The Journal of

WORLD INVESTMENT & TRADE

ABSTRACTS 

Stanimir A. Alexandrov: Breaches of Contract and Breaches of Treaty—The Jurisdiction of Treaty-based Arbitration Tribunals to Decide Breach of Contract Claims in Sgs v. Pakistan and Sgs v. Philippines

This article discusses the recent decisions of the Icsid Tribunals in Sgs v. Pakistan and Sgs v. Philippines. These decisions have brought to the forefront the questions as to whether a tribunal constituted under an investment treaty has jurisdiction over claims for breaches of contract where (i) the contracting States have included in the treaty an umbrella clause (i.e. a clause providing that a contracting State shall respect the commitments that it has entered into with nationals of the other contracting State) and (ii) the treaty grants jurisdiction over any disputes relating to an investment to a tribunal constituted under the treaty. The article analyses the contradictory conclusions reached by the Sgs Tribunals on these two questions. It also discusses an essential but somewhat overlooked feature common to the two Sgs decisions: both Tribunals asserted jurisdiction over treaty claims regardless of the fact that those claims arose directly out of the underlying contracts.

Stanimir A. Alexandrov is Senior international Adviser at Sidley Austin Brown & Wood Llp in Washington, D.C.

Jingxia Shi: Telecommunication Services in China—Implications of Wto Membership

To carry out the commitments made at the time of its accession to the World Trade Organization, China has recently been overhauling its domestic regulation of telecommunication services. This article outlines the Wto rules on telecommunication services, examines recent developments in China's reforms in this respect and explores the impact of Wto membership on China's telecommunication services market.

Jingxia Shi is Professor of Law at the Law School of China University of International Business and Economics in Beijing, China.

Philippe Pinsolle: Jurisdictional Review of Icsid Awards

This article offers a critical look at how the Washington Convention deals with jurisdictional review through the test of a tribunal having "manifestly exceeded its powers". It also calls into question the position of the Icsid Secretariat that decisions affirming jurisdiction are not "awards" and therefore cannot be immediately challenged.

Philippe Pinsolle is a partner in the international arbitration group of Shearman & Sterling Llp in Paris, France. He is also the author of The Annulment of Icsid Arbitral Awards, which appeared in The Journal of World Investment, Vol. 1, No. 1, July 2000.

James McIlroy: Canada's New Foreign Investment Protection and Promotion Agreement—Two Steps Forward, One Step Back?

The Government of Canada recently updated its model Foreign Investment Protection and Promotion Agreement. This article reviews the genesis and evolution of Canada's fifteen-year-old bilateral investment treaty programme and examines the key features of the new model treaty, which reflects Canada's decade of experience with investment protection under Chapter Eleven of the North American Free Trade Agreement.

James McIlroy is Principal of McIlroy & McIlroy, Inc., Counsel on Public Policy, in Toronto, Ontario, Canada. He is also the author of Nafta’s Investment Chapter—An Isolated Experiment or a Precedent for a Multilateral Investment Treaty? which appeared in The Journal of World Investment, Vol. 3, No. 1, February 2002.

Richard Janda: Disciplining Subsidies within an EU–U.S. Open Aviation Area

The creation of an Open Aviation Area, currently the subject of negotiations between the European Union and the United States, seeks to open up domestic rules governing investment in air transportation services and to ensure that competition rules will not create artificial barriers to trade in these services. However, these goals could well be defeated by State subsidies. This article explores what sort of State aids regime can and should be part of an EU–U.S. Open Aviation Area and offers a detailed model of an agreement in this regard.

Richard Janda is Associate Professor at the Institute of Air and Space Law of McGill University in Montreal, Quebec, Canada.

Georg Caspary and Susanne Berghaus: The Changing Nature of Foreign Direct Investment in Developing Countries—Evidence and Implications

It is widely believed that globalization has led to a shift in foreign investors' motives from those associated with market-seeking foreign direct investment (Fdi) towards those more commonly leading to efficiency-seeking Fdi. This article examines both types of Fdi and their respective motives, determinants and economic effects on the host country. It then reviews the existing economic literature in search of evidence for a globalization-induced change in the relative importance of traditional Fdi determinants, finding a lack of conclusive evidence with regard to this question. In light of the important policy implications at stake, the authors point out the need for systematic future research in this area.

Georg Caspary is Administrator of the Development Co-operation Directorate of the Organisation for Economic Co-operation and Development in Paris, France.

Susanne Berghaus works in Financial Co-operation with Developing Countries at the Kreditanstalt für Wiederaufbau in Frankfurt, Germany.