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Recent Submissions

Article 32 of the VCLT and Precedent in Investor-State Arbitration: A Sliding Scale Approach to Interpretation
(Wolters Kluwer, 2022) Shirlow, Esme; Waibel, Michael; Esme Shirlow; Kiran Nasir Gore
While international investment law lacks any formal system of precedent or stare decisis, in practice the use of prior decisions by arbitral tribunals is extensive. This chapter considers the use of prior awards in investment arbitration through the lens of treaty interpretation, focusing in particular on Article 32 of the Vienna Convention on the Law of Treaties (VCLT), to explore the reasons behind such reliance in the absence of any structural hierarchical framework. The chapter adapts a methodology devised in an earlier article by the same authors to analyse past investment awards with a view to identifying the rationale behind this practice. In the context of Article 32, the chapter argues that past decisions can be a form of ‘supplementary means’ of interpretation, and proposes a sliding scale approach to treaty interpretation whereby the citation or otherwise of past decisions varies according to their weight or persuasiveness. Under this approach, the chapter contends that there is scope to develop a more principled and predictable use of prior decisions by arbitral tribunals. The chapter centres its discussion around the interpretation of investment treaties in investor-state arbitration, but also draws broader conclusions and offers comments on the likelihood and appropriateness of global systems of precedent appearing in international adjudication more widely.
Gemini north adaptive optics (GNAO): An MCAO system for Gemini North towards conceptual design
(Adaptive Optics for Extremely Large Telescopes, 2019) Sivo, Gaetano; Palmer, David; Scharwaechter, Julia; Andersen, Morten; Provost, Natalie; van Dam, Marcos A; Chinn, Brian; Chirre, Emmanuel; Cavedoni, Charles; Schneider, Thomas; Kang, Stacy; Lazo, Manuel; Rigaut, Francois
Gemini Observatory has been awarded from the National Science Foundation a major fund to build a new state-of-the-art Multi Conjugate Adaptive Optics facility for Gemini North on Maunakea called GNAO. The current baseline system will use two lasers each split in two to create an artificial constellation of four laser guide star to measure the distortions caused by the atmosphere. At least two deformable mirror conjugated to 0km and the main altitude layer above Maunakea will be used to correct these distortions. The facility will be designed to feed future instrumentation, initially a near infrared imager and potentially a visiting 4-arm multi object adaptive optics IFU spectrograph.1 In this paper I will present the main characteristics of this exciting facility, its promises and its challenges. I will also present its conceptual design and results of trade studies conducted within the team and the Gemini Adaptive Optics Working Group. The expected first light is for October 2024.
Investment Protection in the AEUFTA: Missed Opportunities or Strategic Exclusions?
(Springer Nature Switzerland AG, 2022) Shirlow, Esme; Marc Bungenberg; Andrew Mitchell
Negotiations between Australia and the European Union (EU) for a free trade agreement (the AEUFTA) appear to be nearing completion. Based on the EU’s negotiating mandate and the official reports from the negotiations so far, it is clear that the AEUFTA’s investment-related provisions will focus exclusively on market access and investment liberalisation. The AEUFTA will thus not incorporate investment protection obligations and nor will it include an investor-State dispute settlement mechanism. Despite these omissions, the conclusion of the AEUFTA will be significant from the perspective of both negotiating States, including because it reveals the policy and legal constraints guiding the approach of each to the negotiation and conclusion of investment treaties and investment chapters in FTAs. This article first introduces the contours of the bilateral investment relationship between the EU and Australia and then examines why the FTA adopts an exclusively liberalisation-focussed approach, to address whether the exclusion of investment protection and investor-State arbitration from the scope of the FTA is a strategic omission on the part of one or both parties. To consider next whether such omission is a missed opportunity, the article examines the likely focus of the investment-related provisions of the treaty, and what impact the FTA is likely to have vis-à-vis investors and existing investment treaties.
ItemOpen Access
Dispute Settlement and the Polar Regions
(Routledge, 2023) Rothwell, Donald; Yoshifumi Tanaka; Rachael Lorna Johnstone; Vibe Ulfbeck
Polar law describes the normative frameworks that govern the relationships between humans, States, Peoples, institutions, land and resources in the Arctic and the Antarctic
A critical review of the development of capital markets in India
(Edward Elgar Publishing, 2023) Kamalnath, Akshaya; Iris H.-Y. Chiu; Iain G. MacNeil
Starting with India’s economic liberalization in the 1990s, this chapter aims to take stock of the capital markets developments over the years, leading up to the current post-pandemic era, and then to draw attention to three big-picture issues that will need to be addressed