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In Homer's Odyssey, King Odysseus asked his men to tie him to the mast of his ship with the hope that he would not jump into the sea after listening to the Sirens. The Odyssey's hero made a pact to bind himself in the future. He knew that the temptation would be impossible to resist without restraints. Similarly, the creators and advocates of international investment agreements believe that providing rights to foreign investors through international treaties will chill State policies that would harm the interests of investors in the future. The "rope" to tie the State is the threat of facing multimillion-dollar claims brought by investors to international arbitration tribunals. But this widely accepted model assumes that the State, like Odysseus, is a single, static unit that can be tied to the mast. Analyzing twenty-five years of international investment dispute data, this Article's findings challenge the conventional wisdom that the "ropes" are effective in chilling energy government policies. The Article analyzes two variables: 1) the time elapsed between the initial filing of an arbitral claim and the final award and 2) changes in the administration of particular countries during the pendency of the arbitration proceedings. My objective is to identify how often the government that was in power at the time of the enacted regulation is the same actor that has to compensate the investor. The Article concludes that the chilling effects assumption does not apply evenly across all sectors and actors. Paradoxically, those countries with more democratic transitions tend to drag out the arbitration proceedings for a longer period, and investors there face more challenges in recovering compensation. In contrast, in those countries where the same party or officer remained in power for more than a decade, the government dropped out of the system by denouncing the treaties, tended to settle earlier in the process, or otherwise avoided dragging out the compensation stage. Rather than tying the hands of the State, the investment arbitration system tends to generate disparate incentives depending on who is likely to be left with the bill. Ultimately, the State, as a subject of international responsibility, has to pay, but the government actors' self-interests predominate. Those government actors do not necessarily contemplate the country's long-term interests, but rather the short-term benefits of policies affecting foreign investments. Rather than being the ropes that tie countries to the mast, we see that international arbitration proceedings result in individual government actors abandoning the ship and leaving someone else to pay the bill. [ABSTRACT FROM AUTHOR]

Lord Salisbury, according to the historiography, was notoriously sceptical of international arbitration. Yet, at the end of the nineteenth century, Salisbury's last government entered into an arbitration agreement with Venezuela in relation to its border dispute with British Guiana and a general arbitration agreement with the US. It then took the lead in establishing a permament court of international arbitration at the fist Hague Peace Conference in 1899. This article explains why that change in Salisbury's outlook occurred, how Salisbury developed a distinctively Conservative approach to arbitration in international relations and how the British contribution to the development of an institutional international rule of law at the end of the nineteenth century was as much a Conservative moment as a liberal one. [ABSTRACT FROM AUTHOR]

This study critically evaluates Jordan's bifurcated approach to the enforcement of arbitral awards, with an emphasis on its domestic laws and international obligations under the New York Convention. Utilizing a rigorous methodology that melds doctrinal scrutiny with comparative legal analysis, the research delves into Jordan's Arbitration Law 31 of 2001, its subsequent amendments, and the Enforcement of Foreign Judgments Law 8 of 1952. The analysis reveals a marked incongruence between Jordan's national legal frameworks for recognizing and enforcing foreign arbitral awards and its commitments under Article 3 of the New York Convention. The study further quantifies the financial and procedural barriers erected by Jordan's stratified judicial system, contrasting them with universally accepted benchmarks. Informed by international jurisprudence, the research proffers targeted policy recommendations designed to harmonize Jordan's arbitration regulations with prevailing pro‐enforcement international standards. This investigation fills a scholarly void and offers pragmatic, timely solutions, thereby contributing to the global dialogue on compliance with international arbitration norms, particularly from a Jordanian vantage point. [ABSTRACT FROM AUTHOR]

Back-channel negotiations are commonplace in peace negotiations and can serve as crucial mechanisms for reaching agreements. While there has been a moderate increase in scholarship examining back-channel negotiations in the last two decades, none has explored the gendered nature of these spaces. This article analyzes how and why back-channel negotiations are highly gendered processes and why their gendered nature matters for sustainable peace. We begin with a review of the current literature on back-channel negotiations and discuss how and why they are critical mechanisms in peace negotiation and agreement processes. Next, we show how women's inclusion in peace negotiations and agreement practices matters for sustainable peace. Thereafter, we discuss how secret negotiation spaces are infused with gendered power and masculine logics of war and peace. We argue that three key features of back-channel negotiations—secrecy, uncertainty, and limited trust—come together to create an echo chamber of hypermasculinity ideas, values, styles, and norms that prevent women from achieving descriptive and substantive representation inside fundamental secret negotiation spaces. This article adds to the developing literature on back-channel negotiations and helps us better understand how and why women and their interests are regularly excluded from peace processes despite the global prominence of the United Nations' Women, Peace, and Security agenda. [ABSTRACT FROM AUTHOR]

