This article investigates the regulation of subsidies within investment agreements, focusing on states' rights to withdraw and recover subsidies and state aid. It examines the subsidy clauses emerging in recent treaty practice and their role in safeguarding policy flexibility. The article identifies definitional ambiguities and assesses the strengths and limitations of these approaches, contextualizing them against the recent surge of renewable energy investment decisions. It concludes that, for investments within the EU, these provisions effectively mitigate many of the constraints on state flexibility highlighted in investment jurisprudence. However, reciprocally, their reliance solely on orders by competent authorities in non-EU host states to exclude investment protection, absent a comprehensive, principled framework for reclaiming subsidization, may expose EU investors to asymmetrical risks in jurisdictions with less robust institutional frameworks.
This article explores the critical balance between transparency and confidentiality in investor-state mediation, with a particular focus on Southeast Asia. As mediation emerges as a favoured alternative dispute resolution (ADR) mechanism in investor-state dispute settlement (ISDS), it offers benefits such as faster resolutions, reduced costs, and the preservation of business relationships. However, the confidentiality that fosters trust in mediation often conflicts with demands for transparency, especially in ISDS cases involving public interests. This tension presents a significant challenge to maintaining the effectiveness of mediation while ensuring accountability and public trust. Southeast Asia's cultural emphasis on harmony and informal dispute resolution provides a unique context for addressing these issues. The region's active engagement with frameworks like the Singapore Convention on Mediation, alongside the development of regional mediation institutions, demonstrates a commitment to enhancing mediation practices. Through a comparative analysis of mediation rules and treaty practices, this article argues that existing mediation rules and international investment agreements (IIAs) in Southeast Asia often fail to adequately address the transparency-confidentiality conflict. It identifies key gaps and highlights some innovative approaches for resolving these tensions. The article concludes with strategic recommendations for Southeast Asian countries to develop mediation rules and treaty provisions that effectively balance confidentiality with transparency, thereby enhancing the legitimacy and efficacy of investor-state mediation in the region.
Through the use of the flexibilities found in the WTO Dispute Settlement Understanding, panels have contributed since 1995 to a significant evolution of the WTO dispute settlement system. This evolution has manifested itself in terms of enhanced efficiency, transparency and versatility of the dispute settlement process. Its extent has been so significant that it could be described as a form of 'embedded' internal reform process circumscribed by the manoeuvring space provided by the Dispute Settlement Understanding. WTO members have been the driving force behind such process, and it is they who, through negotiations, will decide its future course.
As international dispute settlement undergoes critical reform, UNCITRAL's proposal to establish a standing appellate mechanism for investor-state disputes raises foundational questions about institutional design. The collapse of the WTO Appellate Body, once praised for enhancing legal consistency, has revealed how vague qualification criteria, politicized reappointments, and insufficient safeguards can undermine legitimacy. While UNCITRAL's Draft Statute introduces procedural advances-such as term limits and voting-based appointments-it retains structural vulnerabilities, including non-binding diversity standards, ambiguous disclosure obligations, and limited oversight over conflicts of interest. This paper examines these risks through a comparative analysis of the WTO and UNCITRAL frameworks, drawing on legal interpretation and scenario-based stress tests to assess how appointment mechanisms influence adjudicator independence, representativeness, and system resilience. The findings identify three key fault lines: reputational selection models that concentrate power among elites, voting structures prone to geopolitical dominance, and the absence of enforceable procedures to assess and manage conflicts of interest. To address these challenges, the paper proposes institutional reforms grounded in comparative practice, including binding regional seat allocations, a fallback roster of vetted candidates, and a transparent screening process for adjudicator appointments. These recommendations aim to embed structural safeguards that reduce political obstruction and enhance legitimacy, offering UNCITRAL a path toward building a more credible and resilient appellate system.
FDI is pivotal to the Maldivian economy. The country's first national foreign investment law was enacted in 1979. During its tenure, the Maldives faced ups and downs including stable attraction of foreign investment and significant losses before arbitral tribunals. Though the Maldives has not rectified a single Bilateral Investment Treaty (BIT) to date, the country has enacted a new and improved version of its national foreign investment law in 2024 (FIL24). FIL24 is complete with foreign investor protection standards that mimic those usually found in BITs, including FET. This study weighs the resilience of this successor Law against investor protection standards found in BITs. The comparison between the standards of FIL24 and those in BITs demonstrates factors that undermine the provisions in FIL24, predominantly because it is a domestic law. However, the global trends where developing countries are no longer the sole recipients on FDI inflows, developed countries are more willing to accept investment policy standards paving way for a more generous policy space in the host country, drastically shifting from the traditional standards. Furthermore, as a developing nation in the Global South, this study compares the decision by the Maldives to introduce a new domestic legislation. The study found that this shift in dynamics does not necessarily match with the trends followed by other Global South nations. While FIL24 and its impact on investor protection would take some time to materialize, FIL24 carries the potentiality to assert itself as a standalone framework providing protection to investments in this archipelago.
