The Journal of

WORLD INVESTMENT & TRADE

ABSTRACTS 

Jean-Christophe Liebeskind: The Legal Framework of Swiss International Trade and Investments—Part i: Promotion

To support its international trade and investments, Switzerland has developed a remarkably sophisticated internal and external legal framework. This article covers indifferently trade and investments. While there are fundamental differences, at the same time they are so closely inter-related that they are indissociable elements of the external economy here addressed as a whole. The article is published in two parts. The present first part offers an overview of the legal instruments offered by Swiss law, including the treaties to which Switzerland is a party, for the promotion and the support of Swiss exports and outbound investments. The second part will discuss the protection offered by these instruments and the remedies available whenever trade is hampered or investments are damaged.

Jean-Christophe Liebeskind is a Swiss attorney-at-law in Beijing, China.

Vladimir Balaš: Saluka Investments B.V. (The Netherlands) v. The Czech Republic—Comments on the Partial Arbitral Award of 17 March 2006

The Partial Arbitral Award of 17 March 2006 in Saluka v. Czech Republic found that the Czech Republic’s conduct towards Ipb and Saluka/Nomura in respect of Saluka’s investment in Ipb shares was unfair and inequitable.  The present article examines the background to the case and comments on the jurisprudence of the findings.

Vladimir Balaš,  JUDr., PhD, is a Partner of Rowan Legal in Prague, Czech Republic, and a Lecturer of International Public Law at the Charles University Faculty of Law in Prague.

M. Rafiqul Islam and M.K. Zaman: Market Access for Ldcs under the Hong Kong Ministerial of the Wto—Outcomes for Bangladesh

This article examines the Hong Kong Ministerial in relation to the specific commitments for relieving the marginalized position of least developed countries (Ldcs) through their market access opportunities. It reveals that such access is limited and riddled with conditions and caveats. Rampant protectionist measures of developed countries against Ldcs’ products have been pushing Ldcs to further marginalization. The Hong Kong Declaration has introduced a new trend of discriminatory preferential treatment to some Ldcs and not others, allowing developed countries to “divide and conquer”. After 60 years of institutionalized trade liberalization, the system is yet to protect the legitimate trading interests of its vulnerable members. The trading plight and dilemma of Bangladesh is highlighted and commented upon to show the continuing marginalization of Ldcs in the post-Hong Kong era.

M. Rafiqul Islam is a Professor of Law at Macquarie University in Sydney, Australia. 

M.K. Zaman, LL.M., is a Research Fellow at Macquarie University.

Eduardo Savarese: Investment Treaties and the Investor’s Right to Arbitration—Between Broadening and Limiting Icsid Jurisdiction

Regarding the right of access by foreign investors to an internationalized mechanism of dispute settlement, recent Icsid case-law may be interpreted according to two contrasting perspectives. The first, by asserting Icsid jurisdiction over investors’ claims in the face of objections by Respondent States, seemingly aims at fostering the investors’ right to have recourse to international arbitration. The second perspective underlies a narrower, yet not always explicit, approach leading to denial of Icsid tribunals’ competence.  Such opposing trends emerge with reference to three main aspects: i) the interpretation of forum-selection clauses of bilateral and multilateral investment treaties; ii) the standard of proof to be observed by claimant investors at the jurisdictional stage; and iii) the application of most-favored-nation clauses for jurisdictional purposes.  The author considers that such diversity of approaches may be explained by the relevant role played in current international law by individuals, above all in terms of the major influencing factor over the new content, which traditional subjectivity of the State seems to increasingly assume.

Eduardo Savarese is a Judge at the Tribunal of Nola in Naples, Italy, and a Ph.D. candidate in international law at the University of Naples, Federico ii.

Stephen Fietta: The “Legitimate Expectations” Principle under Article 1105 Nafta—International Thunderbird Gaming Corporation v. The United Mexican States

This article analyses and comments upon the important recent Nafta case of International Thunderbird Gaming Corporation v. The United Mexican States. It focuses upon the role of that case in continuing the gradual establishment of the "legitimate expectations" principle as a self-standing subcategory and independent basis of claim under the "fair and equitable" standard contained in modern investment treaties and, in particular, under Article 1105 Nafta. The article opens by describing the domestic and EU law foundations of the principle and setting the specific context with reference to the recent Nafta arbitral case law. There follows a summary of the salient aspects of the Thunderbird case. The article concludes by observing the current position as regards the relevance of investors' expectations under the investment provisions of the Nafta and by and identifying possible areas of future development and clarification of the law in this area.

Stephen Fietta is a Senior Associate in the International Dispute Resolution Practice Group of Latham & Watkins in London and specializes in all aspects of public international law and international investment law.

Yun Zhao: Liberalization of Space Launch Services within a Plurilateral Regime—With Reference to China’s Commercial Launch Services

Launch services is one of the most capital-intensive and politically visible categories of space commercialization. Bilateral agreements were reached between the United States and China to prevent unfair competition in the launching services market. Whereas there are no such bilateral agreements among the Western nations setting launch quotas, it is questionable whether or not such a practice is reasonable or discriminatory. The World Trade Organization provides the solid groundwork for trade liberalization. Liberalizing space launch services in a plurilateral regime instead of a bilateral one is now increasingly recognized as a feasible way to further improve the viability of space activities. We should start preparing for talks and negotiations among the interested parties within the framework of the Wto and push for the early establishment of a plurilateral regime for launch services.

Yun Zhao, LL.B., LL.M., Ph.D., is an Assistant Professor at the City University of Hong Kong.

Bashar H. Malkawi: The Dubai Ports World Deal and U.S. Trade and Investment Policy in an Era of National Security

DP World, which is owned by the Dubai government, purchased P&O Steam navigation. In doing so, it took ownership of P&O Ports North America, a subsidiary of P&O that operated terminals at six U.S. ports. The DP World transaction has prompted a controversy over the sale of six U.S. ports and raised issues of national security.  The goal of this article is to identify the issues surrounding the DP World transaction and its implications for the protection of U.S. national security. In this article, the author claims that the United States now stands at a crossroads and that politicization is becoming important in reviews of whether a proposed merger, acquisition or takeover threatens U.S. national security.

Bashar H. Malkawi, LL.M., S.J..D., is an Assistant Professor of Law at the Hashemite University in Jordan.