Global regulatory standards in environmental and health disputes: regulatory coherence, due regard, by Education Libraries

Global Regulatory Standards in Environmental and Health Disputes

Regulatory Coherence, Due Regard, and Due Diligence

CAROLINE E. FOSTER

3

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For Rob, Catherine and Zoe

Foreword

I am delighted to have been invited to write a foreword to this book by my friend and colleague, Dr Caroline Foster. Addressing the international legal principles which have arisen in transnational regulatory disputes, and the particular challenges facing international adjudicators in their interpretation and application, this is a timely and important contribution to a topic of enduring significance.

The idea that transnational regulatory disputes might be subject to binding third party dispute resolution at the international level has become so familiar to international lawyers over the last three decades, that it is easy to lose sight of the uniqueness of the historical circumstances in which it has come about, and the novelty of the associated challenges. On one side is the much remarked upon judicialization of international relations in the post-Cold War era, centrally including the emergence of international adjudication as a primary tool of economic diplomacy, as well as the emergence of a cadre of professional jurists – practitioners, scholars, and others – engaged in the practical task of building an organised body of rules and practices in response. On the other, there are the conditions which give rise to regulatory disputes themselves: the proliferation of diverse regulatory demands; the increased commercial salience of regulatory differences in conditions of intensified globalisation; and an increased awareness of the significance of regulation as a terrain of competition in global economic life. Together, these trends set the stage for the emergence, through international adjudication, of a new set of practices in the application of international law to domestic regulatory action.

One of the immensely valuable functions that this book performs is to help us to look back over the last thirty years of attempts to resolve the difficulties associated with international law’s increasing occupation of the domestic regulatory space, and to assess in the round what has emerged as a result. It turns out not to have been an easy nut to crack, not by a long shot. The book focusses primarily on the role played by international courts and tribunals, to whom the task of authoritatively interpreting and applying international law governing domestic regulation has primarily fallen. This period is probably best understood as a period of adjudicatory experimentation and innovation – though, interestingly and possibly importantly, one in which international adjudicators more often approached their quasi-entrepreneurial role with some degree of awkwardness and uncertainty, rather than obvious hubris or heroism. There have been some triumphs, some mistakes, some jurisprudential dead ends, and some important paths not taken. But the result has a been a new body of international jurisprudence not quite like any

other. Critical reflection on this enterprise, as this book provides, seems particularly crucial now.

Given the vastness of the jurisprudence, Dr Foster focusses her enquiries on a particular slice of it: disputes concerning States’ actions to protect the environment and public health. From this vantage point, she discerns three broad principles which have structured adjudicators’ understanding of the applicable international legal rules. She calls these regulatory coherence, due regard for the rights of others, and due diligence in the prevention of harm. ‘Regulatory coherence’ in this context refers to a range of tests, at times apparent on the face of the law, which focus on the relationship of the ends of a regulatory measure to the means used to achieve them. These include the design, proportionality, necessity and rationality tests which are familiar to international trade and investment lawyers in particular, and which have attracted so much commentary in the field. The principle of ‘due regard’ seeks to ensure a degree of outward-lookingness on the part of regulatory actions, and an awareness of actual and potential impacts of regulatory actions on stakeholders outside the jurisdiction. ‘Due diligence’ primarily refers to what is required of states to prevent transboundary harm, a principle which has come to prominence primarily in international environmental law, but has much more general application.

Foster’s second principle – ‘due regard’ – is very significant, and indeed Foster herself notes its advantages as compared to potentially more intrusive regulatory coherence tests. As this book shows, while the content and boundaries of the ‘due regard’ principle still remain under-defined, some of its key elements can already be clearly stated. It includes, for example: an emerging obligation on regulators to take into account the external impacts of their regulatory actions; an encouragement towards the adjustment of regulatory measures according to the different conditions pertaining in different countries; procedural requirements of consultation and notification in relation to external stakeholders; perhaps also a requirement of calibration to the nature and extent of the underlying risks addressed by regulatory action. In the coming years, the juridical development of these and other standards will be particularly pressing, given the increasing role that regulatory co-ordination and co-operation at the bilateral and subnational level, including recognition arrangements, play in structuring global economic life.

None of these three principles emerged in a vacuum, of course. As the material covered in this book clearly illustrates, some were influenced by particular traditions of domestic public law, while others are now found in new rules and jurisprudence developed through projects of regional economic integration. They also clearly bear the imprint of the emergence from the 1980s onwards of a new body of regulatory policy expertise, which was generated as a field of expertise in its own right in the context of late 20th century transformations of the regulatory state. Nevertheless, borrowings have been creative, and one of the strengths of Foster’s account of the development of these principles is that it shows very clearly the particular meanings they took on, and the particular functions they performed, as

they were picked up, and projected into different spaces of international regulation. They were, Foster tells us, in significant part a response to the special pressures faced by international adjudicators and the institutions in which they work – institutions which sometimes suffer from a real legitimacy deficit, even as they have been entrusted with the difficult tasks of maintaining stable economic relations, and ensuring non-regression in projects of economic integration.