This research investigates the legal implications of blockchain technology in international trade, focusing on the regulatory treatment of smart contracts, cryptocurrencies, jurisdictional issues, and data protection challenges. It aims to assess whether current legal frameworks are equipped to address these issues and to propose policy recommendations for harmonized regulation amid growing global digital trade. The study adopts a qualitative doctrinal legal research method supported by comparative legal analysis and real-world case studies. It examines statutes, judicial decisions, and international policy documents from jurisdictions including the European Union, the United States, and Saudi Arabia. Data was sourced exclusively from publicly available legal databases, with no interviews or private consultations conducted. The research identifies five major challenges include the lack of standardized enforcement mechanisms for smart contracts; fragmented cryptocurrency regulation hindering cross-border trade; jurisdictional ambiguity due to blockchain's decentralized architecture; legal incompatibility of blockchain-based documents with current trade laws; and conflicts between data immutability and privacy laws like GDPR. It also reveals that Saudi Arabia's evolving regulatory approach reflects a hybrid model influenced by geopolitical pressures and digital sovereignty goals.
The growing prominence of investment arbitration as a mechanism for resolving disputes between foreign investors and host states has raised important questions regarding the accessibility and inclusivity of the process. This article explores the role of amicus curiae (friend of the court' briefs) in bridging the gap between legal expertise and public interest, particularly in the context of investment arbitration. It examines how amicus curiae interventions enable non-disputing parties, such as non-governmental organisations, advocacy groups, and experts, to offer perspectives on issues that extend beyond the immediate interests of the parties involved, thus contributing to the broader public welfare. By analysing case studies and regulatory frameworks across jurisdictions, the article investigates the impact of amicus curiae on enhancing the transparency, legitimacy, and fairness of investment arbitration. It also considers the challenges associated with its use, including the potential for overrepresentation of certain interests and the complexities of balancing diverse voices within the arbitral process. Ultimately, the article argues that amicus curiae can play a crucial role in ensuring that investment arbitration remains responsive to public concerns, fostering a more equitable system that reflects the interests of both investors and the wider public, but must be approached with caution so as not to unduly burden an otherwise delicate dispute framework.
From its inception, the Caribbean Court of Justice (CCJ) in its Original Jurisdiction (OJ), has had exclusive jurisdiction to interpret and apply the Revised Treaty of Chaguaramas, (RTC) pursuant to Articles 211 & 212 of the RTC. Articles 45, 46 and 47 of the RTC though, establishes the legal architecture for freedom of movement of CARICOM Nationals in the modern context. But, the history offreedom ofmovement within the Commonwealth Caribbean can be traced through the periods of enslavement, indentured servitude, and colonialism, but was not institutionalised until the emergence of the West Indies Federation, (WIF) CARIFTA, and consequently the CARICOM Single Market and Economy, (CSME). As such, the CCJ, by virtue of its inherent role in interpreting and applying the provisions of the RTC, including the freedom of movement provisions, has contributed significantly to the creation and expansion of the jurisprudence offreedom ofmovementin CARICOM, elevating it beyond the confinement to the text. Most notably, the CCJ through the landmark decision in Shanique Myrie v. The State of Barbados commenced a significant contribution to the jurisprudence, which was buttressed by other judicial cases and an Advisory Opinion. This article will therefore trace and analyse the CCJ's contribution to establishing and expanding the jurisprudence offreedom of movement in CARICOM through the judicial cases and tease out general themes and observations. It will also endeavour to forecast the future role of the court, in light ofpronouncements by the CARICOMHeads of Government in 2023, to expand freedom of movement within CARICOM, making it f'ull'. Prior to this, it will provide a historical overview of institutionalised freedom of movement regime within the Commonwealth Caribbean, from the WIF to the RTC. It seeks to address a gap within the academic literature recognising most of the literature has focused on the CCJ's contribution towards other factors of production within the regional integration movement.
This article examines the pivotal case of BSG Resources v. Guinea and its implications for international investment law, particularly regarding compensation when a nationalized entity obtained its rights through corrupt means. It begins by outlining the foundational principle that states are obligated to compensate investors when nationalization occurs, while highlighting the contentious debate surrounding the applicable compensation standards: the Hull Principle and appropriate compensation. The article emphasizes that, although a clear right to compensation exists, claims based on concessions obtained through corrupt practices are deemed inadmissible, a theme that prominently arises in the BSG Resources case. Following Guinea's revocation of mining rights granted to BSG Resources amidst allegations of corruption, an ICSID tribunal ruled that the claims were invalid due to overwhelming evidence of corrupt practices influencing the awarding of mining titles. This pivotal ruling underscores the principle that investments acquired through illicit means cannot invoke protections under international law. The analysis further explores the influence of the judgment on the broader legal landscape, asserting that it reinforces the necessity of lawful conduct in investment transactions and the role of international norms in promoting integrity and transparency. Ultimately, the article posits that the BSG Resources v. Guinea case serves as a landmark decision, shaping the dynamics between state sovereignty, investor rights, and the critical consideration of ethical conduct in international investments, thus marking a significant evolution in international investment law.