The article is a book review of "Reimagining the International Legal Order," edited by Vesselin Popovski and Ankit Malhotra. The book explores the need to rethink and improve the existing international legal framework due to its inefficiency and the changing global landscape. Divided into six parts, the book covers various aspects of the international legal order, including international law, international organizations, courts and tribunals, specific jurisdictions, and laws of war. The review acknowledges the frustration with international law and practice and praises the book for its attempt to go beyond the traditional framework and include considerations of private international law. Overall, the book is seen as an interesting and topical read that contributes to the existing scholarship in the field. [Extracted from the article]

Recent international arbitration cases, especially P&ID v Nigeria , have highlighted how easy it is for claimants—whether in treaty-based Investor–State Dispute Settlement or commercial arbitration—to advance immense claims grounded on essentially no evidence against state respondents. This largely reflects the readiness of many quantum experts to engage in the practice which Martin Wachs called 'lying with numbers' in order to misrepresent the execution risks of speculative unbuilt projects in a manner that is radically at odds with empirical data regarding such execution risks, which is exacerbated by the ignorance of many arbitrators about business economics and discounted cash flow valuation. This situation is unlikely to improve, and overall standards of candour in valuation in international arbitration will keep going down as the system will keep rewarding the act of cloaking advocacy in the guise of scientific or technical rationality in order to 'lie with numbers'. [ABSTRACT FROM AUTHOR]

This article argues that specific mechanisms and best practices should be adopted by different players in the Belt and Road Initiative (BRI) dispute resolution ecosystem to mitigate the risks of multiple proceedings and abuse of procedure. Specifically, (i) states should enhance their multilateral and bilateral treaty practices; (ii) arbitral institutions should enhance their arbitral rules as well as cooperate with each other; and (iii) states should direct more efforts to dispute prevention and amicable dispute settlement. This article will explain what these best practices and mechanisms are. The 'The BRI' section will provide a general background on the nature and architecture of the BRI. The 'Problem of multiple proceedings and abuse of procedure' section will discuss the notion of multiple proceedings and abuse of procedure. The 'Potential of multiple, parallel proceedings and abuse of procedure on BRI projects' section will focus on possible multiple proceedings and abuse of procedure on BRI disputes. The 'Possible solutions and recommendations' section will identify possible solutions and provide recommendations. Conclusions section will draw final conclusions. [ABSTRACT FROM AUTHOR]

This article traces ROK–US negotiations for the termination of the ROK's nuclear weapons program. It was not solely an issue of ROK–US relations; France and Canada, other allies of the United States, were also involved in the ROK's nuclear weapons development. When an ally (ROK) attempted to develop nuclear weapons and another ally (France) pursued commercial interests by exporting nuclear technology, the US-led non-proliferation regime was put at risk. Therefore, the US had to coordinate the interests of its allies. In particular, it attempted to dissuade France from exporting nuclear technology with the support of another ally (Canada). By examining how the US endeavored to coordinate diverse interests, this study ultimately demonstrates that one of the prerequisites for establishing a successful non-proliferation regime led by the US was how to dissuade its ally from seeking financial gain through the export of nuclear technology and instead persuade them to support US-led non-proliferation regime building. [ABSTRACT FROM AUTHOR]

Between 1895 and 1916, a Conference on International Arbitration met annually at Lake Mohonk, New York, seeking to implement arbitration as a substitute for war. This article considers the aims, effects, and limitations of these conferences, including the problematic assumptions underpinning their apparent progressivism. The belief that an enlightened public opinion would play a decisive role in advancing arbitration will be interrogated, as will the conviction that the Mohonk group provided a mouthpiece for an emergent "international mind." The article shows how these conferences evoked a "global" public opinion that was simultaneously (and paradoxically) expansive, exclusionary, forcible, and manipulable. It reveals too how American conceptions of internationalism took shape, anticipating aspects of Wilsonianism. [ABSTRACT FROM AUTHOR]

