Young European Research Universities Network (YERUN) is a network of young research universities in Europe seeking to have a true impact on the role and nature of academic pursuit. The competitive Research Mobility awards support early career researchers to establish new research collaborations within the YERUN network while providing a platform to promote multidisciplinary research.
Dr Koldo Casla will work alongside Marion Sandner (PhD candidate at Antwerp University) on the meaning of solidarity and responsibility in global politics and in international law, and the relationship between these two ideas and social rights.
Solidarity is one of the unifying principles of a society. But does solidarity have a role in the international society? How is solidarity recognised in international human rights law? What are the implications of the recognition of solidarity within nations and between nations? In other words, if we are bound by solidarity, what do we owe each other, and what does this mean for human rights, and for social rights in particular? These are some of the key questions Koldo and Marion will be busy with in the next few months.
Dr Fikayo Taiwo will work with Martin Munu (PhD candidate at Maastricht University) on access to justice, regional economic integration and electronic commerce (e-commerce).
As access to justice is a sustainable development goal (SDG), the researchers will investigate the extent to which the nascent Agreement establishing the African Continental Free Trade Agreement (AfCFTA) dispute resolution mechanism advocates this SDG for e-commerce disputes. Given the increasing popularity and complexity of e-commerce and the societal peculiarities on its availability and use across the continent, as well as the inspiration drawn from the World Trade Organisation Dispute Settlement Understanding (WTO-DSU), the researchers will consider any gaps in WTO rules and case law covering e-commerce with the objective of drawing any possible lessons for promoting access to justice under the AfCFTA, and contributing towards sustainable, inclusive socio-economic development in Africa.
The collaborations will last until the end of 2023. We look forward to announcing their findings. Watch this space!
Given the economic impact of arbitration activity on a nation’s gross domestic product (GDP), the issue of capital flight was especially concerning.
To this end, the aim of the thesis was dual: first, to ascertain the viability of existing frameworks for commercial arbitration in African emerging markets for the purposes of promoting their reputation as seats of international arbitration; and second, to extend the literature on the African Union’s economic integration agenda that has recently been brought to the fore again by the Agreement establishing the African Continental Free Trade Area (AfCFTA).
In dealing with the problem, Dr. Taiwo set out to investigate the main research question of the extent to which a sector-specific specialist arbitration framework could enhance the right of access to justice.
Using a hybrid methodology and the single case study design, the central argument was that, to the extent that the necessary political will is present, identifying small spaces for reform (especially through specialist arbitration frameworks) and dealing with these issues in chunks is an effective way of progressively improving the parameters of access to justice, building attractive seats of international arbitration in Africa and consequently, contribute to economic and sustainable development.
One of the original contributions the thesis makes is applying access to justice from human rights law to commercial law as a major conceptual basis for the research to address not only arbitration matters but also other issues that parties take into consideration when choosing a seat of arbitration.
The wider significance of the work lies in its ability to not only reinforce the idea that the law is part of the development and should be part of critical sectors like the construction industry but also to inform law and policy for commercial arbitration in emerging markets and international institutions.
The thesis also expands the knowledge base of access to justice and the role it plays in issues beyond the realm of human rights law and discourse.
Dr. Taiwo plans to publish journal articles from her thesis to further explore the theme of the interplay of commercial dispute resolution and human rights for sustainability, and pathways to effective regionalisation through commercial arbitration in Africa.
On the afternoon of 25 March 2021, we hosted an online workshop by Zoom exploring the voice of the child in the context of the treatment of sexual abuse allegations in private family law disputes in England and Wales. The workshop brought together a fascinating mix of over 50 attendees including members of the judiciary, practitioners, academics, policy makers, organisations supporting survivors, and people with lived experience of abuse and the family courts.
The assessment of harm to children in private law cases has recently been the focus of an expert report commissioned by the Ministry of Justice, which provided the impetus for this project. Following the review, the treatment of sexual abuse allegations has been identified as an under-researched but major threat to the safety of children.
