Search

In international law, cultural heritage encompasses a wide conceptual area. This entry will consider the role of cultural heritage in a country’s international relations and the instruments available in international law for its protection and valorisation. Two areas receive particular mention: the vulnerability of cultural objects to trafficking and the tension between the protection of cultural heritage and economic law and development. The vulnerability of cultural heritage persists in situations where no violations of international law or domestic law take place, so one has to take this into account in designing policy and legal instruments, especially given the nature of tangible and intangible culture as an irreplaceable good.

This contribution investigates the role of Article 21 TEU in the context of the EU’s common commercial policy (CCP), with specific reference to its new investment competence. Article 21, introducing non-commercial objectives in the CCP, has been both hailed for rebalancing and expanding the EU’s foreign policy and criticised for needlessly politicising the external action of the EU. This article is an attempt to assess the true import of the changes introduced by the Lisbon Treaty in this area, for what is possible given the limited temporal extent of their application. Section 2 will briefly review the role of foreign investment in the CCP, while Section 3 will do the same for the non-commercial objectives pursued by the EU in the context of its CCP competences. Section 4 is dedicated to an analysis of Article 21 TEU and its legal value. In doing so, the section will consider issues such as to what extent Article 21 TEU constrains the foreign policy of the EU and its effect with specific reference to the CCP. Further, the article will consider the relationship between Article 21 TEU and other programmatic articles of the TEU, such as Article 3 TEU, and the incorporation of non-commercial objectives in the EU’s Free Trade Agreements (FTAs) and Preferential Trade Arrangements (PTAs). In Section 5, there will be a review and implications of the recent Front Polisario case, in which the General Court determined the EU’s scope of responsibility for what concern non-commercial objectives in a trade agreement, taking also into account the latest developments on the case in the Court of Justice of the EU’s Judgment. Finally, Section 6 will offer some concluding remarks.

This dissertation investigates the relationship between investment and environmental obligations from the perspective of international investment law. In order to do so, the dissertation will consider how these obligations might enter into conflicts and what tools are available to investment tribunals to solve these normative conflicts. The dissertation analyses in order interpretative techniques, conflict resolution tools available in general international law, as expressed in the Vienna Convention on the Law of Treaties, and finally express clauses in international investment agreements. The dissertation includes the review of some relevant case law arising from investment agreements in investment treaty tribunals, to discover how in practice these conflict resolution tools are applied and to assess their effectiveness. This dissertation places itself squarely within the debate between the unity and the fragmentation of international law; therefore it tackles the issue of normative conflicts resolution in a dispute settlement environment with the view of gauging their value in maintaining the unity of international law and defuse the risk of fragmentation. The dissertation can only conclude that much work remains to be done, including by providing a more comprehensive taxonomy of possible interventions, both on the legal and political sphere.

Climate change has arisen as the most pressing global challenge of our time. In the post-1989 economic consensus based on market mechanisms and eschewing command and control regulation, the concerted global response to this problem has taken the form of flexibility mechanisms harnessing the market in order to steer development in the direction of a low-carbon economy. From this perspective, the flow of foreign investment towards developing countries – and in 2012 for the first time investment flows to developing countries surpassed those between developed countries – can be one of the most effective tools to pursue an environmentally sustainable and climate-friendly economic development. The legal response to climate change, exemplified by the measures contained in the Kyoto Protocol – Clean Development Mechanism (CDM), Joint Implementation (JI) and International Emission Trading (IET) – is designed to harness foreign investment for sustainable development and emission reduction projects by providing economic incentives for the transition to a low-carbon economy. On the downside, the mechanisms, when employed within global value chains for the production of consumption goods for developed countries’ markets, can be used to offshore emissions from developed to developing and least developed countries without achieving an overall reduction in carbon emissions. As these countries do not have emission reduction targets, any failure down the chain of production in projects started under the aegis of the CDM, for example, might result in a net increase of emissions (so-called ‘carbon leakage’).The picture from within the investment regime is equally mixed. Traditionally, the investment regime has been instrumental in reducing the regulatory risk for foreign investors; in the case of environmental measures this meant protection against the ratcheting up of standards to the detriment of investors engaged in highly polluting and/or carbon intensive sectors such as mining and extractive industries. Numerous investment arbitrations have concerned environmental measures and this has been the case especially under the umbrella of the NAFTA. The rise of ‘environmental’ arbitrations has functioned as a catalyst for changes within the investment regime in the direction of its diversification, clarification and hybridisation. In fact, the latest UNCTAD Investment Report confirms the trend towards the inclusion of ‘sustainable-development-friendly provisions’ in International Investment Agreements (IIAs), via the insertion of clauses dealing with environmental, labour and human rights measures.The fact that investors might avail themselves of IIAs to protect climate-friendly investments from non-commercial regulatory risk is certainly not noteworthy per se – the ‘legitimate expectations’ doctrine and contractual stabilization clauses have been developed precisely to deal with this sort of risk – and yet, in the quest for legitimacy of the investment regime, this has been presented as another added value. From this synergic perspective, IIAs are presented as providing a further layer of protection of ‘green investors,’ against loosening/reducing of support mechanisms used to attract low-carbon investments and switching projects.This synergic potential notwithstanding, conflicts arising by regime intersection have attracted more attention. In this chapter, as in much of the available literature, the focus is on the conflicts generated within the investment regime, which, as a consequence of its sophisticated system of dispute resolution, is more likely to have to deal with them and better equipped to do so. This interaction can be read on a purely international plane, whereby climate change legal obligations, enshrined in the 1992 United Nations Framework Convention on Climate Change (UNFCCC) and its 1997 Kyoto Protocol (as amended in the 2012 Doha Amendment), conflict with the obligations contained in IIAs. International law possesses several tools, from interpretation to general rules of conflict resolution and specific conflict clauses in the applicable IIAs, to prevent or resolve these conflicts.