This question of legitimacy is, rightly, a key focus of Foster’s critical insight throughout this book. Her analysis shows that the ‘global regulatory standards’ that she identifies are fundamentally pluralist rather than constitutionalist in orientation – they are designed as interface norms between different regulatory jurisdictions, taking the form of ‘meta-regulatory’ principles. As a result, the legitimacy demands they face are different from those which attach to the substantive legal provisions themselves. Nevertheless, it is clear that a serious legitimacy deficit remains. Indeed, Foster claims, with good reason, that ‘the emerging global regulatory standards appear to do too little to enhance traditional substantive justifications for international law’s claim to legitimate authority’ and that they ‘contribute only partially to an ideal balancing of international interests’. This sanguine assessment is coupled with a realistic appraisal of the conditions under which judicial institutions must operate, constrained as they are not only by their narrow institutional mandates, but also by the practicalities of dispute resolution including the importance of the disputants’ pleadings. ‘More is not to be expected’, Foster notes, ‘from international adjudicatory bodies’ which ‘remain formally and socially constrained.’ Foster’s book reminds us that, because of this, adjudicatory bodies’ identification and application of regulatory standards that might better reinforce international law’s legitimacy claims from a substantive perspective would likely undermine these same claims from a procedural point of view.

The picture which emerges from this book, then, is perhaps that there is something of a mismatch between the task at hand and the set of institutions we have to carry it out. At the same time, it may be the set of institutions we have available to us for at least some time. It is true, of course, that WTO dispute settlement has been seriously disrupted by the Appellate Body’s absence, and ISDS is also famously under fire from certain quarters. But is also true that international adjudication on trade and investment matters – whether under next generational bilateral or regional agreements, or the multilateral panel process – is very far from disappearing, and the incentives for political actors to delegate the resolution of such disputes to adjudicatory bodies remain strong. Furthermore, the structural conditions for regulatory disputes remain as powerful as they ever were. Indeed, to some extent, they may be stronger, if, as some argue, the global financial crisis and the pandemic have undermined the legitimacy and acceptability of convergence around international standards as a potential solution to global regulatory conflict.

All of this makes the need for a book such as this more urgent, and its appearance even more timely. The three regulatory principles that Foster identifies are

potentially hugely important, and her work in identifying them aids us immeasurably in determining and developing their appropriate contours. Foster must be right to say that, in this process of development, what is crucial is the transparent articulation of reasons by international adjudicators, combined with ‘ongoing reflective interactions between judges, practitioners and the broader scholarly community’. It is precisely this sort of interaction which is facilitated by this remarkable book, and I am delighted to commend it as a significant contribution to the field.

Professor Andrew Lang Chair in International Law and Global Governance

Edinburgh Law School University of Edinburgh

Acknowledgements

There are many people to thank for the part they have played in the production of this book. The Royal Society of New Zealand’s Marsden Council funded the project from 2014 to 2020, with the University of Auckland’s Faculty of Law as the project’s institutional home. Colleagues at the Faculty took a valued interest in the work. For their engagement and comments at different stages I am grateful especially to An Hertogen, Janet McLean, Arie Rosen, Nicole Roughan, Paul Rishworth and Hanna Wilberg, as well as all those who participated in and offered their thoughts at the Faculty workshops that helped clarify the project’s focus, scope and arguments. Sandra Shaw was eternally patient in the help she provided in the early days and I am grateful to the Davis Law Library staff also for their ever-cheerful assistance. A number of the Faculty’s current and former students provided valuable research assistance over the multi-year period during which the project ran. Thank you particularly to Tim Conder, Grace Abbott, Emily Wright, Ana Lenard, Eleonora Paci, Daniel Brinkman, Rachel Buckman and Naushyn Janah, and especially to Hannah Reid for her excellent work on the manuscript.

I am grateful also to the wider group of colleagues who supported and helped with the research on which the book is based in different ways, including by welcoming me to their own universities. The Lauterpacht Research Centre for International Law at the University of Cambridge offered the same warm welcome as ever during research visits in the initial and mid stages of the project. I was pleased also to take up an invitation to speak at a symposium at the Max Planck Institute for International, European and Regulatory Procedural Law in Luxembourg in the course of the project, and I thank Director Hélène Ruiz Fabri for her welcome on that visit. Gabrielle Marceau was a wonderful host in Geneva. Andrew Lang at the University of Edinburgh provided important practical support for the work, meeting with me in the course of its development, visiting New Zealand, and commenting on the first draft of the book. He has also graciously agreed to write the book’s foreword.

In the final year of the research, the Pluricourts Centre at the University of Oslo and the Law Faculty at the University of Canterbury hosted invited presentations on the work and I thank Christina Voigt and Karen Scott for their company and their hospitality. Together with a number of unnamed individuals, I also thank for their help and support at different times over the multi-year period of the project’s research and development Sir Kenneth Keith, Judge Joan Donoghue, Judge James Crawford, Sir Christopher Greenwood, Sir Franklin Berman, Vaughan Lowe, Pierre-Marie Dupuy, Judge Albert Hoffman, Fred Soons, Georges Abi-Saab, Peter

van den Bossche, Thomas Cottier, Georgio Sacerdoti, Claus-Dieter Ehlermann, James Bacchus, James Flett, Graham Cook, Lauro Locks, Gretchen Stanton, Mireille Cossy, Christiane Wolff, William Ehlers, Jan Bohannes, Frieder Roessler, Patricia Holmes, Christian Häberli, Nicolas Lamp, Anna Kirk, Robert Volterra, Chris Thomas, the late Johnny Veeder, Jorge Viñuales, Andrew Newcombe, Stephan Schill, Ingo Venzke, and Joshua Paine who commented on a full second draft of the book.

