Análisis del dictamen No. 023-10-DTI-CC de la Corte Constitucional para el período de transición referente al “Tratado entre la República del Ecuador y la República Federal de Alemania sobre fomento y recíproca protección de inversiones de capital”: (Caso No. 0006-10-TI) [Jurisprudencia]

El presente trabajo analiza de manera crítica el pronunciamiento de la Corte Constitucional para el Período de Transición respecto al control constitucional de las denuncias de tratados bilaterales de inversiones de capital, tomando como caso de estudio el instrumento internacional suscrito entre Ecuador y Alemania, en el cual bajo una corriente constitucionalista, la Corte somete al crisol de la contradicción el contenido del Tratado Internacional con la normativa constitucional vigente. En aquel sentido, analizaremos cómo, a través de este polémico dictamen, se inicia una línea jurisprudencial en la que se configuran temas controversiales como el denominado control automático de constitucionalidad, y, el debate respecto a la soberanía estatal en cuanto al no sometimiento del Ecuador a arbitrajes comerciales internacionales en asuntos de índole comercial.

La concepción de propiedad privada en los arbitrajes internacionales en materia de inversión: reflexiones a partir del caso argentino (Coyuntura)

El artículo se propone escrutar, a la luz del caso argentino, la concepción de propiedad privada subyacente en las respuestas de las instituciones internacionales de arbitraje en el marco de las controversias entre Estados e inversores transnacionales. Se entiende que el análisis del caso argentino puede echar luz en la materia al tratarse del país con mayor número de demandas en su contra.

Few choices under work choices

This paper sets out the history of the philosophical understanding held by the major political parties towards the governance of the Australian industrial relations system. In so doing it notes there has been a long legacy of socialist and conservative political and ideological support for mediating industrial conflict through the institutional agencies provided by conciliation and arbitration tribunals. The discussion notes the erosion of this legacy under the recent ascendancy of neo-liberal political and neo-classical economic thought, an ascendancy that has seen a significant retreat of state responsibility for mediating relations between the two sides of industry in the name of improving business productivity and national economic outcomes. The passing of the Workplace Amendment (Work Choices) Bill 2005 is the latest legislative manifestation of this thinking. This paper challenges the labour market assumptions and expectations of the Bill by arguing that equality in bargaining power between the two sides of industry in the manner afforded by conciliation and arbitration tribunals is essential for any genuine and lasting prosperity to exist between labour and capital.

Work choices : a fair go gone

This paper sets out the history of the philosophical understanding held by the major political parties towards the governance of the Australian industrial relations system. In so doing it notes the legacy of socialist and conservative ideological underpinnings of political support for industrial mediation in the form of conciliation and arbitration tribunals. The discussion notes the recent abrogation of this legacy under the political ascendancy neoclassical economic thought. It challenges the labour market assumptions upon which this thought is based, and in so doing argues against the asserted merits of the proposed Workplace Amendment (Workchoices) Bill 2005.

The role of dualities in arbitrating continuity and change in forms of organizing

A substantial body of literature on new forms of organizing has forecast the end of bureaucracy. More recent empirical studies, however, indicate that high-performing organizations are adopting dual forms of organizing in which the controllability advantages associated with traditional forms work to complement and support the responsiveness attributes of new forms of organizing. The paradox is that, if organizations discard the key planning, co-ordinating and direction-setting mechanisms of traditional forms of organizing, they also remove the stabilizing dimensions of organizational form that are essential in periods of uncertainty and change. The challenge for organizations lies in learning how to manage the tensions or dualities between traditional and new forms of organizing, a process demanding the arbitration of continuity and change. This paper explores the concept of dualities and its salience in the management of organizing forms. First, the nature of dualities is explained; secondly, a set of characteristics is developed to describe the behaviour of dualities; and thirdly, suggestions are presented for arbitrating the tensions that exist in organizing form dualities. These three contributions are relevant because they signal the route to the effective creation and management of organizing form dualities, the benefit of which is the constructive combination of dynamic capabilities (underpinning innovation and responsiveness, the hallmarks of new forms of organizing) and operational capabilities (underpinning stability and efficiency, the hallmarks of traditional forms of organizing).

New dog, old tricks : solving a conflict of laws problem in CISG arbitrations

Parties to international sale of goods transactions often exercise their rights to choose a governing law and refer disputes to arbitration . Where their choice is incomplete, as is the case where the contracts for the International Sale of Goods (CISG) is chosen, complex conflict of laws problems can arise, including disputes over the governing limitation period. While such disputes are traditionally resolved using conflict of laws methodologies, this article argues a superior solution can be achieved through procedural late. Through a simple discretion, arbitral tribunals may apply the limitation period from either the International Institute for the Unification of Private Law (UNIDROIT) Principles 2004 or the UN Limitation Period Convention. Such an approach makes determination of the governing limitation period a simpler process, allowing parties to focus their attention on what they are really concerned with—the merits.

