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Taking AIM 2
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The Role of Investor-State Tribunals in Determining the Scope and Content of the Fair and Equitable Treatment Standard – Legitimate Expectations and Proportionality
Get PDFIn recent years, the legitimacy of the investor-State dispute settlement (“ISDS”) has been called into question and several initiatives, such as the UNCITRAL Working Group III, are currently looking at various ways to enhance such legitimacy and ensure the sustainability of ISDS. In this respect, certain scholars like Professors Sornarajah and van Harten claim that the interpretative process undertaken by investor-State tribunals has contributed to this legitimacy crisis among others because the application of vague standards, such as fair and equitable treatment (“FET”), involves applying subjective notions of what adjudicators perceive as desirable developments of investment law. By contrast, other academics like Professors Schreuer and Franck, while opining that the FET standard is flexible by design, consider that this flexibility “may be a virtue rather than a shortcoming” because it allows tribunals to adapt and apply bilateral investment treaties (“BITs”) or free trade agreements (“FTAs”) to evolving realities and to engage in a gap-filling function. Notwithstanding their disagreement as to whether the flexibility granted to investor-State tribunals by most BITs enables tailor-made and efficient solutions or undermines the legitimacy of ISDS, the above-mentioned scholars agree on the fact that tribunals have made ample use of such flexibility to determine the scope and content of the FET standard.
Yet, despite the wide acknowledgment of the central role of investor-State tribunals in developing the content of the FET standard and determining its current scope, very few academic publications have focused on how exactly tribunals have developed, justified, and ultimately shaped such scope and content. However, without a more accurate understanding of what investor-State tribunals have been doing when interpreting the FET standard, any attempt to revise BITs, in particular FET clauses, in order to circumscribe the scope of the FET standard and address the current backlash against FET clauses is doomed to fail. Thus, to fill this lacuna, there is a critical need to examine the role of investor-State tribunals from an academic perspective. In this Essay, I attempt to lay the cornerstone of this ambitious project by considering inter alia (i) what criteria and factors have the tribunals considered under the FET standard, (ii) what evidentiary standards have the tribunals applied in relation to the FET standard, (iii) what are the key cases that tribunals have most often referred to, (iv) how these key cases shaped the FET standard; and (v) whether there has been a temporal evolution, expansion or contraction of the FET standard.
With these objectives in mind, I conducted an empirical review of the ISDS awards rendered until the end of 2021 in which the tribunal addressed FET claims by foreign investors. The empirical review mainly consists of two different parts. First, statistical analyses attempting to identify the most cited cases and whether correlations can be evidenced between, on the one hand, references to certain cases and, on the other hand, final outcomes reached by investor-State tribunals. Second, a more granular review of certain fundamental cases in order to identify how investor-State tribunals have relied on, or distinguished, previous awards or adopted different legal perspectives when determining the components and scope of the FET standard. In this regard, while the empirical review encompassed most, if not all, of the components of the FET standard, the present Essay focuses on two specific components that I deemed both relevant and significant. First, this Essay addresses how the concept of legitimate expectations, which has come to form the dominant element of the FET standard, has been developed, justified and circumscribed by investor-State tribunals, and how such concept has evolved over time (Section I). Second, I focus on how the principle of proportionality has slowly become an integral part of the FET standard and seemed to be gaining momentum very recently (Section II)
Cooperation Without Convergence: Border Carbon Adjustment and Heterogeneity of Climate Actions
Get PDFBorder Carbon Adjustment measures (“BCAs”) were originally conceived to help solve a problem that arises when countries ask firms to internalize the costs of environmental depredation in an open economy. Environmental regulation raises costs to domestic producers who feel and are — both are relevant — disadvantaged vis-à-vis their foreign competitors subject to lower regulatory costs, in ways that impact economic competitiveness but also the effectiveness of the regulation itself, to the extent it is directed at a ‘global commons’ problem such as reducing greenhouse gas (“GHG”) emissions in an attempt to mitigate climate change. However, BCAs create issues of their own. Among other problems, they may prejudge the recognition of climate actions and impose trade barriers based on that unilateral valuation. This in turn may alienate trading countries subject to such measures, leading to a logic of tit-for-tat retaliation. The disruption from environmental border measures can be exacerbated by the design and features of specific BCAs, while their level of trade-restrictiveness could be measured through the application of traditional international trade disciplines. In view of this, this paper examines a possible way forward that combines cooperation on trade policy without convergence on climate action — the ‘climate mutual recognition’ approach — concluding that it bears the potential to address some of the most problematic impacts of unilateral BCAs while accommodating the legal and political constraints that define the current state of climate and trade governance
What Does Effective Government Have to Do With the Constitution?
