The Journal of

WORLD INVESTMENT & TRADE

ABSTRACTS

Okezie Chukwumerije: Interpreting Most-Favoured-Nation Clauses in Investment Treaty Arbitrations

This article evaluates how investment treaty arbitration tribunals have interpreted most-favored-nation (Mfn) clauses found in Bilateral Investment Treaties (Bits). The theme underlying this article is the view that the interpretation of Mfn clauses should focus primarily on the intention of the state parties as manifested in the language, context and purpose of their Bits. While acknowledging the importance of using the purpose of Bits and Mfn clauses as a factor in their interpretation, this article urges tribunals to guard against relying on the investment promotion and protection objectives of Bits as justification for adopting interpretative approaches that run contrary to the plain meaning and context of Mfn clauses. Furthermore, the article cautions against tribunals using the fear of treaty shopping and the uncertainty it might breed as grounds for ignoring the plain meaning of Mfn clauses.

Okezie Chukwumerije is Professor of Law at the Thurgood Marshall Scholl of Law of Texas Southern University in Houston, Texas.

Mahmoud K. El-Jafari: Possibilities of Promoting Employment and Trade under Siege: The Case of the Euro-Palestine Partnership and Cooperation

This paper aims to conduct a descriptive assessment of the effects of the Interim Associated Agreement (Iaa) signed between the Palestinian National Authority (Pna) and the EU in 1997 on promoting employment in the West Bank and Gaza Strip (Wbgs). It has been documented that the impact of the Iaa on the Palestinian economy is insignificant. In principle, Israeli measures and practices against the Palestinian economy have put down the Euro-Palestinian Partnership under the siege. Consequently, any real partnership and cooperation between the Wbgs and the EU have become impossible without a prior ending of the Israeli Occupation. Therefore, the end of the Israeli Occupation should be treated as a necessary condition if the EU-Palestine Partnership Agreement is to have any meaning.  Thus, it was not surprising to find that Palestinian trade has continued to be contained by the Israeli economy, regardless of any bilateral agreement signed between the Pna and any Arab or foreign country.  

Mahmoud K. El-Jafari is Dean and Professor of Economics at the College of Business and Economics of Alquds University of Jerusalem.

Zeng Huaqun: "One China, Four Wto Memberships": Legal Grounds, Relations and Significance 

Hong Kong region, Macao region, China , and Taiwan region all became Wto members one after another in accordance with the Wto relevant provisions. The situation of “one China , four Wto memberships” in the WTO regime has emerged. The relations among the four members are not only the relations of equal members within the Wto regime but also the relations of different customs regions within a sovereign State. The main features of the relations among the four members include equal representation and participation in the Wto institutions and decision-making, separate claim and liabilities systems as well as equal participation in regional trade agreements. The significance of “one China , four Wto memberships” is to reflect the latest development of international law, to strengthen the consensus of the one-China principle in international society, and to provide new opportunities for four members to establish closer economic relations.

Zeng Huaqun is Professor of Law, Director of the International Economic Law Institute, and a Member of the Initiative for Taiwan Research (Project 985-ii) at Xiamen University, China.

Tarcisio Gazzini : The Role of Customary International Law in the Field of Foreign Investment

The proliferation of investment-related treaties inevitably raises the question of whether customary international law plays nowadays any significant role in the field of foreign investment. The article first describes the creation and evolution of customary rules in this increasingly important area of international law and then discusses the intense interaction and mutual contamination between these rules and treaty rules. It also deals with the main problems related to the interpretation, application and co-ordination of treaty and customary rules, bearing in mind the lex specialis nature of the former. It emerges that customary rules retain their importance in the protection of foreign investment and remain valuable in the settlement of the related disputes.

Tarcisio Gazzini is a Lecturer in International Law at the School of Law of the University of Glasgow, Scotland.

Ursula Kriebaum: Regulatory Takings: Balancing the Interests of the Investor and the State

In international investment law, the fact of expropriation alone attracts the obligation to compensate. Three lines of reasoning are currently applied by arbitral tribunals to decide whether an expropriation or a non-compensable regulation has occurred. None of them can properly resolve the dilemma between the regulatory interests of host States and the investor’s interest in the protection of its property. This article attempts to present a model that could resolve this dilemma. It uses a proportionality approach inspired by the human rights system. It includes the amount of compensation in its considerations and uses the proportionality test not to decide whether an expropriation has occurred but to decide, in the case of an expropriation, whether a suitable balancing of the State’s interest to interfere and the property protection interest of the person hit by the interference has taken place.

Ursula Kriebaum is Assistant Professor in the Department of European, International and Comparative Law of the University of Vienna, Austria.

Jacques Werner: The Global Arbitrators

The explosion of world trade in the last 30 years has meant a meteoric increase in the number of transactions—private contracts—which, most of the time, provide for recourse to international commercial arbitration in case of disputes. It has meant as well an increase in foreign direct investment. As foreign direct investment surged, the probabilities that States would become embroiled with one another in quarrels over diplomatic protection of investors grew as well, as States had traditionally considered it their duty to intervene on behalf of their nationals who had invested in foreign countries and whose investment was jeopardized by the actions of the host States. As is well known, this duty of diplomatic protection had led to many international political crises, if not actual wars, caused by "gunboat diplomacy".

Jacques Werner is tmainly acting as an international arbitrator in commercial and investment cases. He is the founder and Chairman of The Geneva Global Arbitration Forum and Visiting Professor at Hunan Normal University Law School in Changsha, China.