Abstract: When threatened by crises such as global terrorism, financial collapse, pandemic diseas... more Abstract: When threatened by crises such as global terrorism, financial collapse, pandemic diseases, and natural disasters, states may resort to measures that harm the interests of foreign investors protected under the bilateral investment treaty (BIT) regime. Many such ...
When threatened by crises such as global terrorism, financial collapse, pandemic diseases, and na... more When threatened by crises such as global terrorism, financial collapse, pandemic diseases, and natural disasters, states may resort to measures that harm the interests of foreign investors protected under the bilateral investment treaty (BIT) regime. Many such BITs, however, contain heretofore under-studied clauses that preclude liability for state actions taken in response to exceptional circumstances. These non-precluded measures (NPM) clauses
International arbitration and, particularly, investor-state arbitration is rapidly shifting
to i... more International arbitration and, particularly, investor-state arbitration is rapidly shifting to include disputes of a public law nature. Yet, arbitral tribunals continue to apply standards of review derived from the private law origins of international arbitration, have not recognized the new public law context of these disputes, and have failed to develop a coherent jurisprudence with regard to the applicable standard for reviewing a state's public regulatory activities. This problematic approach is evidenced by a recent series of cases brought by foreign investors against Argentina challenging the economic recovery program launched after a massive financial collapse and has called into question the legitimacy of investor-state arbitration more generally. A comparative analysis of public law standards of review from both other international courts and the domestic systems of the U.S. and Germany demonstrates that arbitral tribunals have a variety of standards of review from which they could borrow to develop a coherent jurisprudence. While any consistently applied public law standard of review that recognizes the competing public interests at stake in this new form of international arbitration would be preferable to the status quo, we argue that for reasons of institutional capacity, expertise, and embeddedness, the margin of appreciation as developed by the European Court of Human Rights may offer the best path forward. The consistent application of a margin of appreciation when reviewing public law regulatory activities of states would allow arbitral tribunals to grant appropriate deference to national authorities while simultaneously protecting investor rights, thereby helping to close the growing legitimacy gap in investor-state arbitration.
This essay examines the jurisprudence of the International Center for the Settlement of Investmen... more This essay examines the jurisprudence of the International Center for the Settlement of Investment Disputes (ICSID) arbitral tribunals in a series of cases brought against the Republic of Argentina in the wake of the 2001-2002 Argentine financial collapse. The essay considers the ICSID tribunals' treatment of non-precluded measures provisions in Argentina's bilateral investment treaties (BITs) and the customary law defense
In December 2003, the Government of Uganda referred the situation in conflict-torn northern Ugand... more In December 2003, the Government of Uganda referred the situation in conflict-torn northern Uganda to the nascent International Criminal Court. It was the first referral by a State Party under Article 14 of the Rome Statute of ICC and led to the indictment of five leaders of the Lord’s Resistance Army (LRA). Four years later, Uganda found itself in the
... Press Release: 'Prosecutor receives refer-ral of the situation in the Democratic Republi... more ... Press Release: 'Prosecutor receives refer-ral of the situation in the Democratic Republic of ... in the US and Europe, Kabila has called for an international criminal tribunal for Congo, in ... but may also reflect strategic political calculations.50 Given the advantages prosecutions may ...
Abstract: When threatened by crises such as global terrorism, financial collapse, pandemic diseas... more Abstract: When threatened by crises such as global terrorism, financial collapse, pandemic diseases, and natural disasters, states may resort to measures that harm the interests of foreign investors protected under the bilateral investment treaty (BIT) regime. Many such ...
When threatened by crises such as global terrorism, financial collapse, pandemic diseases, and na... more When threatened by crises such as global terrorism, financial collapse, pandemic diseases, and natural disasters, states may resort to measures that harm the interests of foreign investors protected under the bilateral investment treaty (BIT) regime. Many such BITs, however, contain heretofore under-studied clauses that preclude liability for state actions taken in response to exceptional circumstances. These non-precluded measures (NPM) clauses
International arbitration and, particularly, investor-state arbitration is rapidly shifting
to i... more International arbitration and, particularly, investor-state arbitration is rapidly shifting to include disputes of a public law nature. Yet, arbitral tribunals continue to apply standards of review derived from the private law origins of international arbitration, have not recognized the new public law context of these disputes, and have failed to develop a coherent jurisprudence with regard to the applicable standard for reviewing a state's public regulatory activities. This problematic approach is evidenced by a recent series of cases brought by foreign investors against Argentina challenging the economic recovery program launched after a massive financial collapse and has called into question the legitimacy of investor-state arbitration more generally. A comparative analysis of public law standards of review from both other international courts and the domestic systems of the U.S. and Germany demonstrates that arbitral tribunals have a variety of standards of review from which they could borrow to develop a coherent jurisprudence. While any consistently applied public law standard of review that recognizes the competing public interests at stake in this new form of international arbitration would be preferable to the status quo, we argue that for reasons of institutional capacity, expertise, and embeddedness, the margin of appreciation as developed by the European Court of Human Rights may offer the best path forward. The consistent application of a margin of appreciation when reviewing public law regulatory activities of states would allow arbitral tribunals to grant appropriate deference to national authorities while simultaneously protecting investor rights, thereby helping to close the growing legitimacy gap in investor-state arbitration.
