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The Transnational Protection of Private Rights: Issues, Challenges, and Possible Solutions

  • Sundaresh MENON (a1)
Abstract

The global community faces the challenge of dealing with movements in opposite directions: the emphasis on decolonization and self-determination in the postwar world has encouraged the building of barriers and boundaries between jurisdictions, while globalization has encouraged the breaking or transcending of the same. This paper focuses on the legal protection of private economic rights in the transnational arena by considering the regulation of transnational economic relationships at three different levels: (a) where a party's rights are not regulated or governed by any contract; (b) where there is a contract between the parties; and (c) where a foreign investor looks to protect its investment against unlawful interference by a host state. It concludes with some thoughts on what might lie ahead and suggests possible solutions to the issues and challenges faced.

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Chief Justice, Supreme Court of Singapore. This paper is adapted from the Charles N. Brower Lecture that I delivered on 10 April 2014. The views and ideas contained here are personal. I am deeply grateful to my colleague, Justin Yeo, Assistant Registrar of the Supreme Court, for the considerable assistance he gave me in the research and preparation of this lecture and for his valuable contributions to the ideas which are contained here.

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1. Art. 1(2) of the UN Charter states that the purposes of the United Nations are, inter alia, “[t]o develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, and to take other appropriate measures to strengthen universal peace”; see Charter of the United Nations, 24 October 1945, 1 U.N.T.S. 16.

2. SHAW Malcolm, International Law, 6th edn. (Cambridge: Cambridge University Press, 2008) at 38.

3. The post-World War II economic expansion is widely recognized as a period of economic prosperity which occurred in the mid twentieth century following the end of World War II in 1945.

4. FRIEDMAN Thomas L., The World is Flat: A Brief History of the Twenty-First Century (New York: Farrar, Straus and Giroux, 2005).

5. Shaw , supra note 2 at 38.

6. See e.g. the terminology adopted by the Legal Information Institute of the Cornell University Law School: Legal Information Institute of the Cornell University Law School, “International Economic Law”, online: <http://www.law.cornell.edu/wex/international_economic_law>.

7. The terminology “international trade law” is adopted, inter alia, by the Legal Information Institute of the Cornell University Law School: ibid. The terminology “world trade law” is adopted, inter alia, in textbooks (e.g. Simon LESTER et al., World Trade Law, 2nd edn. (Oxford: Hart Publishing, 2012); HORN Henrik and MAVROIDIS Petros C., Legal and Economic Principles of World Trade Law (Cambridge: Cambridge University Press, 2013), commentaries (e.g. HORN Henrik and MAVROIDIS Petros C., eds., Max Planck Commentaries on World Trade Law (Cambridge: Cambridge University Press, 2013), and by universities (e.g. the National University of Singapore, which offers a course on “World Trade Law”; see National University of Singapore, “Course Listing: World Trade Law” (June 2013), online: NUS <http://www.law.nus.edu.sg/student_matters/course_listing>.

8. See CORNISH Williamet al., Intellectual Property: Patents, Copyright, Trade Marks and Allied Rights, 8th edn. (London: Sweet and Maxwell, 2013) at paras. 1−31, where the learned authors suggest that IP law has wider associations with territoriality than other civil rights of action in general.

9. LIFSCHITZ Daniel, “The ACTA Boondoggle: When IP Harmonization Bites Off More Than It Can Chew” (2011) Loyola of Los Angeles International and Comparative Law Review 197 at 201. It has been observed that the territorial nature of IP rights has several potential ramifications. For instance, the scope and validity of an IP right in a particular country may be determined by that country's law independently of equivalent rights over the same subject matter in other countries; or the IP right may only affect activities pursued within a particular geographical territory; or the IP right may only be asserted by a particular country's nationals and other persons as the national law permits; or the IP right may be asserted only in the courts of the country for which it is granted. See ibid.

10. LEONG Susanna H.S., Intellectual Property Law of Singapore (Singapore: Academy Publishing, 2013) at paras. 01.001 and 01.025.

11. UBERTAZZI Benedatta, Exclusive Jurisdiction in Intellectual Property (Tübingen: Mohr Siebeck, 2012) at 4. See also TRIMBLE Marketa, “When Foreigners Infringe Patents: An Empirical Look at the Involvement of Foreign Defendants in Patent Litigation in the U.S.” (2011) 27 Santa Clara Computer and High Technology Law Journal 499 at 544, where the author notes that in the US Federal District courts, the number of IP cases involving at least one defendant from a foreign jurisdiction increased by twenty percent from 2004 to 2009.

