Calls for greater diversity, especially in relation to the appointment of arbitrators, have been prevalent for some time in the international arbitration community, followed by several initiatives being set up to address the issue. While the primary focus of the diversity debate has been on gender, there have also been calls to expand and diversify the profile of the arbitrator pool to include more non-Western and non-White arbitrators. For several years, scholars and practitioners have argued for countless benefits of increased racial diversity, such as an increased acceptability and legitimacy of the arbitration process. There is a consensus that in a deliberative process like ADR, practitioners should reflect their claimants’ demographics. The existence of diverse panels helps further the aims of meticulous and accurate fact-finding approaches. Similarly, they argue that the lack of racial diversity may directly and negatively affect the quality of arbitration awards. This blog post will focus on the lack of diversity of African arbitrators appointed to resolve international arbitration proceedings, as well as initiatives that are being set up to address such issues. The focus on African ethnicity is given for two reasons: 1) African countries are no strangers to arbitration. Nearly 100 arbitral institutions exist across Africa. 2) There has been an increase of arbitration proceedings emanating from African regions, while there has been a minimal growth in the ethnic diversity of arbitrators appointed to resolve these disputes. This article was originally published on https://commercialarbitrationineurope.wordpress.com/2021/06/29/diversity-in-arbitration-the-lack-of-racial-diversity-in-international-arbitral-tribunals/
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This paper investigates the prospective application of arbitration by Transnational Private Regulation (TPR). It builds on the study of TPR developed by Fabrizio Cafaggi et al. TPR addresses the ever-increasing transfer of regulatory power from national to global levels, and from public to private regulators. TPR entails private regulatory co-operation be-yond the jurisdictional boundaries of States through voluntary standards. The regimes of TPR are built by a variety of actors, such as companies, NGOs, independent experts, and epistemic communities. Examples of TPR can be found in food safety, forestry management, trade, and derivatives, among other fields. More specifically, they concern private actors engaging in transnational coordination of standard setting such as the Forest Stewardship Council (FSC) that was developed to foster responsible management of the world’s forests. There are four main characteristics of TPR: legitimacy, quality, effectiveness, and enforcement. I will describe those four characteristics in brief here. First, the legitimacy of TPR is built around consent through voluntary entry, participation, and exit of regulated entities. Important to this contribution is that the legitimacy of TPR goes beyond its legal dimension, measured by purely legal standards. Hence, the legitimacy of TPR is largely determined by standards developed by social and economic institutions relevant to specific TPR regimes. The role of those institutions in standard settings is higher in private TPR regimes than private-public TPR regimes, where some forms of compliance are mandatory. Second, the quality of TPR corresponds to the ex ante and ex post evaluation cycle of regulatory processes. It is also linked with the transparency of TPR. Third, the effectiveness of TPR is measured according to the extent to which the objectives of TPR (or selected TPR regimes) are met. And finally, enforcement of TPRis understood as ‘ensuring compliance with commitments’. Enforcement of TPR can take place through courts, administrative agencies, and private dispute resolution—including the arbitration at the core of this contribution. Cafaggi’s study identified rather selective use of arbitration in TPR, but also recommended changes to make arbitration law more adaptable to TPR. Furthermore, the study recommended that more specialized dispute resolution institutions are created to exclusively serve TPR. Against this background, I shift the main focus of analysis from TPR to arbitration. Whereas Cafaggi argued that arbitration may be suitable for TPR as a means of private enforcement, in this paper I go even further, arguing that arbitration as a means of informal, out-of-court dispute resolution is well suited to strengthen the normativity of TPR. This is so because private arbitration actors (including, inter alia, arbitrators and arbitral institutions) are already equipped with the tools necessary to facilitate cross-border TPR, which is done through informal standards and procedures with origins in the communitarian values and reputational mechanisms used by different communities before the development of modern States. The roots of most private justice regimes—including arbitration—are informed by communitarian values such as collaboration, participation, and personal trust. Those values, together with other core characteristics of arbitration correspond to all core characteristics of TPR, making both systems comparable and complementary. The analytical framework incorporated in this paper follows the four core characteristics of TPR. Hence, the paper is organized into five sections. The first section contains the introduction. In the second section, I analyze the legitimacy of arbitration vis-à-vis the legitimacy of TPR. In the third section, I investigate the accountability of arbitration as a means of quality signaling vis-à-vis TPR. In the fourth section, I focus on the remedies available to arbitrators in a view of TPR’s effectiveness. Finally, in the fifth section, I analyze enforcement through arbitration and its impact on the exclusiveness versus complementarity of TPR regimes. Conclusions follow, including recommendations for future research. Part of topic "The blurring distinction between public and private in international dispute resolution"
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The main hypothesis underlying this article is that although arbitrators are not formally part of national justice systems, they have dealt with questions of EU fundamental rights and the European rule of law standards for quite some time, at least formally since the landmark CJEU judgment in Eco Swiss in 1999. In fact, in all forms of arbitration, be it national or international, taking place in or across (Member) States daily and not necessarily concerning the application by arbitrators of EU law stricto sensu, arbitrators can be seen as guardians of many crucial procedural guarantees that increase parties’ access to justice and advance the European rule of law, or so we wish to argue. This article is an exploratory piece. That is, it combines the format of the state-of-the-art review with the format of conference proceedings through which we present the main activities of the DG Justice TRIIAL project concerning arbitration. Our main goal is three-fold: (1) to advance the discussion on the relationship between the European rule of law and arbitration, (2) to present the main findings stemming from research and training activities within the TRIIAL training workshops on arbitration, and (3) to formulate future research and practical questions on the topic at hand.
