By Cameron Peek

stock photo, money, leaves, map, out, financial, european, euro, union, crisis, referendum, european-union, brexit, euroescepticism
Photo: Brexit Text License: Editorial Use OK

Following the conclusion of phase one (“the divorce”) of the Brexit negotiations last December, the United Kingdom and the European Union have officially entered phase two of the negotiations, discussing the framework for the UK-EU future relationship and deciding the arrangements necessary during the period transitioning to that relationship. Frustrated that the discussions have produced few concrete ideas of what this future relationship would look like, two weeks ago the EU’s chief negotiator, Michel Barnier, told UK leaders that the time had come to make a choice — will the UK be in or out of the EU customs union? Responding to growing concern within the Conservative Party that she might bend to opposition pressure, last week UK Prime Minister Theresa May made her position clear; the UK will “categorically [be] leaving the customs union.”

A Refresher on Customs Unions

A customs union is a type of trading block that unifies the tariff policy of all members. Customs unions are defined by two key features: 1) a free trade area between members (members do not charge duties on goods imported from other members) and 2) a common external tariff (any goods imported from non-member countries are charged the same import tariff, regardless of which member country the goods enter the union). Here, we should distinguish the EU customs union from the EU single market. The customs union unifies external tariffs, but the single market is what allows the free flow of goods, services, people, and capital. Thus, it is possible to be in the single market, but not the customs union (like Iceland, Liechtenstein, Norway and Switzerland), or be in the customs union, but not the single market (like Andorra, San Marino and Turkey).

May’s Position and the Way Forward

Leaving the customs union risks seriously disrupting the lion’s share of UK trade. The EU is the UK’s largest trading partner, comprising 43% of all UK exports and 54% of all UK imports. Exiting the customs union will put up new tariff barriers, depriving UK-EU traders of the duty-free access they currently enjoy. On the other hand, leaving the customs union would allow the UK to escape the confines of the common external tariff, thereby making it possible for the UK to implement its own tariff policy and negotiate its own trade agreements with non-EU members. As the EU itself has recognized that 90% of global growth is expected to come from outside the EU, this could be a worthwhile tradeoff for the UK.

Still, May is holding on to hopes of both having her trade cake and eating it too. In August of last year, May’s trade team released a “future partnership paper” outlining what is still the UK’s stance for negotiating the future UK-EU trade relationship. Most notable from the paper was the proposition of a “customs partnership.” Under this scheme, the UK proposed that it would synchronize its import policies for intermediary goods brought into the UK that are part of a supply chain for final consumption in the EU. Thus, for American widgets meant to be consumed in the UK, the UK could charge x%; but if those same American widgets were to be used in other products that would eventually be shipped to the EU, the UK would be charge the EU rate, y%.
Unfortunately for May, EU officials are underwhelmed at the idea, calling the UK’s proposal for a customs arrangement “unrealistic.” Even more doubtful is whether such an arrangement would comply the WTO’s non-discrimination principles. As the negotiations proceed, the UK will need to be warry not to compromise its obligations to the world trading system in the hopes of maintaining current access to the EU market.

By Erika V. Suhr

File:International Criminal Court building (2016) in The Hague.png
Image: ICC Building License: CC BY-SA 4.0

On October 27, 2017 Burundi, a year after declaring its intentions, became the first country to withdraw from the International Criminal Court.  The timing of Burundi’s withdrawal coincides with a report released by the United Nations Commission of Inquiry. The report recommended that a criminal investigation on crimes committed in Burundi be initiated in response to evidence of torture, sexual violence, extrajudicial killings, disappearances, and illegitimate arrests and detentions sponsored by the regime of Burundi’s president, Pierre Nkurunziza.

At the time that Burundi announced its decision to withdraw from the Rome Statute, it seemed like it could be the leader in a wave of withdrawals by other African nations. Many nations in Africa have criticized the ICC as being a tool for post-colonial control of African nations and a proxy for Western-led regime change. The ICC came under fire around the time it chose not to pursue charges against William Ruto and Uhuru Kenyatta, Kenya’s deputy president and president, who were both accused of violence surrounding Kenya’s 2007 election, which resulted in over 1,100 deaths and disappearances. However, South Africa rescinded on its threat in March of last year after its High Court ruled that Parliamentary approval was required to carry out the measure. Gambia also backed down after a presidential election defeated the 22-year incumbent. These political events forestalled a potential exodus from the ICC by prominent African members.

Burundi’s exit is an illustration of what can perhaps be expected when the Court attacks sitting officials instead of the fringe rebel groups it has in the past. However, it might be a symptom of an underlying fatal problem. At the very least, it presents an opportunity to reflect on the future of the ICC, and how it will respond to its critics going forward.