12. DINWOODIE Graeme B., “The International Intellectual Property Law System: New Actors, New Institutions, New Sources” (2007) 10 Marquette Intellectual Property Law Review 205 at 210.

13. Which typically impose TRIPS-plus standards, and which ratchets up the global standard through the TRIPS “Most-Favoured-Nation Treatment” principle.

14. ISAACSON Walter, Steve Jobs (New York: Simon and Schuster, 2011) at 512. See “Steve Jobs Vowed to ‘Destroy’ Android” BBC News (21 October 2011), online: BBC <http://www.bbc.co.uk>.

15. Godfrey LAM, “Staging the Mobile Phone Wars”, 4th Judicial Seminar on Commercial Litigation (Singapore) at para. 6 (paper on file with author).

16. PORTER Kate, “Ottawa Home to Robust, Controversial Patent Licensing Industry” CBC News (26 November 2013), online: CBC <http://www.cbc.ca/news>.

17. YU Peter K., “ACTA and Its Complex Politics” (2011) 3 WIPO Journal 1 at 16.

18. Dinwoodie , supra note 12 at 206.

19. Yu , supra note 17.

20. Novartis AG v. Union of India and others, Civil Appeal No. 2706-2716 of 2013, online: <http://judis.nic.in/supremecourt/imgs1.aspx?filename=40212>.

21. HELFER Laurence R.et al., “Islands of Effective International Adjudication: Constructing an Intellectual Property Rule of Law in the Andean Community” (2009) 103 American Journal of International Law 1.

22. Ibid.

23. Cornish et al., supra note 8 at para. 2-70.

24. Ibid., although the learned authors cited Bristol Myers v. Beecham [1978] F.S.R. 553, which assumes the possibility of issue estoppel arising pursuant to a foreign judgment.

25. Ubertazzi , supra note 11 at 3.

26. Litigation has numerous externalities, and the immense costs incurred by legal systems cannot be ignored. Steven Shavell notes that litigation involves two externalities: the litigant neither takes into account the legal costs that he causes others to incur, nor recognizes the associated effects on deterrence and other social benefits. Between 1960 and 1992, legal expenditures in the US as a percentage of GDP grew from 0.523 percent to 1.47: see Steven SHAVELL, “The Fundamental Divergence between the Private and the Social Motive to use the Legal System” (1997) 26 Journal of Legal Studies 575.

27. The case filed in the Federal Court of Australia involved Apple claiming that Samsung infringed nineteen of its patents on a total of 120 grounds, in nine smartphones and two tablets produced by Samsung. Samsung has claimed that Apple infringed several of its patents in some iPhone and iPad models. See “Legal Twist in Apple, Samsung Case” Financial Review (25 February 2013) online: <http://www.afr.com>.

28. “What's Up Down Under with Apple and Samsung?” Patentology (18 November 2013), online: Patentology <http://blog.patentology.com.au/2013/11/whats-up-down-under-with-apple-and.html>.

29. Lam , supra note 15 at para. 50.

30. Ubertazzi , supra note 11 at 3.

31. Ibid., at 1−2.

32. In this regard, it was observed in the 1980 edition of the American Bar Association's journal that: “[f]ostered by the demands of an expanding international commerce, by the businessman's traditional distrust of foreign adjudication, and by numerous court decisions upholding its awards, international arbitration is distinctly in vogue.” See HIGGINS Francis J.et al., “Pitfalls in International Commercial Arbitration” (1980) 35 The Business Lawyer 1035. See also MOSK Richard M., “Trends in International Arbitration” (2011) 18 Southwestern Journal of International Law 103 at 105.

33. See e.g. SEIDENBERG Steven, “International Arbitration Loses Its Grip” American Bar Association Journal (April 2010), online: <http://www.abajournal.com/magazine/article/international_arbitration_loses_its_grip/>, where the author notes that arbitration “offers parties a neutral forum, where neither side has the ‘home court’ advantage of litigating in its nation's courts”. See also School of International Arbitration, Queen Mary, University of London, “International Arbitration: Corporate Attitudes and Practices 2006”, online: <http://www.pwc.be/en_BE/be/publications/ia-study-pwc-06.pdf> at 5, which states: “So why do nine out of ten corporations seek to avoid transnational litigation? The most common explanation is anxiety about litigating under a foreign law before a court far from home, with a lack of familiarity with local court procedures and language.”