A key aim of the workshop was to respond to the need arising from the review to build an evidence base with key stakeholders in the field, something we hope to take forward following the event. This complex and difficult area of legal practice needs to be dealt with sensitively and we were delighted with the mix of attendees who respectfully and passionately engaged with the serious issues raised by the family courts’ current approach to the challenges that exist in these cases. We hope that following the event we will have the opportunity to continue our work with stakeholders to enhance the voice of the child in private family law cases.
The workshop followed a panel presentation and discussion format, held under the Chatham House rule to ensure confidentiality for attendees, given the sensitive nature of these issues. There were 10 presentations in total, including from survivors of child abuse and the family courts, a member of the judiciary, academics and practitioners in the field. Following each panel, attendees had the opportunity to ask questions and provide comments on issues raised.
Panels covered themes including:
amplifying the voice of the child;
the role of ‘parental alienation’;
support and training for professionals;
supporting children through court;
legal aid and associated access to justice issues;
the role of the family court in responding to abuse allegations and the challenges and possibilities in doing so.
A rich variety of issues were considered, including specific legal changes as well as wider cultural factors that arguably influence this area of practice.
We are grateful to all who attended and spoke at the event for making it such a supportive and insightful discussion, as well as for the generous funding provided by the ESRC Impact Acceleration Account. Working collaboratively, we held an event that was constructive and reform-oriented with the aim of furthering the conversation in this important but challenging area.
We were delighted to receive positive feedback from attendees, including from a survivor who said, ‘I really feel empowered’ following the workshop. Another said, ‘We all thought it was a fantastic event. It was brilliantly brought together and managed with such diversity of thought and experience … this really brought home the extent and complexity of some of the issues that need addressing in the family justice system’.
A full report of the event will be available soon, which will identify core themes, recommendations and next steps that we intend to pursue. If you would like to find out more about any aspect of this project or would like to be sent a copy of the report once it is available, please contact one of the organisers at the details listed below:
Dr. Anil Yilmaz Vastardis, Senior Lecturer and Co-Director of the Essex Business and Human Rights Project, School of Law and Human Rights Centre, University of Essex
In my recently published book The Nationality of Corporate Investors under International Investment Law(Hart Publishing 2020), I dissect the relationship between international investment law, corporate law and the concept of nationality. I argue that this relationship has been problematic from host states’ and their communities’ perspective, for it creates a free market for manufactured corporate nationalities enabling wealthy investors to access investment treaty protections to challenge regulatory measures.
Scrolling through the UNCTAD investment dispute settlement database, one can detect, even without reading the awards or decisions, that some businesses publicly known to be corporate nationals of a particular state seek protection under investment treaties of other states. For instance, the UNCTAD database shows a claim filed by Chevron against the Philippines in 2019. One would expect this claim to be filed under the US-Philippines investment treaty, as Chevron Corporation is incorporated and headquartered in the US. But it appears from the UNCTAD investment agreements database that there is no investment treaty between the US and the Philippines. Instead, Chevron filed this claim under the Philippines-Switzerland investment treaty utilising its Swiss subsidiary Chevron Overseas Finance GmbH.
One investor, convenient nationalities
This practice of nationality shopping is relatively common and largely permitted in investment treaty practice. It is enabled by investment treaty texts and generous arbitral interpretations of a corporation’s link to its alleged home state. In the example of Chevron, while it certainly has a corporate presence in Switzerland, through which it may have channelled its investments to the Philippines, the question remains as to whether this alone makes Chevron a Swiss investor. The relevant investment treaty defines a protected Swiss ‘investor’ to include any company incorporated under Swiss law. According to this definition, Chevron in the Philippines is a Swiss investor and not a US investor. However, according to two prior investment treaty claims that Chevron filed against Ecuador, it is a US investor. This is not an isolated instance. In its 2011 claim against Australia, Philip Morris argued it was a Hong Kong investor, whilst at the same time arguing in a 2010 claim against Uruguay that it was a Swiss investor. Philip Morris is a well known, US – headquartered tobacco company. But in investment treaty claims, it has never been a US investor. Similarly, Mobil initiated a claim against Venezuela in 2007 as a Dutch investor and against Argentina in 1999 as a US investor. Total was a French investor in its claim against Argentina in 2004, but it was a Dutch investor in a claim against Uganda in 2015.
