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There are heroes on both sides. In a stunning move, populists have swept several political scenes. They claim emergency competences to restore power to ordinary peoplethus far restrained in accordance with the principle of the Rule of Law. Decay of International Investment Law and Schism in the ISDS Order As globalisation has not delivered on all the promisescriticism of it has gradually transformed into an anti-globalisation movement for complex reform of the socioeconomic order.
Subsequently, these early challenges to international cooperation served as fertile ground for all sorts of populists, claiming we can backtrack on globalisation by re-empowering the nation-state. The interference of both waves wreaks havoc in western democracies. It also translated into a general backlash against investment arbitration ISDSwith the same arguments echoed in various states, regardless of the differences between the applicable investment regimes.
To be clear, investment arbitration did depart from its original mission to depoliticise disputes that would otherwise be ignored or elevated to an inter-state level through the espousal of claims. While IIL has its shortcomings—some even trace post-colonialism deep structures in IIL —the explosive growth of investment arbitration attracted the unprecedented attention of legal practitioners, notably with a private law background.
This was neither surprising nor unjustified, given that ISDS largely followed commercial arbitration design.
This came at a price though. As a result, distrust in IIL strengthened and the very matter evolved from an issue interesting only to a handful of specialist to one polarising both academia and the general public.
Whether the reasons for questioning ISDS were right or wrong, they resulted in a very real legitimacy crisis that needs to be addressed. Here, the paradox of the intersection of these waves has been fully revealed.
Accordingly, there are safeguards, both in investment treaties and in domestic legislation, to shield public interests and state activity in pursuit thereof from arbitral tribunals.
And yet, whereas such clauses were originally intended to protect the domestic legal order against the discretionary powers of tribunals, now, as we are now witnessing a systemic assault on the Rule of Law, their function could reverse and protect states against themselves.
As for treaty law, although the normative contents of the public order clause in international investment law is ephemeral, they were commonly included from the very first Friendship, Commerce and Navigation FCN treatiesnowadays taking various normative embodiments BIT exceptions, interpretation declarations.
More elements of the RoL can be traced in other substantive clauses see below ; however, at this point, we shall differentiate between them and the adaptive characteristics of the public order clause.
On procedural grounds, in accordance with the New York Conventiona court may refuse to recognise or enforce an arbitral award ex officio if it find out that doing otherwise would be contrary to the public policy of that country [article V 2 b ]; by contract, an ICSID award can be annulled only due to a serious departure from a fundamental rule of procedure [ICSID Convention, article 52 1 dArbitration Rules 50 1 c iii ].
A judgment shall also not be recognized under the Brussels Convention if such recognition would be contrary to public policy in the state in which it is sought art.
Public order safeguards are more robust in domestic laws. Under Polish CCP, integrity of the legal order is protected through provisions on setting aside art.
A court may also set aside an award ex officio if it is contrary to the fundamental principles of the Polish legal order CCP, art. The latter encompasses both substantive and procedural breaches, i. The assessment is performed ad casu, with respect to a particular award given the circumstances.
Some even claim that the public order clause is relative; hence, its normative contents evolve in time and space. Fundamental principles of legal order with respect to economic activity include pacta sunt servanda, freedom of contract, compensatory nature of damages i.
Weapon Turns Against the Master: As the government does not enjoy a constitutional majority, the constitutional order is being dismantled through regular statutes and, until regulatory takeover, disregard of rulings by the Constitutional Tribunal.
In this way, the Constitutional Tribunal was seized first so the government could inter alia broaden the control of the minister of justice over the common courts and prosecutors and seize the National Council of the Judiciary thus obtaining political control over the nomination of judges and disciplinary proceedings.
Currently, the government has replaced the Supreme Court, using the cover of the politicised Tribunal. The government insists that the institutional changes do not violate any specific constitutional norms but are merely a review of the statutory embodiment thereof.
Yet, such claims ignore the constitutional acquis, notably in terms of the Rule of Law, first developed by the Constitutional Tribunal and subsequently enshrined in the Constitution of But the RoL framework is broader, including principles of two instances in court proceedings art.
Norms regulating the strict functioning of the judiciary reinforce these concerning individual rights and freedoms, e. Several provisions regulate court officers status: A number of these norms has been clearly disregarded in the last two years.Study 35 ECON - Chapter 2 flashcards from Shadi E.
on StudyBlue. CHAPTER 1-Human wants are unlimited because we are GREEDY-Theory of the Consumer= theory of the consumer-Theory of the Firm= production activities-Theory of Markets= exchange activities-The two primary types of economic actors are the producer and the consumer-The economy is an institution in which said actors produce, consume and exchange goods and services-Land, Labour and Capital are.
Section Resource Market. Factors of Production.
We now turn our attention to the demand and supply of resources also called inputs or factors. The Effect of Female Education on Fertility and Infant Health: Evidence from School Entry Laws Using Exact Date of Birth (with Heather Royer) American Economic Review, Volume , Number 1, February Programs are available here, but we are not free to disseminate the data.
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