Listening to Investors (and Others): Audi Alteram Partem and the Future of International Investment Law
July 28, 2016
Investor-State Arbitration Series, Paper No. 8
This paper enquires into an alternative foundation for investor rights within international investment law, linked to a theory of deliberative democracy and a procedural right to be heard. Drawing upon historical and contemporary accounts within political theory, the paper advances a justification for investor protection that is limited principally to procedural protections associated with the Latin maxim audi alteram partem (“hearing the other side”). After outlining the foundations for this approach in English administrative law and political theory, the paper turns to selected arbitral awards in order to illustrate how a right to be heard would be advantageous to all the interests involved. The author proposes bringing together theory, history and practice in order to ground a theory of investor protection that better reconciles power, politics and democracy.
July 22, 2016
Investor-State Arbitration Series, Paper No. 7
A “re-politicization” of the settlement of some investment disputes might be needed for the investor-state arbitration (ISA) system to keep its legitimacy and effectiveness. The looming question is that of the discriminatory nature of ISA. In the case of Canada, it seems clear that Canadian law sometimes offers no remedy equivalent to that provided to foreign investors under investment agreements. How long will the system tolerate less protection for national investors? This question will become more pressing with the rise of ISA between developed democracies.
July 19, 2016
GCIG Paper No. 39
Ethics, though a key value of society, often serves more as a proclaimed virtue than as a standard to be applied in real life. For example, ethical issues have been addressed in the latest Internet governance discussions but their importance have not been adequately stated. Moreover, in connection with many different online social networks, the need for clear ethical standards to protect users’ privacy should be emphasized. This paper analyzes the lack of appropriate accountability for ethical standards in Internet governance and develops ideas for improving the ethics environment.
July 19, 2016
GCIG Paper No. 38
This paper examines the extent to which the contemporary Internet can be viewed as a universal network now, explores the economic and social implications of emerging initiatives associated with the potential for Internet fragmentation, and presents a baseline proposal for the technological characteristics and policy frameworks necessary for affording the Internet with a sustained capacity for ongoing global growth and openness.
July 7, 2016
CIGI Paper No. 107
This paper explores the nature of official and non-official discourse and mutual perceptions in China and Japan as they relate to their bilateral relations. Drawing on an analysis of the rhetoric, it examines the elements and sources of both current and past threat perceptions. It argues that government officials, the media and public figures in each country inflate — deliberately or inadvertently — the level of threat posed by the other country, with a significant impact on public opinion, bilateral relations and regional tensions.
June 27, 2016
Investor-State Arbitration Series, Paper No. 6
Investor-state dispute settlement (ISDS) first emerged in public and parliamentary debates in the lead-up to Australia signing its free trade agreement with the United States in 2004, and the official reason for excluding ISDS was mutual trust in each other’s domestic legal systems. However, a few civil society groups had raised broader sovereignty concerns. Debates intensified from 2010, when Australia joined with the United States (and 10 other Asia-Pacific economies) to negotiate the expanded Trans-Pacific Partnership. ISDS continues to be hotly debated, but there has still been almost no sustained analysis of how Australia’s domestic law protections for (all) investors compare to substantive protections for foreign investors under international customary and treaty law.
June 24, 2016
GCIG Paper No. 37
This paper describes current examples of fragmentation in the Internet’s physical architecture, address space and protocols, and in the legal principles governing the Internet. It then advances analytical principles, such as diminishing marginal returns, heterogeneity in valuation, the lack of unique value in pairwise potential connections, and non-linear increases in cost, that can serve as heuristics for identifying the circumstances in which fragmentation is more likely to be either beneficial or detrimental. Finally, the paper identifies alternative institutional forms, such as gateways and arbitration, that can mitigate some of the problems associated with fragmentation.
June 20, 2016
Investor-State Arbitration Series, Paper No. 5
A number of familiar criticisms have arisen in Japan around investor-state arbitration (ISA), in particular in relation to the Trans-Pacific Partnership (TPP) negotiations: ISA infringes on state sovereignty; it is unconstitutional; it unduly restricts regulatory space; and it unduly restricts government procurement. But the complete lack of discussion concerning ISA being included in treaties with Switzerland and the Republic of Korea, as well as during the economic partnership agreement negotiations with the European Union, indicates that few people in Japan believe that ISA with developed states is unnecessary or problematic. What makes the TPP appear problematic is the presence of the United States, as it is perceived that Japan may well be brought to arbitration by US investors.
June 20, 2016
GCIG Paper No. 34
This paper seeks to advance the debate on how to connect the next billion Internet users in two fundamental ways. The results of the analysis suggest an opportunity to complement infrastructure-deployment initiatives and regulatory reforms with targeted programs aimed at addressing connectivity barriers related to demand factors. Such programs can be expected to lower access barriers, promote the acquisition of information and communications technology skills and have important spillover effects among the 250 million Latin Americans who remain off-line.
June 10, 2016
CIGI Paper No. 106
This paper considers questions such as whether China can forge a high-standard and transparent governance model in the AIIB and convince skeptical Western developed countries of its willingness to improve the existing international financial system without seeking radical changes and reforms of the system. The future of the AIIB and the NDB depends largely on whether China can operate them as high-standard MDBs in terms of governance structure, finance, debt sustainability, and environmental and social policy.