At Oxford University Press Merel Alstein and Jack McNichol have been stalwart in their support and guidance and always a pleasure to communicate with, in person or by email. Selected portions of a parallel publication appear in the text of the present work by permission of the respective publishers: Caroline E Foster, ‘The Emergence of Global Regulatory Standards in International Courts and Tribunals: Whaling, Tobacco and Renewable Energy’ in Sam Bookman, Anna Crowe, Max Harris, Edward Willis and Hanna Wilberg (eds), Pragmatism, Principle, and Power in Common Law Constitutional Systems: Essays in Honour of Bruce Harris (Intersentia 2021).

Finally, my family has been tolerant and kind in the time they have allowed me to develop and complete the work needed to produce this book and I thank them profoundly.

a) Capability testing

i) Fisheries Jurisdiction (Spain v Canada)

ii) The Arctic Sunrise Arbitration (Kingdom of the Netherlands v Russian Federation)

b) Self-evident necessity

i) Right of Passage over Indian Territory (Portugal v India)

ii) Indus Waters Kishenganga Arbitration (Islamic Republic of Pakistan v Republic of India)

c) Reasonableness in relation to objectives 72

i) Dispute Concerning Filleting within the Gulf of St Lawrence (‘La Bretagne’) (Canada v France) 72

ii) Whaling in the Antarctic (Australia v Japan: New Zealand intervening)

d) More complex formulae

i) North Atlantic Coast Fisheries Case (Great Britain v the United States)

ii) The Iron Rhine (‘Ijzeren Rijn’) Railway (Kingdom of Belgium v Kingdom of the Netherlands)

iii) Dispute regarding Navigational and Related Rights (Costa Rica v Nicaragua) 82

iv) The Arctic Sunrise Arbitration (Kingdom of the Netherlands v Russian Federation)

Chagos Marine Protected Area Arbitration (Mauritius v United Kingdom)

b) Whaling in the Antarctic (Australia v Japan: New Zealand intervening)

2. Due diligence

a) Gabčikovo-Nagymaros Project (Hungary v Slovakia)

b) Case concerning Pulp Mills (Argentina v Uruguay)

c) Responsibilities and Obligations of States Sponsoring Persons and Entities with Respect to Activities in the Area (Advisory Opinion)

d) Request for an Advisory Opinion Submitted by the Sub-Regional Fisheries Commission (SRFC) (Advisory Opinion)

e) South China Sea Arbitration (Republic of the Philippines v People’s Republic of China)

f) The Environment and Human Rights (Advisory Opinion)

g) Conclusion

C. Reflections on Regulatory Standards in the International Court of Justice, Law of the Sea Dispute Settlement and the Permanent Court of Arbitration

E. Introduction to

1. Necessity under Article XX of the GATT and Article XIV of the GATS

a) Article XX(d)—‘necessary’ to secure

b) Article XX(a)—‘necessary’

XX(b)—‘necessary’

d) Article XX(j)—‘essential’ to the acquisition or distribution of products in general or local short supply

2. Necessity under Article 2.2 of the TBT Agreement

a) United States—Measures Affecting the Production and Sale of Clove Cigarettes

b) Australia—Certain Measures Concerning Trademarks, Geographical Indications and Other Plain Packaging

2. Article 2.1 of the TBT

3. Articles 2.3 and 5.5 of the SPS Agreement

4. Divergent policy objectives

a) Brazil—Measures Affecting Imports of Retreaded Tyres

b) European Communities—Measures Prohibiting the Importation and Marketing of Seal Products

c) United States—Measures Concerning the Importation, Marketing and Sale of Tuna and Tuna Products (US—Tuna II)

5. ‘Stems exclusively’ from a legitimate regulatory distinction

a) United States—Measures Affecting the Production and Sale of Clove Cigarettes

b) United States—Certain Country of Origin Labelling (COOL) Requirements

6. Even-handedness

C. Reflections on Regulatory

PART IV INVESTMENT TREATY ARBITRATION

1. Fair and equitable treatment: arbitrary or unreasonable conduct: reasonable relationships

2. National treatment: a reasonable nexus to rational government policies

3. Expropriation: ‘for a public purpose’

8. Proportionality in Investment Treaty

PART V CRITICAL QUESTIONS

Table of Cases

EUROPEAN COURT OF HUMAN RIGHTS

Handyside v United Kingdom 1976 ECHR 5 151n.65, 344n.199

James and ors v UK 1986 ECHR 2

Lithgow and ors v UK 1986 ECHR 8

The Sunday Times v UK 1979 ECHR 1

252n.26, 265–66

265n.94

222n.25

INTER- AMERICAN COURT OF HUMAN RIGHTS

The Environment and Human Rights (State Obligations in Relation to the Environment in the Context of the Protection and Guarantee of the Rights to Life and Personal Integrity: Interpretation and Scope of Articles 4(1) and 5(1) in relation to Articles 1(1) and 2 of the American Convention on Human Rights), Advisory Opinion OC-23/17 (15 November 2017), Inter-American Court of Human Rights Series A, No 23 .

