bluuebunny/crossref_metadata_2025 huggingface dataset:
10 Managing Financial Risks: the Strange Case of Housing
Authors: Smith Susan J.
Published: September 2009

In the ‘home ownership’ societies of the English speaking world — where owner occupation is the tenure de rigueur, and mortgages are the respectable face of debt — borrowers, lenders, developers, and politicians are vying for the positions that gain most, and lose least, from the housing roller coaster, as it navigates a landscape of economic and environmental shocks. This jostling is hardly surprising, because housing is the world's largest class of assets, and its price appreciation has outstripped that of most other investments for more than a decade. But buying into housing can be a risky business, especially for ordinary households whose wealth tends to be concentrated within a single owned home where it increasingly forms an asset base for welfare. Strangely none of the financial instruments invented to manage this growing dependence on a narrow, sometimes volatile, and generally heavily leveraged, investment ‘portfolio’ — and which protect large institutions against the ups and downs of virtually every other major asset class (commodities, equities, bonds, and more) — are yet available for housing. Attempts to change this are, however, underway. This chapter weighs up their merits and limitations, considers whether they are likely to succeed, and comments on who gets what, where as a result.
11 Gender, Risk, and Occupational Pensions
Authors: Strauss Kendra
Published: September 2009

There is relatively little work that attempts to link up work on financialization with the body of research on gendered pension inequality. This is despite the fact that research on financial literacy, planning, and risk tolerance, decision-making confidence has highlighted distinct differences between men and women in all these domains. This chapter addresses that lacuna, focusing on the UK. The first section examines the gender gap in DC occupational pensions. The second part of the chapter sketches the broad contours of the financialization of UK occupational pensions in order to define the processes being addressed. The third section looks first at some of the macro-level changes associated with the financialization of occupational pensions before turning to the issues of financial literacy (financial capability) and planning, risk tolerance, and confidence in order to advance two main arguments. The first is that, in addition to highlighting compelling empirical evidence of persistent inequalities in coverage, savings rates, and employer contributions, evidence from economic geography and behavioural economics suggests a counter-narrative to the discourse of the ‘investor subject’, which recognizes the gendered nature of the assumptions that underpin both macro trends in pension policy, and the design of defined contribution (DC) occupational schemes. The second argument, the policy implications of which are discussed in the concluding section, is that when future trajectories for the evolution of occupational pensions under conditions of deepening financialization are considered, better and more widespread financial education to increase levels of capability without redistribution will fail to redress gendered pension inequality.
12 Consumer Credit, Self-Discipline, and Risk Management
Authors: Langley Paul
Published: September 2009

This chapter examines the embodied economy of mass market consumer credit, an area of economic activity that ballooned at the same time as the housing market. Drawing on governmentality literature, it examines the ways in which the responsibilities of borrowers for outstanding credit obligations have been transformed in the booming mass market for credit cards, such that individual borrower subjects come to perform entrepreneurial self-disciplines that extend well-beyond simply meeting repayments. The chapter emphasizes the intersection of the legal and extra-legal in the punishment of debtors, and how risk calculations in credit scoring can be understood as a technology of government. It offers reflections on the tensions and contradictions that are lived by individual credit card holders as the crisis unfolds, specifically arguing that self-disciplines of risk management fall short of completely containing the complexities and inherent uncertainty in economic life, such as precarious labour markets.
5 Speeches Written by Other Orators
Authors: Martin Gunther
Published: September 2009

An analysis of the speeches of Aeschines and Lycurgus as well as Lysias' sixth speech shows all the features of religious argumentation, including those that cannot be read without acceptance of the religious notions. Lysias' speech shows the widest range, featuring divine intervention in human affairs and the opponent's pollution, Lycurgus uses only the former type of argument, Aeschines only the latter. However, these two orators are consistent in the arguments they resort to throughout their careers; the choice of religious motifs is not made for one speech alone. An excursus considers the speech Against Aristogiton, which contains religious argumentation of a type Demosthenes does not employ in the undoubtedly genuine speeches; other motifs occur in higher density and intensity. There cannot be a definite conclusion about authenticity, though the interpretation as a genuine logographic speech seems most likely.
Conclusion II: The Influence of the Genre
Authors: Martin Gunther
Published: September 2009

The relative scarcity of religious argumentation and the restriction to certain argumentative patterns in assembly and private speeches suggest the existence of relatively strict, though unwritten, rhetorical conventions of appropriateness according to the genre. In the assembly a different, more restraint manner of speaking was practised, possibly as a consequence of a more result-oriented culture. The private speeches are as antagonistic as the public forensic speeches, but since the subject-matter is often too petty to have public significance, religion as a means of arousing attention and pathos may in such cases have seemed inappropriate and exaggerated. This is supported by the observation that the more significant and individual religious argumentation occurs in speeches that do have (or are presented as having) wider significance.
Barth, Origen, and Universal Salvation
Authors: Greggs Tom
Published: September 2009

