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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The Hacking of Things: International Law’s Modern Challenge

Photo Credit: Rose Innes

 

By: Lauren Kelly-Jones

The Hacking of Things: International Law’s Modern Challenge In December, in a fully-booked luxury hotel in the Austrian Alps, guests went to their doors and couldn’t open them. Something was wrong. In the middle of winter, beside the cold Turracher lake the computers went dark.

It was the first weekend of ski season, and the entire door-key system of Romantik Seehotel Jägerwirt ( a 111-year-old hotel) had been taken down. Hackers demanded that the hotel hand over €1,500 (around $1,600, payable in bitcoin) to restore their systems. Because management felt as though they had no choice, they did so. Then – systems back up, doors unlocked – they went public, to warn others of the dangers of this kind of cybercrime: a modern twist on criminal blackmail.

“Ransomware” is in itself not a new concept: in a typical scenario, an entity’s data is encrypted and made unavailable until a payment is made. For instance, in California in February 2016, a hospital was forced to pay $17,000 in bitcoin to free its computers of a hacker’s virus. And yet, the Seehotel Jägerwirt attack is seemingly the first report of ransomware involving a physical device of this scale: the “Ransomware of Things,” or “jackware.” This kind of ransomware has the potential to control connected, intelligent objects in the real world. The risks are all too obvious: AT&T has highlighted the concept of a smart car being hacked with its ignition or brakes remotely controlled; in 2015, a hacker claimed to have taken over a plane’s engine controls; in Finland last year, a DDoS attack halted heating in two buildings in the middle of winter.

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Self-determination in Western Sahara: A Case of Competing Sovereignties?

By: Maribeth Hunsinger

Western Sahara is a disputed territory in the Maghreb region of North Africa, bordering Morocco, Algeria, and Mauritania. It boasts phosphate and iron reserves, and is believed to have offshore oil deposits. Spain colonized the territory in 1884 and exercised control for over one hundred years, until Morocco wrested de facto control over large parts of the territory.

Some, however, still see Western Sahara as “Africa’s last colony,” with the Kingdom of Morocco exercising colonial power over the native Sahrawi people. No member states of the United Nations (UN) have recognized Moroccan sovereignty. While there remains political support for Morocco’s claim in the West, many countries are increasingly recognizing the legitimacy of the independence claims by the Sahrawi Arab Democratic Republic (SADR).

This piece explores the basis for these respective claims, and in particular the proposition that self-determination in Western Sahara should not serve to decide between “competing sovereignties” but to allow the Sahrawi people to decide whether to retain their sovereignty.

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