34. REDFERN Alan and HUNTER Martin, Law and Practice of International Commercial Arbitration, 2nd edn. (London: Sweet and Maxwell, 1991) at paras. 1-42, 1-43, 1-44, and 1-53.

35. Higgins et al., supra note 32 at 1036.

36. See e.g. art. 9 of the UNCITRAL Model Law on International Commercial Arbitration, UN Doc. A/40/17 (1985).

37. MENON Sundaresh, “Transnational Commercial Law: Realities, Challenges and a Call for Meaningful Convergence” (2013) Singapore Journal of Legal Studies 231 at 239.

38. Seidenberg , supra note 33. Commentators have gone so far as to state that international arbitration has become the established method of determining international commercial disputes. See e.g. REDFERN A. and HUNTER M., Law and Practice of International Commercial Arbitration, 4th edn. (London: Sweet and Maxwell, 2004) at para. 1-01, where it was pointed out that the International Chamber of Commerce recorded 344 requests for arbitration in 1986 and 580 requests in 2003; FRANCK Susan D., “The Role of International Arbitrators” (2005−06) 12 ILSA Journal of International and Comparative Law 499 at 499.

39. See School of International Arbitration, Queen Mary, University of London, “Corporate Choices in International Arbitration: Industry Perspectives” (2013), online: <http://www.pwc.com> at 7.

40. Ibid., which notes that:

Several interviewees commented that, for certain cases, the use of litigation is unavoidable. This is because arbitration is sometimes unavailable by operation of law—for example, in non-contractual claims like breach of patent rights, as well as in potentially non-arbitrable disputes (e.g. in employment).

41. See e.g. ibid.

42. This statement was made in STIPANOWICH Thomas J., “Arbitration: The ‘New Litigation’” (2010) University of Illinois Law Review 1 at 8, in the context of American business arbitration, but it applies similarly to international commercial arbitration. This view is also supported by ibid., at 5, 21−2. Also see Higgins et al., supra note 32 at 1042, recognizing that whether arbitration is more or less costly than court adjudication may depend on the precise ambit of discovery obligations and procedures.

43. HOLT L. Tyrone, “Whither Arbitration? What Can be Done to Improve Arbitration and Keep Out Litigation's Ill Effects” (2009) 7 DePaul Business and Commercial Law Journal 455 at 455, citing STEMPEL Jeffrey W., “Forgetfulness, Fuzziness, Functionality, Fairness, and Freedom in Dispute Resolution: Serving Dispute Resolution Through Adjudication” (2003) 3 Nevada Law Journal 305 at 314.

44. HELMER Elena V., “International Commercial Arbitration: Americanized, ‘Civilized,’ or Harmonized?” (2003) 19 Ohio State Journal on Dispute Resolution 35 at 46.

45. Stipanowich , supra note 42 at 8; Helmer , supra note 44 at 36.

46. Helmer , supra note 44 at 36.

47. Stipanowich , supra note 42 at 23, citing MUSTILL Michael John, “Arbitration: History and Background” (1989) 6 Journal of International Arbitration 43 at 56.

48. Stipanowich , ibid., at 23. von MEHREN George M. and JOCHUM Alana C., “Is International Arbitration Becoming too American?” (2011) 2 Global Business Law Review 47 at 4950; ALFORD Roger P., “The American Influence on International Arbitration” (2003) 19 Ohio State Journal on Dispute Resolution 69; Helmer , supra note 44 at 46.

49. STRONG S.I., “Increasing Legalism in International Commercial Arbitration: A New Theory of Causes, A New Approach to Cures” (2013) 7 World Arbitration and Mediation Review 117 at 119.

50. Seidenberg , supra note 33, citing the view of Joseph R. Profaizer, of counsel to Paul, Hastings, Janofsky, and Walker in Washington, DC.

51. Toby LANDAU QC, Opening Keynote Address at the Singapore International Arbitration Forum (2 December 2013) (on file with author).

52. Stipanowich , supra note 42 at 13, 15.

53. See Dallah Real Estate and Tourism Holding Co v. Ministry of Religious Affairs of the Government of Pakistan [2011] 1 AC 763.