Good governance and development narratives no longer justify manufactured nationalities
There are many similar instances of less well-known corporate investors relying on manufactured corporate identities or nationalities in order to invoke investment treaty protections. And all of this is often permitted within the boundaries of investment treaty law and corporate law. Taking a page from Katharina Pistor’s Code of Capital, we can understand investment treaties and corporate law principles as offering a legal coding of foreign investment that enables investors to change identity so as to increase the durability and priority of their interests. Those in favour of this flexibility of investment treaty law argue that we should focus on the bigger picture: the objective of investment treaty law to enhance good governance and economic development would be better achieved if all investors had access to treaty protections and investment arbitration, regardless of their origin or nationality. Thus, it is in line with the objectives of investment treaties to interpret the concept of investor or corporate nationality expansively and flexibly – so much so that an investor can be a national of one state for the purpose of one claim and a national of another state for the purpose of another claim.
The good governance and development narratives of investment treaties, however, have been challenged by recent empirical work. After 20 years of proliferation of investment treaty claims, the evidence is lacking to support these narratives as justification for expanding the personal scope of investment treaty protections. States have begun to pay some attention to the personal scope of their investment treaties, especially for corporate investors, in newly negotiated investment treaties. Increasingly, states are adopting more detailed clauses that require a corporate investor to have a stronger connection to its home state than merely being incorporated in that jurisdiction. The question of personal scope of investment treaty protection is also considered by the UNCITRAL Working Group III as one of the reform areas to overcome consistency and correctness problems in investor-state dispute settlement. The recently published UNCTAD IIA Reform Accelerator also identifies ‘investor’ definitions among the eight key provisions of investment treaties in most need for reform. The objectives of these reform efforts are to tighten the definition of ‘investor’ and introduce ‘denial of benefits’ clauses to prevent corporate investors’ reliance on tenuous links with a home state to access treaty protection.
Reform and the pitfalls ahead
Reform is crucial in the area of personal coverage of treaties to (1) restore the reciprocal nature of investment treaty protections and (2) to avoid the reforms pursued by states on substantive investment treaty standards being side-stepped by investors by relying on the remaining older generation investment treaties. As I argue in my book, the permissive definitions of investor in older treaties and expansive interpretations of even the tighter definitions by arbitral tribunals have resulted in undermining the reciprocal nature of investment treaty commitments among states. There is no barrier for a US investor to rely on investment treaty protections for its investments in the Philippines, despite the two countries not having committed to extending such protection to each other’s investors. The definitions of investor, coupled with the convenience of creating corporate entities, artificially transform the standards of protection included in investment treaties into pseudo-erga omnes obligations for states which can be invoked by any investor, whether or not they are genuinely covered by a treaty. While reform of treaties is necessary to reverse this trend, treaty wording alone may not offer the tightening of standards the states are aiming for. Investment arbitration tribunals continue to have decisive input over the interpretation of treaty standards. This means that even tighter standards can be loosened in the process of arbitral interpretation. One of the key reforms added to investor definitions is to require that a protected investor has its real seat or substantial business activities in the home state. Yet, in a recent arbitral award in Mera Investment v Serbia, the tribunal interpreted the concept of real seat as the place of incorporation and permitted a shell corporation indirectly owned by nationals of the host state to benefit from the investment treaty, despite the investor lacking the genuine connections to the home state sought in the investment treaty. Thus, textual reform of treaties may not achieve the outcomes desired with the current model of investment arbitration.