In State Responsibility and Rebels, Kathryn Greenman explores the post-colonial history of state responsibility, the doctrine of international law that determines whether a state has breached its obligations and what, if anything, can be done about it. Today, the doctrine is one of the most frequently referenced ones of international law. Greenman shows that international arbitrators have applied the rules of state responsibility in order to support a global economic order that sustains Western investments and trade. Greenman also highlights the bilateral or transactional nature of the doctrine. The early practice of state responsibility has been a story of political concessions. Western states would often withhold their recognition of governments until the latter agreed to arbitrate international claims such as injuries to aliens during the rebellions. The resulting awards were often inchoate analyses of international law, in which arbitrators would attribute liability to states for conduct that was often out of their control. These findings are as interesting as they are relevant to today's international practice. Indeed, says Greenman, imposing state responsibility for conduct that is outside of a state's control is effectively sustaining the legacy of international law's colonial past. [ABSTRACT FROM AUTHOR]

This article explores the role of domestic law in international adjudication, specifically in international investment arbitration. It argues that domestic law has been overlooked in international legal scholarship, but international adjudicators recognize its significance and actively shape its content. The article suggests that domestic law should be treated as law in international courts and tribunals, rather than as a mere fact. It presents three articles that examine different aspects of the role of domestic law in specific international courts and tribunals, highlighting its importance in filling gaps, aiding interpretation, and correcting applicable law. The article concludes by proposing further research on the relationship between domestic and international law in international adjudication. [Extracted from the article]

Over the past thirty years, arbitral tribunals tasked with determining their jurisdiction to adjudicate domestic law in investment disputes have frequently relied on one or a combination of two conventional approaches. The first approach interprets jurisdiction and applicable law provisions as serving separate functions and operating independently. The second approach contends that domestic law applies as a fact. However, these two approaches fall short in encompassing the distinct ways in which domestic law can apply in an investment dispute. This application of domestic law is contingent on the stipulations found within a jurisdiction provision – often referred to as the "arbitration agreement" – and the jurisdictional provisions that delineate a tribunal's personal, material, and temporal scope of jurisdiction. To comprehensively elucidate how domestic law operates in investment arbitration, this article outlines the sources of a tribunal's jurisdiction to adjudicate a claim and an incidental question grounded in domestic law. Firstly, the narrow or broad scope of a jurisdiction provision within an international investment agreement, domestic investment law, or investment contract determines whether a tribunal has the jurisdiction to hear a claim grounded in domestic law, pursuant to the severability doctrine. Secondly, the direct reference or lacuna in a jurisdictional provision determines whether a tribunal possesses jurisdiction to hear an incidental question grounded in domestic law, as a necessary and ancillary legal issue that a tribunal must preliminarily address to resolve the relevant claim, pursuant to the lex specialis principle. Given these considerations, tribunals and treaty drafters should not rely on the two conventional approaches, but should consider any stipulation within a jurisdiction provision and jurisdictional provisions concerning the application of domestic law as the legal foundation of a claim and an incidental question. [ABSTRACT FROM AUTHOR]

The article analyzes the use of the concept of bifurcation in international arbitration of joint venture disputes. Topics include a benchmark proposed for the assessment of bifurcation benefits, arguments on the misplacement of the current approach taken by bifurcation decision tribunals, the criteria used by arbitral tribunals and a test that could facilitate their decision-making process, and an analysis of the bifurcability of issues typically arising in international joint venture disputes.

The United States Supreme Court's unanimous decision in the 2022 case ZF Automotive US, Inc. v. Luxshare, Ltd. resolved the long-disputed circuit split regarding the application of Section 1782 of Title 28 of the U.S. Code to international arbitrations. The Court's ruling that the term "foreign or international tribunal" under Section 1782 includes only governmental or intergovernmental adjudicative bodies ended the use of Section 1782 to compel evidence located in the United States in private adjudicative bodies such as international commercial arbitrations. The Section 1782 shutdown has required arbitrators and parties to international commercial arbitrations to seek alternative legal mechanisms to compel evidence located in the United States. Shortly after the Supreme Court eliminated the use of Section 1782, the United States Court of Appeals for the Ninth Circuit opened the door to an alternative approach in its ruling in Jones Day v. Orrick, Herrington & Sutcliffe, LLP. This Note argues that the Ninth Circuit's application and broad interpretation of Section 7 of the Federal Arbitration Act provides the framework for a 1782 workaround to compel third-party evidence located in the United States in international commercial arbitrations. [ABSTRACT FROM AUTHOR]