This book explores the dynamics of the Spirit and Son in the economy of salvation. It offers an interpretation of Barth and Origen around this theme, bringing them into a formative dialogue for a constructive theology of universal salvation. Examining Barth's doctrine of election and Origen's understanding of apokatastasis, the book proposes that a proper understanding of the eternal salvific plan of God in the person of Jesus Christ points towards universal salvation. However, salvation is not achieved through a general principle or rule; it is achieved through the very particularity of the Son in whom all humanity is saved. Further place for human particularity is established through the economy of the Spirit. Origen and Barth's economic pneumatologies indicate the reverse dynamic to that of their interpretation of the Son's economy: while the particularity of the Son has universal effects for all particulars, the universality of the Spirit particularizes that universal in individuals and communities in the present. However, this is in a manner which avoids a binary separation of Christians (as the saved) from all other humans (as the damned); instead, Christians are led into the ever greater depths of God, in a manner which allows God's Spirit to be present in diverse ways with humans and human communities in their temporal particularities. This dynamic of Spirit and Son in salvation allows for the place of faith, ongoing history, and community within a soteriological schema which offers a universal hope of salvation in Christ.
1 Introduction
Authors: Greggs Tom
Published: September 2009

The Introduction sets out the aims and the nature of the book, and discusses the motivations that have led to it. The Introduction also advocates a formative approach to theology, and considers the nature of the relationship between historical and constructive theologies. It discusses the concerns that have led to this particular project and outlines the argument of the book. It also details the rationale behind choosing Origen and Barth, and points to potential difficulties with the task of comparing them.
Treaty Interpretation by the WTO Appellate Body
Authors: Van Damme Isabelle
Published: September 2009

The WTO dispute settlement system is unusually strong but not necessarily unique. How the Appellate Body reads the WTO covered agreements is not a matter of WTO law, it is a technique of general international law. The Appellate Body comes to interpretation from within its function in the WTO institution as a juridical body. This book explains how the Appellate Body approaches the interpretation of the WTO covered agreements, and contributes to a more general understanding of how treaties are interpreted in practice. It is as much about general international law as it is about WTO law.
Principles of Treaty Interpretation: Meaning and Function
Authors: Van Damme Isabelle
Published: September 2009

This chapter examines the meaning and function of principles of treaty interpretation in general international law. Customary international law on treaty interpretation is partly and mostly codified in Articles 31 to 33 of the Vienna Convention on the Law of Treaties (VCLT), which are discussed in their historical context. The chapter explains that even if treaty-based, treaty interpretation is governed by principles rather than rules. It also provides an introduction to some of the Appellate Body's techniques of interpretation and reflects on the need and status of special principles of treaty interpretation.
The Interpretation of Silence in the WTO Covered Agreements
Authors: Van Damme Isabelle
Published: September 2009

This chapter raises the question of how and when to interpret silence in the WTO covered agreements. The notion of ‘silence’ in treaty language is used as an alternative mode of thinking about so-called gaps in treaties. The chapter attempts to categorize certain types of silence in treaty language, and analyze how the Appellate Body responds to such silences. The first section briefly sketches the debate in general international law and WTO law to illustrate the unsatisfactory standard discourse. As an alternative, the notion of ‘silence’ is suggested as a more useful point of reference. The second section distinguishes between different types of silences, such as procedural and substantive silences. One of the underlying questions is whether the Appellate Body has perceived Article 3.2 DSU as a constraint in interpreting silence. It appears that this has not been the case, at least with respect to procedural silences.
The Contextual Interpretation of the WTO Covered Agreements
Authors: Van Damme Isabelle
Published: September 2009

This chapter demonstrates how Article 31(1) VCLT is not merely about the ordinary meaning and its context; rather the Appellate Body has relied on this basic principle to introduce a broader concept of contextualism. After more than fourteen years of jurisprudence, the Appellate Body's methods to explain and justify its decisions about the meaning of the WTO treaty language are starting to change. This shift is yet to infiltrate the submissions of disputants and the reports of most panels.
2 Urbanization as a Proxy of Demographic and Economic Growth
Authors: Lo Cascio Elio
Published: September 2009

Even if it is obviously impossible to give an estimate of the populations of the urban centres of the empire, numbering perhaps as many as 2000, the sheer number of those with several hundred thousands of inhabitants would suggest that either the rate of urbanization must have been higher than 10% for the empire at large, a figure often proposed, or the total population of the empire must have been larger than 50–60 million, the figure advocated by most ancient historians. Perhaps the most plausible solution is to think that both values must be higher than estimated. This conclusion is suggested by what we know about the two regions for which we have the best set of data, Egypt and Italy, apparently exhibiting an astonishing rate of urbanization. This high level of urbanization must be thought to be evidence of the high level of per capita income reached in an ‘advanced organic economy’.
5 Peopling the Countryside: Roman Demography in the Albegna Valley and Jerba
Authors: Fentress Elizabeth
Published: September 2009

