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52. Americanization of the BIT Universe: The Influence of Friendship, Commerce and Navigation (FCN) Treaties on Modern Investment Treaty Law
- Author:
- Wolfgang Alschner
- Publication Date:
- 12-2013
- Content Type:
- Journal Article
- Journal:
- The Goettingen Journal of International Law
- Institution:
- The Goettingen Journal of International Law
- Abstract:
- Friendship, Commerce and Navigation (FCN) treaties are more than a historical precursor to international investment agreements (IIA) and continue to influence and inspire modern investment treaty design. Until the 1960s, FCN treaties were the American conceptual alternative to the European BIT Model. FCN treaties were comprehensive and complex agreements covering trade, intellectual property, and even human rights in addition to investment disciplines. BITs, in contrast, were short, simple, and focused on investment protection only. Furthermore, while FCN treaties were designed to govern symmetrical investment relations between like-minded developed countries, BITs targeted an asymmetrical relationship between developed capital exporting States and developing capital importers. Even after the U.S. shifted from FCN to BITs in the early 1980s, FCN treaties continued to impact investment policy-making. First, key FCN features such as pre-establishment commitments, non-conforming measures, and investor rights survived the U.S. policy-shift and have since found their way into IIAs around the world. Second, as a conceptual alternative to simple and specialized European BITs, FCN treaties have inspired a new generation of IIAs that are complex and comprehensive in nature, containing a fine-tuned mix of rights and obligations, and treating investment alongside other policy concerns. Third, the spread of FCN-inspired treaties coincides with the demise of European-style BITs. As policy-makers turn to the United States instead of Europe for investment policy innovation, we observe an Americanization of the IIA universe.
- Political Geography:
- United States and Europe
53. The Possible Future of Promoting and Protecting European Investments in Sub-Saharan Africa
- Author:
- Lars Schonwald
- Publication Date:
- 12-2013
- Content Type:
- Journal Article
- Journal:
- The Goettingen Journal of International Law
- Institution:
- The Goettingen Journal of International Law
- Abstract:
- Sub-Saharan Africa (SSA) represents an interesting target market for European investors. However, the level of investment protection in SSA is rather outdated. Considering that Article 207 of the Treaty on the Functioning of the European Union confers upon the European Union (EU) the exclusive competence to negotiate and conclude new investment treaties, the scope of this article is to determine what a possible future treaty aiming at protecting foreign investments concluded between the EU and SSA could look like. Following a brief introduction and after determining the potential parties of a new investment treaty between the EU and SSA, it will be examined whether the current standard clauses can be introduced into the new treaty as well, and to what extent new concepts can, should or even have to be included in a respective new agreement.
- Political Geography:
- Africa and Europe
54. Editorial
- Publication Date:
- 11-2012
- Content Type:
- Journal Article
- Journal:
- The Goettingen Journal of International Law
- Institution:
- The Goettingen Journal of International Law
- Abstract:
- Once more the Goettingen Journal of International Law was involved in organizing an international conference and publishing the contributions. On 9 and 10 March 2012 scholars from Germany, Israel and Norway assembled in the “Paulinerkirche” in Goettingen to present their research on “Precursors to International Constitutionalism: The Development of the German Constitutional Approach to International Law”. The symposium was the final step of a research project organized by the Institute of International and European Law of the Georg-August University Goettingen and the Minerva Center for Human Rights, Hebrew University, Jerusalem. Its central idea is that international constitutionalism is not only a topic contemporarily much discussed, but finds its precursors in earlier “German” constitutional approaches.
- Topic:
- International Law
- Political Geography:
- Israel and Germany
55. Precursors to International Constitutionalism: The Development of the German Constitutional Approach to International Law Introduction
- Author:
- Tomer Broude and Andreas L. Paulus
- Publication Date:
- 11-2012
- Content Type:
- Journal Article
- Journal:
- The Goettingen Journal of International Law
- Institution:
- The Goettingen Journal of International Law
- Abstract:
- Over the last decade, international constitutionalism has been the focal point of contemporary international legal debate and practice, as evidenced inter alia by the Kadi-Jurisprudence of the European Courts and the burgeoning literature that employs constitutional as well as fragmentation terms with respect to modern international law. The discourse deals with the pluralistic structure of modern international law, post-national law and constitutional diversity, as well as the quest for an international rule of law, the shifting allocation of authority in international law and the possible demise of general international law. This seemingly new discourse is all- pervasive, with implications in international politics, law, trade, human rights and, global environmental law.