For instance, the criticism cited by Burundi and other African countries is that Africa is unfairly targeted while other world conflicts, especially those in which Western countries are involved in, are ignored. The ICC’s record seems to support that notion to some extent. Presently, nine out of the ten formal investigations conducted by the ICC are Africa-related, and all of its trials have been against African defendants. Additionally, the glaring absence of three of the five Security Council powers from the Rome Statute (the United States, Russia, and China) rankles member states who see the ICC as a political instrument wielded against the Global South. A rebuttal to this criticism might be that of the nine African countries being investigated by the ICC, five have been referred to the Court by their own governments. In only two cases has the ICC’s prosecutor used her discretion to bring a case. Further, a look at the list of countries that are being examined by the ICC reveals a less Africa-centric perspective. Countries under “preliminary examinations” include Afghanistan, Burundi, Colombia, Gabon, Guinea, Iraq/UK, Nigeria, Palestine, Registered Vessels of Comoros, Greece, Cambodia, and Ukraine.

Second, the argument exists that the Court is wildly inefficient. Since it began functioning in 2002, judges have issued only 31 arrest warrants. 25 cases have been heard before the Court and of those cases verdicts have been issued in six of them. Ultimately, nine people have been convicted and one was acquitted. Those results have cost over $1 billion since the Court’s inception, and today the ICC has an operating cost of $145 million per year. However, one might concede that investigations surrounding the gravest human rights violations are complex and time-consuming, as evinced by ad-hoc tribunals of isolated conflicts, such as the International Tribunal for the Former Yugoslavia. This is especially so when there is no cooperation from the country in which one is investigating.

There are tensions over the Court’s willingness in the coming years to test nonmember states and regions that it has historically not pursued. For instance, in its preliminary examination of Afghanistan, will it encompass United States actors in its inquest, or even Afghan state actors, or will it choose to go after dissident groups, like the Taliban, and count on some international cooperation? Russia has already blocked two Security Council resolutions to refer the Syrian crisis to investigation by the ICC. In face of this opposition, how aggressively will the ICC pursue allies of the Russian government, or the Russian government itself? Will it target the most culpable individuals?
Notwithstanding the criticisms and the setback of Burundi’s exit, one can say that some justice is preferable to no justice and that every incremental step forward in prosecuting human rights offenses is a victory and a testament to the better angels of our humanity.

As for Burundi, it is possible that it has not escaped the Court, despite its best efforts. Under the Rome Statute, crimes in nonmember states can still be referred to the Court for investigation by the UN Security Council. In this case, the commission did recommend a referral. The Court has stated that it would still claim jurisdiction over Burundi, but it might be difficult for them to do so. The status of Burundi’s case is a preliminary examination. For it to rise to an investigation, the ICC’s judges would have to grant the request of the Court’s prosecutor, and Burundi will most likely argue that there is no legal basis for them to do so now it is no longer a party. 
By Maura Sokol 

Prime Minister Ahmed bin Dagher has accused southern separatists in Yemen of attempting a coup after fighting began in the country’s southern port city, Aden. The separatists are known as the Southern Transitional Council (STC). The STC is led by Aidarous al-Zubaydi, the former governor of Aden who was forced out of his position by President Abed Rabbo Mansour Hadi. Fighting first broke out on Sunday, January 28th, when a deadline expired that the separatists had issued demanding the resignation of the government. The separatists seek independence for the southern part of Yemen, which was previously a separate country before a unification with the northern part of Yemen in 1990. The Southern Transitional Council has now demanded the removal of the Prime Minister and accused the government of corruption. In just a few days, the council has seized control of most of Aden and surrounded the Presidential Palace, which contains members of President Hadi’s government. The President himself is based in Riyadh.  

The conflict between President Hadi’s government and the separatists calls into question the stability of a coalition that has been fighting on the same side of the Yemeni Civil War since 2015. Hadi’s government is backed by Saudi Arabia, which leads a coalition of nine other countries in a military intervention against the Houthi movement. The civil war began when the Houthi movement, which supports Yemen’s Shia Muslim minority, rebelled against the government. The Houthis now control Yemen’s capital, Sanaa, and much of northern Yemen. Although the Saudi-led coalition has been fighting in support of Hadi’s government for the past three years, the United Arab Emirates is a key member of the coalition and supports the southern separatists. The separatists are financed and armed by the UAE, while Saudi Arabia supports Hadi’s government. Al-Zubaydi has made public comments since the fighting began declaring that the separatists remain committed to the coalition and to driving the Houthis out of Sanaa.