The surveys of the Albegna Valley and the Island of Jerba were carried out respectively between 1979–1983 and 1995–2000 using similar methodologies (flow data and transect sampling). Each recovered over 1,000 sites, many of them Roman. They thus provide excellent comparable data for the study of ancient demographics. Using standard parameters, approximate densities per kilometre are calculated for each area, allowing the examination of change over time. The low figures for the Albegna Valley are then considered in the light of calculations regarding the population of Italy as a whole.
10 Approaches to Quantifying Roman Trade: Response
Authors: Fulford Michael
Published: September 2009

This chapter highlights the need from the perspective of the consuming community for an integrated approach to the comparative analysis of quantified material culture and environmental assemblages and change over time. At the same time, given the plentiful evidence for long-distance trade in the Roman world, it is important to begin to understand what this represented to different consuming communities in terms of expectations and values. What are ‘normal’ distributions in a marine or terrestrial environment, or in different social contexts? Long-distance traded goods are common on early Roman military sites on the frontiers, but rare on native sites, though in real terms it would have cost the same to reach both communities. Were these goods luxury in the native context, but everyday in the military? What would the military have considered as exotic?
11 A Comment on Andrew Wilson: ‘Approaches to Quantifying Roman Trade’
Authors: Harris William
Published: September 2009

Building on Chapter 9, this chapter suggests various ways in which we might choose between competing models of the Roman economy.
12 Roman Silver Coinage: Mints, Metallurgy, and Production
Authors: Ponting Matthew
Published: September 2009

This chapter discusses issues surrounding the estimation of the silver content of Roman imperial silver coins and presents some results of ongoing research. Silver content is an important tool for the study of Roman fiscal policy and so reliable data are crucial. However, it is now clear that earlier published analyses using instrumental techniques overestimate the silver content and miss much of the structure in the fineness patterns. Nero's reform of AD 64 centred on a far more serious debasement than had been previously thought and the control of the silver bullion content of the coins was tight and change was frequent, especially during times of trouble. Modern instrumental techniques also measure other elements enabling a detailed chemical analysis and characterisation of coinages. This chapter shows how these data can be used to address questions about mint organization and metal supply.
13 Coinage and Metal Supply
Authors: Hitchner Bruce
Published: September 2009

Did the Roman state manipulate the coinage only in response to political or economic problems or to problems of metal supply or was it in any way reacting to problems associated with growth in a hard money economy? This chapter responds to Chapter 12 arguing that manipulations of the coinage, in particular metallurgical manipulation and changes in the volume of coin emission until the mid-3rd century, were as much a consequence of overall economic growth as individual political and economic events. From the standpoint of metallurgical manipulation, it further suggests that increases or decreases in metal extraction for minting purposes may have been closely timed to perceptions of inflationary or deflationary forces, the former requiring increased production of copper, the latter leading to increased demand for new silver and gold. It also contends that state loans, tax remissions, debt cancellations may have functioned as devices to stimulate local economic development.
17 New Ways of Studying Incomes in the Roman Economy
Authors: Scheidel Walter
Published: September 2009

This chapter explores different ways of expanding the scope of the study of Roman prices and wages by considering the determinants of real incomes, the use of proxy data for real incomes, and the potential of cross-cultural comparison.
7 Quantifying Egyptian Agriculture
Authors: Bowman Alan
Published: September 2009

There is a great deal of evidence for the agricultural economy of Ptolemaic, Roman, and Byzantine Egypt, mainly in the papyri but also significantly (and increasingly) in the accumulating archaeological data. This chapter discusses the methods and approaches to using this evidence to quantifying agricultural activity in Egypt in the Ptolemaic and Roman period, with illustrations and examples under four headings: quantity and distribution of land; crop production and consumption; animal power (and transport); and wages, costs, and prices. It concludes with suggestions as to how we might relate it to the wider canvas of the Roman Mediterranean and to address the matter of generalization, or at least applicability to that wider world. Egyptian conditions are unique in some important respects but that should not prevent Egypt from making a contribution to our understanding of the wider Roman economy, especially methodologically.
Wrongs and the Law of Wrongs
Authors: Descheemaeker Eric
Published: September 2009

This chapter concerns itself with the identification of the subject-matter of the book, wrongs and the law of wrongs. Regarding the former, the definition offered of a wrong (or civil wrong) is that it is the violation of a right, and therefore a breach of duty. The relationship between the concepts of ‘duty’, ‘right’, and ‘wrong’ is explored; as are the notion of an ‘interest’, and the alternative analytical framework followed in particular by Nils Jansen. Concerning the delineation of the law of wrongs, this chapter explains why, in order to maintain a stable field of enquiry across jurisdictional divides, the book will exclude breach of contract and public law from its scope.
Delicts and ‘Quasi-delicts’ on the Map of Roman Law
Authors: Descheemaeker Eric
Published: September 2009