In its decision 4A_16/2023 of 8 November 2023 the Swiss Federal Tribunal tackled a controversial question: whether a claimant who has seized a wrong court gets a second chance to introduce its claim in the right (competent) court. Art. 63(1) and 64(2) of the Swiss Civil Procedure Code ("CPC") indeed provide for a grace period to seize the proper court. But what happens if in the meantime the claim became time barred? In the case at hand, a state court had dismissed a lawsuit for lack of jurisdiction as the parties had agreed to settle disputes by arbitration. By the time the claimant initiated arbitration, the claim was time barred. The claimant argued that this was irrelevant since the first action had interrupted the time bar in light given Art. 63(1) and 64(2) CPC. The sole arbitrator disagreed and considered the claim inadmissible. The leaseholder then requested the Swiss Federal Supreme Court to set the award aside. The Court found that the arbitrator had wrongly disregarded Art. 63(1) and 64(2) CPC which form part of Swiss substantive law. The Court nevertheless dismissed the challenge because (domestic) arbitral awards can only be annulled in case of a qualified error (manifest disregard). [ABSTRACT FROM AUTHOR]

As arbitration laws and rules lack detailed provisions on the conduct of the proceedings, it has become standard practice to establish case-specific procedural rules at the outset of an arbitration in a so-called Procedural Order No. 1 ("PO1"). However, views diverge as to how one should go about when drafting PO1s, and especially how detail-oriented and comprehensive they should be. Furthermore, over the past few years, arbitrators have faced increasing criticism for relying too much on model PO1 templates instead of focusing on continuous case management that takes maximum advantage of the flexibility inherent in international arbitration. This article summarizes the recent debate about the role of PO1 in case management. Additionally, it discusses some of the most fundamental issues that arbitral tribunals and parties should consider when preparing PO1s. The author posits that despite contrary arguments by some leading practitioners, a skillfully crafted and sufficiently comprehensive PO1 remains the cornerstone of any well-run arbitration. [ABSTRACT FROM AUTHOR]

This survey contains materials reflecting the Chinese practice of private international law in 2022. Firstly, the changes in the statutory framework of private international law in China include two legislative acts and one administrative regulation. Moreover, three international treaties in this regard were ratified by the National People's Congress. Secondly, three judicial interpretations of the Supreme People's Court ("SPC") were adopted or amended, and 56 typical cases in six judicial documents on different topics were issued by the SPC. Thirdly, four typical cases on Chinese courts' jurisdiction; 14 cases on choice of laws on various issues such as foreign investment contracts and negative lists, rights in rem , life insurance contracts and mandatory rules; one case on international judicial assistance rendered to an Argentinean court; three cases on interim measures; three cases on the recognition and enforcement of foreign judgments; nine cases on international arbitration including international sports arbitration and foreign awards, are selected in this survey for their emerging significance. Fourthly, the provisions regarding the extraterritorial application of Chinese laws have been identified for the first time in this series of surveys, shedding light on this aspect of private international law in China. They include those contained in, inter alia , China's Anti-Monopoly Law, Anti-foreign Sanctions Law, Export Control Law, Securities Law, the Rules on Counteracting Unjustified Extra-territorial Application of Foreign Legislation and Other Measures, as well as the Provisions on the Unreliable Entity List. [ABSTRACT FROM AUTHOR]

The lack of diversity in the appointment of tribunal members in investment arbitration has long been subject to criticism. This article analyses the design of adjudicator appointment mechanisms and challenges the mainstream view that investment arbitration is modelled after the structures and procedures of commercial arbitration. Instead, drafters of the Convention on the Settlement of Investment Disputes Between States and Nationals of Other States (ICSID Convention) largely drew inspiration from the Permanent Court of Arbitration and the International Court of Justice. Following this institutional pedigree, the development of the equitable representation requirement is linked to the growing appreciation of the public aspects of the international judicial function. Nevertheless, drafters adopted Article 14(2) of the ICSID Convention mainly to facilitate the performance of the private function of dispute resolution. Through the historical lens, controversies surrounding different approaches for addressing diversity concerns in the ongoing investor–State dispute settlement reform are essentially surface products of deeper disagreements on the private and public aspects of the judicial function. [ABSTRACT FROM AUTHOR]

