bluuebunny/crossref_metadata_2025 huggingface dataset:
Communication About Persistent Environmental Risks: Problems of Knowledge Exchange and Potential of Participative Techniques
Authors: Fuller Sara , Bickerstaff Karen , Khaw Fu-Meng , Curtis Sarah
Published: February 2010

This chapter reviews research on the potential for knowledge exchange and participative approaches in making risk communication more effective. It focuses particularly on examples of communication concerning ‘chronic’, persistent risks associated with environments that are known to be contaminated, as well as ‘potential’ sources of environmental contamination, such as industrial facilities, in their normal operation and decommissioning.
Introduction
Authors: Black Jane
Published: February 2010

The Introduction explains the concept of absolute power or plenitude of power, as understood in the Middle Ages, when it meant a ruler's capacity to overrule laws and rights. The author describes how the prerogative was adopted by the Visconti and Sforza rulers of Milan. A brief historiographical survey follows, showing how the relationship between the powers of rulers and the rights of subjects has been explored in the work of Ugo Nicolini, Ennio Cortese, Dieter Wyduckel, Jesus Vallejo, and Kenneth Pennington. The sources used in the book are outlined, including legal commentaries and consilia. The author touches on the character and importance of consilia, explaining that they were considered by contemporary lawyers to be even more authoritative than academic commentaries. The other main sources are acts and decrees passed by the rulers of Milan. The Introduction concludes with an outline of the main chapters.
The Early Visconti and the Claim to Absolute Power
Authors: Black Jane
Published: February 2010

Chapter Two focuses on the difficulties the Visconti faced in claiming absolute power. Alberico da Rosciate, refused to accept that signori had any such right, but Signorolo degli Omodei supported the Visconti's claim. Azzone, Luchino, and Giovanni Visconti's initial assumption that they had been granted plenitude of power by subject communes was replaced, under their successors, with the belief that such power came with the imperial vicariate. Given that many signori lacked an imperial vicariate or had had it revoked (as with Galeazzo II and Bernabò), jurists appeared unsure about the source of rulers' absolute powers in this period, Baldo degli Ubaldi accepting that most signori had little basis for the claim.
Giangaleazzo's Investiture and its Legacy
Authors: Black Jane
Published: February 2010

Chapter Three describes the Milanese dukes' desire for imperial recognition of their right to absolute powers, beginning with Giangaleazzo Visconti, created duke in 1395. Plenitude of power itself came with the investiture of 1396. Giangaleazzo's successor, Giovanni Maria (1402–12) was denied imperial recognition; Filippo Maria Visconti (1412–47) had to wait until 1426. The Ambrosian Republic of 1447–1450 was similarly based on the investitures of 1395 and 1396. Faced with Emperor Frederick III's determination not to recognize his claims, Francesco (1450–66), Galeazzo Maria (1466–76) and Giangaleazzo Sforza (1476–94) established their right to rule on the basis of popular election, meantime pleading with Emperor Frederick III for an investiture that would include plenitude of power and imperial prerogatives (iura reservata). The chapter concludes with an exploration of the investiture granted to Ludovico il Moro (1494–1500) by Maximilian I in 1494.
The Surrender of Absolute Power
Authors: Black Jane
Published: February 2010

Chapter seven concerns the decline of absolute power as a tool of government. The lawyer and Senator and Egidio Bossi, insisted that absolute power was no longer misused in the duchy. Francesco Sforza II (1521‐1535) appears to have given up plenitude of power, handing it over to the Milanese Senate in the interests of justice. Whether or not the Senate did have plenitude of power was much debated. With its right to administer equity, Senate did not have to keep to the letter of the law; the Senate also had the right to judge according to the facts alone (sola facti veritate inspecta), ignoring established legal procedure. Both these prerogatives were analogous to plenitude of power; on the other hand, the Senate never referred to plenitude of power in its decisions. The discussion continued for decades among later commentators.
Linking of Emissions Trading Schemes
Authors: Mehling Michael
Published: February 2010

The integration of carbon markets will require a careful assessment of its political and economic viability, which, in turn, largely depends on the respective compatibility of the underlying emissions trading schemes. Because design features in each scheme can extend to all other linked schemes, and differences — if too pronounced — can affect the integrity of the overall market as well as the direction of trade flows, a certain degree of harmonization is essential for linking. Legal and normative considerations have featured only marginally in existing research on the conditions and implications of a trading link. This chapter provides a systematic overview of such considerations. It starts by drawing a conceptual background for the subsequent analysis, defining central characteristics and different forms of linking in the second section. It then proceeds to explore the specifically normative and jurisprudential implications of linking in the third section, and distinguishes these from broader questions of political expedience and economic rationality.
Private Actors in International and Domestic Emissions Trading Schemes
Authors: Lin Jolene
Published: February 2010

