Call for Papers Reforming the Investor-State Dispute Settlement System:European and Chinese Perspectives (17-18 October 2017)

2017-04-21 14:52    发布人:管理员

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The Erasmus China Law Centre (ECLC) of Erasmus School of Law at Erasmus University Rotterdam in the Netherlands and Wuhan University Centre of Oversea Investment Law (COIL) in Wuhan, China, jointly call for paper submissions to the international conference on Reforming the Investor-State Dispute Settlement System: European and Chinese Perspectives, to be held on 17-18 October, 2017 in Wuhan, China.

A proposal approximately 500 words, together with a short CV of two pages or less indicating the author’s affiliation, contact, and relevant publications should be submitted to Prof. Yuwen Li (y.li@law.eur.nl) in the Netherlands or to the project leader in China Prof. Tong Qi (tongwinxp@163.com ) before 1 June 2017. Interdisciplinary works are particularly encouraged. Accepted proposals will be notified by 20 June 2017. Travel and accommodation expenses will be covered by the organizers.

Investor-state disputes based on bilateral investment treaties (BITs) are regularly settled through arbitration, which is conducted by arbitrators appointed by disputants on a case by case basis. This flexible, decentralized structure of arbitration has resulted in increasing criticism on numerous inconsistent and incoherent arbitral awards in terms of the interpretation and application of similar provisions of BITs. Moreover, investment arbitration is largely based on confidentiality, which is at odds with modern conceptions of transparency procedure and accountability. These inherent problems of arbitration have caused its legitimacy crisis.

In response to the critics, in 2015 the European Union (EU) proposed the establishment of an ‘Investment Court System’ in the TTIP negotiations, in which judges appointed by the EU, the USA and third countries are anticipated to hear investor-state disputes. A two-tiered system of a Tribunal of First Instance and an Appeal Tribunal is to be created. As the EU envisages, this proposed investment court system could become a model for a future global investment court (EU Proposal 2015).

China is becoming an important player in any foreseeable reformed investor-state dispute settlement (ISDS) due to its growing investment impact on the world. The EU initiative will inevitably affect the on-going negotiations of the EU-China BIT, which will replace the 26 existing BITs between 27 EU individual member states and China. China has also engaged in BIT negotiations with the US since 2008. These significant BITs can be predicated to shape the future multilateral agreement on investment.

All these new developments trigger enormous challenges not only to decision-makers involved in negotiations but also to legal scholars whose research can be used to facilitate successful conclusion of agreement. A few challenging questions for legal scholars can be illustrated. First, whether the EU envisaged investment court system can rectify the fundamental deficiencies embedded in the current ISDS system. Secondly, whether and how such an investment court system based on a mega-regional agreement (such as TTIP) can be transformed into a truly multilateral international investment court. Thirdly, whether the EU initiative may prompt proliferation of investment courts based on bilateral or other regional BITs (such as the EU-Vietnam BIT and CETA), which would result in fragmented investment courts worldwide. Fourthly, how to design the relationship between a supra-national court(s) and domestic courts in any given situation?

Legal research on these questions is relative new for both European and Chinese scholars, thus, academic publications are few and piecemeal. Some challenge the bilateral nature of the TTIP tribunal and its exclusion of national courts as structural weaknesses (Schill 2016). Bronckers suggests to use a national court ‘as a mandatory first instance to settle investor-state disputes and to examine the compliance of host state conduct with domestic and international law, without excluding subsequently access to the TTIP Tribunal.’ (Bronckers 2015). Chinese scholar Wenhua Shan has introduced a ‘matrix analytical framework’ by classifying disputes into four groups of ‘Green Zone’ cases, ‘Red Zone’ cases, ‘Yellow Zone’ cases, and ‘Blue Zone’ cases, which can be settled either through international mechanism or a national court (Wenhua Shan 2015). Some Chinese have expressed concerns on the impact of an international investment court on the dominant place of International Centre for Settlement of Investment Dispute (ICSID) in investment arbitration which has sustained for half a century (Qi Tong 2016).

To better comprehend the complexity and dynamics of establishing a new international investment court and its interaction with domestic courts requires knowledge in different areas of law. Whereas international investment law is the focus, new institution building needs to draw experience from international trade law, such as the dispute settlement mechanism of the WTO. At the national level, foreign investment law, company law, the civil procedure law, the administrative and administrative procedure laws are all relevant in either settling investment disputes at domestic courts or enforcing judgment/award of international institutions. Obviously, collaboration of experts in different disciplines of law can accomplish more than a single area of law.

Currently research collaboration between Chinese and European scholars on reforming ISDS hardly exists. Against this background, the proposed conference intends to address potential topics include, but are not limited to, the following areas:

  1. Designing the ISDS in EU-China BIT: an EU and China comparison
  2. Assessing EU’s proposal on the ICS from law and economic viewpoints
  3. Concrete issues in instituting an international investment court, selection and qualification of judges, judicial independence and accountability, appeal mechanism in correcting errors, enforcement of judgment
  4. Public interest issues (environment protection, sustainable development, etc.) in investment treaty arbitrations and EU-China BIT negotiation
  5. National court v. ISA: European and Chinese Views
  6. Third party participation in ISDS
  7. Transparency issues in ISDS
  8. Mediation in ISDS: experience and prospect
  9. Chinese perspectives on ISDS with a focus on Chinese new ideas, such as OBOR
  10. Other key issues of EU-China BIT
    Papers presented at the conference upon revisions made in accordance with the comments of participants and reviewers, are planned to be published in an edited volume in English by an international renowned publisher.
    Important Timeline
    1 June 2017: Deadline for Abstracts
    20 June 2017: Notification of Successful Applicants
    1 October 2017: Conference Papers Due
    17-18 October 2017: Conference on Reforming the Investor-State Dispute Settlement System Takes Place in Wuhan
    31 March 2018: Revised Chapters Due

    Prof. Dr. Yuwen Li
    Professor of Chinese Law
    Director, Erasmus China Law Centre
    Erasmus School of Law (ESL)
    Erasmus University Rotterdam, Netherland
    T. +31 10 408 1650
    F. +31 10 408 9195
    M. +31 6 41212988
    E. y.li@law.eur.nl
    W. http://www.esl.eur.nl/eclc

    Prof. Dr. Tong Qi
    Professor of Law
    Executive Director, Centre of Oversea Investment Law
    School of Law, Wuhan University, China
    T. +86 27 68753762
    F.+86 27 68754154
    M. +86 13036110848
    E. tongwinxp@163.com
    W. http://fxy.whu.edu.cn/coil/en/


    Attachment:Call for Papers 21 April 2017.pdf

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