The Adjudicator's Toolkit and the Force of International Law : : Comparing Trade and Investment Disputes.
International economic adjudication is under stress. International law could act as a legitimising force. Yet, this book shows how far away that goal is: the inconsistency in the application of the international legal toolkit plagues the dispute settlement systems in need of reform.
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Place / Publishing House: | Boston : : BRILL,, 2024. ©2024. |
Year of Publication: | 2024 |
Edition: | 1st ed. |
Language: | English |
Physical Description: | 1 online resource (399 pages) |
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Table of Contents:
- Front Cover
- Contents
- Acknowledgements
- Figures and Tables
- Figures
- Tables
- Selected Abbreviations
- 1 Introduction
- 1 The Toolkit: Opening and Closing the Gateway to Other International Law
- 2 The Puzzle: Normative Goals and Design Choices
- 3 Research Approach: Method of the Study
- 4 Findings
- 5 Structure of the Book
- 2 Setting the Scene
- 1 Defragmentation and the System of International Law
- 2 The Role of Adjudicators: Normative Goals and Judicial Functions
- 2.1 Consensual Approach: the Limits of Jurisdictional Authority
- 2.2 Systemic Approach: the International Judicial Function
- 3 Legal Concepts and Provisions
- 3.1 Jurisdiction
- 3.1.1 WTO
- 3.1.2 ISDS
- 3.1.3 Conclusion on Jurisdiction
- 3.2 Applicable Law
- 3.2.1 WTO
- 3.2.2 ISDS
- 3.2.3 Conclusions on Applicable Law
- 3.3 Interpretation
- 3.3.1 Role of Interpretation in International Law
- 3.3.2 Distinguishing Applicable Law and Interpretation
- 3.3.3 Conclusion on Interpretation
- 3.4 Conclusions and Implications
- 3 Empirical Perspective
- 1 Empirical Perspectives on the Force of International Law
- 1.1 Responding to Fragmentation: Relevant Decisions
- 1.1.1 A Timeline of Fragmentation Responses?
- 1.1.2 Acceptance of Other International Law
- 1.2 Impact of Dispute Settlement Design
- 1.2.1 Sources of Law
- 1.2.2 Legal Basis and Method of Reasoning: Application of International Law
- 1.2.3 Legal Basis and Method of Reasoning: Rejection of International Law
- 1.2.4 Regime Interactions: Courts and Tribunals
- 1.3 Conclusions on Responses to Fragmentation in ISDS and WTO
- 2 Beyond the Numbers: Consistently Inconsistent?
- 2.1 Treaty Interactions: Overview
- 2.2 Human Rights in ISDS
- 2.3 Environment in WTO
- 2.4 Customary International Law
- 2.5 Conclusions on Inconsistency
- 4 Opening Tools
- 1 Applicable Law.
- 1.1 Applicable Law in ISDS Practice: the Relevance of Different Applicable Law Language
- 1.2 Applicable Law in ISDS Practice: the Relevance of the Absence of an Applicable Law Clause
- 1.3 Comparing ISDS and WTO Practice
- 1.4 Applicable Law and General Principles: the Avoidance of Non Liquet
- 2 General Principles
- 2.1 General Principles in Numbers
- 2.2 General Principles in Practice
- 2.2.1 Good Faith
- 2.2.2 Estoppel
- 2.2.3 Coordinating Jurisdictions
- 2.2.4 Conclusion on General Principles in Practice
- 2.3 Coherence and Systemization: the Broader Function of General Principles
- 3 Systemic Integration
- 3.1 Systemic Integration and Its Indeterminacy
- 3.2 Systemic Integration in Numbers
- 3.3 Systemic Integration in Practice
- 3.3.1 Environmental Agreements in the WTO
- 3.3.2 Necessity in ISDS
- 3.4 Implications: Systemic Integration as Providing the Solution or the Problem of Fragmentation?
- 5 Closing Tool
- 1 Jurisdiction and Its Indeterminacy
- 1.1 Jurisdiction in General International Law
- 1.1.1 Understandings in Treaty
- 1.1.2 Understandings in Jurisprudence
- 1.1.3 Distinguishing Jurisdiction and Admissibility
- 1.2 Jurisdiction in the WTO
- 1.3 Jurisdiction in ISDS
- 1.4 Implications of the Indeterminacy: Unclear Power and Authority
- 2 Jurisdiction as a Closing Tool in Practice
- 2.1 Jurisdictional Objections
- 2.2 Inherent and Procedural Powers
- 2.3 Implications
- 6 Unpacking Inconsistency
- 1 Source of Inconsistency: Relationship between Jurisdiction and Applicable Law
- 1.1 The Murky Waters of International Jurisprudence
- 1.1.1 Implications of This Murky Relationship
- 1.2 Treatment by WTO Panels and the Appellate Body
- 1.2.1 Peru - Agricultural Products
- 1.2.2 EC - Large Civil Aircraft
- 1.2.3 Mexico - Soft Drinks.
- 1.2.4 Conclusions on the WTO-Perspective of the Relationship between Jurisdiction and Applicable Law
- 1.3 Treatment of the Relationship by Investor-State Adjudicators
- 1.3.1 Tenaris v Venezuela (II)
- 1.3.2 Mamidoil Jetoil v Albania
- 1.3.3 Methanex v USA
- 1.3.4 Conclusions on the ISDS-Perspective of the Relationship between Jurisdiction and Applicable Law
- 1.4 Implications: Divergent Treaty-Perspectives but a Common Tribunal Understanding?
- 2 Resulting Inconsistency: Normativity and the Toolkit
- 2.1 Jurisdiction and Applicable Law: the Confusing Approach to Countermeasures
- 2.2 Jurisdiction and Interpretation: the Complexity of Systemic Integration
- 2.2.1 Relationship between Jurisdiction and Article 31(3)(c): ISDS
- 2.2.2 Relationship between Jurisdiction and Article 31(3)(c): WTO Disputes
- 2.2.3 Implications
- 2.3 Applicable Law and Interpretation
- 2.4 Conclusions and Implications
- 7 Legitimacy, Reform and the Adjudicator's Toolkit
- 1 Legitimacy
- 1.1 Legitimacy Framework
- 1.2 Normative Legitimacy
- 1.2.1 Performance Standards
- 1.2.2 Justice Standards
- 1.3 Sociological Legitimacy: States' Perceptions
- 1.3.1 WTO
- 1.3.2 ISDS
- 1.4 Implications
- 2 Reform Options
- 2.1 Strengthening Interpretation and Communication Mechanisms of States
- 2.2 Strengthening Precedent
- 2.3 Strengthening Adjudicatory Institutions and Appeal Mechanisms
- 2.4 Implications
- 8 Conclusion
- Appendix
- List of Relevant WTO Decisions
- List of Relevant ISDS Decisions
- References
- Table of Cases
- International Investment Tribunals
- World Trade Organization
- International Court of Justice
- Others
- Table of Treaties and Other Instruments
- Table of Reports and Documents
- Bibliography
- Index
- Back Cover.