International Law
Seyed Jamal Seifi; Mahdi Veis Karami
Abstract
International investment law is facing a legitimacy crisis, in which to tackle, substantial efforts are being made in structural and procedural areas. The first step to overcoming this crisis is identifying the roots of it. The lack of a dynamic balance between public and private interests is one of ...
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International investment law is facing a legitimacy crisis, in which to tackle, substantial efforts are being made in structural and procedural areas. The first step to overcoming this crisis is identifying the roots of it. The lack of a dynamic balance between public and private interests is one of the main factors creating this legitimacy crisis in this legal system.[1] This paper focuses on the changes in the investment arbitration jurisprudence to create this balance. The findings of this paper can explain one of the convergence points of international trade and investment law. Such a claim is based on the evolution of international trade law in facing a similar legitimacy issue and the structural-procedural approach of this legal system in balancing public and private interests as an ultimate solution to the crisis.[2] From this perspective, one of the major factors in creating a legitimacy crisis in both legal systems is the dominance of the paradigm for preference of private interests; and one of the convergence points of international trade and investment law has been to replace it by accepting the paradigm of creating a dynamic balance between competing goals.[3] This paper examines this convergence in arbitral jurisprudence.IntroductionIn recent years, the legitimacy crisis of the regime of international investment law and, as a result, the investor-state dispute settlement system has been one of the most important and controversial topics in the academic environment and the practice of states consequently, serious efforts in various fields to tackle this crisis have begun. According to this paper, choosing an arbitration mechanism modeled on international commercial arbitration to resolve disputes between host states and foreign investors can be evaluated as a wrong and hasty action that, regardless of its factors and contexts, has changed the nature and function of this system over time.[4] It should be noted that the main factor in such consequences is how this dispute resolution system is used which, contrary to the accepted model, always puts the host states in a "respondent" position in possible future disputes and, as a result, disrupts the balance expected in any international dispute settlement system. On this basis, the confrontation of the host state's sovereign competence in ensuring public interests with the foreign investors’ ability to challenge this competence is brought into the spotlight: currently, within the regime of international investment law, host states have only responsibilities and obligations in contrast to extensive and exclusive rights and privileges recognized for foreign investors, and this can be considered as the most important factor disturbing the said balance. The main issue in this field is to analyze the role of the investment arbitral tribunals in creating such a balance. In this regard, the authors, by focusing on the nature of investment treaties, and the relations between the parties in investment disputes and with emphasis on the general legal regime governing international investment, consider creating a dynamic balance between public and private interests to be the key to solving the crisis. They emphasize that; As long as the rights and obligations of the parties to the dispute are based on imbalanced grounds, the change in nature of the disputes and the function of the system -as the main roots of this legitimacy crisis - will remain. In this remark, it is very important to focus on the two-sided nature (public-private) of the relationships established in the framework of investment treaties. The relationship between the host state and the foreign investor is created within the framework of investment treaties and in light of fundamental differences from purely private relationships in international commercial arbitration.[5] Note that any dispute arising from this relationship is affected by its inherently public nature governed by public international law.[6] Thus, a purely private attitude towards these relations does not seem viable. As Ian Brownlie has stated in the case of SME v. the Czech Republic, it can lead to ignoring some of the basic elements of the relevant investment treaty.[7] In other words, the right and duty of the host state in protecting and promoting public interests is a fundamental part of this relationship, and any indulgence of it leads to a serious disruption of the mentioned balance through which the system's legitimacy will be the first victim.It is clear that the main task of any dispute resolution system is to create such a balance, and on this basis, and compared to the WTO dispute resolution system, the role of the investment tribunals in this process is discussed. This jurisprudential convergence is in line with the goal of strengthening the legitimacy of the international investment law system as a whole.Based on the above, the first part of this paper focuses on the process of establishing the ISDS in international investment law and its characteristics, the factors of the crisis of legitimacy are analyzed with an analytical approach, while also explaining the nature of investment treaties and explaining the general legal regime governing international investment. Furthermore, the lack of a dynamic balance between public and private interests is emphasized as the main cause of the crisis. In the second part, while comparing the two legal systems of international trade and investment with a similar crisis of legitimacy, we will examine the interaction of investment arbitration with the WTO's jurisprudence in facing this crisis through a case study of several investment arbitral awards. [1]. David Gaukrodger, “The Balance between Investor Protection and the Right to Regulate in Investment Treaties: A Scooping Paperˮ, OECD Working Paper on International Investment 2017/02, at 4.[2]. Nicholas DiMascio & Joost Pauwelyn, “Non-Discrimination in Trade and Investment Treaties: Worlds apart or Two Sides of the Same Coin?”, AJIL, Vol. 102, No.1, (2008), at 89.[3]. Jurgen Kurtz and Sungioon Cho, “Convergence and Divergence in International Economic Law and Politics”, EJIL, Vol. 20, No. 1, (2018), at 187.[4]. Benedict Kingsbury & Stephan W. Schill, “Public Law Concepts to Balance Investor's Rights with State Regulatory Actions in the Public Interest - The Concept of Proportionalityˮ, In Schill Stephan W., International Investment Law and Comparative Public Law (UK: Oxford University Press, 2010) at 76. [5]. Crina Baltag, “Reforming The ISDS System: In Search of a Balanced Approach?ˮ, Contemporary Asia Arbitration Journal, Vol. 22, No. 2, (2019), at 285.[6]. Ibid.[7]. Andreas Kulick, “Sneaking Through Backdoor – Reflections on Public Interest in International Investment Arbitrationˮ, Arbitration International, Vol. 29, No. 3, (2013), at 438.