It is clear that some degree of government intervention is required to accelerate the transition to renewable energy. Technologies to harness renewable sources such as wind and solar have higher up-front costs than non-renewable sources like coal and gas. Left to the market, investment would continue to flow towards fossil fuels with the associated negative implications for climate change. Governments are faced with difficult policy choices. Precisely what form should the intervention take? Are there opportunities to blend the required transition with industrial development objectives such as bolstering domestic capacity and expertise in the goods and services associated with renewable technologies? Part of the challenge here is to understand how world trade law constrains these policy choices. The overall picture is complex. Overlapping treaty provisions raise difficult questions of interpretation and application. The question is whether there is a navigable route for states to transition to renewables without breaching trade law obligations. The focus is on the UK's primary initiative to support renewable energy infrastructure-the Contracts for Difference scheme.
This article contextualizes and explains, from both theoretical and practical perspectives, some of the most recent and impactful changes to international trade law development in critical and emerging technology areas. It begins by describing developments in international trade law in the 20th and 21st centuries through the identification of four eras of that development: 1) pre-war protectionism (1921-1934); 2) post-war multilateralism (1947-2000); regionalism (2001-2016); and finally, post-multilateral economic nationalism (2017-present). It then focuses on this fourth era, which has been marked by unprecedented uses of unilateral regulatory barriers to trade including discriminatory tariffs, anti-dumping and countervailing duty impositions, export controls, sanctions, investment restrictions, and industry-specific subsidies, imposed by multiple countries, and led by the three largest economies (the US, China, and the EU), all in a significant deviation from the trade law and policy of these countries in previous eras. Understanding this turn to economic nationalism, as manifest in the current era of trade law development, is key to understanding current dynamics in global trade law and policy, particularly in critical and emerging technology areas such as artificial intelligence, microcomputing, quantum computing, neurotechnology, robotics, and biotechnology.
The debate about the role of patent protection as a barrier to access to medicines has taken the frontlines in recent years.(1) Concurrently, calls for the possibility of terminating the TRIPS Agreement have gained momentum and are becoming an appealing prospect by many proponents in high- and middle- income countries. Such propositions are formulated in consideration of the constraints and the monopoly of rights and innovations that originator drug companies-mainly residing in high level income states- have illustrated so clearly during the Covid-19 Pandemic. The circumstances, therefore, that existed when negotiating TRIPS have shifted clearly from the circumstance and spirit of what TRIPS was initially set out to achieve.(2) The ongoing reviews of TRIPS which include the Doha Declaration,(3) amendments of Article 31 and more recently the Waiver on TRIPS provide strong evidence that the system is not functioning as originally envisaged. However, does this warrant the termination or rather the curtailment of TRIPS as a more realistic and practical solution? Curtailment, for the purpose of this paper, operates on two levels, at a national level whereby more patchwork legislation is needed to counteract the monopolistic impact of exclusive rights, and at an international level, where amendments to the TRIPS Agreement would trigger automatic mechanisms to limit the role of the patent system in certain circumstances under some specific conditions. This paper advances the debate on these two levels, by proposing the urgent need to address the current global discrepancies and challenges surrounding medicines' affordability and availability. It contends that by addressing the current issues within the Agreement, the TRIPS Agreement and patent regimes could be preserved in the long run.
The effectiveness of multilateral non-binding recommendations in international tax cooperation has often been highlighted, particularly in connection with the Organization for Economic Cooperation and Development ('OECD)'. This article examines how Vietnam, a non- OECD member, has adopted the OECD's non-binding Transfer Pricing Guidelines ('TPG)'into its domestic policies by exploring major areas of alignment and divergence. The analysis focuses on general transfer pricing rules andprinciples and revisions made pursuant to the Base Erosion Profit Shifting (BEPS) Actions 8, 9, 10 and 13. The analysis allows the conclusion that the OECD soft law on transfer pricing, in general, has been remarkably effective in relation to Vietnam, although major differences remain. Specifically, with respect to the BEPS-related actions, Vietnam did not adopt several important measures. The case study of Vietnam's adoption of the OECD TPG, pre- and post-BEPS, indicates that the effectiveness of multilateral soft law in taxation can be significant and is mainly based on the merits in terms of the substance of the recommendations. However, it also has limits. The effectiveness may be constrained by considerations based on the balance of taxing power between developed and developing states and, even more so, by divergence in local needs and resources.
