UNAMRevista Latinoamericana de Derecho Comercial Internacional
Revista
VOLUME 2, NUMBER 1, YEAR 2014
[Full Version][Only English Part]

 

OPENING ARTICLE

The TPP and the future of trade agreements
by Inu barbee and Simon Lester

In recent years, the trade regime has been undergoing an existential crisis. Multilateral trade talks at the WTO have stalled, leading to much hand-wringing from the trade establishment. Although the exact starting point for the difficulties is hard to pinpoint, arguably it has been more than a decade since there was even a real hope for progress...


 

 

ARTICLES

An enabling regulatory environment for sustainable investment: the example of trade law
by Elisabeth Bürgi Bonanomi

There is broad international agreement that investment flows to the agricultural sector in developing countries need to be increased. But there is also agreement that such investments need to be sustainable. For being sustainable, they must not only be beneficial to the public economy, but also to rural households and to the environment in the short and the long run. Whether sustainable investments take place, not least depends on the legal framework within which these investments are situated. This is true for the domestic legal frameworks of both the home country and of the host country of the investment. But also the international legal frameworks in which home and host states are embedded set either positive or negative incentives for investments to be sustainable. The paper presents an overview on regulatory frameworks which come to focus in this regard. It then elaborates on international agricultural trade regulation, by assuming that sustainable investments in agriculture presume a ‘sustainable trade regime’. By doing so, the paper presents parts of the debate about a sustainable agricultural trade regime, as it has been resumed and further developed by the author in recent years. …



The public interest analysis in trade remedies investigations in Brazil
by Luciana Dutra de Oliveira Silveira and Ricardo Inglez de Souza

Trade remedies and above all antidumping measures, are instruments widely used by Members of the World Trade Organization (WTO) in order to restrict access of foreign products into domestic markets. Even though the WTO has laid down the rules for the application of such measures, there is still wide discretion related to how WTO members impose them. In particular, it should be highlighted the analysis of the public interest (or national interest) surrounding the application of trade remedies. Taking into consideration the example of other WTO Members, Brazil seems to have moved towards a position to grant more space to the public interest debate with the creation of the Technical Group of Public Interest Assessment (GTIP). It is believed that such a debate is very productive, as well as a good mechanism to balance the benefits of trade remedies to the domestic industry and the burden to other parties affected by the measures…



Social Entrepreneurship: bringing together impact investment, trade facilitation and regulatory reform
by Eduardo Márquez Certucha

The social and economic evolution of the world has come to recognize that boundaries between the private sector, governments and non-profits have started to overlap. In this context, social entrepreneurship has found in Impact Investment (investments made with the intention to generate a social impact) a new asset class that could be the corner stone of the equilibrium of pubic and private investments in social projects. This paper will urge the need for a holistic approach between impact investment and regulatory business reform in order to provide the investment climate needed for social entrepreneurship to reach their development goals, while proving the profitability of their business model. The first part of this paper outlines the nature, challenges and industry evolution of impact investments. The second part analyzes the way that the investment climate of a country affects investor perception, and specifically, how improving trade facilitation may enhance the possibility of lowering the cost for producers and enhance impact investment. The third part of the paper proposes the use of Social Impact Bonds as a mechanism to align the interest of governments, non-profits and the private sector in projects with a social impact…

 

Dichotomous evolution, regionalism and multilateralism: plurilateralism as a missing link
by Ricardo García de la Rosa

The relationship between regionalism and multilateralism has resulted in numerous studies and discussions on the subject. There are several reasons, mainly in Asia and America, explaining the increase of preferential trade agreements starting in the nineties. The complex reality of these agreements is that they are not entirely good or bad; they can contribute positively to increase economic opportunities, or may be characterized by their exclusivity, discrimination or distortion. The design and intent are essential to become a propeller element of the multilateral trading system…

