The Journal of

WORLD INVESTMENT

ABSTRACTS 

Michael J. Moser: Arbitration in Greater China—Recent Developments and Lingering Issues

This article provides an overview of recent developments and a status report on unresolved problems—what the author calls "lingering issues"—in arbitration in the Greater China region. It outlines the legal framework and arbitration institutions in the People's Republic of China, Hong Kong Special Administrative Region, Macao Special Administrative Region, and Taiwan. It also examines the issue of reciprocal enforcement of arbitration awards among the four jurisdictions.

Michael J. Moser is a Partner with Freshfields Bruckhaus Deringer and a member of the firm's International Arbitration Group. He divides his time between Hong Kong and Beijing.

Charles N. Brower and Jeremy K. Sharpe: Multiple and Conflicting International Arbitral Awards

Investors have growing opportunities to resolve their commercial and investment disputes in different fora. Accompanying these opportunities, however, is the growing risk of multiple and conflicting international arbitral awards. The danger is aggravated by the approximately 2,000 bilateral investment treaties now in force around the world as well as by such multilateral investment treaties as the North American Free Trade Agreement and the European Energy Charter. The recent Cme dispute, in which the same basic legal issues between the same parties produced two utterly conflicting awards, exemplifies this concern. The Nafta's waiver requirements, by contrast, help mitigate the problem of multiple and conflicting awards. Although careful drafting and good lawyering can ameliorate the problem, this growing concern finds no ready solution.

Charles N. Brower is a Judge of the Iran–United States Claims Tribunal, Member of 20 Essex Street Chambers (London) and Special Counsel to White & Case Llp, Washington, D.C.
Jeremy K. Sharpe is a Legal Assistant at the Iran–United States Claims Tribunal and a Member of the New York Bar.

Antonias C. Dimolitsa: The "Codification" of International Rules and Practices—The Unidroit Principles of International Commercial Contracts

The Unidroit Principles, issued in May 1994, offer a sort of "restatement" of the law of commercial contracts. This article provides an overview of how these Principles have been used in arbitration practice so far. It examines the attitude of arbitrators vis-à-vis the Principles, taking as a reference point their Preamble. That is, in the context of specific cases in which the Principles have so far been applied, it examines whether arbitrators have used the Principles in compliance with their purposes as stated in the Preamble or whether they have even expanded such purposes on the basis of different considerations.

Antonias C. Dimolitsa is Principal of Antonias Dimolitsa and Associates, Athens, Greece.

Richard H. Kreindler: Approaches to the Application of Transnational Public Policy by Arbitrators

Over the last several years, with the increase in globalization of commerce and arbitration of cross-border disputes, arbitral tribunals have been increasingly confronted with the issue of public policy. What is it? Where does it come from and where does the arbitrator find it? What is the arbitrator's obligation to discern it? By reference to which body of law or rules of law does an arbitrator purport to consider public policy? Increasingly, the body or rules of law as agreed by the parties are different from those at the situs, from those at the place of principal or characteristic performance and, in turn, from those at the place(s) of likely enforcement. It is this inter-relationship between potentially multiple bodies or rules of law which is a particularly noteworthy part of the challenge to modern-day arbitrators in applying "public policy" to transnational disputes and which is addressed in this article.

Richard H. Kreindler is a Partner with Shearman & Sterling, Frankfurt, Germany.

David Williams: International Commercial Arbitration and Globalization—Review and Recourse against Awards Rendered under Investment Treaties

The burgeoning case-law arising from arbitrations under bilateral and multilateral investment treaties has raised a plethora of interesting issues both substantive and procedural. This article focuses on the procedural side and considers questions arising in relation to challenges to investment treaty arbitration awards and, in particular, issues concerning the forum for such challenges. An important question it addresses is whether the lack of a uniform forum in investment treaty claims is avoidable or, if not, whether it really matters. Domestic court review of international investment arbitration awards is also looked at here, with particular attention to the Metalclad case.

David Williams QC is a Barrister at Law in Auckland, New Zealand and London, and a Fellow of the Chartered Institute of Arbitrators, London, and the Arbitrators' and Mediators' Institute of New Zealand.

Locknie Hsu: Dispute Settlement Systems in Recent Free Trade Agreements of Singapore: Anzscep, Jsepa, and Esfta

Interest in free trade agreements has grown in recent years, and countries in Asia are pursuing such arrangements more actively than before. Singapore, in particular, has recently entered into a number of such agreements and is in negotiation to enter yet further ones. Each such agreement typically contains its own dispute settlement mechanism. This article examines in detail the dispute settlement systems contained in Singapore's free trade agreements already concluded with New Zealand, Japan and the countries of the European Free Trade Area which aim to deal with a wide range of disputes, including those relating to investment.

Locknie Hsu is Associate Professor in the Faculty of Law at the National University of Singapore and formerly Legal Consultant to the Singapore Ministry of Trade & Industry.

David Bailey: Fdi in Japan: An "Open Door" or a Legacy of "Non-Institutional" Barriers?

This article shows that Japan has eased formal restrictions on inward foreign direct investment only recently, with the last key legal change taking place in 1997. At the same time, there has been introduction of a range of new measures to attract Fdi. The relatively recent timing of these developments explains in part the still relatively low levels of Fdi in Japan. The article examines so-called "non-institutional" barriers to Fdi and argues that, during the early phases of liberalization, the Japanese government deliberately put into place liberalization "countermeasures", including the fostering of cross-shareholdings, which today are seen as "non-institutional" barriers. Given that takeovers are an increasingly important route for Fdi, this "legacy effect" of past policy still represents a formidable barrier to foreign entry. Whilst the Japanese government is now trying to open up Japan to foreign takeovers, this is very much an ongoing process.

David Bailey is Lecturer in Industrial Economics at the Birmingham Business School, U.K. and Associate Fellow of the Institute for Industrial Development Policy, a joint venture between the Universities of Birmingham, Ferrara (Italy) and Wisconsin Milwaukee.

K.X. Li, Kevin Cullinane, and Cheng Jin: The Application of Wto Rules in China and the Implications for Foreign Direct Investment

China officially became a Member of the World Trade Organization on 11 December 2001. Since then, the Chinese government has been reviewing and reconstructing its domestic legal system in all areas involving trade and investment. The present article provides a comprehensive review and analysis of the relevant laws and regulations with the aim of offering a clear view of the current situation vis-à-vis foreign investment. Comparison is made between current and former laws and, from the point of view of potential foreign investors, with the general practice of international trade. This analysis shows that China's Wto accession and the resulting changes in the legal regime offer foreign investors both advantages and disadvantages, opportunity and risk.

K.X. Li is Lecturer in Maritime Law and Policy in the Department of Shipping and Transport Logistics at The Hong Kong Polytechnic University, an arbitrator of the China Maritime Arbitration Committee, and a listed expert of the International Maritime Organization.
Kevin Cullinane is Professor of Maritime and Transport Economics and Head of the Department of Shipping and Transport Logistics at The Hong Kong Polytechnic University, Honorary Professor at the Centre for Urban Planning & Environmental Management at the University of Hong Kong, and a Fellow of the Chartered Institute of Logistics and Transport.
Cheng Jin is a Research Assistant in the Department of Shipping and Transport Logistics at The Hong Kong Polytechnic University.