International Law
Alireza Mirveisi; Mehdi Zakerian Amiri; Mohammad Ali Abdollah Zadeh
Abstract
There is a growing stream of critics who see investment arbitration in favor of foreign investors and as a negative force as opposed to sustainable development. The phenomenon of third-party funding and its use in investment arbitration has increased such concerns. Third-party funding is basically the ...
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There is a growing stream of critics who see investment arbitration in favor of foreign investors and as a negative force as opposed to sustainable development. The phenomenon of third-party funding and its use in investment arbitration has increased such concerns. Third-party funding is basically the payment of all or a part of the arbitration costs of one of the parties of dispute by a third party funder which in return, the funder receives a percentage of the output of the award if successful. The purpose of this article is to explain and analyze the theoretical differences between pros and cons of third-party funding regarding the access to justice, screening mechanism for the claims, and the financial consequences on the host state. In this article, the advocates see third-party funding as a means of access to justice for aggrieved investors in investment claims, while the adversaries refering on the profitability of third-party funding, see this method in arbitration a form of wealth transfer from public sector to private corporations and also refer to the asymmetric structure of the investment arbitration regime as well as the risks arising from the transfer of management and control of arbitration process to the third party funders.
International Law
Mohammad Saleh Anisi; Mahdi Piri; Shirin Shirazian
Abstract
The strongest hypothesis as to the origin of Covid-19 indicates that it is zoonotic. The food use of products from the wild animal market in Wuhan, and its economic impacts and mortalities urged us to explain the relationship between the right to adequate food, food security and safety, and the approach ...
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The strongest hypothesis as to the origin of Covid-19 indicates that it is zoonotic. The food use of products from the wild animal market in Wuhan, and its economic impacts and mortalities urged us to explain the relationship between the right to adequate food, food security and safety, and the approach to health impact assessment.In general, creating food security and safety and providing food free from any virus and bacteria is one of the gradual and cross-border obligations branching from the right to sufficient food, and it seems that the integrated and cross-border implementation of the approach in assessing the effects on health is a necessary and positive measure. Fulfilling this due obligation requires the existence of efficient legal tools in related fields, and the spread of Covid-19 lacks the presence of legal gaps in these fields. By detailed explaining of the legal and international dimensions of the above cases, this paper aims to analyze these gaps. Finally, it will come up with suggestions for the total fulfillment of the aforementioned obligations in the international law system.
International Law
Mahshid Ajeli lahiji; S. Ali Hosseiniazad; Majid Zahmatkesh
Abstract
Undoubtedly, jus cogens or preemptory norm is always recognized as the highest source of international law. Nevertheless, the judicial review of International Court of Justice caused doubt in the absolute priority of jus cogens when violation of jus cogens and immunity are simultaneously argued in a ...
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Undoubtedly, jus cogens or preemptory norm is always recognized as the highest source of international law. Nevertheless, the judicial review of International Court of Justice caused doubt in the absolute priority of jus cogens when violation of jus cogens and immunity are simultaneously argued in a case. Especially, in the cases concerning the Arrest Warrant (Congo v. Belgium 2002) and the Jurisdictional Immunities (Germany v. Italy 2012), ICJ tried to separate procedural and substantive norms and declared that the norms of immunity and jus cogens are different in nature, thus they couldn’t oppose each other but immunity as a procedural norm could prevent deciding about merits. In this article, by using descriptive – analytic method, the rationale behind the decision of ICJ is analyzed in order to know that if immunity is considered procedural and jus cogens is recognized as substantive norm in international law and how these norms interact. Evaluation of doctrine shows that there is no certainty about the quality of the separation of procedural and substantive norms and their proof in international law. Therefore, the court’s decision in choosing the approach could cause an insecurity in the peremptory place of jus cogens.
International Law
Morteza Ahmadifard; Mehdi Hatami
Abstract
On January 20, 2018, Turkey launched Operation "Olive Branch" and on October 9, 2019, Operation "Spring of Peace" in northern Syria, violating its territorial integrity and military entry into the country. Also, these attacks continue in a scattered manner. According to Turkish officials, the operation ...
