The Outer Limits of Adequate Reparations for Breaches of Non-Expropriation Investment Treaty Provisions: Choice and Proportionality in Chorzòw

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Is compensations always the appropriate form of reparations when States breach non-expropriation provisions of their investment treaties? If so, what is the authoritative methodology for determining the quantum of compensation, when the non-expropriation investment treaty standard breached is silent on the issue of compensation for these kinds of treaty breaches?

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

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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...