2004 Fiscal Year Final Research Report Summary
Study of Investment Treaties-Legal Mechanism and Functions of Arbitration in the Settlement of Investment Disputes
| Project/Area Number |
14520036
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| Research Category |
Grant-in-Aid for Scientific Research (C)
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| Allocation Type | Single-year Grants |
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| Section | 一般 |
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| Research Field |
International law
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| Research Institution | Yokohama National University |
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Principal Investigator |
TOSHITAKA Morikawa Yokohama National University, International Graduate School of Social sciences, Professor, 大学院・国際社会科学研究科, 教授 (50017597)
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| Project Period (FY) |
2002 – 2004
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| Keywords | bilateral investment treaties / North American Free Trade Agreement / ICSID treaty / investment disputes / international arbitration / NAFTA Chapter 11 arbitration / local remedies rule / diplomatic protection |
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| Research Abstract |
Most bilateral investment treaties and plurilateral and regional free trade agreements have generally the arbitration clause that if the investment disputes are not settled by negotiation, they are submitted to the international arbitration between an investor and the Contracting State. In such clauses there is a tendency that the application of the local remedies rule which is traditional rule of international law is excluded or restricted. The Chapter eleven of the North American Free Trade Agreement(NAFTA) establishes the mechanism of the settlement of investment disputes between a Party and an investor of another Party. A disputing investor may submit to arbitration a claim that other Party has breached an obligation under NAFTA. However, the article 1121 provides that as the conditions precedent to such submission, he is required to waive his right to initiate or continue any proceedings before any court of any Party. The content and scope of such provision is considered by making analysis of many arbitral awards of NAFTA tribunals in my study. While many awards have accepted that the article 1121 means the waiver of the local remedies rule, the tribunal has also recognized the rule of judicial finality, which means that the requirement of international law that a decision of lower court be challenged through the judicial process before the State is responsible for a breach of international law constituted by the judicial decision is to afford the State the opportunity to redressing through its legal system the inchoate breach of international law by the lower court decision. It suggests that the Article 1121 be read to waive the local remedies rule for acts other than judicial acts. Therefore it does not dispense with the local remedies rule.
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Research Products
(89 results)
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[Book] 開発協力の法と政治2004
Author(s)
森川俊孝, 池田龍彦, 小池治編著
Total Pages
219
Publisher
国際協力出版会
Description
「研究成果報告書概要(和文)」より
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