The Journal of
WORLD INVESTMENT & TRADE
Volume 8
April 2007
Number 2
ABSTRACTS
After the 2005 award in Cms v. Argentina, another Icsid tribunal had to address the necessity defence
raised by Argentina in many of the over 30 pending investment arbitration cases. In
October 2006, the LG&E v. Argentina tribunal came to similar conclusions as far
as the questions of breaches of Bit
standards were concerned. It differed sharply, however, on the various legal issues
concerning the invocation of a state of necessity as a ground for precluding the
wrongfulness of acts of the host state. Apart from acknowledging that, in principle, a
state of necessity may arise from an economic emergency situation and that the invocation
of necessity cannot be self-judging, the two tribunals disagreed on almost every detail of
what has been codified in Article 25 of the Ilc
Articles on State Responsibility. This paper critically analyses what the two tribunals
decided with respect to necessity.
August Reinisch is Professor of International and European Law at the University of
Vienna, Austria, and Professorial Lecturer at the Bologna Center of Sais/Johns Hopkins University in Bologna, Italy.
In 2005, he was requested by the German Constitutional Court to provide an expert opinion
on the issue of state of necessity in international law.
Veijo Heiskanen: The Doctrine of
Indirect Expropriation in Light of the Practice of the Iran-United States Claims Tribunal
The current debate on the notion of
indirect expropriation reflects a wide methodological controversy in international
investment law. Indeed, international investment law itself may be considered divided on
the issue in the sense that it embodies two competing legal doctrines that adopt different
and potentially conflicting approaches to the determination of whether or not a particular
governmental measure is tantamount to expropriation. These two doctrines may be termed the
"effects" doctrine and the "police powers" doctrine.
Veijo Heiskanen is a Partner with Lalive in Geneva, Switzerland.
A.F.M. Maniruzzaman: National Laws Providing for Stability of International Investment Contracts: A Comparative Perspective
In various countries, national legislative enactments provide for guarantee of contractual stability betewwn the host State and the foreign investor. Recent years have witnessed such countries as Timor-Leste, Papua New Guinea, Peru, Panama, Ivory Coast , Bolivia, Venezuela, Colombia and Kazakhstan legislating specific stability laws or making provision for stability in general hydrocarbon laws or specific Codes in order to attract foreign investment. This article offers a comparative perspective on these new gaurantees.
A.F.M. Maniruzzaman is Professor
of International and Business Law at the University of Portsmouth, United Kingdom;
Visiting Professor of Law at the Faculty of Law of the University of Western Ontario,
Canada (elect); and an Honorary Fellow of the Center for Energy, Petroleum and Mineral Law
and Policy of the University of Dundee, Scotland.
Mohammed El
Said: Surpassing Checks, Overriding Balances and Diminishing Flexibilities—Fta-Iprs
Plus Bilateral Trade Agreements: From Jordan to Oman
This article sheds light on the Trips-Plus provisions included under a number of Ftas signed between the US and several Arab
countries. The article compares between the first US Fta Trips-Plus agreement signed with Jordan in 2001, an the
recently concluded Fta signed between the US
and Oman. It is realized that each Fta
contains additional Trips-Plus obligations
from its predecessor, hence resulting in an Iprs
"Fta-Plus" effect. Trips-Plus agreements will particularly have more
negative impact on the Arab countries. This is so because of the development stage of
these countries and the lack of the necessary "checks and balances" needed to
support and enable the Ipr regime to foster
creativity and encourage innovation within these states.
Mohammed El Said, Llm, PhD, is a Legal Consultant for Al Jazeera Satelitte Network and Lecturer in
International Trade Law at the University of Central Lancashire, United Kingdom.
Hakim Ben Hammouda and
Mustapha Sadni Jallab: Trade Liberalization and Development: Lessons from Africa
This paper contributes to the debate over the impact of trade liberalization on development from an African perspective. It suggests that the current discussion should not restrict itself to examining the relationship between liberalization and growth alone but can be enriched by comparing the development experiences of Africa and Asia. Future thinking should turn towards a search for optimal combinations between liberalization and control in order to promote growth and strengthen the competitiveness of developing economies.
The authors are staff members of the UN Economic Commission for Africa. Hakim Ben Hammouda
is Chief Economist of the Uneca and Director of the Trade, Finance and Economic Development Division.
Mustapha Sadni Jallab is Economic Affairs Officer in the same Division.
Ngangjoh Hodu Yenkong:
Revisiting some Issues of Concern in the Dbs Review Process in 2006: The Appellate Body Report in
Mexico—Tax Measures on Soft Drinks and Other Beverages and United
States—"Zeroing"of Dumping Margins in Context
Although the issue of development remains controversial within the realm of the world
trading system, international lawyers have lauded the jurisprudential progressivism of the
World Trade Organization Dispute Settlement Body. While in recent years the Dsb has struggled to dispel the chimera of the lex
specialis maxim in its jurisprudence, it has at the same time defended the object and
purpose of the Dsu by not relinquishing
jurisdiction in favour of our regional bodies, like the Nafta dispute settlement organ. This paper aims at
revising some legal and systemic issues raised in two AB reports of 2006 (Mexico—Tax
Measures on Soft Drinks and Other Beverages and US—"Zeroing"
of Dumping Margins), which appeared to test the power of the Wto judicial body. In so doing, it first reviews the
status of the disputes that have gone through the system (from consultation to
implementation) in 2006.
Ngangjoh Hodu Yenkong hold an LL.Lic (Dr.iur) and LL.D. from the University of Helsinki,
Finland. He is currently a Prgramme Coordinator on Global Trade and Regional Integration
at the Nordic Africa Institute, Uppsala, Sweden.
Trade liberalization is more than
economic growth and improvement in standards of living. Peace and security were not
peripheral issues at all at the time the Gatt
was founded. This article argues that issues of free trade, peace, and security are
compatible. However, the Wto faces many
challenges such as poverty, regionalism, and isolation of Arab countries – a
situation that is not conducive to global harmony. Countries must ask themselves whether
they want to proceed along the path of peace and prosperity through liberalized trade or
retreat into a world divided by isolationism, regionalism, and protectionism.
Multilateralism and international cooperation, the author argues, are essential keys to
peace and security.
Bashar H. Malkawi is Assistant Professor of Commercial Law at the Hashemite University in
Jordan. He holds an LL.M. in International Trade Law from the University of Arizona and an
S.J.D. in Law from American University, Washington College of Law.