This chapter analyzes the risks and opportunities for private entities in the international climate regime and domestic emissions trading schemes, respectively. It begins with an overview of carbon markets and the ways in which private actors are involved. Section 3 focuses on the risks involved in project-based transactions, which is the type of transactional activity that private actors are most likely to engage in. Section 4 discusses some of the risks that private actors face in the European Union Emissions Trading Scheme (EU ETS). Section 5 looks briefly at the new issues and risks raised by Phase III of the EU ETS, and section 6 concludes the discussion.
International Emissions Trading and Green Investment Schemes
Authors: Simonetti Sander , de Witt Wijnen Rutger
Published: February 2010

The Kyoto Protocol has introduced the first ever global scheme of emissions trading. Parties included in Annex I to the United Nations Framework Convention on Climate Change (UNFCCC) with greenhouse gas (GHG) emission limitation and reduction commitments inscribed in Annex B to the Kyoto Protocol (Annex B Parties) can achieve their commitments not only by taking domestic measures, but also by making use of the so-called ‘flexible mechanisms’ of the Kyoto Protocol: International Emissions Trading (IET), Joint Implementation (JI) and the Clean Development Mechanism (CDM). Although the mechanism of IET under Article 17 of the Kyoto Protocol is mostly referred to in the context of trading Assigned Amount Units (AAUs), it covers the international transfer of all Kyoto emission rights. The first part of this chapter sets out the legal framework of IET. The second part describes the principles and challenges of IET under Green Investment Schemes, where traded AAUs are ‘greened’ by investing the purchase price in environmental activities in the seller country.
Joint Implementation Transactions: An Overview
Authors: Anthony Hobley , Carly Roberts
Published: February 2010

This chapter builds on the introduction to Joint Implementation (JI) in Chapter 8 by re-examining the key differences between JI and the Clean Development Mechanism (CDM), framed more from the point of view of the prospective investor who is perhaps more used to CDM. It addresses some of the common myths and misconceptions which often arise due to such existing experience of the CDM. The chapter will draw out the key differences which give rise to the distinct risk profile of JI. This will then be used to offer practical advice on the key issues which need to be addressed both in due diligence and contractual drafting for JI projects, as distinct from CDM projects. The chapter shows that there are some particular aspects of the JI mechanism's regulatory design which, relative to the regulatory design of the CDM mechanism, create higher risks for investors and buyers. However, JI is a valuable tool and a ‘learning by doing’ exercise for similar or new mechanisms in the post-2012 world.
Responsibility for the Environmental Integrity of the CDM: Judicial Review of Executive Board Decisions
Authors: Christina Voigi
Published: February 2010

This chapter discusses the responsibility of the Executive Board (EB), a UN body set up under the Kyoto Protocol (KP) to govern the environmental integrity of the Clean Development Mechanism (CDM). As there is increasing evidence that a high level of environmental integrity has not yet been achieved, the issue dealt with in the chapter is the possibility for judicial review of EB decisions, both within the international climate regime by a review panel (internal review) and separate from it (external review).
The European Union Emissions Trading Scheme
Authors: Pohlmann Markus
Published: February 2010

On 29 April 1998, the European Community (EC) and the initial fifteen EU member states signed the Kyoto Protocol. Under the Kyoto Protocol, the EC and the EU member states are committed to jointly reduce their greenhouse gas (GHG) emissions during the period 2008-2012 by a total of 8% below 1990 GHG emissions levels. Soon after signing the Kyoto Protocol, the EU started exploring the potential of an emissions trading scheme to help its member states comply with its GHG emission reduction targets under the Burden Sharing Agreement and the Kyoto Protocol. Despite the Kyoto Protocol not being in force and strong opposition from powerful EU member states — such as Germany and France — the European Union Emissions Trading Scheme (EU ETS) was finally adopted in October 2003 with the objective of reducing EU GHG emissions in a cost-effective and economically efficient manner. This chapter provides historic and legal background information on the EU ETS and puts the EU ETS in the context of overall EU climate policy. It also discusses the cornerstones of the EU ETS and its linkages to the Kyoto Protocol and other emission trading schemes in light of the current amendments to the EU ETS structure for the post-2012 era.
What Might a Future Global Climate Change Deal Look Like?
Authors: Ward Murray
Published: February 2010