Get PDFNearly a million people dead and counting. More than 77 million infected, a little less than one-fifth of the total infections worldwide. The United States has had more deaths than any other country, and its COVID-19 death rate of 276 per 100,000 people is the highest among the world’s wealthiest nations. Blacks, Hispanics, and Native Americans are hospitalized and die at significantly higher rates than whites. Some bright lights exist too, one being the speedy development of vaccines and their deployment in 2021 – although there, too, both the national government and the states have sometimes stumbled. Another is legislative enactment of major fiscal measures which sustained individuals and businesses in the face of economy calamity. Still, by many public health measures, the United States’ response to the COVID-19 pandemic has been a governmental failure
DTP 06
No full textPhoto of Ruth Santiago ’83 J.D., ’10 LL.M.https://scholarship.law.columbia.edu/defending_the_planet_podcast/1021/thumbnail.jp
National Security, Leaks and Freedom of the Press: The Pentagon Papers Fifty Years On
No full textOne of the most vexing and perennial questions facing any democracy is how to balance the government\u27s legitimate need to conduct its operations-especially those related to protecting the national security-in secret, with the public\u27s right and responsibility to know what its government is doing. There is no easy answer to this issue, and different nations embrace different solutions. In the United States, at the constitutional level, the answer begins exactly half a century ago with the Supreme Court\u27s landmark 1971 decision in the Pentagon Papers case. The final decision, though, left many important questions unresolved. Moreover, the issue of leaks and secrecy has cropped up repeatedly since, most recently in the Edward Snowden and Chelsea Manning cases. In National Security, Leaks and Freedom of the Press , two of America\u27s leading First Amendment scholars, Lee C. Bollinger and Geoffrey R. Stone, have gathered a group of the nation\u27s leading constitutional scholars-including John Brennan, Eric Holder, Cass R. Sunstein, and Michael Morell, among many others-to delve into important dimensions of the current system, to explain how we should think about them, and to offer as many solutions as possible.https://scholarship.law.columbia.edu/books/1359/thumbnail.jp
Looking Back with a Legend: Ira Millstein Reflects on the Impact of Milton Friedman\u27s Views on Corporate Governance
Get PDFIn this discussion, corporate governance legend and frequent The Business Lawyer contributor Ira M. Millstein reflects on the impact of Milton Friedman and his adherents on our corporate governance system and economy generally, as well as the path forward to an economy that functions better for the many. Millstein takes an historical perspective in conversation with former Chief Justice and Chancellor of Delaware, Leo E. Strine, Jr., moderated by Professor Eric Talley of Columbia Law School. Millstein situates the evolution of our corporate governance system, including the effect of Friedman and the Chicago school on it, within the political dynamics of the last fifty years since the New York Times published the essay, “A Friedman Doctrine —The Social Responsibility Of Business Is to Increase Its Profits.
Unspoken Criticism: Audiovisual Forms of Critique as Fair Use
Get PDFThis Note argues that the traditional legal framework for analyzing a work of alleged criticism as fair use is particularly constraining for YouTube reaction videos and other audiovisual forms of criticism that largely critique or comment on an original work in a non-spoken, visual manner. It discusses the emphasis that the current fair use jurisprudence places on spoken and written critical elements when undertaking a fair use analysis of a work of criticism, then advocates for a new conception of fair use criticism that incorporates film-specific analytical techniques and concepts when analyzing the critical elements of online audiovisual works. Part I discusses the statutory codification of the fair use doctrine in copyright law and how the doctrine has been shaped through the years by subsequent judicial interpretation. Part I also discusses the history of YouTube reaction videos as a unique audiovisual format. Part II explores the ways in which courts have recently applied the fair use doctrine to alleged works of audiovisual criticism and the emphasis courts place on spoken and written critical elements. Part III argues that courts assessing online audiovisual works as alleged works of criticism should incorporate analytical tools and interpretive theories commonly utilized in film studies contexts — including an analysis of editing, shot composition, and camera movement — when parsing alleged works of audiovisual criticism for transformativeness under factor one of the fair use test. Finally, Part IV uses a recently decided fair use case out of the Southern District of New York as a real-life example to explore how a court could apply film-specific analytical tools to more accurately identify and assess the critical elements of a work of audiovisual criticism for fair use purposes
On Cooperationism: An End to the Economic Plague
Get PDFOver thirty million Americans just filed first-time unemployment claims as a result of the economic devastation caused by the coronavirus pandemic, pushing unemployment to its highest levels since the Great Depression. Despite that, the US stock markets recorded in April their best month since 1987; after an initial shock, the markets rallied steadily, rising over 30 percent since their lows in late March. Most economists sounded puzzled and offered fanciful daily explanations. Even Paul Krugman had little to say, suggesting that Investors are buying stocks in part because they have nowhere else to go.
But it’s no wonder the markets defied the economic crash. For the markets, there is nothing like a good crisis when the right people are in power. Philip Mirowski wrote tellingly about this during the last debacle — the financial meltdown of 2008 — under the moniker Never let a serious crisis go to waste. Now, too, the Faustian logic as to why institutional investors just put their bets on the market should not escape us
A Major Simplification of the OECD’s Pillar 1 Proposal
Get PDFIn this report, Graetz suggests major modifications to the OECD’s pillar 1 blueprint proposal to create a new taxing right for multinational digital income and some product sales that would greatly simplify the proposal. The modifications rely on readily available existing financial information and would achieve certainty in the application of pillar 1, while adhering to its fundamental structure and policies