I. Two Worlds, but Not Apart: International Investment Law and General International Law

Simma, Bruno; Pulkowski, Dirk

doi:10.5771/9783845258997-410

Cited by 10 publications

(8 citation statements)

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“…216 By enhancing the significance of the normative environment surrounding treaty regimes, international courts may both respond to the 'insufficiencies or the perceived lack of flexibility of the general system' while accepting and relying on other regimes and employing the core hermeneutic crucible that characterises them. 217 Absent great normative differentiation, and recognising treaty interpretation as an art in all but name, 218 one may conclude that the AB and panels follow a general hermeneutic approach, particularly comparable to the ECtHR and ICJ in the highlighted ways. Moreover, the binding effect of hermeneutics extends the force of general international law, beyond serving as a court's final refuge, to an art integral to sustaining leges speciales.…”

Section: Seeds and Sprouts Of Consistencymentioning

confidence: 99%

Beyond Powder Kegs and Crystal Balls: Finding Meaning in the Appellate Body’s Interpretation of WTO Law

Delev

2020

GroJIL

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This article seeks to establish the interpretative methodology used by the WTO Appellate Body and panels in deciding cases. The modern WTO dispute settlement system has been the subject of great criticism, including allegations of judicial activism and use of judicial precedent. These perspectives are founded upon a false theoretical dichotomy, whereby the WTO system is viewed either as a global constitutional system or, alternatively, that its rules are subsidiary to a host of other values and norms, including environmental protection, human rights and national regulatory choice. First, the modifications in institutional architecture under the dispute settlement system are traced and discussed. This includes an analysis of treaty changes, the organisation and structure of panels and the adoption of reports. Subsequently, an analysis of WTO/GATT jurisprudence is made to ascertain the various legal sources used, the normative hierarchy established, the application of VCLT provisions and other rules of treaty interpretation, the use of evolutionary interpretation and the significance of special rules. This Section relies on case law and academic literature. Finally, the question of the fragmentation of international law is addressed with respect to treaty interpretation. This Section analyses legal pluralist arguments, particularly by Weiler, Fischer-Lescano and Teubner and establishes legitimate responses to their arguments. Moreover, certain similarities are established with other international courts and tribunals.

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Section: Seeds and Sprouts Of Consistencymentioning

confidence: 99%

Beyond Powder Kegs and Crystal Balls: Finding Meaning in the Appellate Body’s Interpretation of WTO Law

Delev

2020

GroJIL

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“…134 This means that, as a part of customary international law, the diplomatic protection rules of nationality, including the dominant nationality test, are applicable in investment treaty arbitration unless otherwise agreed by the contracting states. 135 In the words of Joost Pauwelyn, '[i]t is for the party claiming that a treaty has "contracted out" of general international law to prove it'. 136 Such reasoning is even more compelling where an investment treaty does not address a particular issue, in which case customary international law will be introduced as a lacuna-filling instrument:…”

Section: The Integration Of the Rules Of Diplomatic Protection And International Investment Lawmentioning

confidence: 99%

Claims by Dual Nationals under Investment Treaties: Are Investors Entitled to Sue Their Own States?

Olmedo¹

2017

Journal of International Dispute Settlement

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Nationality plays a vital role in the field of investor-state arbitration. Most investment treaties require that, to benefit from treaty protection, an investor must be a national of the home state. Yet, the determination of nationality for investment treaty purposes can be particularly complex, raising a number of unresolved questions of considerable practical importance. One of these questions is whether investors who hold the nationality of both state parties to an investment treaty (i.e. dual nationals) are entitled to sue their own home state where the treaty is silent on the issue of dual nationality. This contribution contends that, when faced with a claim of this nature, arbitral tribunals should apply the well-established customary rule of dominant and effective nationality, and uphold jurisdiction only if the investor maintains a stronger connection with its home state.

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“…Rather, normative considerations are ultimately decisive. ' 52 In this case, there are two competing lex specialis regimes. The Chicago Convention is lex specialis in terms of aviation, while the Geneva Conventions are also a specific regime regarding armed conflicts.…”

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Humanitarian Considerations in International Air Law

Zhang¹

2016

Cambridge International Law Journal

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The downing of civil aircraft over conflict zones presents serious challenges for current international air law, especially regarding powers and responsibilities of public and private entities. Considering the extensiveness of areas experiencing current hostilities, the question of whether public or private entities should take responsibility following such accidents has become a highly topical issue. Under Article 9 of the Chicago Convention, States exercising complete and exclusive sovereignty over their territory are allowed the right to close their flight-paths. Consequently, a critical question arises as to whether States are obliged to close their airspace during times when their territories endure ongoing armed conflicts. In this author's view, the problem results from the varying perceptions concerning fragmentation within the international law system. To protect the safety of civilians in the sky, this article scrutinises the legality of allowing open airspace over conflict zones. It questions the role of 'elementary considerations of humanity' in order to draw closer towards a potential harmonisation between the secondary rules of special regimes-air law and humanitarian law.

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I. Two Worlds, but Not Apart: International Investment Law and General International Law

Cited by 10 publications

References 0 publications

Beyond Powder Kegs and Crystal Balls: Finding Meaning in the Appellate Body’s Interpretation of WTO Law

Beyond Powder Kegs and Crystal Balls: Finding Meaning in the Appellate Body’s Interpretation of WTO Law

Claims by Dual Nationals under Investment Treaties: Are Investors Entitled to Sue Their Own States?

Humanitarian Considerations in International Air Law

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