In 2009, global leaders are expected to come together and agree a new multilateral framework to protect the world's climate system. Under the United Nations Framework Convention on Climate Change (UNFCCC), negotiations have been underway for some years already on an update and enhancement of the Kyoto Protocol. Its first commitment period, under which most developed countries have taken on binding emissions limitation and reduction targets, ends in 2012. The current negotiations are framed by the ‘Bali Action Plan’ agreed at the 13th session of the UNFCCC Conference of the Parties (COP13) meeting in December 2007. This set in place a two-year process expected to result in a global agreement at COP15 in Copenhagen in December 2009. This chapter sets out ideas for what the architecture of a global deal might look like. It describes a concept involving enhanced commitments to constrain emissions in a quantitative and legal manner, as well as a broad set of other elements that are expected to be needed to bring a package together that can win the support of all countries.
A Post-2012 Vision for the Clean Development Mechanism
Authors: Figueres Christiana , Streck Charlotte
Published: February 2010

Despite the many calls to reform the flexibility mechanisms of the Kyoto Protocol, their conceptual underpinnings are strong and it is likely that the idea of the mechanisms, in fact the mechanisms themselves, will survive in a post-2012 climate regime. This chapter examines how a post-2012 climate treaty could provide incentives for greater emission reductions in developing countries. It starts by summarizing the current frustrations with the Clean Development Mechanism (CDM) and reviewing incremental modifications that could be considered to strengthen the mechanism without requiring a decision of the parties to the Kyoto Protocol or changes to the Marrakech Accords. It then explores a potential post-2012 scenario that combines three possible financial mechanisms to promote large-scale mitigation in developing countries: the activity-based CDM as we know it, albeit improved; a second market mechanism which would seek to improve the long-term emission trends of developing countries; and a third, non-market-based financial mechanism which would follow a scheme of payment that is not commoditized and does not create international offsets.
Summary and Outlook
Authors: Streck Charlotte , Freestone David
Published: February 2010

In early 2010 it will be five years since the Kyoto Protocol came into force. This short period has been truly astonishing for the new world of carbon trading. The market for trading emission rights and carbon credits has exploded — more than doubling each year. In 2005, the market was worth US$10 billion, in 2006 US$30 billion, in 2007 US$67 billion, and in 2008 more than US$120 billion. At the same time as the amounts of money involved have increased, so has the level of sophistication of those involved — investors, project proponents, host countries, and the international bodies responsible for overseeing these developments. However, rather than moving into a settled era of maturity and certainty, the future of the carbon market is still wracked with uncertainty. Uncertainty is in fact one of the key themes of this book. But so also is the spirit of experimentation and enterprise — of Innovation and of Learning by Doing. This chapter examines each of these three themes.
Assessing Vulnerability of Selected Sectors under Environmental Tax Reform: The Issue of Pricing Power
Authors: Gerald John Fitz , Keeney Mary J. , Scott Susan
Published: February 2010

Environmental tax reform could bear heavily on manufacturing sectors that are energy‐intensive and highly traded, in particular if their options for adapting technology are limited. However, to the extent that such sectors can pass on the cost of the environmental taxes through higher prices charged to their customers, they will not suffer a lasting drop in profitability or output. To assess pricing power in key sectors, a model of long‐run price‐setting behaviour is specified and tested. Significant and plausible results emerged from this exercise. Of the six sectors analysed, the basic metals sector revealed least pricing power and, hence, greatest vulnerability, and the non‐metallic minerals sector revealed most pricing power. The results indicated that the world price, proxied by the US price, was less of a constraint than the EU price, proxied by the German price. Thus, international competitiveness fears are reduced not just where there is good potential for adapting technology, but also if application of environmental tax reform is EU‐wide.
How focus and givenness shape prosody
Authors: Féry Caroline , Ishihara Shinichiro
Published: February 2010

Caroline Féry and Shinichiro Ishihara proposes a model of how syntax and information structure (focus and givenness) shape prosody where prosodic phrasing and tonal effects are kept apart. It is argued that the prosodic effects of syntactic structure and those of information structure should be kept apart. It is shown that in German and Japanese, syntactic structure primarily influences prosodic phrasing, which we assume to be recursive. Information structure, on the other hand, influences tonal structure, keeping phrasing intact. In a comparison between the two languages, it becomes apparent that prosodic domains corresponding to focus and givenness domains are subject to tonal readjustments. A further point made in the chapter is that the amount of downstep and reset of register domains is language‐dependent.
Focus in Aghem
Authors: Hyman Larry M. , Polinsky Maria
Published: February 2010

Chapter 9 ‘Focus in Aghem’ by Larry M. Hyman and Maria Polinsky presents a new analysis of syntactic focus marking in the West African language Aghem. The main characteristic of focus marking in Aghem is that focused constituents must occur in an immediately postverbal position, the IAV (immediately after verb). The authors propose that the IAV is not a designated structural (focus) position in which focus constituents must be located, e.g. by way of movement into Spec,FocP in recent cartographic approaches. Instead, it is argued that a covert focus operator in the left periphery of the clause associates with the most deeply embedded element inside the verbal projection. In the default case, the most deeply embedded constituent will be the direct object, accounting for object focus and VP focus. If another constituent is focused, the (lexical) object NP is removed from inside the VP, by means of an evacuating movement operation to the left, or by means of right‐dislocation.
Information structure and unmarked word order in (Older) Germanic
Authors: Hinterhölzl Roland
Published: February 2010

