Striking a Balance Between Investor Protections and National Sovereignty: The Relevance of Local Remedies in Investment Treaty Arbitration

By:

Investment treaty arbitration is a relatively recent innovation designed to allow foreign investors to bring claims against host States without having to seek redress in the host State’s own courts.  Yet a trend has emerged that some have characterized as inconsistent with this purpose:  several tribunals have rejected treaty claims based on their impression that the claimants had not adequately pursued local remedies prior to initiating arbitration.  Moreover, some of  these tribunals have suggested that if an investor does pursue local remedies, it may be effectively prevented from later rearguing issues addressed by national courts.  The combined effect of these holdings is to place investors in a Catch-22, encouraging them to pursue local remedies, while warning them that doing so may foreclose success at the international level.  This Article highlights the tension between these distinct aspects of this line of authority and evaluates each by reference to treaty language, principles of international law, domestic analogs under U.S. constitutional law and policy considerations.  This analysis reveals that there is a sound basis for treating local remedies as relevant to the merits of certain treaty claims, but that tribunals should give more limited deference to national court decisions.  The modified approach outlined in this Article promises to strike a better balance between investor protections and national sovereignty, and thereby promote the long-term viability of investment treaty...

ASEAN’S Constitutionalization of International Law: Challenges to Evolution Under the New ASEAN Charter

By:

This Article discusses the normative trajectory of international obligations assumed by Southeast Asian countries (particularly the Organizational Purposes that mandate compliance with international treaties, human rights and democratic freedoms), and the inevitable emergence of a body of discrete “ASEAN Law” arising from the combined legislative functions of the ASEAN Summit and the ASEAN Political, Economic and Social Communities.  I discuss several immediate and short-term challenges from the increased constitutionalization of international obligations, such as:  1) the problem of incorporation (or lack of direct effect) and the remaining dependence of some Southeast Asian states on their respective constitutional mechanisms to transform international obligations into binding constitutional or statutory obligations; 2) the problem of hybridity and normative transplantation, which I illustrate in the interpretive issues regarding the final text of the ASEAN Comprehensive Investment Agreement, which draws some provisions from GATT 1994 and contains language similar to the U.S. and German Model Bilateral Investment Treaties; and 3) the problem of diffuse or insufficient judicial oversight within ASEAN, seen through lingering dependence on national court implementation despite the regional effort at standardization of legal norms on specific areas of trade, security and human rights.  I conclude that leaving these problems unaddressed could impede Southeast Asia’s vast potential to contribute to the project of constitutionalizing international...

Recent Developments: The Broader Consequences of the International Court of Justice’s Advisory Opinion on the Unilateral Declaration of Independence in Respect of Kosovo

By: ,

On July 22, 2010, the International Court of Justice (the court or the ICJ) rendered an Advisory Opinion, Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo (Kosovo Advisory Opinion or Opinion), considering whether the unilateral declaration of independence of Kosovo is in accordance with international law.  This Paper contrasts the court’s narrow interpretation of the question put to it by the General Assembly, and its subsequent narrow conclusions, with the broader consequences of its reasoning, in particular in relation to the questions of the legality of Kosovo’s attempted secession and the legality of the recognition of Kosovo’s independence by third States.  By analyzing the court’s reasoning in relation to the scope and meaning of the question as well as to whether the adoption of the declaration of independence was in violation of general international law, Security Council Resolution 1244 (1999) and the Constitutional Framework, this Paper reveals an Opinion far more damaging to Serbia’s interests than its narrow conclusions might suggest.  The Paper concludes that the court’s ultimate message is that while secessionist movements are free to declare independence, achieving it in practice should be left to the international community to decide through political fora.  In this light, this Paper urges Serbia and Kosovo to take up the European Union’s (EU) offer to facilitate a dialogue and begin their journey on the path towards peace, security and stability in the...

Combating Foreign Bribery: Legislative Reform in the United Kingdom and Prospects for Increased Global Enforcement

By:

Foreign bribery represents a serious impediment to global prosperity and development.  For decades, the United States remained one of the few industrialized nations to combat this threat, criminalizing the payment of bribes abroad under the Foreign Corrupt Practices Act.  In recent years, however, as the United States has strengthened its enforcement efforts, other nations have begun drafting anti-bribery legislation based on the American model; the United Kingdom is perhaps the most significant example of this trend.  After facing international criticism for its failure to prosecute bribery of foreign officials by British companies, the U.K. government passed a new Bribery Act that in many ways mirrors the provisions of the FCPA.  It remains to be seen, however, if simply exporting and expanding on the American model will prove sufficient to sustain increased international enforcement of anti-bribery norms.  This Note traces the development of British anti-bribery law over the past decade, analyzing and critiquing the recently adopted U.K. Bribery Act in comparison to the FCPA and discussing the prospects for continued global enforcement under both legislative...

Streaming the International Silver Platter Doctrine: Coordinating Transnational Law Enforcement in the Age of Global Terrorism and Technology

By:

The dramatic expansion of technology and globalization over the last thirty years has not only facilitated transnational terrorist operations, but also has transformed the countermeasures utilized by law enforcement and amplified the need for counterterrorism coordination between foreign and domestic authorities.  Crucially, these changes have altered the fourth amendment calculus, set out by the international silver platter doctrine, for admitting evidence seized in U.S.-foreign cooperative searches abroad.  Under the international silver platter doctrine, courts admit the evidence gathered by foreign authorities abroad unless the unreasonable search is deemed a “joint venture” between U.S. and foreign authorities.  Notably, the legal framework governing joint ventures is based on standards and guideposts used when coordination between different law enforcement entities was almost always physical rather than technological.  This Note argues that in the twenty-first century, technology and the pervasive transnational terrorist threat have broadened the scope of the international silver platter doctrine, reduced the impact of its joint venture exception, and consequently rendered the Fourth Amendment, in practice, virtually inapplicable to most transnational terrorism investigations.  Applying this anti-quated legal doctrine to this novel context narrows the range of activities encompassed in the joint venture exception and in turn allows more evidence gathered in unreasonable searches to be presented in U.S. federal courts.  While this Note argues that the rise of international terrorism and heightened transnational law enforcement cooperation demands to some extent a broad international silver platter doctrine and a narrow joint venture exception, it also stresses that at some point Congress must legislate to preserve a baseline of fourth amendment values governing cooperative searches of Americans...