This article undertakes a critical examination of the United Kingdom's National Security and Investment Act (NSIA) 2021, with a particular focus on its extraterritorial jurisdiction. Analysing NSIA's evolution, it categorizes its provisions in terms of scope, normative strength, and potential for reshaping the UK's national security approach amid global economic interactions. It provides a comparative analysis of the Act's foundational elements, such as 'qualifying entities' and 'qualifying assets', and assesses their international reach, as well as the challenges of NSIA's extraterritorial application, including conflicts with other nations' sovereignty, enforcement complexities, and international cooperation dynamics. It explores the integration of protective and economic sovereignty principles within the Act, signifying a shift from a security-centric to a more economically integrated approach. It concludes by discussing how international investment treaties and legal assistance agreements can optimize NSIA's extraterritorial aspects, balancing national security with international legal standards.
In 2018, fifty-four African nations established the Africa Continental Free Trade Area (AfCFTA), creating the world's largest free trade area. This paper scrutinizes the AfCFTA's dispute resolution system, which draws inspiration from the World Trade Organization's (WTO) system- currently hampered by a deadlock in its appellate body, leaving 24 cases unresolved. Through a comparative analysis, this study reveals that the AfCFTA is at risk of encountering similar deadlock issues due to procedural shortcomings. The analysis employs a SWOT framework to evaluate both systems, identifying crucial areas where the AfCFTA's mechanism could falter. Key findings suggest that mere procedural tweaks are insufficient; the paper argues for comprehensive reforms, including specific amendments to the AfCFTA protocol to refine the panel selection process and mitigate potential grievances. Immediate action is advocated to implement these reforms, ensuring the dispute resolution system's effectiveness and averting the pitfalls experienced by the WTO. This paper contributes to the discourse by delineating actionable steps to fortify the AfCFTA against foreseeable challenges in dispute resolution.
This article travels across the blurred boundary of international economic law and political economy to explore the legal interaction of development and globalization in China, a country that has achieved marked economic growth since the rise of neoliberal economic order. This article proposes the term 'penetrable developmental state' to delineate how China manages to compromise between its development -orientation and the straitjacket of international economic law. In a case study of China's intellectual property (IP) regime, this article sketches the domesticinternational dynamics in China's IP regime by weaving the dry and technical legal cases along the line of China's IP development strategy into the arresting political narrative, and squarely illustrates the term 'penetrable developmental state'. This study contributes to the painting of a big picture of China's development in the international context which should be interdisciplinary, and bears relevance to future studies of other developing countries which will also seek development in the rules -based globalization and will likely take up China's role in the global value chain.
A BSTRACT : India and the European Union (EU) - two major economic actors in the global economy - are involved in negotiating an investment protection agreement (IPA). These negotiations are taking place against the backdrop of several countries reforming their investment treaty rulemaking to strike a balance between the goals of investment protection and safeguarding their regulatory autonomy. This article compares the EU's and India's investment treaty practices by focusing on three key investment protection features: fair and equitable treatment, protection from unlawful expropriation, and most favoured nation treatment. The objective is to find the areas of divergence and convergence between the two sides. While the EU and the Indian treaty practices diverge quite a bit, there is convergence also. Most importantly, both sides are keen to reconcile their promise of protecting investors' rights with their sovereign right to regulate in the public interest. There's also the intent to cut down on the unfettered discretion that arbitral tribunals enjoy while interpreting investment treaties. However, the article finds that the EU's treaty practice is closely aligned with these goals compared to India's. Thus, India should revisit its defensive investment treaty practice and close the gap to make these negotiations successful.
This article examines the use of feminist methods in international economic law while delineating the importance of methods in general. The article investigates which feminist methods are suitable and how these can guide a researcher studying IEL. Presenting suitable methods in IEL studies and practice, the article attempts to uncover gender biases and enhance the understanding of gender concerns in IEL.
This article argues that although, as a matter of principle, environmental protectionhas been embraced by Caribbean states as a key pillar of their ongoing efforts to achieve the UnitedNations Sustainable Development Goals, their existing international investment landscape is simplynot fit for this purpose. Through a critical analysis of extant International Investment Agreements (IIAs), National Investment Laws and related practices, this article argues that environmental protection remains an issue of little strategic importance for the Caribbean region, at least whencompared to their herculean efforts to attract and retain foreign direct investment. It uses the PeterAllard v Barbados decision to illustrate the multifarious challenges of balancing investmentprotection on one hand, and environmental protection, on the other hand, and argues for a morerobust approach to environmental protection, having regard to recent ICSID cases, such as Cortecv Kenya, as well as recent investment treaty practice, such as Guyana's Bilateral Investment Treaty(BIT) with Brazil, which contains express provisions on environmental protection.