In chapter 12 ‘Information Structure and Unmarked Word order in (Older) Germanic’, Roland Hinterhözl proposes a novel interface‐based account to the distinction between OV‐ and VO‐languages in Germanic. Dispensing with the head complement parameter, he argues that the unmarked word order in these languages is determined by two types of mapping conditions at the interfaces to PF and LF. The chapter investigates mixed OV/VO orders in the OHG Tatian translation and shows that OHG cannot be treated as a language with basic OV‐order plus a higher degree of extraposition. Instead, it is shown that word order is predominantly determined by information‐structural restrictions in OHG. The account is embedded in a phase‐based model of the interaction between syntactic, prosodic and information‐structural conditions that define the characteristic word order properties of OV‐ and VO‐languages in Germanic.
Effects of givenness and constraints on free word order
Authors: Skopeteas Stavros , Fanselow Gisbert
Published: February 2010

The preference for given information to precede new has already been identified in the earliest studies on information structure within the framework of the Prague School linguistics. In chapter 12 ‘Effects of givenness and constraints on free word order’, Stavros Skopeteas and Gisbert Fanselow present production data from ten different languages showing that cross‐linguistically two distinct syntactic operations are employed as a result of asymmetries in givenness: object fronting (scrambling) and passivization. They account for the typological variation in terms of the type of movement that is structurally available in a language. Givenness asymmetries (optionally) induce operations involving A‐movement (either of the object scrambling type or of the passivization type), while they generally do not induce operations involving A’‐movement. The cross‐linguistic complementarity between passive voice and object fronting as well as the optionality in the reported data support the view that A‐movement is semantically and pragmatically vacuous and is optionally selected in order to fulfill conditions at the discourse interface.
Chapter 2 Estimating State and Local Government Pension and Retiree Health Care Liabilities
Authors: McElhaney Stephen T.
Published: February 2010

Liabilities for pension and retiree health-care benefits provided by US state and local governments are causing concerns for taxpayers and for those holding government bonds. Many question whether the methodology used to calculate these liabilities is appropriate, since the private sector calculates retirement system liabilities using different methods and assumptions. This chapter reviews and critiques current actuarial and accounting standards under which governmental retiree liabilities are calculated and compares and contrasts these standards to those used by private sector employers.
Chapter 5 Public Pensions and State and Local Budgets: Can Contribution Rate Cyclicality Be Better Managed?
Authors: Young Parry
Published: February 2010

Pension fund contribution rate volatility has challenged state and local government defined benefit plan sponsors over time. Methods to contain volatility have been used for years but recent experience has placed greater urgency on the search for better solutions. This chapter examines the historical approach to bring stability to employer rates as well as some of the current thinking on the issues. Because both asset and liability changes can affect volatility, governments are looking at both sides of the balance sheet for relief.
Chapter 6 Benefit Cost Comparisons Between State and Local Governments and Private Industry Employers
Authors: McDonnell Ken
Published: February 2010

It is often argued that compensation patterns for public sector employees are higher than in the private sector. This chapter examines some of the reasons for the observed differences in total compensation costs between US state and local government employers and private industry employers. The author examines compensation costs by industry, occupation, union status, and employee benefit participation.
Chapter 7 Administrative Costs of State Defined Benefit and Defined Contribution Systems
Authors: Hustead Edwin C.
Published: February 2010

This chapter compares the administrative costs of public sector defined benefit and defined contribution systems offered by the federal government and many states. Administrative expenses are presented as percentages of both income and assets, and the author discusses how administrative expenses might enter into the decision by a public sector employer as to whether to establish a defined contribution plan.
Chapter 14 The Evolution of Public Sector Pension Plans in the United States
Authors: Clark Robert L. , Craig Lee A. , Ahmed Neveen
Published: February 2010

Municipal governments in the United States began offering retirement plans for their workers in the mid-nineteenth century, and state governments followed in the early twentieth century. As these plans matured, they confronted economic, social, and political challenges, including the creation of the Social Security system, which subsequently shaped their structure, governance, and generosity. After reviewing this history, the authors employ data from all fifty states to estimate a pension benefit equation for hypothetical workers and explain differences in the generosity of plans across states and types of workers covered. The authors show that population growth, plan funding, union representation, and participation in Social Security influenced the generosity of the plans.
Chapter 16 The New Intersection on the Road to Retirement: Public Pensions, Economics, Perceptions, Politics, and Interest Groups
Authors: Almeida Beth , Kenneally Kelly , Madland David
Published: February 2010