54. PT First Media TBK (formerly known as PT Broadband Multimedia TBK) v. astro Nusantara International BV and Others and Another Appeal, (2014) 1 Singapore Law Reports 372 at para. 75.

55. Menon , supra note 37 at para. 29, citing MISTELIS Loukas, “Unidroit Principles Applied as ‘Most Appropriate Rules of Law’ in a Swedish Arbitral Award” (2003) 8 Uniform Law Review 631.

56. Ibid., at para. 29, citing GAILLARD Emmanuel and SAVAGE John, eds., Fouchard, Gaillard, Goldman on International Commercial Arbitration (The Hague: Kluwer Law International, 1999) at 802.

57. Mosk , supra note 32 at 107.

58. Max Planck Encyclopedia of Public International Law, “Investments, Bilateral Treaties” (May 2011), online: <http://opil.ouplaw.com> at para. 8.

59. Ibid., at para. 9.

60. The bilateral approach had the potential to create a “depoliticized and technocratic environment” that would enable private decision-making while avoiding wide consultation with a large and diverse group of stakeholders. See supra note 58 at para. 78.

61. The first BIT was entered into between Germany and Pakistan in 1959. The adoption of the 1966 ICSID Convention (also known as the Washington Convention) saw a significant development in the realm of investment dispute resolution.

62. Sundaresh MENON, “The Impact of Public International Law in the Commercial Sphere and its Significance to Asia”, lecture jointly organized by the International Council of Jurists and the University of Mumbai, Mumbai, 19 April 2013, online: <http://app.supremecourt.gov.sg> at para. 14.

63. ROBERTS Anthea, “Clash of Paradigms: Actors and Analogies Shaping the Investment Treaty System” (2013) 107 American Journal of International Law 45.

64. BROWER Charles N. and BLANCHARD Sadie, “What's in a Meme? The Truth About Investor-State Arbitration: Why It Need Not, and Must Not, be Repossessed by States” (January 2014, draft on file with author) at 69.

65. HWANG Michael and LIM Kevin, “Issue Conflict in ICSID Arbitrations” in Michael HWANG ed., Selected Essays on International Arbitration (Singapore: Singapore Academy of Law, 2013), 472 at para. 65.

66. The decision is dated 5 March 2014.

67. The 7−2 split decision by an eminent bench is illustrative of the difficult questions that can sometimes be raised in investor-state arbitration. The case concerns the distinction between questions of “arbitrability” (i.e. whether there is an agreement to arbitrate at all, and the enforceability and scope of that agreement), which are decided by courts, and questions on “procedural preconditions” (i.e. whether there was adequate notice, whether waiver or estoppel were applicable, etc.), which are decided by arbitrators. There was a provision in the UK-Argentina BIT entitling a party to proceed unilaterally to arbitration provided the dispute was first submitted to a court in the country where the investment was made (“local litigation requirement”). In 2003, Argentina changed the way it calculated gas “tariffs”, and this negatively impacted the BG Group. The BG Group sought arbitration against Argentina for violating substantive provisions of the BIT (expropriation and denial of fair and equitable treatment). BG Group did not first seek relief in the courts of Argentina. Argentina argued that the arbitration was improper because BG Group did not comply with the local litigation requirement. The panel disagreed and awarded BG Group $185 million. BG Group sought to confirm the monetary award in US courts, while Argentina sought to vacate the award arguing that the panel lacked jurisdiction. The majority (Breyer, J, with whom Scalia, Thomas, Ginsburg, Alito, and Kagan JJ joined, and Sotomayor J joined in part) noted that a BIT is simply a contract and should be interpreted in a manner similar to ordinary private contracts. The majority concluded that whether the “local litigation requirement” was excused in this case was for the arbitrators to decide, as it was a “purely procedural precondition to arbitrate”. It therefore upheld the arbitrators’ decision under the “considerable deference” standard. The minority (Roberts CJ, with whom Kennedy J joined) focused on the fact that the treaty was not a contract between the parties to the dispute, and was instead a “unilateral standing offer” by Argentina and the UK to arbitrate with investors if the local litigation requirement was met. The minority viewed the “local litigation requirement” as a condition to the formation of an agreement between the investor and the state. The issue should be analyzed as one of contract formation, and therefore would be for the court to decide on whether there was any agreement to arbitrate at all.

