The Faculty has published the third edition of 2014, Volume 5 Number 3 of the University of Cambridge Faculty of Law Legal Studies Research Paper Series on SSRN.
This issue includes the following articles:
Michael Waibel: Coordinating Adjudication Processes (6/2014)
International investment tribunals, like all other international courts and tribunals, are created equal. This chapter focuses on genuine decisional fragmentation and the coordination of proceedings within the investment treaty regime, i.e. between parallel and subsequent investment arbitrations rather than cross-regime coordination of, for example, investment arbitrations and World Trade Organization (WTO) dispute settlement. Decisional fragmentation refers to divergent rulings in cases that share the same factual matrix. Numerous authors posit that inconsistent decisions are a particular risk in investment arbitration given the lack of internal (e.g. stare decisis) as well as external control mechanisms to ensure uniform arbitral decisions.
The chapter examines what coordination tasks arise in international investment law (IIL), what the stakeholder interests related to these coordination tasks are and how overlapping jurisdictions of investment tribunals can be managed institutionally and procedurally. The distinction between jurisdiction and admissibility is an important element of successfully coordinating parallel investment arbitrations. The major advantage of declaring claims inadmissible is that it allows tribunals to fulfil their jurisdictional mandate – which many investments tribunals are keen to do – while coordinating proceedings through the lever of admissibility. After describing the structural features of IIL, and in particular the absence of stare decisis, Section 2 examines three coordination tasks that arise in IIL: related proceedings, mass claims and derivative shareholder claims.
Kenneth Armstrong: Differentiated Economic Governance and the Reshaping of Dominium-Law (7/2014)
The European Union's response to the economic crisis illustrates and dramatizes the increasing differentiation and pluralisation in the modes and techniques through which the EU now governs. Early characterizations of that response in terms of the return or revival of the 'Community Method' and of rules-based governance fail to grasp the range and diversity of responses as well as their 'hybrid' interactions. This diversity in governance is also reflected in the nature of the legal instruments through which the EU has sought to expand its governance capacity. In turn, the plural legal landscape creates variation in the domestic legal response. Adopting Daintith's notion of dominium-law, it is argued that the EU's response to the crisis is reshaping dominium-law not just at the domestic level but also in its reconfiguration within European public law itself.
Jose Daniel Amado: From Investors' Arbitration to Investment Arbitration: A Mechanism for Allowing the Participation of Host State Populations in the Settlement of Investment Conflicts (8/2014)
This paper constitutes the first contribution in a research project on the role of international arbitration in the resolution of social conflicts that derive from investment projects. Some of the issues raised involve matters frequently found in international human rights instruments and draw attention to the role of States and corporations in enforcing these instruments in the investment context. Recent events demonstrate that an adjudication mechanism capable of producing reliable and enforceable results for all stakeholders, including affected populations, may tilt the balance between having and not having certain large-scale infrastructure and natural resource investments. This paper submits that the success of investment treaties is intertwined with the emergence of international arbitration as the preferred mechanism for the resolution of investment disputes and that its underlying rationale applies equally in the case of conflicts that have already arisen, where investment contracts and settlement agreements may submit existing disputes to the institution of international arbitration in a way that allows access to relevant parties. To restore the basic principle that this institution grants reciprocal and not unilateral rights to arbitrate opens the door in the context of international investment law to resolving seemingly intractable investment-related social conflicts. The focus of this initial paper is procedural in nature because this aspect has thus far received little attention from the legal community. Although substantive rights will be the subject of subsequent study, it is the author's belief that the practice that arises from investment contracts and settlement agreements could become the basis for determining which rights will be included in the next generation of investment treaties.
Lorand Bartels: The EU's Human Rights Obligations in Relation to Policies with Extraterritorial Effects (10/2014)
That states can be responsible for the effects of their economic policies in third countries is not controversial. Thanks to a network of international trade agreements, virtually all states are under obligations designed to protect the economic interests of the producers of imported goods and services. And yet the proposition that states should also be responsible for the human rights effects of such policy measures is not universally accepted. Thus, a subsidy that causes injury to the domestic industry of a WTO Member or a market access barrier that negatively affects conditions of competition for imported products can violate trade obligations. But even if those effects on the producers of those products are severe, it is debatable whether they are capable of violating any given human rights obligations. In short, the extent to which human rights obligations apply to policies with extraterritorial effects is still very much an open question.
This article considers the extent to which EU law applies to such policies, which is to say EU policies with extraterritorial effects on persons outside of EU territory. Section A discusses the human rights aspects of Article 3(5) and Article 21 of the Treaty on European Union (TEU), which date from the 2009 Lisbon Treaty. Second B looks at the jurisprudence of the EU Court of Justice on EU fundamental rights as these exist as general principles of EU law and in the EU Charter of Fundamental Rights, as influenced by the European Convention on Human Rights (ECHR). Section C discusses the EU's obligation to comply with its international obligations, including with the human rights clauses found in all EU trade and cooperation agreements and with customary international law. Section D considers the enforceability of these obligations by the EU institutions and individuals. Section E summarises and concludes.
Simon Deakin et al: Do Labour Laws Increase Equality at the Expense of Higher Unemployment? The Experience of Six OECD Countries, 1970-2010 (11/2014)
Using longitudinal data on labour law in France, Germany, Japan, Sweden, the UK and the USA for the four decades after 1970, we estimate the impact of labour regulation on unemployment and equality, using labour's share of national income as a proxy for the latter. We employ a dynamic panel data analysis which distinguishes between short-run and long-run effects of legal change. We find that worker-protective labour laws in general have no consistent relationship to unemployment but are positively correlated with equality. Laws relating to working time and employee representation are found to have beneficial impacts on both efficiency and distribution.
Interested readers can browse the Working Paper Series at SSRN, or sign up to subscribe to distributions of the the e-journal.