59–60, 126–28, 298n.70

INTERNATIONAL COURT OF JUSTICE

Aegean Sea Continental Shelf (Greece v Turkey) Judgment of 19 December 1978 [1978] ICJ Rep 3

62n.54

Anglo-Iranian Oil Co (United Kingdom v Iran) Judgment of 22 July 1952 (Jurisdiction) [1952] ICJ Rep 93 61n.53

Barcelona Traction, Light and Power Company, Limited (Belgium v Spain) Judgment of 5 February 1970 [1970] ICJ Rep 3

Case Concerning Elettronica Sicula S.p.A. (ELSI) (United States of America v Italy) Judgment of 20 July 1989 [1989] ICJ Rep 15

221–22, 296n.59

Pulp Mills on the River Uruguay (Argentina v Uruguay) Judgment of 20 April 2010 [2010] ICJ Rep 14

28–30, 59–60, 102–3, 105–7, 108–9, 118–19, 121, 124–25, 129

Case Concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Yugoslavia) Judgment of 26 February 2007 (Merits) [2007] ICJ Rep 43

101

Gabčikovo-Nagymaros Project (Hungary v Slovakia) Judgment of 25 September 1997 [1997] ICJ Rep 7 28, 77–78, 102, 104–5, 314

Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v Nicaragua) and Construction of a Road in Costa Rica along the San Juan River (Nicaragua v Costa Rica) Judgment of 16 December 2015 [2015] ICJ Rep 665

59–60, 102–3

Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v France) Judgment of 4 June 2008 [2008] ICJ Rep 177 77–78n.163, 296–97

Dispute Over the Status and Use of the Waters of the Silala (Chile v Bolivia) (Application Instituting Proceedings, 6 June 2016)

Dispute regarding Navigational and Related Rights (Costa Rica v Nicaragua) Judgment of 13 July 2009 [2009] ICJ Rep 213

103–4

10, 25–26, 27, 58, 76–77, 77–78n.163, 78–80, 82–85, 86–87, 261, 264, 288–89, 290–91, 297–98

Fisheries Jurisdiction (Spain v Canada) Judgment of 4 December 1998 [1998]

ICJ Rep 432 24, 56, 60–63, 86

Fisheries Jurisdiction (United Kingdom of Great Britain and Northern Ireland v Iceland) Judgment of 25 July 1974 (Merits) [1974] ICJ Rep 3

. 89–90, 329–30

Fisheries Jurisdiction (Federal Republic of Germany v Iceland) Judgment of 25 July 1974 (Merits) [1974] ICJ Rep 175

89–90, 329–30

Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970)

Advisory Opinion of 21 June 1971 [1971] ICJ Rep 16 314n.35

Right of Passage over Indian Territory (Portugal v India) Judgment of 12 April 1960 (Merits) [1960] ICJ Rep 6

56, 69–70

South West Africa Cases (Liberia v South Africa; Ethiopia v South Africa) Judgment of 21 December 1962 (Preliminary Objections) [1962] ICJ Rep 319 292n.33, 296n.53

Legality of the Threat or Use of Nuclear Weapons Advisory Opinion of 8 July 1996 [1996] ICJ Rep 226

100–1, 102–3, 292–93

Whaling in the Antarctic (Australia v Japan: New Zealand intervening) Judgment of 31 March 2014 [2014] ICJ Rep 226

10, 22–23, 25–26, 56–57, 58, 62, 72, 74–79, 86–87, 90, 96–99, 130, 131, 243–44, 246, 288–89, 290–91, 294, 295–96, 309–10, 335, 338–39, 342, 343–45

INTER- STATE ARBITRATION

Arbitration Between the Republic of Croatia and the Republic of Slovenia (Final Award) (29 June 2007) PCA Case No 2012–04 327n.97

Arbitration regarding the Iron Rhine (‘Ijzeren Rijn’) Railway between the Kingdom of Belgium and the Kingdom of the Netherlands (Award) (24 May 2005) PCA Case No 2003-02 140 ILR 1

25–26, 55, 58, 78–79, 81–82, 86–87, 297–98

Dispute Concerning Filleting within the Gulf of St Lawrence (‘La Bretagne’) (Canada v France) (Award) (17 July 1986) 82 ILR 590 57, 72–74, 98, 314n.33, 321–22

F. H. Neer and Pauline Neer (U.S.A.) v. United Mexican States (1926) 4 RIAA 60; 3 ILR 213

Harza Engineering v Republic of Iran (Award) 30 December 1982, 1 Iran-US CTR 499

222, 225

237n.125

Indus Waters Kishenganga Arbitration (Islamic Republic Pakistan v Republic of India) (Partial Award) (18 February 2013) PCA Case No 2011-01 154 ILR 1 55, 56, 69–72, 82, 85–86

Indus Waters Kishenganga Arbitration (Islamic Republic of Pakistan v Republic of India) (Final Award) (20 December 2013) PCA Case No 2011-01 157 ILR 362 . . . . . 55, 56, 69–72, 82, 85–86

Lake Lanoux Arbitration (France v Spain) (16 November 1957)

24 ILR 101 90, 96–97, 114

North Atlantic Coast Fisheries Case (Great Britain v United States) (7 September 1910) (1910) Scott Hague Court Rep 141 .

