Páginas

terça-feira, 27 de fevereiro de 2018

Immunity from Execution of Central Bank Assets

Forthcoming in THE CAMBRIDGE HANDBOOK OF IMMUNITIES AND INTERNATIONAL LAW (Tom Ruys, Nicolas Angelet, Luca Ferro, eds.) (2018 Forthcoming)

23 Pages - Posted: 21 Feb 2018  

Ingrid B. Wuerth

Vanderbilt University - Law School
Date Written: February 16, 2018

Abstract
Central bank assets located in a foreign country make an attractive target for creditors seeking to satisfy a judgment against a state or its central bank. Over the past few decades important cases and legislation from around the world have considered the immunity from enforcement to which foreign central banks assets are entitled. This paper analyzes those developments and their significance for customary international law. It draws five conclusions. First, there is an overall—although not entirely uniform—trend toward more generous and more specific immunity from execution for the property of foreign central banks, including in Argentina, Belgium, China, France, Japan, and Russia. Second, customary international law requires that forum states provide immunity from execution for the currency reserves of foreign central banks, and arguably requires near absolute immunity for all central bank assets. Third, there is also a trend toward reciprocity, related to successful efforts by China and Russia to increase global protection from enforcement measures for central banks assets. Fourth, in the pending case by Iran against the United States before the International Court of Justice (Certain Iranian Assets), the United States will lose on the issue of the immunity from enforcement measures due the assets of Bank Markazi under customary international law, although the Court may resolve the case on other grounds. Fifth, the issue of central bank immunity from enforcement measures is likely to be of growing importance, in part because economic activity and investments by central banks are changing.

WUERTH, Ingrid B. Immunity from Execution of Central Bank Assets (February 16, 2018). Forthcoming in: THE CAMBRIDGE HANDBOOK OF IMMUNITIES AND INTERNATIONAL LAW (Tom Ruys, Nicolas Angelet, Luca Ferro, eds.) (2018 Forthcoming) . Disponível em: <https://ssrn.com/abstract=3125048>. Acesso em: 26 fev. 2018.

quinta-feira, 15 de fevereiro de 2018

International Arbitration and Society at Large

CAMBRIDGE COMPENDIUM OF INTERNATIONAL COMMERCIAL AND INVESTMENT ARBITRATION, A. Bjorklund, F. Ferrari, S. Kroell (eds), Forthcoming

Sydney Law School Research Paper No. 18/04

39 Pages Posted: 2 Feb 2018  

Luke R. Nottage

The University of Sydney Law School
The University of Sydney - Australian Network for Japanese Law

Date Written: February 1, 2018

Abstract
This chapter investigates how ‘society at large’ interacts with the world of international arbitration, now and for the foreseeable future. This broad topic can be made more manageable by breaking down the interaction through four focus groups within society: the media, academia, arbitration ‘clubs’, and civil society NGOs. These groups provide services to the world of international arbitration but are mostly instead what Emmanuel Gaillard terms ‘value providers’ – seeking to influence its normative structure. This chapter also touches on international and professional organisations, which are also significant value providers. Other contributors to this book project deal with groups that are predominantly ‘services providers’ (lawyers and arbitral institutions) or essential actors (arbitrators and the parties themselves, including states).

One key question throughout this chapter is whether and how international arbitration may be expanding or at least becoming more visible through the four focus groups within society at large. A second is whether this world of international arbitration may be becoming more diverse and indeed polarised, as hypothesised by Gaillard. In this respect, this chapter finds empirical evidence of the ongoing ‘lawyerisation’ first identified by Dezalay and Garth in the 1990s, prompting a first wave of concern about costs and delays associated with arbitration proceedings. The chapter also considers the impact of burgeoning investor-state dispute settlement (ISDS) cases and coverage, especially in the general media. Empirical research, comparing newspapers in Australia and the United Kingdom as well as social media reports, confirms that views about ISDS remain overwhelmingly negative – a new development that could increasingly shape the overall perceptions of international arbitration held within society at large.

Extrapolating from these trends, we can expect the four focus groups, and others within society such as international organisations and states, to continue pressing for:

• policy debates over the pros and cons of allowing parties freely to agree to subject potentially sensitive disputes to arbitration;

more public scrutiny of, and minimum standards for, arbitral institutions and arbitrators;

more opportunities to provide amicus curiae briefs, or other less direct means for impacting on disputing parties, decisions of tribunals and future treaty negotiators;

more transparency about challenges to arbitrators and awards.

As international arbitration thereby becomes less isolated from the public sphere, we are also likely to see the substantive law being applied and drafted in ways more open to other legal discourses.


NOTTAGE, Luke R. International Arbitration and Society at Large (February 1, 2018). In: BJORKLUND, A.; FERRARI, F.; KROELL, S. (Eds.). Cambridge Compendium of International Commercial and Investment Arbitration. Forthcoming. Sydney Law School Research Paper No. 18/04. Disponível em: <https://ssrn.com/abstract=3116528>. Acesso em: 14 fev. 2018.