68. GONZÁLEZ Daniel E.et al., “U.S. Supreme Court Decides First Case Related to International Investment Treaty Arbitration” Lexology (13 March 2014), online: Lexology <http://www.lexology.com>. See also International Institute for Conflict Prevention and Resolution, “BG Group v. Argentina: CPR Reviews US Supreme Court Decision”, online: <http://www.cpradr.org>.

69. Loewen Group, Inc. and Raymond L. Loewen v. United States of America, Award, 26 June 2003, ICSID Case No. ARB(AF)/98/3.

70. MATIATION Stefan, “Arbitration with Two Twists: Loewen v. United States and Free Trade Commission Intervention in NAFTA Chapter 11 Disputes” (2003) 24 University of Pennsylvania Journal of International Law 451 at 458.

71. Saipem SpA v. The People's Republic of Bangladesh, Award, 30 June 2009, ICSID Case No. ARB/05/7.

72. White Industries Australia Limited v. The Republic of India, Final Award, 30 November 2011, online: <http://italaw.com/sites/default/files/case-documents/ita0906.pdf>.

73. On this basis, the tribunal awarded White Industries the amount of AUD4.08 million, which was the amount due under the ICC award.

74. CARBONE Giulia, “The Interference of the Court of the Seat with International Arbitration” (2012) Journal of Dispute Resolution 217 at 237. This principle was codified, at the turn of the century, in art. 4(1) of the International Law Commission's Draft Articles on Responsibility of States for Internationally Wrongful Acts, which expressly states that “[t]he conduct of any State organ shall be considered an act of that State under international law, whether the organ exercises legislative, executive, judicial or any other functions”, see International Law Commission, “Draft Articles on Responsibility of States for Internationally Wrongful Acts” (2001), online: UN <http://legal.un.org/ilc/texts/instruments/english/commentaries/9_6_2001.pdf>.

75. Other than Loewen, Saipem, and White Industries, there have been a number of claims raised by investors claiming that their rights were violated by national courts: see Carbone, supra note 74 at 238.

76. Carbone , supra note 74 at 241.

77. TEITELBAUM Ruth, “A Look at the Public Interest In Investment Arbitration: Is it Unique? What Should We Do About It?” (2010) 5 Berkeley Journal of International Law Publicist 54 at 54, observing that: “The transparency movement in investment arbitration—a movement driven by non-governmental organizations (NGOs)—believes that arbitration, a private method of dispute settlement, is an inappropriate means of adjudicating disputes involving sovereigns.”

78. See Corporate Europe Observatory and the Transnational Institute, “Profiting from Injustice: How Law Firms, Arbitrators and Financiers are Fuelling an Investment Arbitration Boom” (November 2012), online: <http:// corporateeurope.org/sites/default/files/publications/profiting-from-injustice.pdf> at 8. See also PERRY Sebastian, “Investment Arbitration under Fire from Think Tank” Global Arbitration Review (27 November 2012), online: <http://globalarbitrationreview.com>.

79. Blanchard Brower and, supra note 64 at ftn 199 and accompanying text.

80. Sundaresh MENON, “International Arbitration: The Coming of a New Age for Asia (and Elsewhere)”, speech delivered to the International Council of Commercial Arbitration Congress 2012, Singapore, 11 June 2012, online: <http://www.arbitration-icca.org/media/0/13398435632250/ags_opening_speech_icca_congress_20 12.pdf> at paras. 19, 22, and 32.

81. The 2013 ICSID report showed that forty-eight percent of arbitrators, conciliators, and ad hoc committee members in 2013 were chosen from Western Europe, with just seventeen percent from South and East Asia, and the Pacific region. See International Centre for Settlement of Investment Disputes, “ICSID 2013 Annual Report” (September 2013), online: <https://icsid.worldbank.org> at 26.

82. NOTTAGE Luke and WEERAMANTRY J. Romesh, “Investment Arbitration in Asia: Five Perspectives on Law and Practice” (2012) 28 Arbitration International 19 at 33, citing Saadia M. PEKKANEN et al., “From Rule Takers, Shakers to Movers: How Japan, China and Korea Shaped New Norms in International Economic Law”, Second Biennial General Conference of the Asian Society of International Law, Tokyo, 1−2 August 2009.