President Hadi’s government and the UAE have been in conflict for most of the existence of the coalition. The UAE has taken advantage of the situation to secure control over oil and gas ports in southern Yemen, and President Hadi has publicly accused the UAE of acting as an occupier in Yemen. President Hadi is also allied with the Islah Party, a branch of the Muslim Brotherhood and a known enemy of the UAE. 

As of Wednesday, the International Red Cross reported at least 36 killed and 185 wounded in this week’s fighting. The larger Yemen crisis has been declared the world’s worst man-made humanitarian disaster by the United Nations. According to the UN Human Rights Council, over half of the people who have been killed in the conflict are civilians, and civilians are the victims of repeated and “unrelenting violations of international humanitarian law.” Air strikes from the Saudi-led coalition are the leading cause of overall civilian casualties. Currently about 22.2 million people, or about 75% of Yemen’s population, are in need of humanitarian assistance.
By Xiaoyi Wang

adventure, ball-shaped, blur


The Montreal Protocol on Substances that Deplete the Ozone Layer (the Montreal Protocol) celebrated its thirty years on September 16, 2017. The Montreal Protocol is an international treaty designed to protect the ozone layer by phasing out 99 percent of nearly 100 ozone-depleting substances (ODS), including CFCs, HCFCs and halon. As one of the most successful and effective environmental treaties ever negotiated and implemented, the Montreal Protocol has helped reduce the depletion of the ozone layer by about 20 percent from 2005 to 2016. The shrinking of the ozone hole will bring numerous benefits to people’s health (reducing the chance of having skin cancers and eye disorders) and agriculture. It will also help slowdown global climate change and to prevent extreme weather events (hurricanes, floods and droughts). The Montreal Protocol was a “milestone for all people and our planet,” said UN Secretary-General António Guterres.

The treaty has been ratified or accepted by all 197 UN member states. “Thirty years ago the world proved it can come together and tackle a global problem with global resolve,” said Erik Solheim, head of the United Nations Environment Programme (UNEP). The ozone layer is expected to return to 1980 levels between 2045 and 2060 as long as countries continue to meet their obligations.

The Success of the Montreal Protocol

There are a number of multinational treaties dealing with environment issues. Among them, the Montreal Protocol has achieved a great deal of success in atmosphere protection.  The lackluster compliance with the Kyoto Protocol, which was set in place to reduce the emissions of greenhouse gases, as the prominent counter-example. The success of the Montreal Protocol does not come from nowhere.

The Role of the United States

The United States government played an exceedingly aggressive role in producing the Montreal Protocol, which contributes to its success. By the 1980s, the industry within the United States achieved significant progress in producing safe substitutes for CFCs. Not only was the financial obstacle progressively removed, the ongoing disagreement within the Reagan Administration and the U.S. Environmental Protection Agency (EPA) was resolved after a careful cost-benefit analysis from the President’s Council of Economic Advisers, which suggested that the costs of controls would be far lower than anticipated, and the benefits far higher. Considering the benefits to mankind and the cost of reducing CFCs when its substitute was readily available, even unilateral action was well-justified for the United States. “But if the world joined the Montreal Protocol, the benefits for the United States would be nearly tripled, because it would prevent 245 million cancers by 2165 including more than five million cancer deaths,” stated by Scott Barrett in Environment and Statecraft: The Strategy of Environmental Treaty-Making.

Global Participation

To assist developing countries to meet their commitments, the Multilateral Fund (Fund) was established in 1991. To date, the Fund has approved activities including industrial conversion, technical assistance, training and capacity building worth over $3.6 billion. With the financial assistance from the Fund, developing countries largely comply with the Montreal Protocol. Currently, 147 of the 197 parties to the Montreal Protocol meet its criteria.

The other element that encouraged countries to ratify the Montreal Protocol was its trade provisions. The trade provision limits the signatories to trade only with other signatories on CFCs and other ODS. Once the main producing countries signed up to the treaty, it was only a matter of time before all countries joined in the system. 

After over thirty years in picture, the Montreal Protocol still benefits the mankind. The success of the Montreal Protocol provides a workable system when environment protection requires global cooperation. 
By Trevor Schmitt

China’s Great Firewall will remain closed to companies which choose not to conform to China’s online censorship and oversight laws. Chinese regulators announced last month at a conference in Geneva that Google and Facebook must adhere to local law if they want access to all 751 million of mainland China’s internet users. Google, Facebook, and Twitter are among the companies currently blocked from providing services in mainland China.