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On January 20, 2018, Turkey launched Operation "Olive Branch" and on October 9, 2019, Operation "Spring of Peace" in northern Syria, violating its territorial integrity and military entry into the country. Also, these attacks continue in a scattered manner. According to Turkish officials, the operation was carried out to eliminate the terror of terrorism and self-defense, given that the use of force in international relations today is prohibited by international law and the UN Charter, this article examines the legitimacy of the use of force by Turkey and examines the behavior, goals and feedback resulting from its actions by citing the principles and rules of International law as well as some international jurisprudence, determines that Turkish government has violated the important principle of the prohibition of the use of force which is explicitly stated in paragraph 4 of Article 2 of the Charter, and the reasons given by the authorities of that government, including the fight against terrorism and legitimate defense, cannot justify a violation of this fundamental rule.
International Law
Alireza Salehifar
Abstract
As international trade is expanding, international trade and tax disputes are increasing. Under international tax agreements, there are two mechanisms for the resolution of potential disputes between contracting States. These agreements mostly rely on a form of negotiation known as the “Mutual ...
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As international trade is expanding, international trade and tax disputes are increasing. Under international tax agreements, there are two mechanisms for the resolution of potential disputes between contracting States. These agreements mostly rely on a form of negotiation known as the “Mutual Agreement Process (MAP)” as the main mechanism for the settlement of disputes. During the last decade, the inclusion of “ad hoc arbitration” as a new dispute resolution mechanism in international tax treaties has become popular to augment the MAP. Iran has long concluded several international tax agreements with several countries for the avoidance of double taxation. Due to Iran’s macroeconomic policy for relying more on tax revenues as an alternative to revenues from the petroleum industry, it is important that the Iranian lawyers seek to focus more on tax law and tax dispute resolution mechanisms. The purpose of this article is to introduce and critically analyse the dispute resolution mechanisms of international tax agreements. In this article, to make some suggestions for the improvement of the dispute resolution system of tax treaties, the strengths and weaknesses of the MAP and ad hoc arbitration, will be scrutinised by adopting a descriptive-analytical approach.
International Law
Alireza Ebrahimgol; Hasan Khosroshahi
Abstract
The International Court of Justice is empowered, under Article 41 of its Statute, to order provisional or interim measures of protection to preserve the respective rights of the party-states pending final judgment on the merits. Through interpreting Article 41, the Court has developed in ...
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The International Court of Justice is empowered, under Article 41 of its Statute, to order provisional or interim measures of protection to preserve the respective rights of the party-states pending final judgment on the merits. Through interpreting Article 41, the Court has developed in its case-law certain requirements for granting requested interim measures. The plausibility of claims is the sixth requirement recently added to the said requirements. The present research assesses the role of plausibility requirement in preservation of international human rights in light of evolution of this requirement in the court’s case law as well as the existing legal doctrine. The study indicates that an inconsistent approach to satisfaction of the plausibility requirement and prejudgment of the substance of the case could harm the transparency and predictability of the procedure governing provisional measures, and undermine such measures as one of the most effective legal mechanisms in preventing the breach of international law.
International Law
Ghahfur Ghahramani; Mohamad Sharif shahi; Sayed Mohammad Sadegh Ahmadi
Abstract
Citizens' right of access to information as well as the regulation of the system of classification of administrative documents are two important issues in examining the function of a state. In principle, everyone has right to access all information, and regulating a system of classification of documents ...
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Citizens' right of access to information as well as the regulation of the system of classification of administrative documents are two important issues in examining the function of a state. In principle, everyone has right to access all information, and regulating a system of classification of documents to restrict access to information is an exception, and it could be possible where there is a higher interest than that of right of access to information. The way of limiting the right of free access and determining the instances of confidentiality is the main issue of the confidentiality system governing the administrative documents, and it raises the question that who is the authority to determine the confidentiality of administrative documents and its classification system? Also, how is it possible to declassify the documents? Using a comparative approach, this article endeavors to study the similarities and differences of the classification systems of Iran and the U, S, and while reviewing the system of declaring the classification of administrative documents in the United States, investigates the system of classification and declassification of documents in Iranian laws.
International Law
Ali Reza Jalali; Mohammadhasan Maldar
Abstract
Protecting human dignity as an inherent and inviolable right is one of the most important obligations of the government even when a person is liable for his criminal behavior before the law. Adopting a descriptive-analytical method, the present study endeavors to answer the basic question that based ...
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Protecting human dignity as an inherent and inviolable right is one of the most important obligations of the government even when a person is liable for his criminal behavior before the law. Adopting a descriptive-analytical method, the present study endeavors to answer the basic question that based on the procedure of the European Court of Human Rights, as an innovative and developed international judicial body, what elements should the courts consider when issuing a judgment in order to impose a punishment protecting the human dignity? After reviewing some judgments of the Court, the research concluded that by observing some formal and substantive principles such as justification of conviction, charge bargaining, ne bis in idem principle, citation of high quality laws, proportionality of offence and punishment and non-recourse to severely painful punishments, the human dignity of offenders is safeguarded. Accordingly, in case of non-observance of the mentioned principles, the legal systems would be exposed to serious human rights challenges, because states' lack of attention to the human dignity of criminals, would make the repressive nature of states to prevail over the fundamental rights of citizens.