83. An issue conflict is a conflict of interest stemming from an arbitrator's relationship to the subject matter of the dispute, rather than his relationship with the disputing parties. See Nassib G. ZIADE, “How Many Hats Can a Player Wear: Arbitrator, Counsel and Expert?” (2009) 24 ICSID Review 49 at 49; HRANITZKY Dennis H. and ROMERO Eduardo Silva, “The ‘Double Hat’ Debate in International Arbitration” New York Law Journal (14 June 2010), online: <http://www.dechert.com>, citing A.C. SINCLAIR and M. GEARING, “Partiality and Issue Conflicts” (2008) 5 TDM; Hwang and Lim , supra note 65 at para. 3.

84. See Hranitzky and Romero, ibid. The recurring legal issues include jurisdictional questions (e.g. the definition of “investment” and the use of a most-favoured nation clause) and substantive questions (such as the requirements for direct or indirect expropriation, the minimum standards of treatment in international law that include the notions of fair and equitable treatment and full protection and security, and the concept of discriminatory acts) (see Hwang and Lim , supra note 65 at para. 64 citing ZIADE Nassib G., “How Many Hats Can a Player Wear: Arbitrator, Counsel and Expert?” (2009) 24 ICSID Review 49 at 50.

85. Hranitzky and Romero , supra note 83.

86. Teitelbaum , supra note 77 at 5455.

87. ICSID Arbitration Rule 32(2) provides: “Unless either party objects, the Tribunal, after consultation with the Secretary-General, may allow other persons, besides the parties, their agents, counsel and advocates, witnesses and experts during their testimony, and officers of the Tribunal, to attend or observe all or part of the hearings, subject to appropriate logistical arrangements. The Tribunal shall for such cases establish procedures for the protection of proprietary or privileged information.” International Centre for Settlement of Investment Disputes, Rules of Procedure for Arbitration Proceedings, online: ICSID <www.icsid.worldbank.org>.

88. The US-Singapore Free Trade Agreement (6 May 2003) includes a section titled “Transparency of Arbitral Proceedings”, and provides in art. 15.20(2) that:

The tribunal shall conduct hearings open to the public and shall determine, in consultation with the disputing parties, the appropriate logistical arrangements. However, any disputing party that intends to use information designated as protected information in a hearing shall so advise the tribunal. The tribunal shall make appropriate arrangements to protect the information from disclosure.

Online: <http://www.fta.gov.sg/ussfta/chapter_15_us.pdf>.

89. European Commission, “Investment Provisions in the EU-Canada Free Trade Agreement (CETA)” (3 December 2013), online: EC <http://trade.ec.europa.eu> at 3.

90. I have explored some of these deficiencies elsewhere, and do not propose to provide a detailed analysis of them here: see Sundaresh MENON, “International Investment Arbitration in Asia: The Road Ahead”, 4th Annual Singapore International Investment Arbitration Conference, 3 December 2013, at paras. 34−46.

91. SORNARAJAH M., “Evolution or Revolution in International Investment Arbitration? The Descent into Normlessness” in Chester BROWN and Kate MILES, eds., Evolution in Investment Treaty Law and Arbitration (Cambridge: Cambridge University Press, 2012) at 634.

92. Sundaresh MENON, Closing Address at the Singapore International Arbitration Forum, 2 December 2013 (on file with author).

93. Menon , supra note 90.

94. Ibid., at para. 37.

95. Ibid.

96. Most-Favoured-Nation Treatment, United Nations Conference on Trade and Development (UNCTAD) Series on Issues in International Investment Agreements II, UN Doc. UNCTAD/DIAE/IA/2010/1 (2010), online: UNCTAD <http://unctad.org/en/docs/diaeia20101_en.pdf>.

97. Menon , supra note 90 at para. 44.

98. Ibid., at para. 46.

99. TAMS Christian J., “An Appealing Option? The Debate about an ICSID Appellate Structure” in C. TIETJE et al., eds., Essays in Transnational Economic Law No 57, June 2006 (Halle: Martin Luther Universität, 2006) at 20.

100. The London tribunal refused to award any damages, while the Stockholm tribunal ordered $355 million in damages.

101. See Lauder v. Czech Republic, Final Award, 3 September 2001, online: <http://www.italaw.com> at 66−72 and CME Czech Rep. B.V. (The Netherlands) v. Czech Republic, Partial Award, 13 September 2001, online: < http://www.italaw.com> at 5−7.