. 25–26, 55, 58, 73, 78–79, 80–81, 86–87, 288–89, 294, 298–99

INVESTMENT ARBITRATION

AES Summit Generation Limited and AES-Tisza Erömü Kft v Hungary ICSID Case No ARB/07/22, Award, 23 September 2010 (Claus von Wobeser, J William Rowley and Brigitte Stern) . . . . . . . . . . . . . . . . . . . . . 217n.7, 223n.30, 223n.33, 223n.35

Al Tamimi v Oman ICSID Case No ARB/11/33, Award, 3 November 2015 (David A R Williams, Charles N Brower and J Christopher Thomas) 255–56

Álvarez y Marín Corporación SA and ors v Panama ICSID Case No ARB/15/14, Award, 12 September 2018 (Juan Fernández-Armesto, Henri Alvarez and Horacio A. Grigera Naón) .

262n.78

Apotex Holdings Inc and Apotex Inc v United States ICSID Case No ARB(AF)/12/1, Award, 25 August 2014 (V V Veeder, J William Rowley and John R Crook) 232–33

Azurix Corporation v Argentina ICSID Case No ARB/01/12, Award, 14 July 2006 (Andrés Rigo Sureda, Mark Lalonde and Daniel Hugo Martins) 253–54, 265n.92, 267n.103

BayWa r.e. Renewable Energy GmbH and BayWa re Asset Holding GmbH v Spain ICSID Case No ARB/15/16502, Decision on Jurisdiction: Liability and Directions on Quantum, 2 December 2019 (James Crawford, Horacio Grigera Naón and Loretta Malintoppi) 257n.54, 264n.87, 267–68

Bear Creek Mining Corporation v Peru ICSID Case No ARB/14/21, Award, 30 November 2017 (Karl-Heinz Böckstiegel, Michael Pryles and Philippe Sands) .

220n.15, 315n.41

Blusun SA and ors v Italy ICSID Case No ARB/14/3, Award, 27 December 2016 (James Crawford, Stanimir A Alexandrov and Pierre-Marie Dupuy) 256n.49, 264n.87, 267–68

CC/Devas (Mauritius) Limited and ors v India PCA Case No 2013-09, Award on Jurisdiction and Merits, 25 July 2016 (Marc Lalonde, David R Haigh and Anil Dev Singh) .

332n.128

Charanne BV and Construction Investments SARL v Spain SCC Case No 062/2012, Final Award, 21 January 2016 (Alexis Mourre, Guido Santiago Tawil and Claus von Wobeser) 257n.55, 257n.57

Chevron Corporation and Texaco Petroleum Company v Ecuador PCA Case No 200923, Second Partial Award on Track II, 30 August 2018 (V V Veeder, Vaughan Lowe and Horacio Grigera Naón)

316n.49

Chemtura Corporation v Canada PCA Case No 2008-01, Final Award, 2 August 2010 (Gabrielle Kaufmann-Kohler, Charles N Brower and James R Crawford) 343n.194 Continental Casualty Company v Argentina ICSID Case No ARB/03/9, Award, 5 September 2008 (Giorgio Sacerdoti, V V Veeder and Michell Nader)

253–54, 263–64

Cortec Mining Kenya Limited and ors v Kenya ICSID Case No ARB/15/29, Award, 22 October 2018 (Ian Binnie, Kanaga Dharmananda and Brigitte Stern) 262, 316n.49

Crystallex International Corporation v Venezuela ICSID Case No ARB(AF)/11/2, Award, 4 April 2016 (Laurent Lévy, John Y Gotanda and Laurence Boisson de Chazournes) .

343n.196, 345n.209

David R Aven et al v Costa Rica ICSID Case No UNCT/15/3, Final Award, 18 September 2018 IIC 1472 (2018), 18 September 2018 (Eduardo Siqueiros T, Pedro Nikken and C Mark Baker) 316n.49

EDF (Services) Ltd v Romania ICSID Case No ARB/05/13, Award, 8 October 2009 (Piero Bernadini, Arthur W Rovine and Yves Derains) . . . . . . 222n.26, 265n.92, 266n.96

Eiser Infrastructure Limited and Energia Solar Luxembourg SARL v Spain ICSID Case No ARB/13/36, Award, 4 May 2017 (John R Crook, Stanimir A Alexandrov and Campbell McLachlan) 257n.57

El Paso Energy International Company v Argentina ICSID Case No ARB/03/15, Award, 31 October 2011 (Lucius Caflisch, Piero Bernadini and Brigitte Stern) . . .

223n.31, 231, 237

Electrabel S.A. v Hungary ICSID Case No ARB/07/19, Award, 25 November 2015 (Gabrielle Kaufmann-Kohler, Brigitte Stern and V V Veeder) 223n.33

Electrabel S.A. v Hungary ICSID Case No ARB/07/19, Decision on Jurisdiction, Applicable Law and Liability, 30 November 2012 (V V Veeder, Brigitte Stern and Gabrielle Kaufmann-Kohler) .

245n.172, 255–56, 257n.58, 334n.136

Feldman Karpa v Mexico ICSID Case No ARB(AF)/99/1, Award and Dissenting Opinion, 16 December 2002 (Konstantinos Kerameus, Jorge Covarrubias Bravo and David Gantz) 232n.92

GAMI Investments, Incorporated v Mexico UNCITRAL, Final Award, 15 November 2004 (Jan Paulsson, W Michael Reisman and Julio Lacarte Muró) .

