- Honolulu, Hawaii, United States
- The Hague Academy of International Law, Public International Law, Faculty MemberHumboldt Universität zu Berlin, Faculty of Law, Department MemberStanford University, Stanford Global Studies Division, Adjunctadd
- Prof. Dr. Diane Desierto (JSD, Yale Law School) is the tenured Michael J. Marks Distinguished Professor and Co-Direct... moreProf. Dr. Diane Desierto (JSD, Yale Law School) is the tenured Michael J. Marks Distinguished Professor and Co-Director of the ASEAN Law & Integration Center (ALIC) at the University of Hawaii William S. Richardson School of Law (USA); Adjunct Fellow, WSD Handa Center for Human Rights and International Justice, Stanford Global Studies, Stanford University; 2016-2017 Fellow of the Center for Advanced Study in Behavioral Sciences (CASBS) at Stanford University; International Arbitration and Regulation Partner at Desierto & Desierto Law (Philippines); 2017 Senior Fellow at KFG Berlin Humboldt University; Professor of International Law and Human Rights at the Philippine Judicial Academy of the Philippine Supreme Court; and 2017 Director of Studies for Public International Law at the Hague Academy of International Law.
Professor Desierto works in the areas of public international law, international arbitration and dispute settlement, international human rights and humanitarian law, international economic law and development, international maritime security, and ASEAN law. She serves various global academic and professional leadership positions as a Member of the Scientific Advisory Board of the European Journal of International Law and Permanent Editor of EJIL:Talk!; Member of the Academic Council of the Institute of Transnational Arbitration; Co-Chair of the Oxford Investment Claims Annual Summer Academy at St. Anne's College, University of Oxford; Editor of the Asia Yearbook of International Law; Research Committee Head for International Economic Development Law at the Asian Society of International Law; and Legal Expert for the ASEAN Secretariat and the ASEAN Coordinating Committee on Investment. Prof. Desierto clerked for Judges Simma and Sepulveda-Amor at the International Court of Justice at the Hague, Netherlands, and is the recipient of several international law research fellowships and/or prizes from the National University of Singapore Asian Law Institute; the Academie du droit de l'arbitrage in Paris, France; the Xiamen Academy of International Law in China; the Max Planck Institute in Heidelberg, Germany, and the University of Michigan Law School Grotius Fellowship.
In international practice, Prof. Desierto currently acts as Lead Counsel in pending sovereign international arbitration proceedings administered by the Permanent Court of Arbitration, while also frequently serving as Expert Legal Consultant for various government agencies, courts, commissions, and tribunals in Southeast Asia, as well as for international development institutions such as the Asian Development Bank, the United States Agency for International Development, and the European Union External Action Service. She is a frequent speaker and lecturer in many global law schools (Yale, Columbia Law, NYU Law, University of Toronto Faculty of Law, University of Chicago Law, University of Cambridge Faculty of Law, Leiden University, National University of Singapore, University of Amsterdam Faculty of Law, University of Vienna Faculty of Law, among others) and international institutions (United States Pacific Command, International Council for Commercial Arbitration, Mauritius International Arbitration Center, Singapore Judicial Academy, among others), and was former Professor of International Law at Peking University School of Transnational Law and University of the Philippines.edit
This Article discusses the normative trajectory of international obligations assumed by Southeast Asian countries (particularly the Organizational Purposes that mandate compliance with international treaties, human rights and democratic... more
This Article discusses the normative trajectory of international obligations assumed by Southeast Asian countries (particularly the Organizational Purposes that mandate compliance with international treaties, human rights and democratic freedoms), and the inevitable emergence of a body of discrete " ASEAN Law " arising from the combined legislative functions of the ASEAN Summit and the ASEAN Political, Economic and Social Communities. I discuss several immediate and short-term challenges from the increased constitutionalization of international obligations, such as: 1) the problem of incorporation (or lack of direct effect) and the remaining dependence of some Southeast Asian states on their respective constitutional mechanisms to transform international obligations into binding constitutional or statutory obligations; 2) the problem of hybridity and normative transplantation, which I illustrate in the interpretive issues regarding the final text of the ASEAN Comprehensive Investment Agreement, which draws some provisions from GATT 1994 and contains language similar to the U.S. and *269 German Model Bilateral Inevestment Treaties; and 3) the problem of diffuse or insufficient judicial oversight within ASEAN, seen through lingering dependence on national court implementation despite the regional effort at standardization of legal norms on specific areas of trade, security and human rights. I conclude that leaving these problems unaddressed could impede Southeast Asia's vast potential to contribute to the project of constitutionalizing international law.