102. Teitelbaum , supra note 77 at 5962.

103. Menon , supra note 90 at para. 55.

104. Supra note 89 at 3−4.

105. Bolivia served a written notice of its denunciation of the ICSID Convention on 2 May 2007, and the denunciation took effect six months after the receipt of notice, i.e. on 3 November 2007. See International Centre for the Settlement of Investment Disputes, “List of Contracting States and Other Signatories of the Convention” (11 April 2011), online: ICSID <https://icsid.worldbank.org>.

106. Ecuador served a written notice of its denunciation of the ICSID Convention on 6 July 2009, and the denunciation took effect six months after the receipt of notice, i.e. on 7 January 2010. See ibid.

107. Venezuela served a written notice of its denunciation of the ICSID Convention on 24 January 2012, and the denunciation took effect six months after the receipt of notice, i.e. on 25 July 2012. See ibid.

108. Australian Government Department of Foreign Affairs and Trade, “Gillard Government Trade Policy Statement: Trading Our Way to More Jobs and Prosperity” (April 2011), online: < http://www.acci.asn.au/> at 14. Also see Ministry of Trade and Investment, Australia, “Gillard Government Reforms Australia's Trade Policy” (12 April 2011), online: <http://trademinister.gov.au>.

109. MENON Sundaresh, “The Somewhat Uncommon Law of Commerce” (2014) 46 Singapore Academy of Law Journal 23 at 49.

110. Ibid.

111. Ibid., citing Helmut WAGNER, “Costs of Legal Uncertainty: Is Harmonization of Law a Good Solution?”, delivered at the Fortieth Annual Session of UNCITRAL, Vienna, 9−12 July 2007, online: <http://www.uncitral.org/pdf/english/congress/WagnerH.pdf> at 1.

112. Ibid., at para. 52 et seq.

113. See The Hague Conference for Private International Law, “The Hague Convention of 30 June 2005 on Choice of Court Agreements—Outline of the Convention” (May 2013), online: <http://www.hcch.net>.

114. See The Hague Conference for Private International Law, “Status Table” (19 November 2010), online: <http://www.hcch.net>.

115. See art. 31(1), The Hague Choice of Court Convention, 30 June 2005, 44 I.L.M. 1291.

116. YEO Tiong Min, “International Litigation in Asia: Will the Hague Choice of Court Convention Make Any Difference?”, online: <http://www.jsil.jp> at para. 18.

117. See The Hague Choice of Court Convention, 30 June 2005, online: <http://www.hcch.net>.

118. PRIBETIC Antonin I., “The Hague Convention on Choice of Court Agreements” (2005) 10 The Globetrotter 2 at 2.

119. Ibid.

120. See Singapore International Arbitration Forum, online: <http://www.siaf.sg/>.

121. Sundaresh MENON, Closing Address at the Singapore International Arbitration Forum, 2 December 2013 (on file with author).

122. Sundaresh MENON, “Some Cautionary Notes for an Age of Opportunity”, keynote address at the Chartered Institute of Arbitrators International Arbitration Conference, 22 August 2013, online: <www.singaporelaw.sg> at para. 51.

123. A “final draft” dated 18 February 2014 has been uploaded onto the LCIA website. Art. 18 (on party representation) is certainly more substantial in the draft than in the existing LCIA Rules. There is also an Annex that provides general guidelines for the Parties’ legal representatives. Art. 18.6 provides for sanctions, including:

(a) a written reprimand; (b) a written caution as to future conduct in the arbitration; (c) a reference to the legal representative's regulatory and or professional body; and (d) any other measure necessary to maintain the general duties of the arbitral tribunal.

See LCIA, “New LCIA Rules 2014”, online: <www.lcia.org>.

124. Menon , supra note 122 at para. 52.

125. Ibid., at para. 54.

126. Sundaresh MENON, “Contemporary Challenges in International Arbitration”, seminar hosted by the School of International Commercial Arbitration, Queen Mary, University of London and the Singapore International Arbitration Centre, London, 27 September 2012, online: <http://www.arbitration-icca.org>.

127. International Council for Commercial Arbitration, Miami 2014, online: <http://www.iccamiami2014.com/>.

128. In the context of investor-state arbitration, see Katia YANNACA-SMALL, “Improving the System of Investor-State Dispute Settlement”, OECD Working Paper on International Investment (February 2006), online: OECD <http://dx.doi.org/10.1787/631230863687> at 10. See also FRANCK Susan, “The Legitimacy Crisis in Investment Treaty Arbitration: Privatizing Public International Law Through Inconsistent Decisions” (2005) 73 Fordham Law Review 1521.

