International Law and DevelopingCountries

Copyright

Contents

Abbreviations

Preface

1 “I Believe in the Power of Human Beings to be Agents of Change:” An Interview with Kamal Hossain

2 The Return of the NIEO and the Retreat of Neo-Liberal International Law

1 Introduction

2 The NIEO Package

2.1 The NIEO and Its Impact on Foreign Investment

2.2 Multinational Corporations and a System Based on Private Power

2.3 The Developing States’ Response through the New International Economic Order

3 “The Roaring Nineties”

4 The Reaction against Neo-Liberalism

3 Critical Concepts in the New International Economic Order and Its Impact on the Development of International Economic Law: A Tribute to the Call for a NIEO

1 Introduction

2 Scrutiny of the “Waste Paper Basket Perspective”

3 Conclusion

4 Some Thoughts on the Making of International Law

1 The Survival of International Law

2 Making International Law in the Twentieth Century

3 What is to be Done?

3.1 Universal Participation

3.2 Reducing the Cost of Participation

3.3 Voting Procedures

3.4 Representation

3.5 Building and Maintaining a Broad Ethical Consensus

5 International Trade Law and Human Rights: The ILA’s 2008 “Rio de Janeiro Declaration”

1 Introduction

2 Justice and Rule of Law in the Worldwide Division of Labour among Citizens Depend on Respect for Human Rights

3 WTO Law Protects Legal Security and Judicial Remedies also for Individuals Engaged in International Trade

4 Justice Requires Coherent and Reasoned Interpretation of the Law “in Conformity with Principles of Justice” and Human Rights

5 Clarification of the Human Rights Dimensions of WTO Law by Human Rights Bodies

6 Political WTO Bodies Avoid References to Human Rights

7 The Emerging Human Rights of Access to Justice: Implications for WTO Law?

8 Focus of the ILA Draft Resolution on Customary Principles of Treaty Interpretation

9 The Final Text Approved by the ILA in August 2008: One Step on the Endless Road Towards “Constitutional Justice”

6 Judicial Supervision of Countering Terrorism: The Case of Palestine

1 Countering Terrorism

1.1 Legal Integration

1.2 Defining Terrorism

1.2.1 Discretionary Powers of States

1.2.2 Security Council

2 Law of the Future

2.1 Democratic Society

2.2 Humanization of International Law

2.3 Shared Values

3 Judicial Supervision of the UN Counter Terrorism Strategy

3.1 International Court of Justice

3.2 European Court of Human Rights

3.3 Court of Justice of the European Communities

4 The Case of Palestine

4.1 Palestinians with their Back to the Wall

4.1.1 Israeli Disengagement from Gaza

4.1.2 Self-Defence and Terrorism

4.2 Remedies

4.2.1 International Criminal Court

4.2.2 A Matter of Recognition

5 Meeting the Challenges

7 Climate Change and Financial Assistance: A Fragmented, Unified or Coordinated Approach?

1 Common but Differentiated Responsibilities in the Climate Change Regime and the Provision of Financial Assistance to Developing Countries

2 Financial Obligations of Developed Countries under the Climate Change Convention, the Kyoto Protocol and the Global Environment Facility