State and local pensions have been a cost-effective way to ensure that those retiring from public service will have adequate retirement income after a lifetime of work. Despite their strengths, opposition to public pensions has emerged in recent years. This chapter examines the economics of public pensions and outlines the role of public perceptions, politics, and interest groups in the public pension debate.
GR as a geometric theory of gravity – I
Authors: Cheng Ta-Pei
Published: February 2010

A geometric description of equivalence principle physics of gravitational time dilation is presented. In this geometric theory, the metric plays the role of relativistic gravitational potential. Einstein proposed curved spacetime as the gravitational field. The geodesic equation in spacetime is the GR equation of motion, which is checked to have the correct Newtonian limit. At every spacetime point, one can construct a free-fall frame in which gravity is transformed away. However, in a finite-sized region, one can detect the residual tidal force which is second derivative of gravitational potential. It is the curvature of spacetime. The GR field equation directly relates the mass/energy distribution to spacetime's curvature. Its solution is the metric function, determining the geometry of spacetime.
Spherically symmetric spacetime — GR tests
Authors: Cheng Ta-Pei
Published: February 2010

A spherically symmetric metric has two unknown scalar metric functions. The Schwarzschild solution to the GR field equation is presented. An embedding diagram is used to visualize such a warp space. GR predicts a solar deflection of a light ray that is twice as large as that implied by the equivalence principle. We present a brief discussion of gravitational lensing, with the lens equation derived. The precession of Mercury's perihelion and the Shapiro time delay of a light ray are worked out as successful tests of general relativity.
The homogeneous and isotropic universe
Authors: Cheng Ta-Pei
Published: February 2010

The universe, when observed on distance scales ≳100 Mpc, is homogeneous and isotropic. Hubble's discovery that the universe is expanding suggests strongly that it had a beginning. The estimate of the age of the universe by astrophysics from observation data is between 12 Gyr to 15 Gyr. The mass density of matter in the universe has around a quarter of the “critical density”. There is strong evidence showing that most of the mass in the universe does not shine and the nonrelativistic exotic dark matter has density ration of 0.21. A homogeneous and isotropic universe (the cosmological principle) is described by the Robertson-Walker metric in the comoving coordinates (the cosmic rest frame). In an expanding universe with a space that may be curved, any treatment of distance and time must be carried out with care.
Inflation and the accelerating universe
Authors: Cheng Ta-Pei
Published: February 2010

Einstein introduced the cosmological constant in his field equation so as to obtain a static universe solution. This constant energy density corresponds to a negative pressure, giving rise to a repulsive force that increases with distance. The inflationary theory of cosmic origin can provide the correct initial conditions for the standard model of cosmology: solving the flatness, horizon problems, and providing an origin of matter/energy, as well as giving just the right kind of density perturbation for subsequent structure formation. The primordial inflation leaves behind a flat universe, which can be compatible with the observed matter density being less than the critical density and a cosmic age greater than 9 Gyr if there remains a dark energy. This would imply a universe now undergoing an accelerating expansion, which is observationally supported by the measurement of supernovae at high redshift. The cosmological constant and the cosmic coincidence problems point to the need of new fundamental physics.
Tensors in special relativity
Authors: Cheng Ta-Pei
Published: February 2010

Tensors in a general coordinate system are introduced. When a tensor is expanded in terms of a set of basis (or inverse basis) vectors, the coefficients of expansion are its contravariant (or covariant) components with respect to this basis. The requirement of metric invariance in Minkowski spacetime leads to a generalized orthogonality condition, from which the Lorentz transformation can be derived. In terms of tensor we can have a manifestly covariant formalism. Maxwell's equations, the Lorentz force law, and the charge conservation equation are presented in their covariant forms. The symmetric energy-momentum tensor of a field system is introduced and the physical meaning of its components is discussed.
The privatization of violence
Authors: Likosky Michael
Published: February 2010

This chapter describes the links between privatization of military civilian activities and the significance this has for efforts to hold PMSCs accountable for their conduct. Through examining the trajectory of privatization through time and across sectors, it outlines the important role that public-private partnerships played from colonialism to the 20th-century industrialization of the United States. The link between nominally civilian privatization projects and violence is explored through a Peruvian natural gas pipeline project: the contract did not directly address security questions but its effect on an indigenous population was no less violent. The difficulty of dissociating public and private aspects of a given industry is seen in the modern high tech industry: though its archetype is the garage entrepreneur made good, the foundations of this industry lie squarely in the US Department of Defense. Both insights suggest the need to have a broader and more flexible approach to accountability.
6 Trading Languages
Authors: Butterfield Ardis
Published: February 2010