Genin and ors v Estonia ICSID Case No ARB/99/2, Award, 25 June 2001 (L Yves Fortier, Meir Heth and Albert Jan van den Berg) .

231n.88

222n.23, 223n.32, 223n.36

Glamis Gold Ltd v United States UNCITRAL, Award, 8 June 2009 (Michael K Young, David R Caron and Kenneth D Hubbard) 223–27, 230–31, 244, 259, 274–75, 343n.194

Hydro Energy 1 S.à r.l. and Hydroxana Sweden AB v Spain ICSID Case No ARB/15/42, Decision on Jurisdiction, Liability and Directions on Quantum, 9 March 2020 (Lawrence Collins, Peter Rees and Rolf Knieper).

230n.84, 264

Kim and ors v Uzbekistan ICSID Case No ARB/13/6, Decision on Jurisdiction, 8 March 2017 (David D Caron, L Yves Fortier and Toby Landau) 262n.78, 262

Lauder v Czech Republic UNCITRAL, Final Award, 3 September 2001 (Robert Briner, Lloyd Cutler and Bohuslav Klein) .

Les Laboratoires Servier, SAS and ors v Poland UNCITRAL, Final Award, 14 February 2012 (William W Park, Marc Lalonde and Bernard Hanotiau)

221n.22

. . 254, 274–75, 343n.196

LG&E Energy Corp, LG&E Capital Corp, LG&E International INC v Argentine Republic ICSID Case No ARB/02/1, Decision on Liability, 3 October 2006

(Tatiana B de Maekelt, Francisco Rezek and Albert Jan van den Berg)

. 236n.120, 253–54, 263–64, 267n.103, 331n.120, 333n.132

Marfin Investment Group v Cyprus ICSID Case No ARB/13/27, Award, 26 July 2018, (Bernard Hanotiau, David A O Edward and Daniel M Price) 261n.76

Mesa Power Group, LLC v Canada PCA Case No 2012-17, Award, 24 March 2016 (Gabrielle Kaufmann-Kohler, Charles N Brower and Toby Landau).

223–24, 227–31, 244, 343–44

Metalclad Corporation v Mexico ICSID Case No ARB(AF)/97/1, Award, 30 August 2000 (Elihu Lauterpacht, Benjamin R Civiletti and José Luis Siqueiros) . . . . . . . .332–33

Methanex Corporation v United States UNCITRAL, Final Award on Jurisdiction and Merits, 3 August 2005 (J William Rowley, W Michael Reisman and V V Veeder) .

235n.118, 333n.134, 345n.210

Micula and ors v Romania ICSID Case No ARB/05/20, Award and Separate Opinion, 11 December 2013 (Laurent Lévy, Stanimir A Alexandrov and Georges Abi-Saab) .

28n.34, 223n.35, 264n.89

Occidental Petroleum Corporation and Occidental Exploration and Production Company v Ecuador ICSID Case No ARB/06/11, Award, 5 October 2012 (L Yves Fortier, David A R Williams and Brigitte Stern) .

255

Occidental Petroleum Corporation and Occidental Exploration and Production Company v Ecuador ICSID Case No ARB/06/11, Decision on Annulment of the Award, 2 November 2015 (Juan Fernández-Armesto, Florentino P Feliciano and Rodrigo Oreamuno Blanco) 250n.12

OperaFund Eco-Invest SICAV PLC and Schwab Holding AG v Spain ICSID Case No ARB/15/36, Award, 6 September 2019 (Karl-Heinz Böckstiegel, August Reinisch, Philippe Sands)

256

Parkerings-Compagniet AS v Lithuania, ICSID Case No ARB/05/8, Award, 11 September 2007 (Julian Lew, Marc Lalonde and Laurent Lévy) 232n.95, 233–35, 244

Perenco Ecuador Limited v Ecuador ICSID Case No ARB/08/6, Interim Decision on the Environmental Counterclaim, 11 August 2015 (Peter Tomka, Neil Kaplan and Christopher Thomas)

316n.49

Philip Morris Brands Sàrl and ors v Uruguay ICSID Case No ARB/10/7, Award, 8 July 2016 (Piero Bernardini, Gary Born and James Crawford) 6n.10, 216, 236, 239–43, 244, 263–64, 267n.104, 315–16, 319–20, 343n.195, 344n.198

The PV Investors v Spain PCA Case No 2012-14, Award, 28 February 2020 (Gabrielle Kaufmann-Kohler, Charles Brower and Bernardo Sepúlveda Amor) . . . . . . . . . 257n.58

PL Holdings S.à.r.l. v Poland SCC Case No V 2014/163, Partial Award, 28 June 2017 (George Bermann, Julian D M Lew and Michael E Schneider) 252–53 Pope & Talbot Incorporated v Canada UNCITRAL, Award on the Merits of Phase 2, 10 April 2001 (Lord Dervaird, Benjamin J Greenberg and Murray J Belman) .

222n.27, 232n.92, 233n.100

Quiborax SA and Non Metallic Minerals SA v Bolivia ICSID Case No ARB/06/2, Award, 16 September 2015 (Gabrielle Kaufmann-Kohler, Marc Lalonde and Brigitte Stern) 345n.208

Rockhopper Italia S.p.A., Rockhopper Mediterranean Ltd, and Rockhopper Exploration Plc v Italian Republic ICSID Case No ARB/17/14, Decision on the Intra-EU Jurisdictional Objection, 26 June 2019 (Klaus Reichert, Charles Poncet and Pierre-Marie Dupuy) .

