Socio-Legal Aspects of Adjudication of International Economic Disputes (original) (raw)

Toward a lex administrativa culturalis? The Adjudication of Cultural Disputes before Investment Arbitral Tribunals

Transnational Dispute Management, 2013

Cultural phenomena are governed at national, regional and international levels; and a multiplicity of courts and tribunals adjudicate disputes with cultural elements. Against this background, this study addresses the key question as to whether a lex administrativa culturalis or cultural administrative law has emerged, characterized by the coalescence of consistent narratives, emerging rules and patterns of behaviors by relevant intra-national, national, supranational administrative bodies and private actors. In particular, this study hypothesizes the emergence of a lex administrativa culturalis investigating the distinct interplay between the protection of cultural heritage and the promotion of economic activities in investment treaty arbitration.

Cultural Diversity as a Concept of Global Law: Origins, Evolution and Prospects

Diversity, 2010

Cultural diversity" has become one of the latest buzzwords on the international policymaking scene. It is employed in various contexts-sometimes as a term close to "biological diversity", at other times as correlated to the "exception culturelle" and most often, as a generic concept that is mobilised to counter the perceived negative effects of economic globalisation. While no one has yet provided a precise definition of what cultural diversity is, what we can observe is the emergence of the notion of cultural diversity as incorporating a distinct set of policy objectives and choices at the global level. These decisions are not confined, as one might have expected, to cultural policymaking, but rather spill over to multiple governance domains because of the complex linkages inherent to the simultaneous pursuit of economic and other societal goals that cultural diversity encompasses and has effects on. Accounting for these intricate interdependencies, the present article clarifies the origins of the concept of cultural diversity as understood in global law and traces its evolution over time. Observing the dynamics of the concept and the surrounding political and legal developments in particular in the context of trade and culture, the article explores its justification and overall impact on the global legal regime, as well as its discrete effects on different domains of policymaking, such as media and intellectual property. While the analysis is legal in essence, the article is also meant to speak to a broader transdisciplinary public.

The Diversity Deficit in International Investment Arbitration

The Journal of World Investment & Trade

The United Nations Commission on International Trade Law (UNCITRAL) Working Group III on ISDS (Investor-State Dispute Settlement) Reform considers issues of adjudicator diversity to be an area of concern for the legitimacy of the ISDS system. Studies show that nearly all of the most prominent and repeatedly appointed arbitrators in ISDS cases are men from the Global North with significant prior experience in ISDS cases. Rather than being seen as fair, just, and devoid of bias, decisions are sometimes suspected to be the products of adjudicators who share a particular world view. This article focuses on four key issues: (1) how a lack diversity affects the real and perceived legitimacy of the ISDS system; (2) empirical evidence on the current extent of the diversity problem in ISDS; (3) the causes of the perpetuation of the diversity deficit in ISDS; and (4) what can be done to improve diversity in ISDS.

Cultural rights in the Case- Law of the International Court of Justice

Leiden Journal of International Law

One of the most remarkable developments of the new millennium has been the expansion of debates on culture at the highest levels of the international community’s decision-making processes. This development has necessarily had an impact on cultural rights empowerment, adjudication and justiciability. Substantial progress has been made both at a regional and international level, as well as before national jurisdictions. Yet, not all thresholds have been reached. Despite its 'multicultural' composition, the International Court of Justice (‘ICJ’) has never explicitly addressed cultural rights in its case-law. However, a thorough examination of its jurisprudence reveals that opportunities to take cultural rights seriously have already arisen. Moreover, recent judgments of the Court reveal the emergence of a certain trend calling for a ‘culturally sensitive’ interpretation of legal issues. The present paper submits that this trend is beneficial not only for the protection of cultural rights, but also for the maintenance of cultural diversity, particularly when issues related to indigenous peoples’ survival and livelihood are involved. In light of the urgent worldwide need for peace, addressing culture as a legal issue before the ICJ, may be a fruitful pathway for the Court order to resolve international disputes.

Cultural Diversity and the WTO: David versus Goliath?

The adoption and entry into force of the Convention on Cultural Diversity is the most recent development in the long-standing discussion on the relationship between trade and culture. This paper examines whether the relation between the Convention and the WTO Agreements can be considered in abstracto as a 'norm conflict' and whether they are also in concreto incompatible. We conclude that, in case of conflicts, the only use of the Convention would seem to be its function in determining the 'ordinary meaning' of some provisions in the WTO Agreements. The Convention would further only be a politico-legal element in the discussions on further liberalization of the market for cultural services.

The Role of Legal Culture in an Increasingly Heterogeneous WTO

Colin Picker and Lisa Toohey, “The Role of Legal Culture in an Increasingly Heterogeneous WTO” in Won-mog Choi (ed) Future of International Economic Law: Asia-Pacific Perspectives, Cambridge, Cambridge Scholars Publishing 2015,pp 2-31. As the WTO approaches two decades of operation, both its successes and its challenges will be analysed by the organisation’s supporters and critics. The most-cited successes of the WTO include its dispute settlement system, and the rapidly-expanding list of countries that have completed the accession process and become members. However, the WTO has also faced major challenges that have drawn strong criticism, most notably the failure to conclude the Doha Round, and the expansion of regional trade agreements in lieu of global consensus. It is tempting to attribute the difficulties of the Doha Round to the complexity of the legal issues being negotiated, or to the large number of negotiating parties. While it is true that some issues in the Doha Round, such as competition law, represent new territory for the WTO as an organisation, the issues are not inherently more difficult than the then novel issues of previous rounds. In this chapter, we advocate a different approach to conceptualising the challenges facing the WTO, arguing that it is legal cultural diversity that is the overlooked dimension of the WTO. Applying a legal cultural lens to the WTO, it becomes clear that the Doha Round difficulties can be attributed, at least in part, to the need to adjust to the different demands and expectations of the increasingly diverse group of contracting parties.

“Cultural Diversity” from the Perspective of Human Rights, Media, and Trade Law: Cross-Fertilization or Conflict?

Santander Art and Culture Law Review, 2021

Over the last twenty years, a number of high-level policy meetings have emphasized the significance of cultural diversity in all matters related to international cultural cooperation. Instruments negotiated both in the context of the UNESCO and other agencies of the United Nations demonstrate the pervasive interest of the international community in strategies enhancing cultural diversity. Yet the concept of diversity is a particularly broad one, entrenched on a variety of rationales for its protection, such as the promotion of human rights and democratic participation; sustainable and human development; protection of cultural industries vis-à-vis the liberalisation of audio-visual services and free trade; promotion of intercultural and interreligious dialogue; as well as protection of cultural rights and cultural heritage. As this article submits, the promotion of cultural diversity is a laudable cause in and of itself, and a first step towards achieving equality. Its omnipresence, ...