Takes us into the urban culture of London. It situates Chaucer's accounts of mercantile behaviour and speech – notably the Shipman's Tale and the portrait of the Merchant in his General Prologue as well as his Tale – within the busily multilingual world of city trade. London English, as evidence in the guild and other official records indicates, fought for recognition amongst other linguistic communities seeking power and influence in the city. Attention is given to the wider cultural and linguistic meaning attached to Flemish through the cross‐channel activities of merchants. Through tracing puns and other examples of cross‐linguistic influence, Chaucer's English is placed within the sometimes violently competitive multilingualisms of a fractured, intermittently cohesive urban community in which many forms of alliance between family, friend, mercenary, stranger, and foreigner were under pressure.
Introduction and Summary: ‘Administration of Justice’ in International Investment Law and Adjudication?
Authors: Petersmann Ernst Ulrich
Published: February 2010

This introductory chapter summarizes the main conclusions of Parts II to IV and, together with chapters 7 to 12, places them into the broader context of ‘principles of justice’, ‘global administrative law’, and of ‘multilevel constitutionalism’ that may be relevant for judicial ‘administration of justice’ in international investment law and investor-state arbitration.
Unification Rather than Fragmentation of International Law? The Case of International Investment Law and Human Rights Law
Authors: Dupuy Pierre-Marie
Published: February 2010

This chapter compares the normative origins of these two distinct branches of international law, assessing the historical anteriority of the obligations of states with regard to the rights of aliens — including their property rights — which appeared well before a new body of law developed with regard to human rights protection in general. This explains for one part some substantial similarities existing between these two sets of rules, as illustrated in particular by the way in which the principle of fair and equitable treatment of foreign investments is applied by arbitral tribunals. The chapter illustrates how judges and arbitrators — in their judicial interpretation and clarification of indeterminate investment rules and incomplete treaty regulations — can resort to principles of treaty interpretation, customary rules, ‘general principles of law’, judicial precedents, and human rights obligations of governments in order to avoid conflicts among fragmented jurisdictions, treaty regimes, diverse judicial interpretations, and domestic implementing rules.
Access to Justice, Denial of Justice, and International Investment Law
Authors: Francioni Francesco
Published: February 2010

Although customary international law does not provide for an individual right of access to justice before international tribunals, treaty law has been gradually recognizing and consolidating an indisputable right of access to international justice by private investors in the field of foreign investment law. Following the recent growth of bilateral and regional investment treaties and of investment arbitration, the right of access to justice for the investor has shifted from access to national courts and inter-state claims to the investor-state arbitration where private actors have direct access to an international arbitral tribunal without the traditional need for the interposition of their national state in diplomatic protection. The chapter examines the implications of this opening of the international remedial process to individuals and private entities, and focuses on three distinct but inter-linked aspects of the emergence of access to justice as a human right in the field of foreign investment.
Investment Tribunals and Human Rights: Divergent Paths
Authors: Hirsch Moshe
Published: February 2010

This chapter identifies common traits as well as basically different characteristics of international human rights and investment laws. Developments in both spheres reflect fundamental structural changes in international law since World War II, enhancing the legal protection of individuals as well as of various associations and legal persons that are active in these spheres. One of the most fundamental commonalities to both international human rights and investment law is the asymmetric legal relationship between sovereign states and individuals, including foreign investors. Consequently, legal rules and institutions developed in these spheres strive to compensate the inferior position of individuals and investors under the domestic law by enhancing legal protection at the international level. These two branches of international law have evolved differently along the private-public divide. The chapter discusses the case law of international investment tribunals that have encountered arguments regarding the applicability and relevance of international human rights law to investment disputes.
Constitutional Theories of International Economic Adjudication and Investor-State Arbitration
Authors: Petersmann Ernst-Ulrich
Published: February 2010

This chapter gives an overview of the diverse ‘constitutional approaches’ of the European Court of Justice (ECJ), the European Free Trade Area (EFTA) Court, the ECtHR, and national courts throughout Europe, for example in their judicial review of governmental interferences into economic freedoms and other fundamental rights on the basis of judicial interpretation and application of ‘constitutional principles’ with due regard to the human rights obligations of the governments concerned. The principles of ‘commutative justice’, ‘contractual justice’, and ‘conventional justice’ underlying private commercial arbitration differ fundamentally from the principles of ‘constitutional justice’ limiting governments and public national and international courts. The judicial task of settling disputes with due regard to the constitutional rights of citizens and constitutional restraints of governance powers is essential for maintaining an ‘overlapping consensus’ on ‘principles of justice’ among states and citizens with competing self-interests and conflicting conceptions for a good life, social justice, and an efficient regulation of the economy.
Balancing of Human Rights and Investment Law in the Inter-American System of Human Rights
Authors: Nikken Pedro
Published: February 2010

