Freya Baetens

The Dissemination of International Scholarship: The Future of Books and Book Reviews

A question such as this one usually results in a slightly incredulous smile on the addressee’s face, as if it implies an assumption that there is time to spare in the life of an international lawyer faced with a myriad of interesting-looking publications. For a long time, writing a monograph used to be the keystone, the ultimate test, to join the academic ranks – yet today, universities grant PhD titles based on the writing of separate articles on a common theme and doctoral researchers are increasingly encouraged to choose this option, so as to ensure their ideas actually reach the intended audience. Arguably, today’s academic audience is assumed not to have, or at least not to make, the time to read an entire book. An additional element is cost. The average monograph from an established publisher easily costs approximately €80 – a non-trivial amount for junior academics in developed countries, and even more so for academics elsewhere. University press publishers consider a book to be successful when a few hundred copies are sold, mostly to university libraries, through which, of course, a wider audience can be reached. In this context, editorial boards of international law journals, and particularly their book review editors, face the question: should we still routinely review books? This editorial is written from the perspective of the book review editors of the Leiden Journal of International Law (LJIL), but its scope and findings may well expand beyond this field, as the same situation exists in relation to book publications in other legal fields, and even in academic scholarship more generally. The question for all

New Directions in International Economic Law

Dedicated to the memory of a path-breaking international lawyer, Thomas Walde, this volume offers an eclectic mix of contributions from leading academics and practitioners. Topics include: foreign direct investment, dispute settlement, corporate responsibility, economic development, natural resources, and private international law.

The Rule of Law or the Perception of the Beholder? Why Investment Arbitrators are Under Fire and Trade Adjudicators are not: A Response to Joost Pauwelyn

In his thought-provoking and timely article, Pauwelyn asks how it can be “that today’s perception of two parallel processes involving the legalization of world politics, and on two closely related subjects of global economic affairs—cross-border trade and cross-border investment—differs so much?” He focuses on one explanation: the individuals deciding World Trade Organization (WTO) versus International Centre for the Settlement of Investment Disputes (ICSID) disputes.

SAFE UNTIL PROVEN HARMFUL? RISK REGULATION IN SITUATIONS OF SCIENTIFIC UNCERTAINTY: THE GMO CASE

In 2003, the USA, Canada and Argentina requested consultations with the European Communities [EC] concerning certain measures taken by the EC and its Member States. They asserted that the moratorium applied by the EC on the approval of genetically modified organisms [GMOs] had restricted imports of agricultural and food products. They also claimed that a number of EC Member States (Austria, Germany, France, Italy, Greece and Luxembourg) maintained national marketing and import bans on biotech products even though those products had already been approved by the EC itself. The focal point of the discussion exposed the major difference in approach between the USA and the EC as to the proper regulation of GMOs. The most significant aspect of this case, beyond the interpretive technicalities of the SPS agreement itself, concerns the way in which the Panel dealt with other overlapping international legal obligations. The EC’s defense was largely based on its obligations under the Convention on Biodiversity, the Biosafety Protocol and the precautionary principle, a defense which was not accepted by the Panel. The case is interesting since it arose out of a clash between the European and American regulatory policies (and the ideas and theories behind those policies), resulting in a victory for the latter. The question remains whether the Panel’s treatment of the EC’s defense contributes towards more coherence in international law.

Keeping the Status Quo or Embarking on a New Course? Setting Aside, Refusal of Enforcement, Annulment and Appeal

International courts and tribunals are no more infallible than their domestic counterparts and particularly in areas where the effects of a ‘wrong decision’ may be so disastrous, the need for coherence, legal certainty and predictability which can be obtained through judicial review arguably trumps the time/cost advantage of finality after a first instance procedure. The status quo mechanisms of setting aside, refusal of enforcement or annulment offer very little help in this regard as they generally do not extend to the merits of awards ‒ in the case of procedures under the auspices of the International Centre for the Settlement of Investment Disputes (ICSID) not even to all issues of jurisdiction. A preferably multilateral appellate system could create a jurisprudence constante amongst arbitral awards, thereby reasserting a public/private interests balance and improving the predictability of the law, consolidating the acceptability of investor-state dispute settlement (ISDS) (whether in the form of ad hoc arbitration, a fixed roster of arbitrators/judges, or a permanent court) and contributing towards greater public trust in the legitimacy of the resulting decisions.

Clarifying the Meaning of ‘Investment’ and the Temporal Scope of Treaties: Republiek Ecuador v Chevron Corporation (USA) en Texaco Petroleum Company , Hoge Raad (Dutch Supreme Court), Judgment, 26 September 2014

In its 2014 judgment, the Supreme Court of the Netherlands rejected the application of the Republic of Ecuador to overturn the Awards rendered by the Tribunal constituted under the auspices of the Permanent Court of Arbitration (PCA) in Chevron v Ecuador.1 The PCA Tribunal had awarded USD 96 million to Chevron on the grounds that there had been a violation of the ‘effective means’ clause in the US-Ecuador Bilateral Investment Treaty (the BIT). The Supreme Court found that the District Court of The Hague and the Court of Appeal of The Hague – before which Ecuador had previously sought to challenge the PCA Awards – had correctly found that the PCA Tribunal had jurisdiction, given that there had been an ‘investment’ under the BIT. This ‘investment’ consisted of seven domestic court proceedings in the aftermath of an

The Concept of Equality in International Trade and Investment Law: A Catalyst for Sustainable Development

This chapter focuses on rules regarding nationality-based discrimination and argues that equality in the application of international trade and investment provisions forms a part of pursuing the goal of sustainable development. It elaborates on the link between discrimination, equality and sustainable development. The chapter addresses the interaction of these concepts in the international trade system. The chapter addresses the potential flexibilities in the application of the non-discrimination principle in investment law for developing countries. Three mechanisms are identified, in an increasing line of innovativeness. First, developing countries could enhance the possible developmental benefits of Regional Economic Integration Organisations (REIO) clauses. Secondly, REIO States could mitigate the impact of their REIO clauses on developing non-Member States. Thirdly, a national preferential treatment system could be worked out, modelled after the national Generalized System of Preferences (GSP) schemes under the General Agreement on Tariffs and Trade (GATT). Keywords:discrimination; equality; GATT; Generalized System of Preferences (GSP) Organisations (REIO); international trade; investment law; regional economic integration; sustainable development