Transnational companies in Honduras are suing the government for lost profits, following President Xiomara Castro's decision to overturn laws that supported economic development projects. The companies are seeking international arbitration under the Central America-Dominican Republic Free Trade Agreement (CAFTA-DR), claiming that the government's actions threaten their ability to make a profit. The U.S. Embassy in Honduras has been critical of Castro's policies, and there is concern that the U.S. government is supporting opposition to her administration. These investor-state dispute settlement (ISDS) cases pose a significant challenge to the Castro administration's proposed reforms and the future of Honduras. [Extracted from the article]

RICO has for over 50 years presented something of a parlor game for lawyers, mostly because its text leaves wide latitude in interpretation. And, as is often the case with RICO, resolution of one question begets more. The Supreme Court's recent decision in Yegiazaryan v. Smagin proves no exception. Here, the Court brought some clarity to a question left open by RJR Nabisco: viz, what must one plead and prove to satisfy the "domestic injury" requirement necessary to invoke an extraterritorial application of RICO. The Court held that a foreign plaintiff can indeed, given the right facts and circumstances, establish a domestic injury. But it declined to establish a bright line test--or really any test, leaving that to the lower courts to flesh out. The Court also declined to engage the question of whether RICO is an appropriate vehicle for enforcing all (or perhaps international) arbitral awards. And--more generally--domestic judgments. Those and many other questions remain for another day. [ABSTRACT FROM AUTHOR]

The Badminton World Federation (BWF) has set up a poly-tiered dispute resolution mechanism to deal with alleged breaches of its institutional statutes. It calls these 'judicial' bodies even though they are not established by law. They consist of the Independent Hearing Panel (IHP) and the Sports Dispute Panel (SDP). The former entertains mostly governance-related disputes while the SDP enjoys jurisdiction for substantive sports disputes. The IHP also serves as an appellate forum against SDP decisions. Neither of these entities has been endowed with arbitral qualities and the BWF dispute settlement architecture is paradigmatic of expert determination. The two 'judicial' entities are complemented by a Referral officer who serves as sui generis prosecutor and who receives pertinent evidence from national confederations or the BWF (investigating parties). It is argued that while this represents a successful example of expert determination in a context with a relatively small caseload, the system itself would be better served by a self-contained arbitral tribunal, seated in an arbitration-friendly jurisdiction. [ABSTRACT FROM AUTHOR]

Arbitration is a dispute resolution method that aims to resolve disputes by independent experts, outside the state judiciary, in a more qualified, faster, more flexible and lower-cost manner, and is essentially a judicial dispute resolution method. Although the persons who are essentially important in the conduct of arbitration proceedings are the arbitrators, the "arbitral secretary" who can be assigned to assist these persons has important aspects in terms of the characteristics of arbitration. The national legislation on arbitration is silent about the arbitral secretariat; the rules of arbitration institution generally include neither provisions nor principles regarding the arbitral secretariat. This creates an important legal gap. Although it is one of the key subjects of the arbitration process, insufficient normative and theoretical basis on the issue constitutes the main legal problem. The study aims to discuss the definition and legal nature of the arbitral secretary, how the provisions applicable to the activities of arbitrators should be determined, the manner and time of appointment, their qualifications, functions, challenge, rights, duties and obligations, their relationship with the other subjects in the arbitration proceedings and the principles of legal liability. At this point, taking into account concrete legal problems, the essence of the arbitral secretariat activity and its place in arbitration proceedings will be explained, as well as the provisions, customs and established practices. In particular, the arbitral secretariat in arbitration will be examined with reference to certain rules determined by the International Chamber of Commerce (ICC) the International Court of Arbitration, which affects the determination of the rules of different arbitration institutions in terms of commercial arbitration as the most predominant arbitration institution. [ABSTRACT FROM AUTHOR]

The article discusses two books, "The everyday makers of international law" by Melinda Rankin and "De facto international prosecutors in a global era" by Tommaso Soave, which provide detailed insights into the workings of international courts and the role of non-state actors in international law. Rankin's book focuses on the emergence of de facto international prosecutors and their use of international law to provide justice for victims of international crimes. She presents three cases, including those against Augusto Pinochet and Hissène Habré, as well as the ongoing case against Bashar al-Assad. Soave's book explores decision-making processes in international courts and arbitration bodies, using fictional characters and cases to shed light on the functioning of these institutions. Both books offer valuable insights into international law-making and are recommended for those interested in international criminal law and the decision-making of international courts. [Extracted from the article]