The second consequence of the current definitions of investor and arbitral interpretations is that they can undermine substantive investment treaty reforms pursued by host states. This is due to investors’ ability to adopt a new, or rely on an existing corporate nationality, established using subsidiaries or mailbox companies and based on tenuous links with a home state that has an older generation treaty with the host state. In this way investors, who may genuinely be nationals of a home state that has recently signed a reformed treaty with the host state, can sidestep the reformed treaty and rely on an older generation treaty to bring its claim against the host state. Many new investment treaties introduce more nuanced substantive standards of protection and exceptions to the application of standards such as the FET standard or indirect expropriation in the areas of policies and measures introduced in the public interest. If, for instance, a Canadian investor within the EU wishes to avoid the provisions safeguarding the host state’s right to regulate to achieve legitimate public policy objectives enshrined in CETA, it can rely on an older generation investment treaty signed by the relevant EU member state and a third state in whose territory the investor can set up a shell corporation or has an existing subsidiary to reroute its investment before filing a claim and before a dispute becomes reasonably foreseeable.
Conclusion
Many states are working on reforming their investment treaties to curb the excesses of the older generation investment treaties. Unlike their first-generation counterparts, these newer generation treaties are being negotiated with greater attention to detail and lessons learned. The process for any state to reform its entire investment treaty programme can take a significant amount of time. In the meantime, investor definitions in treaties and expansive interpretation of this notion by arbitral tribunals can allow backdoor access for investors to older generation treaties via subsidiaries or shell corporations based in third countries. Even if a state reforms all its treaties and tightens investor definitions and includes denial of benefits clauses, there will still be a risk of arbitral tribunals undermining the objectives of the parties by interpreting the concepts incorrectly, as was done in Mera Investment v Serbia. The problems with both investment treaty texts and the decisive interpretative influence exercised by arbitral tribunals over those texts indicate that even serious change to one aspect of the investment treaty system, in isolation, can be undermined in the absence of more systemic reform.
The author would like to thank Daria Davitti, Nathalie Bernasconi, Paolo Vargiu, and Zoe Phillips Williams for their helpful comments.This post was originally published on Investment Treaty News.
Dr. Jaime Lindsey recently published an article in Child and Family Law Quarterly (Volume 32, Issue 2, pp. 157-176), titled ‘Protecting vulnerable adults from abuse: under-protection and over-protection in adult safeguarding and mental capacity law’.
The article concerns the intersection between adult safeguarding and mental capacity law; an area which raises a number of difficult issues for lawyers, policy makers and health and social care professionals when thinking about the extent to which the civil law ought to be used to respond to abuse of adults with impaired mental capacity.
The article draws on original empirical data to show that adults vulnerable to abuse are left under-protected in some cases and over-protected in others. In particular, it argues that the Mental Capacity Act 2005 has become a tool for protecting vulnerable adults from abuse. Moreover, this is done in ways that restrict and control the vulnerable victim, rather than targeting the perpetrator.
Learning from developments in the domestic abuse sphere, including the Domestic Abuse Bill currently going through Parliament, Dr. Lindsey argues that safeguarding adults law should instead focus on perpetrators of abuse by developing a Safeguarding Adults Protection Order (SAPO), instead of resorting to mental capacity law in these challenging cases.
The article is available on LexisLibrary and a copy can be requested via the University’s Research Repository here.
The issue of legal representation in arbitration proceedings accounts for one of the sub-factors of ‘formal legal structure’ and ‘national arbitration law’ that disputing parties consider before choosing a seat of arbitration. Indeed, the ability of disputing parties in arbitration to freely select their desired representatives is embedded in the foundational principle of party autonomy, which continues to act as an incentive to settle cross-border disputes through international arbitration. However, while this may be the norm, a few countries take a different approach.
In Nigeria, a literal interpretation of the national arbitration rules prevents parties from selecting persons not admitted to the Nigerian bar as their representatives in arbitration proceedings. Upon being approached, courts of coordinate jurisdiction have interpreted the provisions in different ways. Therefore, this article examines the probable impact of this position on parties’ non-selection of the jurisdiction and its law in international arbitration proceedings. The article identifies scope for reform in the law and makes suggestions for creating a more liberal legislative and judicial framework in order to promote Nigeria as a seat of international arbitration.
The full article is published in Issue 2, Volume 37 of the Journal of International Arbitration and can be accessed here.
Essex Law Research Blog 