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Alternative dispute resolution (ADR) is constantly gaining ground, both at domestic and international level. New forms of dispute settlement with a mix of public and private components are emerging in fields where this was not the case until recent times, as some contributions to this Zoom-out have attempted to demonstrate. In the field of investment law we have witnessed a somehow opposite trend. Traditionally, disputes in this field have been settled by means of arbitral tribunals established mostly on the basis of bilateral or multilateral investment agreements (IAs) under a variety of arbitration facilities, which are collectively referred to as investor-to-State dispute settlement (ISDS). Traditional ISDS presents many characteristics of ADR, starting from the strong role that private parties play in it (for example when it comes to the appointment of arbitrators). The practice has shown that the system has clear advantages but also undeniable disadvantages. The prevailing opinion in recent years has been that the latter considerably outweigh the former, resulting in what has been termed the backlash against investment arbitration in a volume appeared a few years ago. In this contribution, how-ever, I will not dwell on the details of the crisis that has affected investment arbitration, nor will I engage in a discussion of whether that backlash is entirely justified. My focus will be much more modest. One of the most tangible consequences of this growing dissatisfaction towards investment arbitration is the launch on the part of the EU of a court-like system to settle investment disputes –the now famous investment court system (ICS) –as a replacement to old-fashioned ISDS. The ICS now features in all EU IAs, and has become the standard position of the EU when it comes to dispute settlement in this field. Recently, the ICS has also received the green light of the European Court of Justice (ECJ),raising doubts as to whether traditional ISDS has conclusively been sent to oblivion, at least in the EU. From a political and policy perspective, it is undoubtful that there is a strong stance on the part of the EU and of its Member States against traditional ISDS. This article, however, will focus exclusively on the legal dimension, by examining whether the ECJ’s decision should be read as meaning that investment arbitration is incompatible with the EU legal system. While itis clear that Opinion 1/17 means that the ICS is compatible with EU law, it remains to be seen whether the Court’s finding allows an a contrario reading. Namely, whether it entails the incompatibility with EU law of traditional ISDS. The analysis will start with a brief summary of the events and developments that preceded the creation of the ICS and eventually led to the current situation (Section 2), followed by an examination of the relevant parts of Opinion 1/17 (Section 3). This part will be followed by an appraisal of the possible legal implications of the decision (Section 4). Some conclusions will be offered in the closing section (Section 5) in the attempt to look beyond the boundaries of EU law. Part of topic "The blurring distinction between public and private in international dispute resolution"
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Multinational enterprises (MNEs) have become global players in the current globalized labour market and their economic activities are no longer territorially limited, but they extend in different countries, thereby leading to the development of global supply chains. Against this background, companies’ operations are increasingly conducted by foreign subsidiaries and they are being outsourced to business partners worldwide. In both cases, lower working conditions and production costs in foreign countries are one of the driving factors leading to this business choice.