- Topic:
- International Law
- Political Geography:
- Europe and Germany
56. German Federalist Thinking and International Law
- Author:
- Dirk Hanschel
- Publication Date:
- 11-2012
- Content Type:
- Journal Article
- Journal:
- The Goettingen Journal of International Law
- Institution:
- The Goettingen Journal of International Law
- Abstract:
- This paper examines the explanatory and the prescriptive value of German (and related) federalist ideas with regard to the constitutionalization of international law. The author contends that respective scholars have, on the one hand, developed federalist thought with regard to the national constitutional level which may help to explain or shape international processes of constitution-building. On the other hand, they have themselves promoted international federalism as a natural extension of their national constitutional doctrine, hence partially weakening the classical dichotomy between national and international law.
- Topic:
- International Law
- Political Geography:
- Germany
57. Alfred Verdross as a Founding Father of International Constitutionalism?
- Author:
- Thomas Kleinlein
- Publication Date:
- 11-2012
- Content Type:
- Journal Article
- Journal:
- The Goettingen Journal of International Law
- Institution:
- The Goettingen Journal of International Law
- Abstract:
- Alfred Verdross was one of the first scholars who transferred a meaningful concept of constitution to international law. Like international constitutionalists today, he aimed at establishing the autonomy of international law vis-à-vis State sovereignty and State consent. With his theory of moderate monism, Verdross refers to a further issue raised by today's multilevel constitutionalism, i.e. the relationship between international and domestic law. In contrast to some modern approaches, Verdross's use of the term 'constitution' in international law was only metaphorical. More ambitiously, international constitutionalism also serves as a kind of meta-theory for international law in the present debate.
- Topic:
- International Law
- Political Geography:
- United Nations
58. Making it Whole: Hersch Lauterpacht's Rabbinical Approach to International Law
- Author:
- Reut Yael Paz
- Publication Date:
- 11-2012
- Content Type:
- Journal Article
- Journal:
- The Goettingen Journal of International Law
- Institution:
- The Goettingen Journal of International Law
- Abstract:
- This article seeks to contextualize the international legal contributions of Hersch (Zvi) Lauterpacht (1897-1960) against his specific historical conditions. It therefore begins with an overview of his biography. The intention is to emphasize his Jewish background in the context of the overlapping cultural and social influences of his time. The article then moves to deal with the three main pillars of Lauterpacht's theoretical approach to international law – his 'Kelsenian twist', the individual and nation State sovereignty. The purpose here is review them in light of his Jewish affinity and German-speaking legal education. The article is concluded with the argument that our understanding of Lauterpacht's international legal contributions could be infinitely richer when and if they are reread against a Babylonian Talmudic text, which is used below in an analogical fashion.
- Topic:
- International Law
- Political Geography:
- Germany
59. Francis Lieber on Public War
- Author:
- Rotem Giladi
- Publication Date:
- 11-2012
- Content Type:
- Journal Article
- Journal:
- The Goettingen Journal of International Law
- Institution:
- The Goettingen Journal of International Law
- Abstract:
- This paper examines Francis Lieber's concept of modern war as “public war” — in the Code he drafted for the 1863 Union Armies and in his earlier writings. Though Lieber was not the first to engage the distinction between private and public war, his treatment of modern war as exclusively public nevertheless deserves special attention. It became, in time, a foundational concept of the 19 th Century effort to modernize and humanize the laws of war. Today, it remains embedded, albeit implicit, in contemporary international humanitarian law and its paradigmatic interstate war outlook.
- Topic:
- War
- Political Geography:
- Germany
60. Legalization of International Politics: On the (Im)Possibility of a Constitutionalization of International Law from a Kantian Point of View
- Author:
- Phillip-Alexander Hirsch
- Publication Date:
- 11-2012
- Content Type:
- Journal Article
- Journal:
- The Goettingen Journal of International Law
- Institution:
- The Goettingen Journal of International Law
- Abstract:
- In the debate on the constitutionalization of international law, Kant's work Toward Perpetual Peace is the most important point of reference when talking about the intellectual origin and philosophical background of the idea of constitutionalizing international law. But while it is undeniable that Kant called for a juridification of international relations, it is far less clear which form of juridification Kant aims at . In this essay, I want to show that Kant's ultimate ideal of international law is neither a State of States nor the peace federation (which seems to be commonly accepted), but the cosmopolitan republic , that is, a single homogenous world State. Only such a cosmopolitan republic, backed up by enforceable laws, can be called a constitution in the Kantian sense. Kant's proposal of a peace federation is nothing but a first step towards this ultimate end.
- Topic:
- International Law
- Political Geography:
- United Nations