3 The Adaptation Fund

4 The Least Developed Countries Fund and the Special Climate Change Fund

5 Clean Development Mechanism

6 The World Bank’s Carbon Funds and Facilities

7 New Instruments for Increasing Financial Resources through Multilateral Channels

8 The Green Climate Fund and the Post-2012 Climate Change Regime

9 Which Type of Coherence in a Context of Multiplication of Financial Mechanisms?

8 The Regulatory Framework of International Commercial Arbitration: The Amended UNCITRAL Rules

1 Introduction

2 Key Issues

2.1 The Subject-Matter of Arbitration (UNCITRAL Rules Article 1)

2.2 Formal Requirements for an Arbitration Agreement: “An Agreement in Writing”

2.3 Applicable Law (Article 35)

2.4 Defences, Counterclaims and Set-Off

2.4.1 Response to the Notice of Arbitration (UNCITRAL Rules Article 4)

2.4.2 Counterclaims and Set-Off (UNCITRAL Rules Article 21)

2.5 Joinder and Consolidation

2.6 Interim Measures and Preliminary Awards (UNCITRAL Rules Article 26)

2.7 Confidentiality and Privacy

2.8 The Role of the PCA as Default Authority

3 Conclusion

9 Improving the Process and Institutions of Investment Arbitration: A Modest Contribution to a Complicated Debate

1 Introduction

2 Towards More Rigorous Conflict-of-Interest Rules

3 The Relevance of Arbitral Precedent to the Transparency versus Confidentiality Debate

4 Amicus Participation – Public Interest Representation

5 Standing ICSID Annulment Committee

6 A World Investment Court?

7 Conclusion

10 Risk Management and Dispute Avoidance in Oil and Gas Investments in Developing Countries: The Way Forward

1 Introduction

2 Risk and Dispute Management in the Host Country

3 Legal / Contractual Risk-Mitigation

3.1 International Law or a-National Law as the Governing Law Clause of the Contract

3.2 Dispute Settlement Clause: International Arbitration / Mediation

3.3 Stabilization Clause

3.4 Progressive Taxation / Profit-Sharing Method

3.5 Political Risk Insurance

4 Risk Management and Dispute Avoidance Tools and Strategy

4.1 Equity Participation with the Host Government

4.2 Corporate Social Responsibility: Social, Environmental and Health Considerations for the Host Community

4.3 Transparency

4.4 Early Detection and Prevention Mechanism of Disputes

4.5 Involvement of International Financial Institutions

5 Conclusion

11 Relationship between Investment Contracts and Human Rights: A Developing Countries’ Perspective

1 Introduction

2 Shaping Factors of Human Rights Dimension of Investment Contracts

3 Legal Character of Investment Agreements

4 Quest for Stability in Investment Contracts

5 Different Forms of Stabilization Clauses

6 Arbitral Practice on Stabilization Clauses

7 Stabilization Clauses and Human Rights

8 Exceptions to Stabilization Clauses

9 Case Studies: BTC and Chad-Cameroon Pipeline Projects

10 Applicable Law and Human Rights

11 Transparency in Contract

12 Human Rights in Contract Based Investment Arbitration

13 Conclusion

12 The Commission on the Limits of the Continental Shelf with Special Reference to Developing Countries

1 Introduction

2 Allocation of Seats in the Commission

3 Functions of the Commission

4 Establishment of Trust Funds

4.1 Trust Fund for the Purpose of Facilitating the Preparation of Submissions to the Commission

4.2 Trust Fund for Defraying Expenses of Members of the Commission Participating in Meetings

5 Status of the Trust Funds

6 Emoluments and Expenses of the Members of the Commission

7 Date of Submission of Data and Information

8 Concluding Observations

13 Transparency as an Element of Good Governance in the Practice of the WTO

1 Introduction

2 The Concepts of Good Governance and Transparency: Origin, Content and Definitions

2.1 Origins of “Good Governance”

2.2 Content of Good Governance

2.3 International Organizations: Definitions and Practice

2.3.1 Definitions

2.3.2 Practice

3 Transparency in the WTO

3.1 Article X GATT

3.1.1 Doctrinal Views

3.1.2 Panel Practice on Article X GATT

3.2 Other WTO Agreements

3.2.1 Transparency through Notification Obligations in Other WTO Agreements

3.2.2 Transparency Provisions in WTO Agreements

3.3 Transparency in Dispute Settlement

3.4 Does the WTO Grant Transparency to Individuals?

3.5 Recent Developments in WTO Practice

3.6 Transparency in Relation to Developing Countries

4 Final Assessment and Outlook

14 China’s Changing Judicial System in the Time of Globalization: Challenges of Integrating International Standards and the National Realities

1 Introduction

2 The Transition from Tradition to Modernization: Progress Achieved

2.1 A Change in the Perception of the Judicial System

2.2 Changes in Trial Procedure and Open Trials

2.3 Expanding the Jurisdiction of the Courts into New Fields

2.4 The Modernization of the Infrastructure of Courts

2.5 An Increased Caseload, Judicial Organs and Personnel

3 The Challenges and Dilemmas Faced by the Judiciary

3.1 Multiple Functions of the Courts vs. Adjudication according to the Law

3.2 A Weak Historical Legacy of the Courts vs. An Increasing Necessity for its Independence

3.3 Detached Professionalism vs. Judicial Populism

3.4 The Integration of International Rules vs. National Realities

3.5 The Infantile Judicial Situation vs. High Public Expectations

4 Conclusion

Biographical Data of Kamal Hossain

About the Contributors

Index