According to Qi Xiaoxia, Director of the Bureau of International Cooperation at the Cyberspace Administration of China, if the companies choose to comply with Chinese law, they will be allowed access to the county’s massive online market. Speaking before the Internet Governance forum at the U.N.’s European headquarters, Qi Xiaoxia went on to note that “[t]he condition is that they have to abide by Chinese law and regulations. That is the bottom line. And also, that they would not do any harm to Chinese national security and national consumers’ interests.”

Considered one of the most comprehensive legislative acts in Chinese history, mainland China’s cybersecurity law went into effect just six months ago. The law’s primary purpose is to allow Chinese officials unfettered access into the digital lives of their population. Among the law’s many provisions, tech companies must store Chinese data locally, submit to data surveillance, and provide censorship tools to prevent users from subverting the government’s sovereignty over expression.

The law also provides Chinese officials with the power to conduct “national security reviews” of technology that companies want to use or sell in the Chinese market. These security reviews may allow China to identify weaknesses in foreign technology security to exploit in their own intelligence gathering, according to a report by the Insikt Group.

Violators of the law face fines of up to 1 million Yuan (~$150,000) or even potential criminal charges.

Reactions among U.S. technology executives haven been overtly negative according to a new survey conducted by the U.S.-China Business Council. Of the respondents surveyed, 82% noted that they “are concerned about the impact of China’s cyber and data regulations.”

Driving this concern is the fear that Chinese oversight may put their intellectual property at risk. Early in December, at China’s state-sponsored World Internet Conference in Wuzhen, representatives from 60 foreign technology companies and trade groups expressed concerns over China’s “national security reviews.” According to the representatives, extensive review of their network equipment could reveal proprietary source code putting their trade secrets at risk.

In 2016, internet watchdog firm Freedom House placed China as the world’s “worst abuser of internet freedom” for the second consecutive year.

Despite these concerns, some companies are moving forward with compliance. Shortly after the law went into effect, Apple Inc. announced plans to build a new data center in mainland China in order to conform with the law’s data localization requirements. Since that announcement, Apple has taken down hundreds of apps at the request of Chinese officials, including Microsoft’s Skype, from its online store. Many of the removed apps enabled users in mainland China to access virtual private networks (VPNs), a means of evading censorship.

Apple’s close relationship with Chinese regulators has not gone unnoticed. In an open letter following Apple’s removal of the VPN apps, U.S. Senators Patrick Leahy (D-Vermont) and Ted Cruz (R-Texas) asked the iPhone giant to “push back” on China’s control over free expression. According to the letter, companies like apple “have both an opportunity and a moral obligation to promote freedom of expression and other basic human rights.”

In any event, the position of Chinese regulators remains clear. According to Qi Xiaoxia, “[w]e are of the idea that cyberspace is not a space that is ungoverned. We need to administer, or supervise, or manage, the internet according to law.” And if foreign tech companies want access to mainland China’s digital market, they will have to comply with China’s laws. 

By Maura Sokol

On November 15th, 2017, Georgetown University Law Center’s Human Rights Institute hosted a panel discussion on business and human rights. Monitored by Professor Mitt Regan, representatives from major corporations, the Responsible Business Alliance, and the federal government spoke about how better business practices can have an impact on human rights across the globe. Although there is international cooperation in the area of human rights, protection from the harmful impacts of business operations still varies widely. Because there is no global regulator to ensure that everyone enjoys the same basic levels of protection, there is a major governance gap in human rights. This gap is now being addressed in part by businesses, who have taken a new approach to viewing their companies as having an obligation to respect certain human rights, regardless of local laws.

Genevieve Taft-Vazquez is a Director in the Global Workplace Rights department for the Coca Cola Company, and discussed how Coca Cola has tried to move from a supply chain evaluation to a deeper look at the whole value chain of Coca Cola production and manufacturing. Coca Cola works under a franchise model, and they previously focused on ensuring respect for human rights with their independent bottlers by providing Guiding Principles for their suppliers. The company has moved to a more comprehensive approach, looking at agricultural production, advertising sponsors, human rights due diligence for mergers and acquisitions, and evaluating the implications of buying land for new bottling sites.

Katie Shay, Legal Counsel on Business and Human Rights for Oath (formerly Yahoo), discussed the issues of privacy and freedom of expression. These are the main human rights issues of concern for this type of major internet company. Oath maintains data on their users that local governments would like to access, and Oath is the gatekeeper between the information and government actors. To protect privacy rights, Oath tries to provide notice to the user in most cases. In other situations, where governments would like content to be removed, Oath works to ensure that the request was legal if the content is not in violation of Oath’s own policies on permissible content. Working with local governments in this way can be a tricky task, as the consequence of being non-compliant is often that their services will be blocked in the country at issue.

