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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Promoting Infrastructure Development in Central Asia Through Public-Private Partnerships

By Maribeth Hunsinger, JD Candidate 2019

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Image Credit: PowderPhotography 

 

The relatively young nations of Central Asia have been slowly opening their economies to foreign investment over the past twenty years. However, infrastructure shortfalls in the region, including failing transportation and utility networks, are hampering continued economic growth and development.

The World Bank estimates that over $1 trillion a year in additional infrastructure investment will be required to meet the current demand shortfall in emerging markets and developing economies. The gap in global infrastructure investment has a tangible impact on quality of life worldwide: 2.6 billion people have no access to electricity, while 800 million people have no access to clean water. Infrastructure spending differs not only across regions, but also across countries within the same region, depending on factors such as government funding, legal frameworks, and security issues.

Inadequate infrastructure can reduce output, lower productivity, impede the flow of people and goods within and between countries, and impose higher transaction costs. However, the governments of most Central Asian states have relatively limited financial capacity to rehabilitate existing infrastructure or fund new infrastructure. These nations are facing declining growth projections and budgets following the 2014-15 drop in global oil prices, and they will likely need to find different methods of financing their widening infrastructure gaps. Continue reading Promoting Infrastructure Development in Central Asia Through Public-Private Partnerships

The Rust Belt Lost Clinton the Election, and Free Trade is Why

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Photo Credit: Bob Jagendorf

By: Jessica M. Rose

America and the world are staring down the barrel of a Trump presidency – and it’s because Democrats failed to execute a principle they are supposed to be known for.

The states that gave the election to Trump were Rust Belt states: Pennsylvania, Michigan, and Wisconsin. These states were part of what were called the Clinton firewall, that she needed – and expected – to win in order to go on to win the presidency. I am of course not making the claim that xenophobia, islamophobia, racism, and sexism among other issues played no terrifying role in the election. The crucial states in question, however, were blue for Obama and have been for decades; Pennsylvania and Michigan haven’t been red since 1988, and Wisconsin hasn’t been red since 1984.

Michigan and Wisconsin, according to the best pollsters out there at Five Thirty Eight, were not supposed to even be in play this time. Their best information had her chances for Wisconsin at 83.5%, for Michigan at 78.9%, and for Pennsylvania at 77%. To be fair, if she lost them, she lost them by a tiny margin: at the time of writing, Trump had 47.9% of the vote and Clinton 46.9% in Wisconsin with 95% of the vote in, and Michigan was still too close to call with a 0.3% difference between the candidates. But these states weren’t supposed to be margin-of-error states; Clinton was supposed to have them in the bag.

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