This article explores potential treaty defenses and valuation defenses for host States to mitigate or temporarily excuse non-performance of obligations owed to investors during economic emergencies, arising from the host State's good... more
This article explores potential treaty defenses and valuation defenses for host States to mitigate or temporarily excuse non-performance of obligations owed to investors during economic emergencies, arising from the host State's good faith performance of obligations under the International Covenant on Economic Social and Cultural Rights (ICESCR). Defenses under the Vienna Convention on the Law of Treaties (VCLT), such as the lex posterior rule of application of treaties in Article 30 or treaty interpretation in Article 31, are of limited utility for avoiding primary breaches of the investment treaty, since these defenses considerably depend upon the host State's a priori notification of ICESCR obligations to investors at the time of the establishment of the investment. Lacking these revisions to the due diligence process, it is submitted that a host State can advance a more pragmatic defense by proposing equitable adjustments in the valuation of compensation, taking into account the host State's good faith performance of ICESCR obligations. Adjustments are justifiable and appropriate, since tribunals tend to accept an unrealistic definition of the 'fair market value' standard, based on market assumptions of perfect competition, for pre-crisis valuations of investments. The bloating of the pre-crisis valuation of an investment thus tends to increase its ultimate differential with the post-crisis valuation of an investment, leading to damage assessments beyond what parties could ordinarily have foreseen from the investment contract. While tribunals have predominantly referred to 'compensation' within the general law of international responsibility, they have problematically neglected the counterpart practice of equitable adjustment within this legal regime. While it is imperative to respond to the current crises with a thorough review of the functioning of the international financial and monetary mechanisms, a human rights approach will contribute to making solutions more durable in the medium and long run... A human rights framework offers the appropriate context, legal rationale and ground to guide policies and programmes countering the negative effects of the financial crisis at the national, regional and international levels. Indeed, States are not relieved of their human rights obligations in times of crisis… – Navanethem Pillay (2009)
Research Interests:
... $30.00 Add to Cart. 9. Balancing the Protection of Genetic Data and National Security in the Era of New Technology: The Role of the European Court of Human Rights (pages 142-154). ... 11. Privacy Expectations in Passive RFID Tagging... more
... $30.00 Add to Cart. 9. Balancing the Protection of Genetic Data and National Security in the Era of New Technology: The Role of the European Court of Human Rights (pages 142-154). ... 11. Privacy Expectations in Passive RFID Tagging of Motor Vehicles: Bayan Muna et al. ...
Research Interests:
Research Interests:
... This is precisely the reason for suspending all pending claims against the corporation under receivership. (citing Araneta vs. ... 1) Araneta v. Court of Appeals8 Araneta involved a claim arising from Philfinance's sale of a... more
... This is precisely the reason for suspending all pending claims against the corporation under receivership. (citing Araneta vs. ... 1) Araneta v. Court of Appeals8 Araneta involved a claim arising from Philfinance's sale of a security (promissory note) to the Aranetas. ...
Research Interests:
... constitutional order. It was by such faith and hope that we can justify their collaboration in strategies and measures which, in the fateful months of late 1972 and early 1973, were antithetical and destructive of republicanism.... more
... constitutional order. It was by such faith and hope that we can justify their collaboration in strategies and measures which, in the fateful months of late 1972 and early 1973, were antithetical and destructive of republicanism. Indeed ...