This chapter recalls that the inter-American system of human rights protects property as an individual right. However, the system is not the forum to protect business activity against arbitrary acts of the State. The practice of the Commission and the Court resists mixing wholly economic interests with human rights protection, even if property is involved in the conflict. The inter-American case law contains some solutions for conflicts of law. In cases of conflict between indigenous property and private property, the Court's jurisprudence suggests that human rights prevail over economic rights. Indigenous property is fully protected because it has a function that goes beyond pure economics. In contrast, the protection of other forms of private property is limited to compensation for expropriation. In principle, human rights must always prevail over rights related to international business. The payment of adequate compensation is the solution to meet investments commitments incompatible with human rights obligations.
Non-Discriminatory Treatment in Investment Disputes
Authors: Ortino Federico
Published: February 2010

This chapter analyzes the principle of non-discrimination on the basis of the nationality of the investor as one of the key legal guarantees provided to foreign investors by international investment agreements. As these guarantees may directly restrain states' legislative, administrative, or judicial measures taken to implement a host of public policies, their potential impact on human rights is not difficult to perceive. Given the general and undefined nature of the non-discrimination principle, its meaning and import can only be elucidated by arbitration, the chosen mechanism for the settlement of investment disputes. Based on an examination of the growing body of arbitral jurisprudence, the chapter argues that there still exists a wide margin of inconsistency in the way arbitral tribunals interpret the national treatment standard. The chapter emphasizes that the diversity of treaty language and the diversity of the interpretation of this language may represent a very useful learning ground for policy makers in the field.
Implementing Human Rights in the NAFTA Regime – The Potential of a Pending Case: Glamis Corp v USA
Authors: Cantegreil Julien
Published: February 2010

This chapter takes a critical view of NAFTA's Chapter 11 impact on human rights, focusing on the pending Glamis v. United States case. Looking at the facts and the claims raised, the chapter identifies the environmental and cultural human rights that are at stake, and assesses where to locate the legal issues concerning human rights that the tribunal will have to decide upon. It argues that if the tribunal adopts the current arbitral jurisprudence on the questions of expropriation and fair and equitable treatment, it will be another award prioritizing investors' rights over human rights concerns in the NAFTA regime. This chapter proposes a framework for litigation promoting human rights within the NAFTA regime. Arguing in favour of an internalization of human rights norms into the NAFTA regime and of a multilevel interaction of the different actors, it devises strategies for the parties and the tribunal to achieve this goal using the available legal tools.
Human Rights Arguments in Amicus Curiae Submissions: Promoting Social Justice?
Authors: Harrison James
Published: February 2010

This chapter analyzes the impact of human rights interventions of civil society organizations (CSOs) in international investment arbitration proceedings. It provides a history of the amicus submissions so far made by CSOs, and highlights the prevalence of human rights arguments in these submissions. It argues that there is a clear rationale for engaging with a range of issues raised in investment arbitration cases utilizing a human rights framework. The language and legal obligations of human rights appear to have an important impact in terms of ensuring that amicus submissions of civil society groups are accepted by tribunals. But there are fundamental problems in the way that this mechanism has been utilized by tribunal panels. The chapter concludes by arguing that continued superficial engagement with human rights by investment panels might weaken the edifice of international law in the eyes of those outsiders to the international legal system who seek to engage with it.
Environmental Rights, Sustainable Development, and Investor-State Case Law: A Critical Appraisal
Authors: Pavoni Riccardo
Published: February 2010

This chapter examines the increasing number of international investment disputes where issues relating to environmental rights, sustainable development and foreign investment protection were inextricably intertwined, in order to determine whether arbitrators have approached such interrelationships by taking environmental and sustainable development principles into consideration. It identifies the status and relevance accorded to environmental principles and obligations, either of a customary or treaty nature, in investor-state disputes. The chapter's purpose is to shed into light the extent to which arbitrators are prepared to take into account the obligation of host states to protect the environment and their citizens' right to a healthy environment. The final part of the chapter focuses on the relationship between investment law and the exercise of environmental participatory rights (information, public participation, and access to justice in environmental matters) at the national level.
The Relevance of Non-Investment Treaty Obligations in Assessing Compensation
Authors: Liberti Lahra
Published: February 2010

This chapter explores whether and to what extent a measure adopted by the State in the furtherance of international obligations other than those provided for in the investment treaty bears any consequences not only in the appreciation of state liability, but also in the determination of the quantum of compensation and in the choice of the method of valuation. The review of ICSID jurisprudence shows considerable shifts in the appreciation of this issue. The chapter consider several cases: Compañia del Desarollo de Santa Elena SA v. Republic of Costa Rica; Siemens v. Argentina; and SPP v. Egypt. The SPP v. Egypt case sets a useful precedent in that it clearly shows how international obligations arising under different areas of international law can be specifically relevant not only in the appreciation of the legal nature of the taking but also in the choice of the method of valuation affecting the quantum of compensation.
1 Introduction
Authors: Griffith‐Jones Stephany , José Antonio Ocampo , Stiglitz Joseph E.
Published: February 2010