This article, taking at its starting point the work of Pier Paolo Pasolini, tackles the aesthetic of the working class as an object d'art: how is the aesthetic sense of those who do not belong to the working class, but claim a political interest in its destiny, engaged by the outward appearance of the working class? And, more specifically, has there been a shift from a sense of aesthetic appreciation to what this author perceives as revulsion towards Western working classes? Has our aesthetic gaze wandered off, in search of more distant objects? It is not our goal to answer these questions by means of a quantitative or qualitative sociological analysis, and to this extent, the answers have to be taken as given. The article argues that there is a displacement of our gaze towards the working classes in the developing world, resulting in yet another form of consumption (the campaigns for fair trade would not be so successful without the picture-perfect – and picture-perfect because so completely desolate and objectively poor – sweatshops and small children in the fields). This displacement is not at all innocent. The article will propose that there are legal consequences – by using, and subverting, Luhmann's remark on legal taste; political consequences, where displacement means invisibility and lack of voice; and social consequences, mirroring Pasolini's horror at the cultural genocide, and now looking at the desolate spaces it has left behind.\ud \ud The article intends to focus on the aesthetic of the working class as an object d’art: how is the aesthetic sense of those who do not belong to the working class, but claim a political interest in its destiny, engaged by the outward appearance of the working class? And, more specifically, has there been a shift from a sense of aesthetic appreciation to what this author perceives as revulsion towards Western working classes? Has our aesthetic gaze wandered off, in search of more distant objects? It is not our goal to answer these questions by means of a quantitative or qualitative sociological analysis, and to this extent, the answers have to be taken as given. The article argues that there is a displacement of our gaze towards the working classes in the developing world, resulting in yet another form of consumption (the campaigns for fair trade would not be so successful without the picture-perfect – and picture-perfect because so completely desolate and objectively poor – sweatshops and small children in the fields). This displacement is not at all innocent . The article will propose that there are legal consequences – by using, and subverting, Luhmann’s remark on legal taste; political consequences, where displacement means invisibility and lack of voice; and social consequences, mirroring Pasolini’s horror at the cultural genocide, and now looking at the desolate spaces it has left behind.

This article, taking at its starting point the work of Pier Paolo Pasolini, tackles the aesthetic of the working class as an objet d'art: how is the aesthetic sense of those who do not belong to the working class, but claim a political interest in its destiny, engaged by the outward appearance of the working class? And, more specifically, has there been a shift from a sense of aesthetic appreciation to what this author perceives as revulsion towards Western working classes? Has our aesthetic gaze wandered off, in search of more distant objects? It is not our goal to answer these questions by means of a quantitative or qualitative sociological analysis, and to this extent, the answers have to be taken as given. The article argues that there is a displacement of our gaze towards the working classes in the developing world, resulting in yet another form of consumption (the campaigns for fair trade would not be so successful without the picture-perfect - and picture-perfect because so completely desolate and objectively poor - sweatshops and small children in the fields). This displacement is not at all innocent. The article will propose that there are legal consequences - by using, and subverting, Luhmann's remark on legal taste; political consequences, where displacement means invisibility and lack of voice; and social consequences, mirroring Pasolini's horror at the cultural genocide, and now looking at the desolate spaces it has left behind.

