The Effectiveness of International Criminal Justice

Redemption of Chinese Arbitration? — Comments on the Civil Procedure Law (2012) and Free Trade Zone Arbitration Rules (2014)

Xi Jinping’s "True Maritime Power" and ESCS Issues

Judicial Authority in WTO Law: A Commentary on the Appellate Body’s Decision in China-Rare Earths

Analysing Regionalism within International Law and Relations: The Shanghai Cooperation Organisation as a Grossraum?

This article argues for a new way of addressing contemporary international law that is more adequate to both vital dynamic trends towards “regionalism” within international law, relations and politics, and the emergent possibility of a far more pluralistic “multipolar” legal order that—in both theory and practice—contrasts markedly with US-dominated hegemonic modes of regulation and high-handed unilateralism. To advance our argument, we draws upon classic Schmittian forms of Grossraum theory concerned to adapt traditional state-centric and purely horizontal conceptual types of international law interpretations to a form of international relations structured around regional ensembles, such as the European Union, NATO, the African Union, and the Shanghai Cooperation Organisation (SCO). These historical trends are emerging out of an encompassing contemporary developmental tendency, including the decline in the traditional nation state posited as having equal status, and both the proliferation of new regional bodies and the strengthening of existing ones. Arguably, the emergence of the SCO from 2001 signals a new phase in multilateralism in the post-Cold War period that, when treated as a case study, allows us to “test out” the credibility of key aspects of Grossraum theory.

China: a Staunch Defender and Builder of the International Rule of Law

Abuse of Process in International Investment Arbitration

Abuse of process has been regularly invoked before international arbitral tribunals to dismiss investment claims. Because of its multifaceted character, the concept deserves a careful analysis in the light of international and comparative law. In investment arbitration, it is mentioned sometimes as a mere preoccupation justifying the teleological interpretation of a treaty, sometimes as the motive for the adoption of a new arbitration rule, and sometimes as a legal principle limiting access to arbitration. This article studies the different situations deemed to be abusive in the practice of investment tribunals, ranging from frivolous claims to conduct undermining the integrity of the arbitral procedure. An overall analysis reveals the main features of abuse of process as a legal principle, and its potentialities for the emergence of a system of investment arbitration.

Wang Tieya Award and Han Depei Award

The South China Sea Arbitration (The Philippines v. China): Potential Jurisdictional Obstacles or Objections

This article first highlights in Part I the procedural posture of the South China Sea Arbitration (the Philippines v. China) case and the affirmative duty of the Arbitral Tribunal under Article 9 of Annex VII to the UNCLOS, faced with the absence of China, to investigate conscientiously its own jurisdiction by taking notice of all available information and materials whether or not they are submitted to the Tribunal. Part II summarizes the Philippines’ claims and highlights their nature as well as the delimitation geographical framework and the delimitation situation in this matter. The Philippines “skillfully” fragments a big dispute with China into various free-standing-appearing entitlement claims and activities claims in order to conceal the sovereignty-delimitation nature of the dispute or claims. Part III discusses the jurisdictional obstacles or objections ratione temporis and ratione materiae. The dispute is outside the jurisdiction of Section 2 courts and tribunals, because it predated the entry into force of the UNCLOS with respect to China. Furthermore, the Philippines’ claims are essentially land territorial sovereignty matters, not concerning the interpretation or application of the UNCLOS, or are dependent on the resolution of land territorial sovereignty claims. Part IV discusses the jurisdictional obstacles or objections based on Article 298 of the UNCLOS and China’s 2006 optional exceptions declaration as well as the Philippines’ related Understanding. When defragmented as they must be because of the delimitation geographical framework and/or delimitation situation, the Philippines’ claims constitute one delimitation dispute with China. In any event, a dispute “concerning” the interpretation or application of the provisions on delimitation or “relating to” “delimitation” within the meaning of Article 298 has a broader scope than a delimitation dispute, however strict a reading one gives to that term. All these issues have been excluded by China from the jurisdiction of Section 2 courts and tribunals. Such a defragmentation approach must be applied by the Tribunal. In addition, the “nine dash line” claims may present disputes involving historic title or historic rights as relevant circumstances in a potential delimitation between the Philippines and China, all being excluded matters. The Philippines’ Understanding may also serve to exclude this case from the Tribunal’s jurisdiction. Part V summarizes the arguments made in this article.

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