This introductory chapter lays out the premise for the rest of the volume, which draws from the analysis of the current crisis to make a fairly comprehensive and ambitious set of policy proposals in the fields of national and global regulation, national macroeconomic management, and reform of the world monetary system. At the time of sending the book to the press, debates on national and global policy responses to the crisis were quite active. Some interesting initiatives have been put forth, such as the renewed issuance of Special Drawing Rights (SDRs), and steps towards better international regulation. However, many concerns remained as to the adequacy of the fiscal stimulus throughout the world and the unsettled position of banks in industrial countries, but particularly in the United States.
5 Responding to the Crisis1
Authors: Stiglitz Joseph E.
Published: February 2010

Entering into a more detailed analysis of policy responses, Stiglitz lays out four of the key aspects: monetary and fiscal policy, reducing the mortgage foreclosures, and financial sector restructuring. Keynes long ago recognized that monetary policy is typically ineffective in a downturn. He likened it to “pushing on a string.” Interest rate reductions prevented a meltdown of the financial markets but were unable to reignite the economy. The burden must therefore shift to fiscal policy. Given that the deficit soared over the past seven years, it is especially important, in the author's view, that fiscal policy aim at as big a “bang for the buck” as possible. Increasing unemployment benefits rank high in this criterion; tax cuts rank low, other than for low income individuals. Noting that the U.S. has one of the worst unemployment insurance systems among industrialized countries, strengthening it should be an important component of any American stimulus.
6 Central Banks, Liquidity, and the Banking Crisis1
Authors: Turner Philip
Published: February 2010

Turner examines the principles underlying central bank liquidity actions taken during the financial crisis. The toolkit of central banks has expanded dramatically. A bigger toolkit seems always better, provided those using its potentially dangerous tools are fully cognizant of the attendant risks. Only central banks can provide the assurances of liquidity often needed in a financial crisis. In the extreme conditions prevailing in autumn 2008, it was natural that fighting the crisis received priority. Before this crisis, nobody expected the scale of operations central banks would be drawn into—and many of these operations will at some point have to be unwound. A lot of these measures, however, will probably be permanent. Turner suggests three areas where the changes decided on during this crisis are likely to endure: increased term financing, wider deposit arrangements at the central bank, and better cross border provision of liquidity.
7 Agenda and Criteria for Financial Regulatory Reform
Authors: D'Arista Jane , Griffith–Jones Stephany
Published: February 2010

D'Arista and Griffith‐Jones stress the seeming contradiction that the more liberalized the financial system is, the greater the need for more effective regulation, to avoid massive and costly crises. The chapter develops the two basic principles on which such future financial regulation should be based. The first principle is counter‐cyclicality. It aims at correcting the main manifestation of market failures in banking and financial markets: their boom‐bust nature. The key idea is that (forward‐looking) provisions and/or capital required should increase as risks are incurred, that is when loans grow more, and fall when loans expand less. The application of this principle in Spain and Portugal shows that it is possible to design simple rules to make it effective.
9 How, If At All, Should Credit Ratings Agencies (CRAs) Be Regulated?1
Authors: Goodhart C. A. E.
Published: February 2010

This chapter examines how, if at all, should credit rating agencies be regulated. The author argues that most proposed regulation of CRAs is either useless or likely to be counterproductive. The CRAs were dragged into the broader regulatory framework (e.g., Basel II) against their wishes and, perhaps, as the U.S. Securities and Exchange Commission has suggested, they should now be removed from this role. Since CRAs are essentially forecasters, the author proposes a small, independent (but publicly funded) Credit Rating Agency Assessment Centre (CRAAC), paid by the industry, to provide a public evaluation of all the CRA forecasts.
14 Economic Development and the International Financial System1
Authors: Frenkel Roberto , Rapetti Martin
Published: February 2010

Frenkel and Rapetti argue in their chapter that the emerging market economies found in the 2000s a new way to participate in the global financial markets. In their view, one of the most important aspects was the stronger emphasis on the relationship between foreign saving, reserve accumulation, and the effect of competitive real exchange rates (RER) on economic growth. The authors find major theoretical explanations and empirical support for the RER‐growth link. The current global financial and economic crisis has brought back the discussion about the international financial architecture. The emerging debate has so far focused on the degree of regulation of global financial markets and potential reforms of multilateral financial institutions. These initiatives share the spirit of the proposals of the late 1990s and early 2000s, which were developed as a result of the crises in emerging markets economies. The proposals called for building institutions capable of preventing, managing, and compensating for the instability of the system.