This essay examines the jurisprudence of the International Center for the Settlement of Investmen... more This essay examines the jurisprudence of the International Center for the Settlement of Investment Disputes (ICSID) arbitral tribunals in a series of cases brought against the Republic of Argentina in the wake of the 2001-2002 Argentine financial collapse. The essay considers the ICSID tribunals' treatment of non-precluded measures provisions in Argentina's bilateral investment treaties (BITs) and the customary law defense
In December 2003, the Government of Uganda referred the situation in conflict-torn northern Ugand... more In December 2003, the Government of Uganda referred the situation in conflict-torn northern Uganda to the nascent International Criminal Court. It was the first referral by a State Party under Article 14 of the Rome Statute of ICC and led to the indictment of five leaders of the Lord’s Resistance Army (LRA). Four years later, Uganda found itself in the
... Press Release: 'Prosecutor receives refer-ral of the situation in the Democratic Republi... more ... Press Release: 'Prosecutor receives refer-ral of the situation in the Democratic Republic of ... in the US and Europe, Kabila has called for an international criminal tribunal for Congo, in ... but may also reflect strategic political calculations.50 Given the advantages prosecutions may ...
Uploads
Papers by William Burke-White
to include disputes of a public law nature. Yet, arbitral tribunals continue to apply
standards of review derived from the private law origins of international arbitration,
have not recognized the new public law context of these disputes, and have failed to
develop a coherent jurisprudence with regard to the applicable standard for reviewing
a state's public regulatory activities. This problematic approach is evidenced by a
recent series of cases brought by foreign investors against Argentina challenging the
economic recovery program launched after a massive financial collapse and has called into question the legitimacy of investor-state arbitration more generally. A
comparative analysis of public law standards of review from both other international
courts and the domestic systems of the U.S. and Germany demonstrates that arbitral
tribunals have a variety of standards of review from which they could borrow to
develop a coherent jurisprudence. While any consistently applied public law standard
of review that recognizes the competing public interests at stake in this new form of
international arbitration would be preferable to the status quo, we argue that for
reasons of institutional capacity, expertise, and embeddedness, the margin of
appreciation as developed by the European Court of Human Rights may offer the best
path forward. The consistent application of a margin of appreciation when reviewing
public law regulatory activities of states would allow arbitral tribunals to grant
appropriate deference to national authorities while simultaneously protecting investor
rights, thereby helping to close the growing legitimacy gap in investor-state
arbitration.
to include disputes of a public law nature. Yet, arbitral tribunals continue to apply
standards of review derived from the private law origins of international arbitration,
have not recognized the new public law context of these disputes, and have failed to
develop a coherent jurisprudence with regard to the applicable standard for reviewing
a state's public regulatory activities. This problematic approach is evidenced by a
recent series of cases brought by foreign investors against Argentina challenging the
economic recovery program launched after a massive financial collapse and has called into question the legitimacy of investor-state arbitration more generally. A
comparative analysis of public law standards of review from both other international
courts and the domestic systems of the U.S. and Germany demonstrates that arbitral
tribunals have a variety of standards of review from which they could borrow to
develop a coherent jurisprudence. While any consistently applied public law standard
of review that recognizes the competing public interests at stake in this new form of
international arbitration would be preferable to the status quo, we argue that for
reasons of institutional capacity, expertise, and embeddedness, the margin of
appreciation as developed by the European Court of Human Rights may offer the best
path forward. The consistent application of a margin of appreciation when reviewing
public law regulatory activities of states would allow arbitral tribunals to grant
appropriate deference to national authorities while simultaneously protecting investor
rights, thereby helping to close the growing legitimacy gap in investor-state
arbitration.