not possible,” U.S. President Barack Obama in July, 2013 signed into law H.R. 1151 to (1) develop a strategy to obtain observer status for Taiwan at the next ICAO Assembly in 2013; and (2) instruct the U.S. Mission to the ICAO to officially request observer status for Taiwan and urge ICAO member states to support Taiwan observer status and participation in the ICAO.

On the other hand, fearing that the island’s increasing global participation independent from the Mainland will be used to reinforce Taiwan’s push for de jure independence, China’s government complained in a statement that the Act has intervened with China’s “internal affairs” and seriously violated the one-China policy. This Chinese policy defines Taiwan as “part of [China’s] territory,” and that “The joining of international organizations like ICAO by Taiwan compatriots is a matter for the Chinese people.” However, this position did not preclude China’s support for Taiwan to take part in the Assembly in 2013. In fact, from China’s perspective, Taiwan’s success in the participation was solely because of China’s mediation (ICAO Council President González said he invited Taiwan because of China’s suggestion). China’s position is clear: Taiwan is allowed to join international events, but only after having consulted with China, and used China as the window representative to contact the world, thereby following the one-China frame work. Several Taiwanese international law scholars criticized the practice, arguing that Taiwan was invited as merely an auditing “guest” under the identification of “Chinese Taipei,” not as an “observer” who has permission to speak.

That brings us to 2016. Taiwanese officials, with U.S. Department of State’s support, bypassed “the window” and applied for attendance at the Assembly in early August. But this attempt was in vain. In fact, the surrounding circumstances have been different.

The political climate in Taiwan has had a landslide toward the Democratic Progressive Party (DPP), which calls for independence from China, in the 2016 Presidential Election in January. The leader of DPP, Tsai Ing-wen, was elected as Taiwan’s first female president, with DPP winning absolute majority in Taiwan’s Congress. The election shows the Taiwanese people’s doubts about predecessor Ma Ying-jeou’s pro-China policies, especially the inclination to the one-China framework. In fact, in Tsai’s inauguration speech, she reflected the people’s will by not mentioning the so-called “1992 consensus,” that is, the one-China principle. In response, China suspended diplomatic contact with Taiwan. As a result, the fundamental basis of Taiwan’s participation in ICAO was undermined. In addition, it is also worth noting that on August 1, 2015, Dr. Fang Liu of China was appointed as the new head of the Secretariat of ICAO, which is the office processing the application. Consequently, we can expect that the influence China can possibly exert is at least no less than it was in 2013.

It is not surprising that Taiwan’s direct application for participation as an observer, even with U.S. and other contracting States’ support, would fail. On the one hand, in 2013 Taiwan joined the Assembly as a guest of the President (if not China); therefore, without ex ante negotiation, there is no reason why China, now the window of both the “one-China frame” and the ICAO, would allow Taiwan to join the event, especially with an “upgrade” of status. China’s strategy to make Taiwan dependent and subordinate is clear: be ONLY China’s guest, or not invited at all. On the other hand, the ICAO is closely related to the UN, so China will not risk any possibility that Taiwan can stand in any international forum as an independent sovereign-like entity, and accordingly make accepted practice.

In response to China’s strong attitude and the failure to take part in the ICAO Assembly, Taiwanese President Tsai Ing-wen replied firmly by reiterating that “we will not succumb to pressure from China.” Given that President Tsai is willing to let the relationship between Taiwan and China chill, it may mean that Taiwan has chosen the air of independence, without the oxygen mask pressed on by China. This decision will either be beneficial to Taiwan’s future participation in global events, or hazardous to those practices Taiwan has established during President Ma’s incumbency. For instance, will this affect the practice of Taiwan joining the World Health Assembly (WHA), an annual event held by World Health Organization in May, as an observer since 2009? Maybe so, since China declared that the reason Taiwan was able to participate in the 2016 WHA was because of its goodwill.

The ICAO incident is just the prelude. We see Taiwanese people made their decision in the 2016 presidential election, and we also see how the Communist Party of China reacted. That being said, we can expect that in the future, it is highly possible that China will keep craning over its “window,” being nosy about Taiwan’s every attempt to cross the “Chinese wall” and expose herself to the air of the global sky. At the moment, we still hope that there could be more goodwill coming from both sides of the Taiwan Strait.