This chapter explains where delicts and ‘quasi-delicts’ fitted on the map of Roman law. It first looks at the interrelated notions of contractus (contract), delictum(delict or wrong), and obligatio (obligation), explaining how they emerged from the actional structure of Roman law and how they came to be assembled in a triangular relationship in Gaius' institutional scheme, contract and wrong being regarded as the two groups of causative events from which obligations arise. The chapter then considers how the twofold classification became fourfold in Justinian's Institutes, with the appearance of obligations said to be quasi ex contractu (as if from a contract) and quasi ex delicto (as if from a wrong). This, it is argued, suggests a contraction over the course of time of the Roman concept of delictum.
Conclusion
Authors: Descheemaeker Eric
Published: September 2009

This concluding chapter brings together the different threads of the book, recapitulating how Roman law upheld a strong division between fault-based and no-fault liability; how this division was misunderstood by modern French law, causing it severe taxonomical difficulties in the process; and how English law could derive from the civilian experience a partial remedy to the problems currently posed by the existence in its fold of intersecting wrongs, if it decided to switch throughout to a structure based on the degree of fault required in its various liability-creating events.
2 Economy
Authors: Mileson S. A.
Published: September 2009

This chapter examines the evidence for the economic exploitation of parks and provides an assessment of its significance. By contrast with the many studies which emphasize the importance of the material and agrarian uses to which parks were put, it argues that economic exploitation was only incidental to the creation of parks. Timber extraction, fuel wood production, fish and rabbit farming, stock-grazing, and venison production are all examined, as well as the limited extent to which active deer parks were used for arable farming. The idea of parks being used much more productively in the later middle ages is challenged.
5 Parks and the Crown
Authors: Mileson S. A.
Published: September 2009

Medieval kings are traditionally thought to have asserted wide powers over their subjects' creation of hunting reserves, not least through the establishment of forest law over large parts of the country. This chapter re-examines the accepted idea that the royal government closely controlled park-making through a system of licences. It shows that the majority of parks were created without licences and that where licences were obtained the initiative almost invariably came from the petitioner, rather than the crown. Forest law was of limited importance in restricting park creation, and there was little attempt to limit park numbers in general. A more nuanced picture of the nature of the royal interest in private parks is provided, including the ways in which kings helped to protect their subjects' reserves. The chapter also provides a re-assessment of the early chronology of park-making as part of the analysis of royal policy towards parks.
6 Parks and the Aristocracy
Authors: Mileson S. A.
Published: September 2009

This chapter explores the way in which park-making affected relations between members of the aristocracy. It looks at the way in which hunting and the creation of hunting reserves could unite the landed elite in the pursuit of a common leisure interest, before laying bare the extent to which the creation of parks could lead to conflict among nobles and gentry. Part of the problem was of patronage and access to park offices, but more important was the way in which the creation of parks could disrupt existing hunting practices and interfere with the established ‘landscape of lordship’. The chapter examines the way in which the multiplication of hunting franchises may have threatened the social position of great lords, as well as the extent to which parks could become the focus for aristocratic feuds.
Introduction
Authors: Hogan Linda
Published: September 2009

This introductory chapter discusses the contours of the liberal polity with specific reference to the role of religious voices therein. It suggests that the contemporary world is simultaneously secular and religious, noting that that the context in which liberal societies must function is one in which there is no prospect of religion disappearing nor of citizens agreeing on the fundamental principles of justice and of social order. The chapter highlights the range of perspectives evident in the collection through which the relationship between religion and politics in the liberal polity is discussed. There is a specific concern to assess the merits of Rawl's overlapping consensus, advanced through public reason, as the way by which the identification of such principles can be achieved.
11 Religion, Rhetoric, and Running for Office
Authors: Stiltner Brian , Michels Steven
Published: September 2009

Political campaigning has received relatively scant attention in the literature on public reason. This chapter examines the rhetoric of the four major candidates for U.S. president in 2008. These candidates serve as case studies of how American politicians present religious identities in public and how they address controversial issues concerning religion. It argues that while none of the candidates violated the basic requirements of public reason in their use of religious language, some of them created difficulties for themselves by using inauthentic or sectarian language. The candidacy of Barack Obama demonstrated the value of a capacious approach to public reason, an approach that makes connections between public purposes and the values that candidates and citizens hold dear.
Introduction: Science through Exegesis
Authors: Glasner Ruth
Published: September 2009

The Introduction discusses who Averroes was, what he did, and his reputation for being Aristotle's most faithful interpreter. Averroes' three commentaries on Aristotle's treatises are introduced. The aims and ideas of the book are briefly summarized.
Description of the Corpus
Authors: Glasner Ruth
Published: September 2009

