The Journal of

WORLD INVESTMENT

ABSTRACTS 

Bernardo M. Cremades and David J.A. Cairns: The Brave New World of Global Arbitration

Globalization is a dominant feature of the world economy and modern politics, and this article considers its effects on international commercial arbitration. Recent developments in arbitral doctrine have enabled arbitration to benefit greatly from globalization, and this seems likely to continue with the rapid growth in investor-State arbitrations. This article examines these developments and argues that international arbitration has developed in a fundamentally new direction, leaving the realm of purely private dispute resolution and entering a sphere with substantial public characteristics. This brave new world of international arbitration involves a significant new challenge to the credibility of international arbitration, raising questions about the transparency of the arbitral process, the accountability of arbitrators and the compatibility of investor-State arbitration with democratic policy-making and national sovereignty.

Bernardo M. Cremades is Senior Partner of B. Cremades y Asociados, Madrid; President of the Spanish Court of Arbitration; Vice-President of the London Court of International Arbitration; President of Committee D (arbitrations and Adr) of the Section of Business Law of the International Bar Association; a member of the Institute of World Business Law of the International Chamber of Commerce; and a member of the International Council for Commercial Arbitration.

David J.A. Cairns is Associate at B. Cremades y Asociados, Madrid, and a Solicitor of England & Wales and New Zealand.

José Angelo Estrella Faria: The Uncitral Legislative Guide on Privately Financed Infrastructure Projects

In 2000, the United Nations Commission on International Trade Law (Uncitral) adopted the Uncitral Legislative Guide on Privately Financed Infrastructure Projects 2001. The purpose of the Guide is to assist in the establishment of a legal framework favourable to private investment in public infrastructure. The advice provided in the Guide aims at achieving a balance between the desire to facilitate and encourage private participation in infrastructure projects, on the one hand, and various public interest concerns of the host country, on the other.

José Angelo Estrella Faria is a Legal Officer in the International Trade Law Branch of the United Nations Office of Legal Affairs, Vienna, Austria.

Monique Pongracic-Speier: Confidentiality and the Public Interest Exception—Considerations for Mixed International Arbitration

This article addresses the issue of confidentiality in "mixed" commercial arbitrations where one party is a private entity and the other is a public actor. First, the place of confidentiality in both the common-law and the civil-law traditions is discussed. Second, the case-law on confidentiality in mixed arbitration is examined in detail, beginning with the Australian cases and progressing through recent decisions of Nafta tribunals. The third section focuses on the competing values and legal considerations that tend either to favour or restrict confidentiality. The article concludes with a proposal to set a balanced standard of confidentiality in mixed arbitrations by preserving confidentiality of proprietary information while allowing access to information that is of legitimate public interest.

Monique Pongracic-Speier holds an LL.B. from the University of British Columbia and is an Articled Student at Schroeder and Company in Vancouver, B.C., Canada. An earlier version of her article was awarded the 2001 Department of Justice Canada prize for the best paper on a topic in dispute resolution produced at a Canadian university.

Kálmán Kalotay: Outward Foreign Direct Investment and Governments in Central and Eastern Europe—The Cases of the Russian Federation, Hungary and Slovenia

The role of outward Fdi in transition economies is generally less well known and less understood than that of inward Fdi. This so not only because the latter is larger in volume but also because the links of the former with restructuring are less well established and explained. Outward Fdi, however, is gaining importance over time, and there is a need to have a closer look at its evolution and its relationship with government policies. This article analyses the examples of three transition economies and concludes that the financial resource element of outward Fdi is generally less important than its elements linked to international integration and competitiveness. Although capital account liberalization will not stop capital outflows if the underlying causes are not addressed properly, it can ensure a smooth and transparent transition towards capital exports.

Kálmán Kalotay holds a Ph.D. from the Budapest University of Economic Sciences and Public Administration. He is currently Economic Affairs Officer at the United Nations Conference on Trade and Development (Unctad) in Geneva, Switzerland, specializing in the analysis of foreign direct investment issues.

Cynthia Day Wallace: The Legal Environment for a Multilateral Framework on Investment and the Potential Role of the Wto

This article surveys and analyses the most significant contemporary bilateral, regional and multilateral instruments concerning investment. It further traces the role of the Gatt/Wto legacy thus far in investment issues, with a view to the Wto's potential role in creating some form of multilateral framework in the context of the new Development Round of trade negotiations agreed at Doha, Qatar in November 2001.

Cynthia Day Wallace holds a Ph.D. in International Law from Cambridge University and has held important posts with the United Nations Economic Commission for Europe, the Center for Strategic and International Studies and the International Law Institute of Georgetown University, among others. She is currently a consultant in international economic law, specializing in foreign direct investment.

Shan Wenhua: Towards a Level Playing Field of Foreign Investment in China

Between October 2000 and July 2001, China made massive amendments to its Fdi laws and regulations. From the perspective of a participant in this process, the author offers an explanation and evaluation of the amendments and discusses the possible direction of further developments. The amendments are more than well-timed preparation for China's accession to the Wto, reflecting the continuity and development of the market-oriented reform and opening up policy adopted in 1979 and, particularly, of the consistent process of creating conditions to implement national treatment of foreign-invested enterprises which has been underway since 1992. While the amendments are positive and welcomed, they reflect tactical and technical changes rather than fundamental shifts. The future possibilities for creating a consolidated Fdi Law or for applying China's Company Law to all enterprises are therefore also examined.

Shan Wenhua is a Doctorate Researcher in Law at Trinity College, University of Cambridge, and a Fellow of the Cambridge Overseas Society. He was formerly Associate Professor of International Economic Law of Xiamen University; Barrister and Solicitor, Xiamen University Scholars Law Firm, People's Republic of China; and Visiting Fellow of the Lauterpacht Research Centre for International Law at the University of Cambridge. He holds an LL.D. from Xiamen University, M. Econ. from Jinan University, and LL.B from Zhongshan University, People's Republic of China

O.A. Odiase-Alegimenlen: An Appraisal of Foreign Investment Promotion and Protection Measures Operating in Nigeria

Foreign investment as a means of capital importation has become the preferred mode of development for Nigeria. This article looks at the laws and policies by which the nation intends to encourage such investment. Primary among these are the Nigerian Investment Promotion Commission Law and the Foreign Exchange (Monitoring and Other Miscellaneous) Provisions Law, both promulgated in 1995. The article examines these and other important Nigerian laws dealing with the promotion and protection of foreign investment. It notes, however, that the legal regime must be supported by such other factors as a functional infrastructure, consistent policies and adequate enforcement of laws, as well as an investor-friendly implementation of the laws in place. It also notes that the institution of a democratic government has been a positive factor in encouraging foreign investment and that the country's need to benefit from such investment must be met in a manner that does not constrain foreign investors.

O.A. Odiase-Alegimenlen is a Senior Research Fellow and Head of the Department of International Law of the Nigerian Institute of Advanced Legal Studies.

C. Chatterjee: Bias in Arbitrators and Bias against Arbitrators?

An allegation of bias against an arbitrator is a serious matter, and a party bringing such an allegation must have concrete evidence in support of any such allegation; a mere assumption of bias will not suffice. From the starting point of two recent decisions in cases alleging bias of arbitrators—Rustal Trading Ltd. v. Gill & Duffus S.A. and AT&T Corporation and another v. Saudi Cable Company—this article examines the development of English case-law on the subject and derives the judicial guidelines developed therein.

C. Chatterjee holds an LL.M. from Cambridge University and an LL.M. and Ph.D. from London University. He is a Barrister and a member of the Law Department of London Guildhall University.