國立虎尾科技大學 |

State responsibility for national judicial decisions in investment arbitration : = Lessons China can learn.

紀錄類型:	書目-語言資料,手稿 : Monograph/item
正題名/作者:	State responsibility for national judicial decisions in investment arbitration :/
其他題名:	Lessons China can learn.
作者:	Chen, Ji.
面頁冊數:	1 online resource (239 pages)
附註:	Source: Dissertation Abstracts International, Volume: 79-03(E), Section: A.
Contained By:	Dissertation Abstracts International79-03A(E).
標題:	Law. -
電子資源:	click for full text (PQDT)
ISBN:	9780355498165

State responsibility for national judicial decisions in investment arbitration : = Lessons China can learn.
Chen, Ji.

State responsibility for national judicial decisions in investment arbitration :Lessons China can learn. - 1 online resource (239 pages)

Source: Dissertation Abstracts International, Volume: 79-03(E), Section: A.

Thesis (S.J.D.)

Includes bibliographical references

As a party to over 100 bilateral investment treaties, it is important for China to evaluate its exposure to state liability from domestic court decisions related to investment treaty arbitration in order to mitigate its risk of state liability in such cases and ultimately to improve China's investment environment. Investment treaty arbitration jurisprudence shows that many investment tribunals subject domestic court decisions to substantive review and attach liability to those court decisions. This substantive review approach is, in fact, separate from the deferential approach generally adopted by other international tribunals and is rooted in the concept of "substantive denial of justice." However, the basis of state responsibility triggered by national court decisions should not be the substance of the decisions, but rather the way the national courts handle the substantive materials of the cases, e.g., bias, discrimination, arbitrariness or bad faith on the part of the court. Intervention in domestic judicial decisions by investment tribunals should be launched only on the condition that the foreign investor has satisfied the burden of proof to produce convincing evidence of one of these elements. The concept of "substantive denial of justice" is misleading and should be abandoned in international investment arbitration.

Electronic reproduction.
Ann Arbor, Mich. :
ProQuest,
2018

Mode of access: World Wide Web

ISBN: 9780355498165Subjects--Topical Terms:

671705
Law.
Index Terms--Genre/Form:

554714
Electronic books.

State responsibility for national judicial decisions in investment arbitration : = Lessons China can learn.
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500 $a Source: Dissertation Abstracts International, Volume: 79-03(E), Section: A.
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504 $a Includes bibliographical references
520 $a As a party to over 100 bilateral investment treaties, it is important for China to evaluate its exposure to state liability from domestic court decisions related to investment treaty arbitration in order to mitigate its risk of state liability in such cases and ultimately to improve China's investment environment. Investment treaty arbitration jurisprudence shows that many investment tribunals subject domestic court decisions to substantive review and attach liability to those court decisions. This substantive review approach is, in fact, separate from the deferential approach generally adopted by other international tribunals and is rooted in the concept of "substantive denial of justice." However, the basis of state responsibility triggered by national court decisions should not be the substance of the decisions, but rather the way the national courts handle the substantive materials of the cases, e.g., bias, discrimination, arbitrariness or bad faith on the part of the court. Intervention in domestic judicial decisions by investment tribunals should be launched only on the condition that the foreign investor has satisfied the burden of proof to produce convincing evidence of one of these elements. The concept of "substantive denial of justice" is misleading and should be abandoned in international investment arbitration.
520 $a Meanwhile, it is equally important that China realizes and responds to issues presented in investment arbitration case law and its domestic legal practice, which may increase its exposure to state responsibility under investment treaties. Insufficient reasoning in Chinese court decisions is worth particular attention, especially when the decision declines recognition and enforcement of a foreign-related or foreign arbitral award. Lack of sufficient reasoning may serve as a strong indication of abusive misconduct, arbitrariness, or even bad faith on the part of the court, which may contribute to a finding of state liability. Furthermore, in addition to a denial of justice---a traditional standard for state responsibility involving judicial acts---case law shows that investment tribunals also access responsibility issues under other standards, such as the fair and equitable treatment (FET) standard and the full protection and security (FPS) standard, even under the principle of prohibition of expropriation. China should be alert to the possibility that its court decisions also trigger state responsibility under these less demanding standards and should make efforts to ensure its national law and the legal practice of Chinese courts are in conformity with its treaty obligations.
533 $a Electronic reproduction. $b Ann Arbor, Mich. : $c ProQuest, $d 2018
538 $a Mode of access: World Wide Web
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710 2 $a American University. $b Washington College of Law. $3 1182530
773 0 $t Dissertation Abstracts International $g 79-03A(E).
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