Averroes wrote three commentaries on Aristotle's Physics, short (or epitome) middle, and long. He also wrote a book on questions in physics. The present book is based mainly on these four texts. Chapter 1 is a description of the four texts, their structure, and the available manuscripts, editions, and translations. Only the short commentary is extant in Arabic. The long commentary is commonly known via the medieval Latin translation. All three commentaries as well as the questions in physics are extant in medieval Hebrew translations. Without studying all these texts it is impossible to understand the development of Averroes' physics and to appreciate his achievement.
The Changing Cultural Contexts
Authors: Glasner Ruth
Published: September 2009

Chapter 3 is a brief summary of the main sources, Greek and Arabic, that Averroes used in the three commentaries. The sometimes very long notes of this chapter provide lists of the references to these sources in the three commentaries. In the case of the long commentary the lists may not be complete, but still cover the major part of the references.
The Turning Point of PhysicsVI: The Breakdown of Motion
Authors: Glasner Ruth
Published: September 2009

Aristotle addresses the concept of motion in books III, V, and VI of the underline Physics from different perspectives, and offers three different definitions or construals of this concept. This chapter shows how Averroes reworks all three definitions and in fact tears down completely Aristotle's concept of motion as a continuous entity. The discussion focuses mainly on the divisibility argument of underline Physics VI.4: “everything that changes must be divisible” and on the definition of motion as perfection (underline entelecheia) in Physics III.1. In both contexts Averroes offers an alternative interpretation of motion as a contiguous chain of intermediate motion segments. He introduces a new distinction between final and intermediate termini that leads the way to the conception of motion as forma fluens.
Summary and Conclusion
Authors: Glasner Ruth
Published: September 2009

The three turning points that were studied in chapters 6‐8 are facets of a major turning point in Averroes' thought that led to the consolidation of his ‘Aristotelian atomism’. Chapter 9 examines the arguments that were made in the previous three chapters about dating of this turning potint, and whether it was associated with the writing of the middle commentary or with the writing of the long. The data is very confusing. The conclusion, stated in Chapter 9, is that the turning point could have been influenced by his arguments with the mutakallimūn around 1180 and that Averroes worked out his new physics when he was writing the long commentary. At this stage he looked for the writings of Alexander and tried to find support in them. The revisions of all three commentaries were made after the writing of the long commentary.
Conflicts of Rights in the European Union
Authors: Torres Pérez Aida
Published: September 2009

This book focuses on the potential for conflict between overlapping constitutional and EU fundamental rights. When constitutional and EU rights overlap and the respective interpretations diverge, state courts are asked to follow the standard of protection defined by the European Court of Justice (ECJ). The ECJ's claim to normative authority needs to be justified. This book advocates a theory of supranational judicial authority grounded in the ideal of dialogue. At the outset, it is argued that traditional approaches to constitutional conflicts based upon supremacy should be overcome. A pluralist framework for structuring the interaction between legal systems in the EU not only offers a better account of reality, but it should be welcomed normatively as well. In this context, the ideal of dialogue will contribute to a better understanding and theorizing of the interaction between national and supranational courts interpreting fundamental rights. Despite multiple and varied references to dialogue in the literature, mostly from a descriptive standpoint, there has been no thorough and rigorous account establishing its legitimating potential regarding ECJ adjudication of fundamental rights norms. This book offers a theoretical account of how the legitimacy of ECJ's authority in adjudicating fundamental rights might be grounded in the ideal of dialogue. The arguments underpinning the legitimating potential of dialogue and the prerequisites for judicial dialogue are explored. Thereafter, the implications of dialogue for the mode of judicial reasoning in interpreting fundamental rights are analyzed. Such a theory of supranational judicial authority would serve as a normative model to assess the activity of the ECJ and to improve current institutional practices.
Introduction
Authors: Pérez Aida Torres
Published: September 2009

This Introduction outlines the contents of the book. The first part of the book identifies the object of the book's inquiry and place the project in the context of the plurality of systems protecting fundamental rights in Europe. The second part of this book advances the adoption of a pluralist framework for the interplay of fundamental rights law in the EU. Current institutional models addressing rights' conflicts in the EU are critically analysed. The third part contains the core of the book. It spells out the proposed theory of supranational adjudication in the EU. This book seeks to demonstrate that dialogue may provide the conceptual model for the European Court of Justiceɶs (ECJ) legitimacy in adjudicating fundamental rights. The book revolves around two main themes: constitutional pluralism, as the framework of institutional interaction in the EU; and dialogue, as the source of the ECJ's legitimacy in adjudicating fundamental rights.
Multilevel Protection of Rights in Europe
Authors: Pérez Aida Torres
Published: September 2009