Sovereign bonds as investments under the ICSID convention
by Carlo Scheiternig

In Abaclat et al. v. The Argentine Republic and Ambiente Ufficio S.p.A. and Others v. The Argentine Republic, two ICSID tribunals upheld their jurisdiction over claims of holders of sovereign bonds against Argentina. This seemingly opened the door to ICSID as a forum for disputes between states in financial distress and their creditors. However, the decisions were subject to strong criticism. It is therefore debatable to what extent the decisions provide guidance for future bondholder claims. This article examines the key question underlying the decisions of whether bonds can qualify as investments for the purposes of ICSID arbitration…

 

Public policy and the recognition and enforcement of foreign arbitral awards in Brazil: an analysis against the backdrop of global governance
by Pedro Arcoverde

Arbitration is the standard means of dispute resolution in the field of international commerce. Thanks to the scheme set up by the widely accepted 1958 New York Convention, foreign arbitral awards can circulate easily around the globe. However, one of the grounds to refuse recognition and enforcement often seems to constitute a significant barrier: public policy. A concept notoriously hard to define, public policy provides national courts with a large margin of appreciation in assessing whether the foreign award is in conformance with the forum’s most fundamental values. This article, focusing on the practice of Brazilian courts, enquires into the role of public policy in today’s global economic governance and examines the consequences that can arise from the weakening of such an exception to bar the recognition and enforcement of foreign arbitral awards…

 

Exclusion of right to challenge the arbitral award
by David Khachvani

Parties to international arbitration proceedings are generally given opportunity to request the annulment of the award at the courts of the seat of arbitration. However, for variety of practical reasons parties may agree to opt out from annulment review. Certain States give effect to such arrangements of the parties, commonly known as Exclusion Agreements, but set specific validity requirements. It has been argued that by giving effect to the Exclusion Agreements States breach their human rights obligation to guarantee observance of minimum standard of procedural fairness. However, relevant case law shows that the State responsibility can be engaged only at the stage where the arbitral award is given coercive effect. States giving effect to the waiver of annulment action still retain control over the enforcement of the awards. Thus, in majority of instances they remain in compliance with their human rights obligation.

 

RESEÑAS DE CASOS

BG v. Argentina. Investor State arbitration. Decisions of the Supreme Court of the United Stated of America
by Carlos H. Reyes Díaz

The United States Supreme Court ruled on March 5th of 2014, at the last legal stage, the dispute arising between Argentina and the gas company BG Group of British nationality, originally raised in an investment arbitration under the Arbitration Rules of the United Nations Conference on International Trade Law (“UNCITRAL”). The decision from the U.S. Supreme Court shows, among others, some lessons for the treatment of consent to arbitration by the host State…

 


REVISTA LATINOAMERICANA DE DERECHO COMERCIAL INTERNACIONAL/LATIN AMERICAN JOURNAL OF INTERNATIONAL TRADE LAW, Year 2014, Volume 2, Issue 1, April 2014 – September 2014, is a biannual publication edited by the NATIONAL AUTONOMOUS UNIVERSITY OF MEXICO, Ciudad Universitaria, Delegación Coyoacán, C.P. 04510, Mexico City, through the School of Law, circuito interior s/n, Ciudad Universitaria, Col. Copilco, Delegación Coyoacán, C.P. 04510, Mexico City, Tel. (55)56222050 and (55)56222062, http://www.derecho.unam.mx/revista_ldci/index1.html, journalit@derecho.unam.mx, Responsable Editor: Carlos H. Reyes Díaz. Reserve for rights of exclusive use No. 04-2013-032011284400-203 provided by Instituto Nacional del Derecho de Autor, ISSN: 2007-7440. Responsible for the last update of this issue: Rodolfo Romero Flores of the Computer Centre of the School of Law, circuito interior s/n, Ciudad Universitaria, Col. Copilco, Delegación Coyoacán, C.P. 04510, Mexico City, last update June the 13th, 2014.

Opinions here expressed by the authors do not necessarily reflect the view of the editor of the publication. Total or partial reproduction of the texts here published is authorized only if the complete source and the webpage address of the publication is provided.