Design of secure watermarking scheme for watermarking protocol

Watermarking technique enables to hide an imperceptible watermark into a multimedia content for copyright protection. However, in most conventional watermarking schemes, the watermark is embedded solely by the seller, and both the seller and the buyer know the watermarked copy, which causes unsettled dispute at the phase of arbitration. To solve this problem, many watermarking protocols have been proposed using watermarking scheme in the encrypted domain. In this paper, we firstly discuss many security aspects in the encrypted domain, and then propose a new method of homomorphism conversion for probabilistic public key cryptosystem with homomorphic property. Based on our previous work, a new secure watermarking scheme for watermarking protocol is presented using a new embedding strategy in the encrypted domain. We employ an El Gamal variant cryptosystem with additive homomorphic property to reduce the computing overload of watermark embedding in the encrypted domain, and RA code to improve the robustness of the watermarked image against many moderate attacks after decryption. Security analysis and experiment demonstrate that the secure watermarking scheme is more suitable for implementing the existing watermarking protocols.

Restructuring the architecture of state regulation in the Australian and Aotearoa/New Zealand cleaning industries and the growth of precarious employment

This paper examines changes in the commercial cleaning industry in Australasia which are occurring against a backdrop of significant transformation in the mode of labour market regulation in both countries. Specifically, whereas for most of the twentieth century both Aotearoa/New Zealand and Australia had systems of labour market regulation in which the state provided minimum wage and work protections through the interventions of arbitration courts, in the past few years these courts have either been abolished (in the case of New Zealand) or severely restricted in their ambit (in the case of Australia), all as part of a neoliberal effort to introduce “flexibility” into labour markets. The result has been an erosion of wages and a worsening of conditions of employment for cleaners and many other groups of workers. At the same time, this transformation in the architecture of labour market regulation poses significant challenges to unions seeking to represent cleaners and other low-paid service sector workers.

Reconciliation and the Goguryeo/ Gāogōulì disputes between China and South Korea

Just as the failure to reconcile views of the past and to address historical injustice has damaged inter-state relations in East Asia, the Goguryeo/Gāogōulì dispute has harmed relations between South Korea and China. In this chapter, we provide a detailed analysis of the dispute, and explore how this contestation has been reconciled through elite settlement, UNESCO's arbitration and the idea of shared history.

Examining the viability of windows impact/update method for delay analysis in construction disputes

Nowadays, construction delay disputes often end up on the arbitration route where the delay experts appointed by the parties advise the tribunal on the extension of times entitlements of the parties. For this purpose, the identification and quantification of concurrent and pacing delays are integral aspects of resolving these disputes using a proper delay analysis methodology. The aim of the study is therefore, threefold. Firstly, the available literature on the concurrent and pacing delays are analyzed in detail to establish the principles for the evaluation of the concurrency and pacing delays. Secondly, a robust delay analysis methodology called ‘windows impact/update method’ is explained often used by the experts for the effective quantification of concurrent and pacing delays. This methodology is an improved version of time impact analysis and normal windows analysis. For better demonstration, the explanation of the methodology is facilitated with the help of a typical case study analysis. Finally, the principles of concurrency and pacing, as explained in the literature review, are promptly applied to the case study results to show the applicability of the analysis method on any types of delay disputes. The study shows the effectiveness of the windows impact/update method for the quantification of the concurrent and pacing delays.

The creation of international commercial law: Sovereignty felled?

The creation of international commercial law presents an interesting paradox for proponents of sovereignty in international law. Indeed, it could be argued that the creation of international commercial law is the vanishing point of sovereignty in that nation states are becoming increasingly less important in the creation of international commercial law with the growth of regional organizations, non-state actors, and international arbitration. This is spurred on by the march of globalization and the consequent need for international commercial law. The term "harmonization" will be used as a surrogate to discuss the creation of international commercial law, as it is the primary means by which international commercial law is created. This article seeks to chart this trend and show that nation states are being marginalized and will become significantly less relevant as more and more international legal instruments are created. In Part II, I paint the landscape against which the process is evolving; in Part III, I will demonstrate the growing role of regional endeavors at harmonization; and in Part IV, I will attempt to draw broad themes that establish that nation states will increasingly have a secondary role in the creation of international commercial law.

New trends in the making of international commercial law

This paper analyzes trends in the making of international commercial law including the impetus for generating conventions, the growth of regional conventions, and soft law.There has never been a better time to be an international commercial law scholar. After decades of being held hostage to state-centered ideas, international commercial law has finally broken through to become more solution oriented. Increasingly, nation states are becoming less important in the creation of international commercial law with the growth of regional organizations, non-state actors, and international arbitration. This is spurred on by the march of globalization and the need for international commercial law. The term "harmonization will be used as a surrogate to discuss the creation of international commercial law as it is the primary means by which international commercial law is created. This article seeks to explore two preponderant trends that have become visible in the making of international commercial law. In Part I, I shall describe the background. In Parts II and III, I will highlight the growing role of regional endeavors at harmonization, and the rise of non-binding instruments.