This chapter places this book's project in the context of the plurality of systems protecting fundamental rights in Europe. In Europe, there are at least three spheres of rights protection: the states, the EU, and the European Convention on Human Rights. Each of these systems includes a bill of rights and a specific court with the supreme authority to interpret them: state constitutional (or supreme) courts, the ECJ, and the European Court on Human Rights. The European Court on Human Rights has created a quasi-constitutional European order of human rights. Although this work will focus on the interplay between state courts and the ECJ, the existence of the European Convention and its Court should not be ignored for a complete picture of the multilevel system of rights protection in Europe.
From Hierarchy to Pluralism
Authors: Pérez Aida Torres
Published: September 2009

This chapter critically analyzes current institutional models addressing rights' conflicts in the EU. Much of the academic debate has focused on whether state constitutions or EU Treaties should be regarded as the supreme law of the land; and whether constitutional courts or the ECJ should have the final say in case of conflict. The chapter seeks to demonstrate the shortcomings of hierarchical models relying on supremacy as the principle structuring interaction between norms protecting rights. In addition, this chapter shows that specific proposals formulated from non-hierarchical approaches are unsatisfactory as well. Even though these specific proposals are rejected, a pluralist framework regarding the structure of power in the EU is advanced. As such, a pluralist model furthers the opportunity to overcome the dangers of exacerbated state sovereignty by fragmenting public power among several institutions beyond the state. At the same time, a pluralist model limits the excesses of concentrating power at the supranational level by establishing mutual checks and balances between the national and supranational orders.
A TRIBUTE TO CHRISTOPH SCHREUER
Authors: Neuhold Hanspeter
Published: September 2009

This chapter presents a brief tribute to Christoph Schreuer as a distinguished scholar and personal friend. The chapter details a close friendship with Schreuer dating back to the 1980s, when together with Waldemar Hummer, the first version of the Austrian Handbook of International Law in 1983 was edited. The chapter says that Schreuer is not only an outstanding expert on international law but has acquired a remarkable Allgemeinbildung, which the translation ‘general knowledge’ does not adequately express; at the same time, he is a gentleman, the chapter states, a type of person for which no adequate German word exists.
MOST FAVOURED NATION CLAUSES AND JURISDICTIONAL CLAUSES IN INVESTMENT TREATY ARBITRATION
Authors: Tawil Guido Santiago
Published: September 2009

This chapter considers some of the controversial issues addressed by different arbitral tribunals concerning the application of most favoured nation (MFN) clauses to dispute settlement. It begins with a brief discussion on the concept, origin, and purpose of MFN clauses. It then discusses the application of MFN clauses to dispute settlement.
MFN CLAUSES AND DISPUTE RESOLUTION IN INVESTMENT TREATIES: HAVE WE REACHED THE END OF THE ROAD?
Authors: Hobér Kaj
Published: September 2009

This chapter focuses on the role of the most-favoured-nation (MFN) clause in the BIT. It considers the RosInvest decision, which is believed to be the first case where an arbitral tribunal has allowed a claimant to use an MFN clause in one treaty to incorporate the dispute settlement clause in another treaty. It argues that although the decision breaks new ground, it is unlikely that we have reached the end of the road as regards the debate about the effects of MFN clauses in BITs because most MFN clauses are different from each other and must be interpreted against the background of the facts and circumstances of each individual case.
CONSENT AND DUE PROCESS IN MULTIPARTY INVESTOR-STATE ARBITRATIONS
Authors: Lamm Carolyn B. , Pham Hansel T. , Meise Bay Alexandra K.
Published: September 2009

The last decade has seen a significant rise in the number of international arbitrations involving three or more parties. In the interest of efficiency and consistency, arbitral institutions have sought to manage and coordinate these multiparty arbitrations. This chapter discusses the fundamental need for consent as well as the various due process issues that may arise in such multiparty investment treaty arbitrations, with special reference to the procedures and proceedings before the International Centre for Settlement of Investment Disputes (ICSID), the Iran-United States Claims Tribunal, and North American Free Trade Agreement (NAFTA) arbitral tribunals.
BRIDGING THE CONTRACT/TREATY DIVIDE
Authors: Sinclair Anthony
Published: September 2009

This chapter begins by addressing the drafting approaches found in investment protection treaties that appear to provide a basis for investment-related State contract disputes to be submitted by an investor to a treaty-based arbitral tribunal for determination. It then addresses the competence of treaty-based arbitral tribunals to determine contractual claims per se. Finally, it reviews the publicly available arbitral practice on the prospect that contractual claims may be determined pursuant to generic investment treaty dispute settlement provisions.
MONITORING OF DOMESTIC COURTS IN BIT ARBITRATIONS: A BRIEF INVENTORY OF SOME ISSUES
Authors: Liebscher Christoph
Published: September 2009