During the twentieth century, international arbitration became an integral part of interstate dispute resolution. Greece, a small state with no particular influence, also rushed to utilize arbitration to pursue its interests, resolve intense disputes and ultimately stabilize its position in the international system. This article will discuss if and how lower-level settlement procedures can impact smaller countries' higher political strategy, exploring Greece's recourse before the Mixed Arbitral Tribunals, the League of Nations and the Permanent Court of International Justice. Athens' efforts to pursue its citizens' war claims against West Germany after World War II will be examined, along with the role international arbitration could potentially play today in resolving Greece's war claims against the Federal Republic of Germany, which Athens raised immediately after the 1990 reunification and continue to encumber bilateral relations. Ultimately, Greece's experience will exemplify the direct impact arbitration procedures can have on international relations. [ABSTRACT FROM AUTHOR]

Our interest in treating the content of the international commercial arbitration agreement derives from the fact that only a valid arbitration agreement in terms of content can produce the desired effects, such as the prorogation of the international commercial arbitration competency and in the same time the derogation of the competency of national courts in settling the dispute in question. Furthermore, only a valid arbitration agreement also in terms of content may establish basis for recognition of the competence and the arbitration decision itself. Although in the international commercial arbitration law, the parties are given the full right to determine what will the arbitration agreement contain based on their free will, the majority of legal scholars and researchers of the arbitration are focused in two essential and fundamental elements without which the arbitration agreement would have been invalid, they are: competency constitution of the arbitration and the determination of the dispute or disputes for which the arbitration is competent. Therefore, this paper's subject is to aim a detailed addressing of these two fundamental elements of the agreement in which case the addressing of pathological clauses and blank clauses will not be missing, where their legal fate will be raised as an issue by offering examples from international arbitration practice and regular courts where these clauses have been positively interpreted, by "saving" them, "healing" and "surviving" the defects. [ABSTRACT FROM AUTHOR]

This research deals with the legal problems faced by the proof of the electronic arbitration agreement in the national laws. The research ended with important results, one of them is at the level of national legislation, that some national legislations require the use of public-key technology in order for the electronic arbitration agreement to have evidentiary value, and other legislations do not require the use of a specific technology. The study concluded that the best solution at the international level is to make amendments to the New York Convention. [ABSTRACT FROM AUTHOR]

As legal impact of I jus cogens i on international law is concerned, Sâ Benjamin Traoré shows in Chapter 6 that I jus cogens i has a strong interpretive implication for all international acts and rules. The entire prohibition on the use of force totally meets the criteria of I jus cogens i identified by VCLT, and there is no treaty by which States have overtly claimed to derogate from UN Charter Article 2(4) (p.643). Given the shortcomings of traditional substantive view of I jus cogens i , in Chapter 2, Robert Kolb emphasizes three main aspects of I jus cogens i under the legal technique view. The innovative aspect of the book is its diversity, and it not only addresses a wide spectrum of issues related to I jus cogens i , but also illustrates a wide variety of views that exists on I jus cogens i (p.16). [Extracted from the article]

This article studies perceptions of the authority of arbitral tribunals constituted under Annex VII of the United Nations Convention on the Law of the Sea. Authority is understood as co-extensive with the notion of legitimacy. The focus here is not on normative legitimacy, the doctrinal study of which can only take one so far in understanding matters of authority. Instead, empirical research methods are used to study the perceived authority of Annex VII arbitral tribunals within the relevant constituency, known as sociological legitimacy. The findings are those of an exploratory study, considering that the data was collected from a small group of individuals. Further research could focus on collecting the same or similar data from a larger group, so as to obtain a more nuanced outlook on the authority of Annex VII arbitral tribunals. [ABSTRACT FROM AUTHOR]

The UN Convention on the Law of the Sea (LOSC) has influenced the thinking and negotiating practices of States in Southeast Asia, providing them more common ground and at times bones of contention. Overcoming their traditional reluctance, Southeast Asian countries have become more open to the dispute settlement provisions under Part XV of the LOSC. The rulings in the arbitral and judicial cases from the region and elsewhere have provided ample guidance to States in their dealings with and among each other. Nonetheless, the management and resolution of the long-standing competing maritime claims in the South China Sea have thus far eluded them. Negotiations on a proposed code of conduct have gone on for years and remain a work in progress. [ABSTRACT FROM AUTHOR]