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Intelligent internationalization, as outlined by Laura Rumbley in 2015, is a relevant notion to explore in specific institutional settings. The setting in this contribution is that of The Hague University of Applied Sciences (THUAS) and in order to understand intelligent internationalization in practice, the specific setting of the institution needs to be clarified first. The Hague, with its approximately 530,000 inhabitants, is not the capital of the Netherlands, but is the seat of government and therefore houses the parliament, ministries, embassies, and is also the residence of the royal house. The Hague has a long tradition as the host of international institutions. The 1899 and 1907 peace conferences were held in the city and the Peace Palace, opened in 1913, is home to the International Court of Justice (ICJ), the principal judicial organ of the United Nations and to the Permanent Court of Arbitration (PCA). Since 2002, The Hague also houses the International Criminal Court (ICC). The city thus provides a learning environment for all students (both domestic and international) at THUAS, not only through the internships that are a key component of all programs, but also through engagement with cultural organizations and local communities. The Hague University of Applied Sciences provides higher professional education to about 28,000 students, in more than 50 bachelor’s programs, as well as in a limited number of applied master’s programs. Nine programs are delivered in English. THUAS is an UNESCO institution and aims to be the most international university of applied sciences in the Netherlands by 2020, focusing on world citizenship skills, such as critical thinking, problem solving, and intercultural competence for all its students. THUAS’ student body is highly diverse with approximately 40% of its students having a non-Dutch background.
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Refugees and internally displaced people who flee their homes due to environmental threats and far-going degradation which destroys their living conditions are not well-protected under international law. Refugee law focusses on political refugees. Establishing principals similar to the Responsibility to Protect (R2P) regime, (which is limited to genocide, war crimes, crimes against humanity and ethnic cleansing), could offer a solution for the lack of protection of environmental refugees. The obligation to establish this system could be based on the same obligation that forms the basis of the establishment of the R2P regime itself: the international obligation to prevent large scale suffering. This obligation corresponds with changed notions regarding state sovereignty and with the moral and legal obligations emanating from various human rights treaties. In first instance, according to R2P, the primary responsibility to take protective measures lies with the state itself. Secondly, the international community has a responsibility to assist. Lastly, the international community has a responsibility to respond duly and in a decisive manner when a state is unable or unwilling to provide protection for its citizens. The international community is equipped with a broad range of instruments under R2P that can be employed to protect environmental refugees. These instruments allow for custom-made solutions, which are absent in most traditional legal instruments
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The article engages with the recent studies on multilevel regulation. The starting point for the argument is that contemporary multilevel regulation—as most other studies of (postnational) rulemaking—is limited in its analysis. The limitation concerns its monocentric approach that, in turn, deepens the social illegitimacy of contemporary multilevel regulation. The monocentric approach means that the study of multilevel regulation originates in the discussions on the foundation of modern States instead of returning to the origins of rules before the nation State was even created, which is where the actual social capital underlying (contemporary) rules can be found, or so I wish to argue. My aim in this article is to reframe the debate. I argue that we have an enormous reservoir of history, practices, and ideas ready to help us think through contemporary (social) legitimacy problems in multilevel regulation: namely all those practices which preceded the capture of law by the modern State system, such as historical alternative dispute resolution (ADR) practices.
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Transboundary conservation has an important, yet often undervalued, role in the international conservation regime. When applied to the legally ambiguous and interconnected marine environment this is magnified. The lack of clear guidance for transboundary marine conservation from the international conservation community exacerbates this problem, leaving individual initiatives to develop their own governance arrangements. Yet, well-managed transboundary marine protected areas (MPAs) have the potential to contribute significantly to global conservation aims. Conversely, in a period where there is increasing interest in marine resources and space from all sectors, the designation of MPAs can create or amplify a regional conflict. In some instances, states have used MPAs to extend rights over disputed marine resources, restrict the freedom of others and establish sovereignty over maritime space. Six case studies were taken from Europe, North Africa and the Middle East to illustrate how states have interpreted and utilized different legislative mechanisms to either come together or diverge over the governance of marine resources or maritime space. Each of the case studies illustrates how different actors have used the same legislative tools, but with different interpretations and applications, to justify their claims. It is clear that the role of science combined with a deeper engagement with stakeholders can play a critical role in tempering conflict between states. Where states are willing to cooperate, the absence of clear guidelines at the global level means that often ad hoc measures are put into place, with the international frameworks then playing catch up. Balancing different jurisdictional claims with the conservation of the marine environment, whilst considering the increasing special economic interests will become increasingly difficult. Developing a transboundary conservation tool, such as the simple conservation caveats found in the Barcelona Convention and Antarctic Convention, which allow for the establishment of intergovernmental cooperation without prejudicing any outstanding jurisdictional issue, would provide a framework for the development of individual transboundary MPAs.
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