This chapter considers the issues that arise when the activity (or inactivity) of domestic courts becomes an issue in investment arbitration. Topics covered include types of ‘denial of justice’; two preliminary issues for an investor seeking redress against the host State — a fork in the road provision and an (implied) waiver of the BIT arbitration offer; when to go to arbitration; and whether an objection in domestic proceedings is necessary in order to preserve an error for review by international arbitration.
ARBITRATOR INDEPENDENCE IN ICSID ARBITRATION
Authors: Sheppard Audley
Published: September 2009

ICSID prescribes that the ICSID arbitrator must ‘be relied upon to exercise independent judgment’. This chapter begins by comparing this requirement with the formulation found in other arbitral rules and various national laws. It then considers the decisions in both ICSID and other arbitrations concerning challenges, based on (i) the relationship between an arbitrator and a party; (ii) the relationship between an arbitrator and a counsel; and (iii) issue and subject matter conflict. The chapter concludes by recommending that the legal test and procedure for determining arbitrator challenges in ICSID proceedings should be changed.
PROVISIONAL MEASURES IN RECENT ICSID PROCEEDINGS: WHAT PARTIES REQUEST AND WHAT TRIBUNALS ORDER
Authors: Malintoppi Loretta
Published: September 2009

This chapter provides an overview of recent ICSID decisions on provisional measures in an attempt to identify the common approaches adopted by arbitral tribunals in directing or recommending parties to maintain a certain conduct pending resolution of a dispute. The practice of ICSID tribunals shows that provisional measures are disposed of with reasonable speed. Depending on the circumstances, the delays range on average from a minimum of one month to a maximum of one year between the time a request is introduced and when an order is issued by a tribunal. From what can be ascertained from the cases decided to date, where tribunals' decisions relating to provisional measures have been made public, parties usually exchange written submissions and it is not uncommon for tribunals to convene brief oral hearings or hold conference calls specifically devoted to requests for provisional measures.
INHERENT POWERS OF NATIONAL AND INTERNATIONAL COURTS: THE PRACTICE OF THE IRAN-US CLAIMS TRIBUNAL
Authors: Weiss Friedl
Published: September 2009

This chapter begins with a brief overview of the concept of inherent powers. It then examines the relevant practice of the Iran–US Claims Tribunal (IUSCT). The IUSCT has assumed inherent powers in a great number of circumstances and procedural configurations. The evolution of its relevant practice exhibits two distinct, yet interrelated trends. At first it would seem the IUSCT merely claimed and reserved inherent powers without actually deploying them, primarily in the absence of authority provided by the Tribunal's Rules. Nonetheless, when it did make use of such powers, it felt the need for support drawn from the ample practice of similar courts and tribunals operating for ‘protracted periods’, as well as from academic writings. At a later stage, the IUSCT increasingly invoked its own prior decisions as precedents.
ON THE DENUNCIATION OF THE ICSID CONVENTION, CONSENT TO ICSID JURISDICTION, AND THE LIMITS OF THE CONTRACT ANALOGY
Authors: Garibaldi Oscar M.
Published: September 2009

This chapter argues that Professor Schreuer's interpretation of Article 72 is incorrect. The contract analogy, which is unobjectionable as an aid to explaining the basic workings of the consent regime, ceases to be useful when it dictates conclusions that are inconsistent with the text of Article 72 and the context of the ICSID Convention. At that point, applying the contract analogy to Article 72 becomes an instance, in the context of legal discourse, of what J. S. Mill called the fallacy of false analogies. Recent studies have spent more time on the development of alternative theories than on pointing out the limits of the contract analogy. Studies must not only offer an alternative analysis based on those rules of treaty interpretation, but show why the opposing theories are inadequate. The chapter presents an analysis of this issue supplemented with brief observations on the limits of the contract analogy and on the inadequacy of other theories that, though by no means attributable to Professor Schreuer, may tempt those searching for an extra-textual justification for interpreting ‘consent’ in Article 72 as an ‘agreement to arbitrate’.
STATE IMMUNITY AND THE ENFORCEMENT OF INVESTOR-STATE ARBITRAL AWARDS
Authors: Bjorklund Andrea K.
Published: September 2009

This chapter begins by describing the regimes set forth for the enforcement of awards under the ICSID Convention and under the New York Convention. Though the routes each prescribes are different, each refers the prevailing party in a dispute to the municipal legal system(s) of State parties to the treaties in the event of a losing party's refusal to pay an award. Successful investors in investment arbitrations governed by either regime can thus run into difficulties in attempts to recover assets that are protected by municipal laws on sovereign immunity with respect to execution. The chapter illustrates the pitfalls investors can face both because of the protections States enjoy due to State immunity and the complexity of the interaction between the New York Convention and municipal State immunity laws. It serves to demonstrate Professor Schreuer's prescience with respect to the perennially intractable nature of State immunity with respect to enforcement.
ENFORCEMENT OF ICSID AWARDS: ARTICLES 53 AND 54 OF THE ICSID CONVENTION
Authors: Alexandrov Stanimir A.
Published: September 2009