218n.8

RREEF Infrastructure (GP) Limited and RREEF Pan-European Infrastructure Two Lux Sàrl v Spain ICSID Case No ARB/13/30, Decision on Responsibility and on the Principles of Quantum and Dissenting Opinion, 30 November 2018 (Alain Pellet, Pedro Nikken and Robert Volterra) .

253n.31, 256n.49, 256–57

RWE Innogy GmbH and RWE Innogy Aersa S.A.U. v Spain ICSID Case No ARB/14/ 34, Decision on Jurisdiction, Liability and Certain Issues of Quantum, 30 December 2019 (Anna Joubin-Bret, Judd L Kessler and Samuel Wordsworth) 266–68, 331n.123

Saluka Investments BV v Czech Republic PCA Case No 2001-04, Partial Award, 17 March 2006 (Arthur Watts, L Yves Fortier and Peter Behrens). . . . . . 219, 223, 225n.46, 227n.65, 232n.92, 235n.118, 264n.88

SD Myers Incorporated v Canada UNCITRAL, First Partial Award on the Merits and Separate Opinion, 13 November 2000 (Bryan P Schwartz, Edward C Chiasson and J Martin Hunter) 333n.134, 345n.208

Serafín García Armas and Karina García Gruber v Venezuela PCA Case No 2013–3, Award, 26 April 2019 (Eduardo Grebler, Guido Santiago Tawil and Rodrigo Oreamuno Blanco) .

231n.86

SolEs Badajoz GmbH v Spain ICSID Case No ARB/15/38, Award, 31 July 2019 (Joan E Donogue, Giorgio Sacerdoti and David A R Williams) 257n.55

South American Silver Limited v Bolivia PCA Case No 2013-15, Award, 22 November 2018 (Eduardo Zuleta Jaramillo, Francisco Orrego Vicuña and Osvaldo César Guglielmino).

236n.119

Stadtwerke München GmbH and ors v Spain ICSID Case No ARB/15/1, Award, 2 December 2019 (Jeswald W Salacuse, Kaj Hobér and Zachary Douglas) 261n.75, 261n.76, 266n.96

Suez, Sociedad General de Aguas de Barcelona, S.A. and Vivendi Universal, S.A. v Argentina ICSID Case No ARB/03/19, Decision on Liability, 30 July 2010 (Jeswald W Salacuse, Gabrielle Kaufmann-Kohler and Pedro Nikken)

315n.41

xxiv Table of Cases

Técnicas Medioambientales Tecmed SA v Mexico ICSID Case No ARB(AF)/00/2, Award, 29 May 2003 (Horacio A Grigera Naón, José Carlos Fernández Rozas and Carlos Bernal Verea) 222n.28, 253–54, 261, 263–64, 265–66

International Thunderbird Gaming Corporation v. Mexico, UNCITRAL, Award, 26 January 2006 (Agustín Portal Ariosa, Thomas W. Wälde, Albert Jan van den Berg)

226

Total S.A. v Argentina ICSID Case No ARB/04/1, Decision on Liability, 27 December 2010 (Giorgio Sacerdoti, Henri C Alvarez and Luis Herrera Marcano) 255

Marion Unglaube and Reinhardt Unglaube v Costa Rica ICSID Case no ARB/08/1, ICSID Case no ARB/09/20, Award, 16 May 2012 (Judd Kessler, Franklin Berman and Bernardo Cremades) .

223

Urbaser S.A. and Consorcio de Aguas Bilbao Bizkaia, Bilbao Biskaia Ur Partzuergoa v The Argentine Republic ICSID Case No ARB/07/26, Award, 8 December 2016 (Andreas Bucher, Campbell McLachlan and Pedro Martinez-Fraga) 315n.41

Vestey Group Limited v Venezuela ICSID Case No ARB/06/4, Award, 1 5 April 2016 (Gabrielle Kaufmann Kohler, Horacio Grigera Naón and PierreMarie Dupuy .

.237–39

Waste Management, Inc. v. United Mexican States (‘Number 2’) ICSID Case No. ARB(AF)/00/3, Award, 30 April 2004 (James Crawford, Benjamin R. Civiletti and Eduardo Magallón Gómez) 220n.11, 229n.78

Watkins Holdings S.à r.l. and others v Spain ICSID Case No ARB/15/44, Award, 21 January 2020 (Cecil W M Abraham, Michael Pryles and Hélène Ruiz Fabri)

230n.84, 256n.51

Westmoreland Coal Company v Canada ICSID Case No UNCT/20/3, Notice of Arbitration and Statement of Claim, 12 August 2019 217n.5

Windstream Energy LLC v Canada PCA Case No 2013-22, Award, 27 September 2016 (Veijo Heiskanen, R Doak Bishop and Bernardo Cremades) 345n.209

Yukos Universal Limited v Russian Federation PCA Case No 2005-04/AA 227, Final Award, 18 July 2014 (L Yves Fortier, Charles Poncet and Stephen M Schwebel) .

