Litigating law of the sea disputes using the UNCLOS Dispute Settlement System

The interpretation and application of the United Nations Convention on the Law of the Sea (UNCLOS) may be the source of many disputes. UNCLOS introduced an à la carte menu for dispute settlement with a number of options for international dispute resolution, including a compulsory procedure entailing binding decisions. While drafting this ambitious and complex system of dispute settlement, the drafters had to negotiate many delicate compromises to secure a system for the uniform interpretation of the Convention. The aim of this paper r is to explore why litigation using the UNCLOS dispute settlement system is, or is not, a preferred mode of settlement for law of the sea disputes.

Energy subsidies and WTO dispute settlement: why only renewable energy subsidies are challenged?

Over the past few years, renewable energy subsidies have become one of the main sources of trade disputes in the WTO. A total of six cases have been initiated against renewable energy subsidy programs since the first of such disputes was brought by Japan against Canada’s Feed in Tariff (FIT) program in 2010. Yet not even a single case has so far been initiated against the much larger and environmentally harmful fossil fuel subsidies. The main objective of this paper is to examine what makes renewable energy subsidies vulnerable to WTO dispute, as compared fossil fuel subsidies.

Latin America's experience in dispute settlement within WTO: the cases of technical standards, sanitary and phytosanitary measures and intellectual property

Includes Bibliography

The Brazilian experience in dispute settlement

Includes bibliography

Ten Years of Operation of the World Trade Organization Dispute Settlement Mechanism: Outcome for Latin America and the Caribbean

Dispute settlement mechanisms help to create a fairly predictable and accurate environment in which economic agents can pursue their activities in the international arena. The World Trade Organization (WTO) Dispute Settlement Body (DSB) has now been in operation for 10 years and it is fitting, at this point to assess the progress achieved by Latin America and the Caribbean, the region that made most use of this mechanism during the period, and whose countries have made significant gains against protectionism in key export sectors. These successes constitute important precedents which will influence upcoming multilateral negotiations and future trade disputes.This article reviews the work carried out by the DSB, the role of the leading stakeholders in the system (the United States and the European Union) and progress made by countries of the region in a global context marked by the complexity of trade issues and the legal framework that regulates them. The findings presented in this article are based on the study "Una década de funcionamiento del Sistema de Solución de Diferencias de la OMC: avances y desafíos".

Lock the gate: Fracking, investor-state dispute settlement, and the Trans-Pacific Partnership

There has been much debate about the relationship between international trade, the environment, biodiversity protection, and climate change.The Obama Administration has pushed such issues into sharp relief, with its advocacy for sweeping international trade agreements, such as the Trans-Pacific Partnership and the Trans-Atlantic Trade and Investment Partnership. There has been much public concern about the impact of the mega-trade deals upon the protection of the environment. In particular, there has been a debate about whether the Trans-Pacific Partnership will promote dirty fracking. Will the Trans-Pacific Partnership transform the Pacific Rim into a Gasland?There has been a particular focus upon investor-state dispute settlement being used by unconventional mining companies. Investor-state dispute settlement is a mechanism which enables foreign investors to seek compensation from national governments at international arbitration tribunals. In her prescient 2009 book, The Expropriation of Environmental Governance, Kyla Tienhaara foresaw the rise of investor-state dispute resolution of environmental matters. She observed:'Over the last decade there has been an explosive increase of cases investment arbitration. This is significant in terms of not only the number of disputes that have arisen and the number of states that have been involved, but also the novel types of dispute that have emerged. Rather than solely involving straightforward incidences of nationalization or breach of contract, modern disputes often revolve around public policy measures and implicate sensitive issues such as access to drinking water, development on sacred indigenous sites and the protection of biodiversity.'In her study, Kyla Tienhaara observed that investment agreements, foreign investment contracts and investment arbitration had significant implications for the protection for the protection of the environment. She concluded that arbitrators have made it clear that they can, and will, award compensation to investors that claim to have been harmed by environmental regulation. She also found that some of the cases suggest that the mere threat of arbitration is sufficient to chill environmental policy development. Tienhaara was equally concerned by the possibility that a government may use the threat of arbitration as an excuse or cover for its failure to improve environmental regulation. In her view, it is evident that arbitrators have expropriated certain fundamental aspects of environmental governance from states. Tienhaara held: As a result, environmental regulation has become riskier, more expensive, and less democratic, especially in developing countries. This article provides a comparative analysis of the battles over fracking, investment, trade, and the environment in a number of key jurisdictions including the United States, Canada, Australia, and New Zealand. Part 1 focuses upon the United States. Part 2 examines the dispute between the Lone Pine Resources Inc. and the Government of Canada over a fracking moratorium in Quebec. Part 3 charts the rise of the Lock the Gate Alliance in Australia, and its demands for a moratorium in respect of coal seam gas and unconventional mining. Part 4 focuses upon parallel developments in New Zealand. This article concludes that Pacific Rim countries should withdraw from investor-state dispute settlement procedures, because of the threat posed to environmental regulation in respect of air, land, and water.