This chapter discusses Articles 53 and 54 of the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (ICSID Convention). Article 53's obligation to abide by and comply with an award is independent of the enforcement mechanisms provided for in Article 54. States cannot require that investors holding an award against the respondent State submit themselves to the procedures of Article 54 before an obligation to honour the award under Article 53 can arise. To allow this would be inconsistent with both the text and the drafting history of the ICSID Convention, would run counter to the practice of the vast majority of contracting States and the conclusions of ICSID tribunals, and would undermine the very foundation of the ICSID system.
THE DIPLOMATIC PROTECTION OF FOREIGN INVESTORS: A TALE OF JUDICIAL CAUTION
Authors: Muchlinski Peter
Published: September 2009

This chapter reviews the use of diplomatic protection as a means of vindicating the rights of foreign investors. It is an appropriate time to reconsider the issue as the International Court of Justice (ICJ) will have to determine the current scope of general international legal protection for foreign investors in the continuing Diallo case. In the overwhelming majority of cases, a method other than diplomatic protection will be used to settle investment disputes. Nonetheless, given that cases such as that concerning Diallo can arise from time to time, the ICJ may need to provide some means by which such disputes can be effectively resolved. However, given the sensitive sovereignty issues in such cases, it would be no surprise if the ICJ avoids getting into the details of international investment law and gives a narrow fact-based decision in Diallo without engaging in judicial creativity, preferring to leave the further development of investor protection rights to treaty-based regimes.
CLAIMS OF SHAREHOLDERS IN INTERNATIONAL INVESTMENT LAW
Authors: Smutny Abby Cohen
Published: September 2009

This chapter describes some of the considerations to be taken into account in evaluating the standing of a shareholder to present claims for losses incurred due to interference with the company's assets, addressing the regime under customary international law as well as several significant decisions under investment treaties. Protections under customary international law and protections under treaties are considered.
IDENTIFY OR DEFINE? REFLECTIONS ON THE EVOLUTION OF THE CONCEPT OF INVESTMENT IN ICSID PRACTICE
Authors: Gaillard Emmanuel
Published: September 2009

This chapter examines two competing methodologies for the assessment of the existence of an investment. It then discusses the factors to be taken into account in the assessment of the existence of an investment. It considers the concept of contribution to the economic development of the host State and the concept of positive and significant contribution to the economic development of the host State.
PREMATURE TREATY CLAIMS
Authors: Spiermann Ole
Published: September 2009

Recently, Christoph Schreuer has written, together with Rudolf Dolzer, about the weight given by some tribunals to the investor's neglect of local remedies that ‘this issue is far from settled’. This chapter shows that leaving aside the umbrella clause, Schreuer has actually welcomed the underlying applications of substantive standards that, in specific circumstances, have caused, if not dictated, tribunals to seize on the investor's neglect of local remedies. Once echoes of a general requirement of exhaustion of local remedies no longer linger in our minds, the issue might actually be settling down comfortably.
THE UNITED STATES 2004 MODEL BILATERAL INVESTMENT TREATY AND DENIAL OF JUSTICE IN INTERNATIONAL LAW
Authors: Schwebel Stephen M.
Published: September 2009

In 2004, the United States government adopted and published a Model Bilateral Investment Treaty that substantially revised the Model Bilateral Investment Treaty previously employed by it in negotiations with other governments over the conclusion of bilateral investment agreements. It has subsequently used the 2004 Model BIT in negotiating bilateral investment treaties, and investment chapters of free trade agreements, with other governments. This chapter focuses on a single provision stating that the ‘fair and equitable treatment includes the obligation not to deny justice’. The result of this specification is that the standard of fair and equitable treatment that is a paramount standard of bilateral investment treaties the world over is reduced in the US Model BIT to (i) ‘the customary international law minimum standard of treatment’ and (ii) ‘the obligation not to deny justice’.
INVESTMENT RULES IN REGIONAL INTEGRATION AGREEMENTS IN LATIN AMERICA: THE CASE OF THE ANDEAN PACT/ANDEAN COMMUNITY
Authors: Hummer Waldemar
Published: September 2009

This chapter focuses on the approach of the Andean States to the treatment of foreign investment capital, which underwent a fundamental change in the course of time. A common regime for the treatment of foreign investment which has now been in place for more than seventeen years was successively liberalized, and, although it is today characterized by a sufficient degree of openness, should be modified again and adjusted to the prevailing requirements of an ever more strongly globalized world economy. Despite several attempts, no separate comprehensive investment regime for the Andean region has been elaborated to date, so that the three different systems continue to exist side by side and compete with one another: (a) alongside the common rules of Decision 291, there are (b) national provisions which have not been harmonized yet, as well as (c) still applicable investment protection agreements (BITs) concluded by individual Andean States.