In a previous article, we theorised that courts cast a shadow that changes the bargaining behaviour of potential litigant States. When two States prefer the same judicial forum under Article 287 of the United Nations Convention on the Law of the Sea (LOSC), they have fewer maritime disputes, more peaceful negotiations, and less need for judicial dispute settlement. This article elaborates on several aspects of our argument including (i) differences in legal and social science perspectives, (ii) generalizability to other courts and regions, (iii) the clarity of judicial decisions, (iv) whether accepting the same judicial forum through Article 287 declarations matters, (v) conflict management as a process, (vi) how domestic legal traditions influence Article 287 declarations, and (vii) the possibility of selection or heterogeneous effects. Our discussion helps to address some of the criticisms raised in the AJIL Unbound (2021) forum on our article and presents avenues for future analyses. [ABSTRACT FROM AUTHOR]

Releasing the full potential of the United Nations Convention on the Law of the Sea (LOSC) also requires concluding agreements – and an understanding of the dynamics behind reaching agreement. Legal reasoning in negotiations is not divorced from judicial reasoning. Justification by drawing upon the latter may be required in the fundamental process of overcoming disagreement. Jurisprudence may provide arguments of acceptability for negotiating States. Moreover, negotiations should not merely be dismissed as 'bargaining under the shadow of the Convention'. Rather, they may be part of a broader interaction with contributions of the judiciary and indicate future paths for the Convention's implementation. Furthermore, this may give rise to reflections on the roles of heuristics for negotiators and for policy- and decision-makers. This suggests revisiting the notion of legal policies of States – including how States should define unresolved issues and decide on the best timing and means for their effective resolution. [ABSTRACT FROM AUTHOR]

With the introduction in 2021 of Article 190a of the Private International Law Act (PILA) and the simultaneous amendment of Article 191 PILA, which now refers to a new Article 119a of the Federal Supreme Court Act, the extraordinary remedy of “revision” of decisions rendered in international arbitrations seated in Switzerland has been put on a statutory footing. Before that, revision was recognised and governed only by the case law of the Swiss Supreme Court. There are many procedural aspects to revision proceedings that are not specifically stipulated in the law but derive from the practice of the Supreme Court. Other procedural aspects are governed by provisions of the Federal Supreme Court Act which may not at first glance appear applicable to revision proceedings against arbitral awards but which the Court nonetheless applies to such proceedings. Finally, practices developed by the Supreme Court before the entry into force of the new statutory regime to a large extent continue to apply under the new regime. The present article summarizes these procedural aspects of revision proceedings and is helpful to those handling revision proceedings before the Swiss Supreme Court. [ABSTRACT FROM AUTHOR]

The prominence of state-controlled entities (SCEs) in foreign direct investment (FDI) flows has created multilayer regulatory challenges. The nature of SCEs and geo-economic considerations related to their investments have exacerbated investment-related concerns and, since the global financial crisis and during the global pandemic, triggered legal reforms. Concurrently, SCEs have increasingly relied on international investment arbitration to solve their disputes. This Article examines the role of the International Centre for Settlement of Investment Disputes (ICSID) in resolving cases brought by an increasing number of sovereign investors. The Article begins with a linguistic analysis of the ICSID Convention's relevant provisions, which lack a definitive regulatory position, and then reviews historical and drafting documents showing the position of some states that participated in the negotiations. Part III uncovers new cases and further examines understudied ones, and introduces a holistic and systematic analytical study of the case law, drawing lessons from consistencies in the awards. In Part IV, the awards are grouped, focusing on salient issues deriving from the diverse factual and legal elements of the cases. Initially, Part IV focuses on the first ICSID case in which a state-owned enterprise acts as a claimant. The analysis continues with the first application of the Broches test, an examination of awards in which investors were operating for little or no profit, and a review of awards in which sovereign investors were treated as any other privately owned investor. Last, the Part reviews the particularities of Chinese SCEs in FDI flows and ends with an assessment of the role of sovereign wealth funds and related awards. A comprehensive evaluation of the case law reveals that European SCEs have massively relied on the ICSID system, in contrast with Chinese SCEs that have made marginal use of it. Part V explains the relevance of the consistent approaches and argues that ICSID tribunals have established a jurisprudence constante in dealing with SCEs that confirms their access as claimants in investor-state disputes. Conversely, Part VI provides innovative approaches and instruments to assess the owner's role in sovereign investors' transactions and prevent distortions of the Centre's jurisdiction. The last Part summarizes the research findings. [ABSTRACT FROM AUTHOR]