129. In the context of investor-state arbitration, this could ensure that the interpretive approaches adopted at first instance give the necessary weight to treaty texts, as well as expressions of state intent in preambles and statements of objectives. On the issue of interpretive approaches in investor-state arbitration, see further Menon, supra note 90 at para. 48 et seq.

130. ICSID Secretariat, “Possible Improvements of the Framework for ICSID Arbitration”, Discussion Paper (22 October 2004), online: ICSID <https://icsid.worldbank.org>.

131. Under the WTO appellate mechanism, appeals are permitted, although these are limited to issues of law and questions of interpretation. Each appeal is heard by three members of a seven-member Appellate Body set up by the Dispute Settlement Body and broadly representing the range of WTO membership. See World Trade Organization, “Understanding the WTO: Settling Disputes”, online: <www.wto.org>.

132. Menon , supra note 90 at para. 62.

133. US Trade Act of 2002, 19 U.S.C. §§ 3803–3805. This has been the basis for concluding several US FTAs.

134. 19 USC s 2102(b)(3)(G)(iv). See also SAUVANT Karl P., Appeals Mechanism in International Investment Disputes (New York: Oxford University Press, 2008) at 232, and Yannaca-Small, supra note 128 at 9.

135. Yannaca-Small, supra note 128.

136. See the US-Dominican Republic-Central American FTA. Chapter 10, art. 10.20 at para. 10: Office of the United States Trade Representative, “CAFTA-DR (Dominican Republic-Central America FTA)”, online: <http://www.ustr.gov/sites>.

137. European Commission, supra note 89 at 3.

138. Menon , supra note 37 at para. 56.

139. Menon , supra note 109 at para. 60.

140. Ministry of Law, Singapore, “Report of the Singapore International Commercial Court Committee” (29 November 2013), online: <http://www.mlaw.gov.sg>.

141. Ibid., at para. 22.

142. Rajah & Tann LLP, “The Development of the Singapore International Commercial Court” (December 2013), online: < http://eoasis.rajahtann.com> at 3.

143. Report of the Singapore International Commercial Court Committee, supra note 140 at para. 31.

144. Ibid., at para. 32.

145. WILKOF Neil, “Can Patent Judges ‘Colloquy’ Themselves to Greater Uniformity?” (30 August 2013), online: <http://ipkitten.blogspot.sg/2013/08/can-patent-judges-colloquy-themselves.html>. Wilkof was referring to a comment by Chief Judge Randall Rader of the United States Court of Appeals for the Federal Circuit.

146. In re Maxwell Communication Corporation 170 B.R. 800 (Bankr. S.D.N.Y. 1994), affirmed in 186 B.R. 807 (S.D.N.Y. 1995).

147. James M. FARLEY, “Judicial Cooperation: Good Practices in the Field of Cross-border Insolvency Proceedings in Light of the Proposed Hague Draft General Principles for Judicial Communications”, Joint European Union-Hague Conference on Private International Law Conference on Direct Judicial Communications on Family Law Matters and the Development of Judicial Networks, 15−16 January 2009, online: <http://www.cambridgeforums.com>.

148. Ibid.

149. Westacre Investments Inc v. The State-Owned Company Yugoimport SDPR (also known as Jugoimport-SDPR) [2009] 2 SLR(R) 166.

150. International Chamber of Commerce, “The New Incoterms® 2010 Rules”, online: ICC <http://www.iccwbo.org>.

151. International Federation of Consulting Engineers, “About FIDIC”, online: FIDIC <http://fidic.org/node/13 #sthash.on7HSusc.dpuf>.

152. Menon , supra note 37 at para. 2.

* Chief Justice, Supreme Court of Singapore. This paper is adapted from the Charles N. Brower Lecture that I delivered on 10 April 2014. The views and ideas contained here are personal. I am deeply grateful to my colleague, Justin Yeo, Assistant Registrar of the Supreme Court, for the considerable assistance he gave me in the research and preparation of this lecture and for his valuable contributions to the ideas which are contained here.

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Asian Journal of International Law
  • ISSN: 2044-2513
  • EISSN: 2044-2521
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