The article analyses how the investment legal regime accommodates exogenous environmental and sustainable development demands through the legal tools at its disposal, examining how tribunals respond to claims of regulatory expropriation. The article shows that some investment tribunals have either adopted the ad hoc balancing characteristic of the United States Supreme Court’s approach to regulatory takings claims, while others have attempted the proportionality analysis derived from European constitutional traditions. The article aims to assess if either of these approaches is more conducive than the other to due consideration being given to sustainable development’s objectives, offering the new practice of clarification and expansion of indirect expropriation clauses as the best guarantees for ‘sustainable investment protection.’

The paper assesses the impact of two key concepts - erga omnes and jus cogens - on the law of responsibility. Its particular focus is on the responsibility of the European Union. The paper argues that, while often considered to be purely theoretical categories, jus cogens and erga omnes in fact modify the content, and implementation of responsibility.

This chapter addresses one of the crucial tensions facing modern investment arbitration: that between confidentiality and privacy, on the one hand, and transparency and inclusiveness, on the other. It begins by reviewing how investment arbitration frameworks have addressed this tension so far, noting the traditional focus on confidentiality and privacy and the more recent trend towards transparency and inclusiveness of proceedings before ICSID and/or NAFTA tribunals. The chapter then compares domestic public law approaches to questions of transparency and public interest representation. Having reviewed US, English, French, German, and Greek law, it shows that domestic public law seems to accept the principle of transparency and provides for various forms of indirect public interest representation (e.g., through amicus curiae briefs) but also different forms of public interest claims. While this approach cannot be directly transposed to investment arbitration, it clearly can, and arguably should, guide the approach of investment lawyers.

The global crises of the early 21st century have tested the international financial architecture. In seeking to ensure stability, governments have regulated financial and capital markets. This in turn has implicated international investment law, which investors have invoked as a shield against debt restructuring, bail-ins or bail-outs. This book explores whether investment law should protect against such regulatory measures, including where these have the support of multilateral institutions. It considers where the line should be drawn between legitimate regulation and undue interference with investor rights and, equally importantly, who draws it.Across the diverse chapters herein, expert international scholars assess the key challenges facing decision makers, analyse arbitral and treaty practice and evaluate ways towards a balanced system of investment protection in the financial sector. In doing so, they offer a detailed analysis of the interaction between investment protection and financial regulation in fields such as sovereign debt restructuring and bank rescue measures.Combining high-level analysis with a detailed assessment of controversial legal issues, this book will provide guidance for both academics and legal practitioners working in international economic law, international arbitration, investment law, international banking and financial law.

With the bilingual volume International Investment Law in Latin America: Problems and Prospects, Attila Tanzi, Alessandra Asteriti, Rodrigo Polanco Lazo and Paolo Turrini provide a regional perspective on one of the liveliest branches of international law by situating it in one of the most dynamic areas of the world. Latin America has always had an ambivalent relationship with international investment law and, more recently, it has been the home of harsh and resolute criticisms, questioning the ultimate legitimacy of the regime. By bringing together distinguished scholars of this legal field, the volume analyses ongoing trends and draws lessons from the Continent’s past experiences while identifying possible solutions to the important challenges it faces. Con el volumen bilingüe Derecho Internacional de las Inversiones en América Latina: Problemas y Perspectivas, Attila Tanzi, Alessandra Asteriti, Rodrigo Polanco Lazo y Paolo Turrini tienen por objetivo proporcionar una perspectiva regional para una de las ramas más vigorosas del derecho internacional, situándola en una de las áreas más dinámicas del mundo. Latinoamérica siempre ha tenido una relación ambivalente con el derecho internacional de inversiones y, más recientemente, ha sido el hogar de duras y decididas críticas en su contra, cuestionando la legitimidad última del régimen. Al reunir a distinguidos estudiosos de este campo legal, tanto de América Latina como de fuera de la región, este volumen analiza esta actual tendencia, extrayendo lecciones de las experiencias pasadas del continente e identificando posibles soluciones a los desafíos importantes que ahora enfrenta.