254n.38

Zelena NV and Energo-Zelena doo Inđija v Serbia ICSID Case No ARB/14/27 231n.88

PERMANENT COURT OF INTERNATIONAL JUSTICE

Certain German Interests in Polish Upper (Germany v Poland) (Judgment of 25 May 1926) (Merits) PCIJ Rep Series A No 7 293n.40

Free Zones of Upper Savoy and the District of Gex (France v Switzerland) (Order of 6 December 1930) (1930) PCIJ Series A No 24

Free Zones of Upper Savoy and the District of Gex (France v Switzerland) (Judgment of 7 June 1932) (1932) PCIJ Series A/B No 46

Territorial Jurisdiction of the International Commission of the River Oder (Judgment of 10 September 1929) PCIJ Series A No 23 28n.32

UNITED NATIONS CONVENTION ON THE LAW OF THE SEA

‘ARA Libertad’ (Argentina v Ghana) (Order of 15 December 2012) ITLOS Reports 2012, 332 68–69n.103

The Arctic Sunrise Arbitration (Kingdom of the Netherlands v Russian Federation) (Provisional Measures, Order of 22 November 2013) ITLOS Reports 2013, 230 . . . . . 68–69

The Arctic Sunrise Arbitration (Kingdom of the Netherlands v Russian Federation) (Award on the Merits) (14 August 2015) PCA Case No 2014-02 171 ILR 1 24, 25n.21, 27, 56, 58, 60, 62–69, 78–80, 85, 86–87, 288–89, 290–91, 297–98

Table of Cases xxv

Chagos Marine Protected Area Arbitration (Republic of Mauritius v United Kingdom) (Award) (18 March 2015) PCA Case No 2011-03 162 ILR 1 10–11, 27–28, 58, 85, 90–97, 131, 282, 283, 290–91, 328, 335

M/V ‘SAIGA’ (No. 2) (Saint Vincent and the Grenadines v Guinea) (Judgment of 1 July 1999) ITLOS Reports 1999, 10

66–67

M/V ‘Virginia G’ (Panama v Guinea-Bissau) (Judgment of 14 April 2014) ITLOS Reports 2014, 4 62–63, 66–67

Request for an Advisory Opinion Submitted by the Sub-Regional Fisheries Commission (Advisory Opinion of 2 April 2014) ITLOS Reports 2015, 4 29–30, 59–60, 103–4, 113–21, 124–25, 130, 290–91

Responsibilities and Obligations of States Sponsoring Persons and Entities with Respect to Activities in the Area (Advisory Opinion of 1 February 2011)

ITLOS Reports 2011, 10 29, 59–60, 103–4, 107–13, 114, 117, 118–19, 121, 124–25, 130, 290–91

South China Sea Arbitration (Republic of the Philippines v People’s Republic of China) (Award of 12 July 2016) PCA Case No 2013-19 170 ILR 1 . . . . . . 30n.41, 59–60, 80–81, 103–4, 121–26, 314

Southern Bluefin Tuna Cases (New Zealand v Japan; Australia v Japan) (Provisional Measures, Order of 27 August 1999) ITLOS Reports 1999, 280 116, 125n.250, 314n.36

WORLD TRADE ORGANIZATION

Argentina—Safeguard Measures on Imports of Footwear, Report of the Appellate Body (14 December 1999) WT/DS121/AB/R, DSR 2000:I, 515 331n.118

Australia—Measures Affecting the Importation of Apples from New Zealand, Report of the Appellate Body (29 November 2010) WT/DS367/AB/R, DSR 2010:V, 2175

Australia—Certain Measures Concerning Trademarks, Geographical Indications and Other Plain Packaging Requirements Applicable to Tobacco Products, Reports of the Panels (28 June 2018) WT/DS435/R, WT/DS441/R WT/DS458/R, WT/DS467/R

77n.156

32n.53, 158, 166–71, 178, 271, 317, 318–19

Australia—Certain Measures Concerning Trademarks, Geographical Indications and Other Plain Packaging Requirements Applicable to Tobacco Products, Reports of the Appellate Body (9 June 2020) WT/DS435/AB/R, WT/DS441/AB/R 158, 166–71, 318–19

Australia—Measures Affecting Importation of Salmon, Report of the Panel (12 June 1998) WT/DS18/R, WT/DS18/R/Corr.1, DSR 1998:VIII, 3407. .

Australia—Measures Affecting Importation of Salmon, Report of the Appellate Body (20 October 1998) WT/DS18/AB/R, DSR 1998:VIII, 3327 .

186n.57

172n.222, 184n.47, 186n.57

Brazil—Certain Measures Concerning Taxation and Charges, Reports of the Panel (30 August 2017) WT/DS472/R, WT/DS497/R 149, 155, 205–6n.162, 317

Brazil—Certain Measures Concerning Taxation and Charges, Reports of the Appellate Body (13 December 2018) WT/DS472/AB/R, WT/DS497/AB/R . . . . . . . . . . . . . . . . 155

Brazil—Measures Affecting Imports of Retreaded Tyres, Report of the Appellate Body (3 December 2007) WT/DS332/AB/R, DSR 2007:IV, 1527 148–49, 152–53, 153n.80, 155–58, 162, 163n.151, 166, 168n.189, 170, 172–73, 176, 178n.18, 178, 179n.21, 180n.26, 182, 186–87

Canada—Continued Suspension of Obligations in the EC—Hormones Dispute, Report of the Appellate Body (16 October 2008) WT/DS321/AB/R, DSR 2008:XIV 77n.156, 340n.172