The Journal of

WORLD INVESTMENT & TRADE

ABSTRACTS

Ursula Kriebaum: Human Rights of the Population of the Host State in International Investment Arbitration

This article examines whether and how international investment tribunals can take into account human rights of the population of the host state when deciding investment disputes. First, the article analyses foreign investment from the perspective of human rights treaties. Next, the article describes certain parameters which are decisive for the capability of an investment tribunal to take human rights into account in its decisions such as: the jurisdictional clause, the applicable law, references to human rights treaties in investment protection treaties, ‘in accordance with host state law’ clauses and the possibilities offered by treaty interpretation. Then, the article outlines who typically invokes human rights in investment arbitration: host states as a defence and Ngos through amicus curiae briefs.

Ursula Kriebaum is Associate Professor of International Law at the University Vienna, Austria.

M. Rafiqul Islam and Md. Rizwanul Islam: The Global Food Crisis and Lackluster Agricultural Trade Liberalisation: Demystifying their Nexus Underpinning Reform

The article identifies the nexus between the global food crisis and the current state of agricultural trade under the Wto. It argues that agricultural trade liberalization, though not a panacea, can plaz a meaningful role in ameliorating the ongoing global food crisis. The quagmire of multilateral negotiations on agricultural trade liberalisation, its gerrymandering trade paradigm, and oligopolic agribusiness conglomerate to cause structural change in food chain, undermine food security, and trigger sharp price rises that contribute to the food crisis. Agricultural trade in its present form is causally linked to the food crisis in that some of the factors responsible for the food crisis are induced and maintained by entrenched agricultural protectionism in domestic, and distortive trade practices in international, markets

M. Rafiqul Islam is Professor of Law and Director of Higher Degree Research at Macquarie School of Law, Macquarie University , in Sydney , Australia .

Md. Rizwanul Islam, LL.M. (National University of Singapore), LL.B. ( University of Dhaka ), is a PhD candidate at Macquarie School of Law.

Jan Schokkaert and Yvon Heckscher: Protected Investors Nationality

It is generally admitted that the bond of nationality between the State and investors, individuals or corporations, confers upon the State the right of protection of its nationals’ interests abroad. Investors wishing to benefit from the rights and advantages of the bilateral investment treaties (Bits) must have the nationality of the Contracting State whose aid and protection they invoke. Problems could arise in the case of double nationality of individual investors. A solution could be the creation of a hierarchy of two nationalities of an investor. Internationally this idea has led to the introduction, in some cases, of a new legal concept, that of effective and dominant nationality. In international practice, there is a prevailing tendency to prefer a real and effective nationality. However, formulating the criteria for ‘effective and dominant’ nationality is not all that easy. On the other hand, there are different and controversial opinions about the nationality of corporations. The determination of a nationality for a corporation may be made on the basis of three theories: ‘seat’ theory, ‘incorporation’ theory and ‘control’ theory. The International Centre for Settlement of Investment Disputes (Icsid), established by the Washington Convention of 18 March 1965, has developed a special view on the nationality of legal persons, on the basis of the ‘contro’ theory.

Jan Schokkaert, Doctor of Laws (Catholic University of Louvain), is Director of Administration h.c. of the Belgian Ministry of Foreign Affairs, Foreign Trade and Development Cooperation.

Yvon Heckscher, Doctor of Laws ( University of California at Los Angeles ), is C.E.O. of Heckscher Lawyers Professional Corporation in Sebastopol , California .

Mary B. Ayad: International Commercial Arbitration Award Enforcement at the Crossroads of Sharia Law and Ordre Public in the Mena. Paving the Golden Path towards Harmonisation

This practical article will bring to light the complex interplay between sharia law and ordre public for foreign investors, European and Arab jurists, judges, arbitrators and scholars who are concerned with higher arbitral award enforcement in the Mena region, particularly in the face of questions related to Islamic law and the controversial debate on ‘ordre public’. The countries chosen are Egypt , Bahrain , Jordan , Tunisia , the United Arab Emirates , hereinafter (Uae), Qatar and Yemen . This article brings forth the latest research in the laws of these countries and current trends and how they intersect with interpretations of Islamic law, particularly in cases where a civil code has been enacted. Recommendations leading to higher award enforcement and reduction of risks to foreign investors will be offered as a result of the comparative analysis of the intersection between sharia and ordre public, particularly in cases evidencing a lacuna that risks leaving sharia open to unfavourable interpretation.

Mary B. Ayad is a PhD Candidate in International Commercial Arbitration at the Faculty of Business and Economics, Department of Business Law, of Macquarie University in Sydney , Australia .

Paolo Vargiu: Beyond Hallmarks and Formal Requirements: A “Jurisprudence Constante” on the Notion of Investment in the Icsid Convention

The absence of a definition of Investment in the Icsid Convention has led Icsid tribunals to provide autonomous interpretations of the term “investment” in Article 25 of the Convention. Case-law on the subject can be categorised into two main classes, namely the “typical characteristics approach” and the “jurisdictional approach”. The former considers the definition of investment as composed of hallmarks, the presence of all or some of which can indicate the existence of an investment. The latter identifies a number of formal requirements to be satisfied for an operation to qualify as an investment. The existence of two clashing approaches has caused inconsistency in the case law and lack of predictability on whether or not an Icsid tribunal would accept jurisdiction. The identification of the pros of the two approaches and the subsequent establishment of a jurisprudence constante on the notion of investment would provide a feasible solution to the problem. Inconsistent decisions would not be eliminated, but could easily be ignored by later tribunals and perhaps be annulled on the ground of manifest excess of powers, discouraging arbitrators from disregarding the jurisprudence constante.

Paolo Vargiu, J.D. ( Cagliari ), LL.M. ( Nottingham ), is a Ph.D. candidate at the University of Nottingham, U.K.

The 14th Geneva Global Arbitration Forum

This issue publishes parts of the proceedings of the 14th Geneva Global Arbitration Forum held 26 and 27 May 2009, which was sponsored by The Journal of World Investment & Trade.  The Forum is the only regular international arbitration conference held in Geneva, which is the seat of so many dispute resolution bodies, and it is the foremost such conference held in Switzerland. Our Journal is honoured to be able to contribute to it.