Erasmus Law Review

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Issue 1, 2022 Expand all abstracts

Access_open The NCP Procedure of the OECD Guidelines: Monitoring and RBC Improvement during the Follow-Up Step

Keywords OECD Guidelines for Multinational Enterprises, Responsible Business Conduct, NCP procedure, UNGP, monitoring
Authors Aziza Mayar
AbstractAuthor's information

    The National Contact Point specific instance procedure of the Organisation for Economic Co-operation and Development Guidelines for Multinational Enterprises is expected to contribute to improvements in responsible business conduct of multinational enterprises. The aim of this article is to examine whether and how the Dutch National Contact Point uses its discretion, provided for the implementation of the procedure, to achieve this aim. To provide insight into this matter, an analytical framework based on Clark et al. (Double Bottom Line Project Report) and the UN Guiding Principles on Business and Human Rights was developed and used to assess the information provided in statements of the Dutch National Contact Point procedures. This framework shows that monitoring is crucial for achieving improvements in responsible business conduct by multinational enterprises. Moreover, the analysis illustrates that the Dutch National Contact Point hardly uses its discretion to monitor the results of mediation during the procedures. Consequently, responsible business conduct improvement during the procedures analysed in this article has not been clearly secured. This is largely attributed to the fact that not all agreements and recommendations of mediation had been implemented by the end of the procedures. Furthermore, this research indicates that the National Contact Point procedure should continue until a multinational enterprise has taken all the necessary efforts to meet the results of mediation. It concludes that if the National Contact Point does not assess this effort by way of monitoring during the procedure, there will be continued uncertainty regarding the actual improvements in responsible business conduct approaches of multinational enterprises.

Aziza Mayar
Aziza Mayar is a PhD candidate at the Erasmus School of Law, Erasmus University Rotterdam, the Netherlands.

Access_open A Noble Effort or Window Dressing? Computational Analysis of Human Rights-Related Investor Obligations in International Investment Agreements

Keywords asymmetry, human rights, investment agreements, automated textual analysis, investor obligations
Authors Abdurrahman Erol
AbstractAuthor's information

    International investment law may be the most criticised front of contemporary international economic law. One of the main points of criticism stresses its substantively asymmetrical structure, which creates an imbalance between the respective rights and obligations of foreign investors and all other stakeholders in international investment relations such as home and host states, local communities and NGOs. One of the proposals to address this issue is to include more human rights-related obligations on investors in investment agreements, and, increasingly, we see such provisions in newly concluded agreements. Yet our understanding of these provisions is often limited to certain agreements or to specific subjects, preventing us from analysing their overall balancing promise more accurately. Through automated textual analysis and qualitative methods, this study aims to offer a taxonomy for the human rights-related obligations on investors found in investment agreements and to provide a more comprehensive and nuanced picture of these obligations. It demonstrates that despite the overall increase in the number of such provisions, they often fail to introduce more progressive obligations, contain vague terminology and are not directly addressed to investors. Consequently, these provisions become highly difficult to enforce on investors.

Abdurrahman Erol
Abdurrahman Erol, LL.M., is a PhD researcher at the Erasmus Universiteit Rotterdam, in Rotterdam, the Netherlands.

Access_open Audiovisual Wills: A Contemporary Approach to Testamentary Formalities

Keywords testamentary formalities, intestacy, nuncupative will, oral will, audiovisual will
Authors Hüseyin Can Aksoy
AbstractAuthor's information

    Despite several differences between civil law and common law jurisdictions, today’s modern succession law is based on Roman law, which requires strict formal rules for will-making. However, a historical perspective demonstrates that there is a slow but continuous shift away from strict formalism. In fact, form’s superiority over substance is diminishing, and testamentary formalities are mellowing. Yet legislative intervention is compulsory to ensure that succession law is in harmony with the latest technological developments of the era. We argue that de lege ferenda, legal order should allow testators to execute audiovisual wills through electronic means of communication. Within this stance, the option of audiovisual wills should not be restricted to cases of emergency. Everyone should be allowed to make an audiovisual will at any time, and such wills should not be automatically terminated if the testator is still alive after a specific time following the execution of the will. However, one needs a feasible and secure system that will ensure that audiovisual wills bestow the functions of testamentary formalities. Accordingly, we propose that each state create a digital registry. Testators could upload their audiovisual wills to such a registry, and these wills could be shared directly with competent public authorities.

Hüseyin Can Aksoy
Hüseyin Can Aksoy, PhD, is Associate Professor at the Faculty of Law of Bilkent University in Ankara, Turkey.

Access_open Conflicts of Interest in International Commercial Arbitration

The Issue of Repeat Appointments of Arbitrators

Keywords International Commercial Arbitration, repeat appointments, IBA guidelines, UK Supreme Court
Authors Anastasia Christina Kalantzi
AbstractAuthor's information

    Independence, impartiality and disclosure are primordial principles governing the process of international commercial arbitration. Taking the tie from the recent judgments of the UK Supreme Court Halliburton v. Chubb, this article aims to specifically discuss the issue of the repetition of appointments of arbitrators. Although repetition of arbitrators could raise justifiable doubts of bias (and has done so in case law), the circumstances under which those doubts could affect the arbitrator’s impartiality and independence have not been clarified yet. Throughout this article, I will consider the different approaches taken concerning the issue of repeat appointments, and I will argue that although the qualitative approach is more realistic and efficient than the quantitative one, it still leaves much room for interpretation according to the specificities of the case ad hoc. I will therefore propose three criteria that could prove more practical when evaluating repeat appointments. I will then conclude by pointing out that although those solutions could prove to be useful, the critical question remains: does familiarity created with repetition actually breed partiality?

Anastasia Christina Kalantzi
Anastasia Kalantzi is a PhD Candidate at the Aristotle University of Thessaloniki, LLM (LSE).

Access_open The Viability and Potential of Corruption-Based Counterclaims in Treaty-Based ISDS Cases under ICSID Tribunals

An Assessment

Keywords corruption based counterclaim, ICSID arbitration, investor-State dispute settlement, rebalancing asymmetry in investment arbitration, counterclaim
Authors Ashfaquzzaman Chowdhury
AbstractAuthor's information

    In recent years, counterclaims by host States in investor-State dispute settlement (ISDS) are getting importance in the investment arbitration practice and academic literature. Many consider counterclaims as an effective tool in rebalancing the existing asymmetry in the ISDS system. This article examines the viability of a corruption-based counterclaim (CBC) in ISDS. It first explores how the concept and practice of counterclaim have been perceived in international law and adjudication so far. Subsequently, it analyses counterclaim-related investment arbitration cases to comprehend how counterclaim has been practised and interpreted in the treaty-based ISDS. Through critical analysis, it demonstrates the differences between a CBC and other types of counterclaims. The article finds that it would be difficult for the host States to resort and substantiate CBCs under the existing web of investment treaties and treaty-based ISDS practice. It concludes by suggesting ways to overcome the barriers for CBCs by the host States.

Ashfaquzzaman Chowdhury
Ashfaquzzaman Chowdhury holds an MPhil from the South Asian University New Delhi, India. He is currently practicing as an advocate in the Supreme Court of Bangladesh.

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