Carlos Busquets works for the Responsible Business Alliance, a group of tech companies that came together to work on human rights issues (the group has now opened up to other companies as well). The companies came together to agree on a common Code of Conduct for businesses to address a number of human rights issues. One key issue in the tech industry is the use of forced labor. A 2013 report revealed that 30-40% of those working in electronics are working under forced labor conditions. The RBA came to the conclusion that it was not enough for electronics companies to say they do not want their products made by those under forced labor; companies have to make sure that the ways workers find themselves in a forced labor situation are no longer present. Companies must then go a step further to try and change the very market that creates incentives for workers to be abused in such a way. The RBA created a set of due diligence tools for companies to use to combat practices and improve the issue and to create a market for ethical recruitment.

Jenny Stein is the Acting Team Leader for the Internet Freedom and Business and Human Rights team in the Office of Multilateral and Global Affairs within the Bureau of Democracy, Human Rights, and Labor at the U.S. Department of State. Ms. Stein’s team approaches business and human rights as a continuously evolving paradigm. The Bureau promotes human rights generally and also addresses critical issue areas, such as Burma, North Korea, and Bangladesh in the past. They work bilaterally with governments as well as with multilateral organizations such as the UN Human Rights Counsel. Major focuses currently include trying to advance accountability and transparency, and how to guide companies on their human rights responsibilities and conduct outside of the US. 

Three guiding principles in human rights law are to protect, respect, and provide remedies. Many believe that this third pillar is underdeveloped, and the panel spent some time discussing the development of remedies. Conventionally, there are two types of remedies, judicial and nonjudicial. An example of the possibilities of judicial remedies includes the current Supreme Court case of Jesner v. Arab Bank, in which the Supreme Court will address the question of whether companies can be sued abroad for human rights abuses. An example of a nonjudicial remedy is the system of complaints that can be made through the U.S. State Department if a business violates one of the OECD guidelines. However, the panelists encouraged the audience to think more broadly about the concept of remedy, and to ask ourselves: how can we remedy the broader issue, and not just an individual case? This is an ongoing and evolving issue in human rights law, and one that businesses are working to address. 

By Thea McDonald
Inline image 1

Imagine the devastation, an international bad actor hacks into an American airplane in flight and autopilots the plane remotely. In a post-9/11 world, this is a frightening possibility. Thankfully, according to the Department of Homeland Security (DHS), we are not at that point. 

We are, however, at the point of government officials being able to successfully test hack a Boeing 757, as a DHS official explained at last month's CyberStat Summit.

According to Avionics, the test hack occurred in September 2016, but DHS official Robert Hickey didn't announce the successful attempt publicly until last month. Hickey told CyberStat Summit attendees that the details of the 757 hack are classified, but that the joint government, industry and academic team that executed the test “establish[ed] a presence” on the aircraft via the plane’s radio frequency while the plane was parked at Atlantic City airport. To highlight the potential risks, the hack team only used items that a typical flier could bring through the TSA security checkpoint.

While the hack was executed remotely – meaning that no one was physically touching or on the aircraft – the “hackers” couldn't actually reach the plane’s controls that alter the flight path. This probably reads as comforting news to most frequent fliers, but the potential for a commercial aircraft to be vulnerable to remote manipulation seems to be generations ahead of a passenger’s cell phone signal interfering with ground systems.

And even though production of Boeing 757s was discontinued in 2004, many commercial airlines still have 757s in their employ, and the president and vice president still travel on the 757 model.

We live in a world where cyber-attacks are daily news and international cyber-criminals hold American businesses’ information hostage. If a terrorist ever managed to take down a single commercial U.S. airliner – or infinitely worse, many airliners in a coordinated attack – the information hacks we see so frequently would pale in comparison to the devastation this kind of coordinated aviation cyber-attack would bring. Now, the U.S. government’s national security teams must not only worry about cyber-attacks that could cause massive booking problems, strand passengers, and create massive delays, but must assess and mitigate the possibility of cyber-attacks that could take lives at the click of a button or the maneuver of a virtual joystick.

An ability to breach the cockpit could take us into a world where a 9/11-style attack could be executed without the hijackers anywhere physically near the aircraft. The international legal complications of such an attack may give cyber-smart international terrorists a get out of jail free card.

The legal quandary could get even messier based on which country a hacked plane took off from and where it was headed. The type of agreement, or lack thereof, that the U.S. has with the country of the flight’s origin, plus the location of any mid-flight accident, could affect possible jurisdictions for the government and passengers’ survivors to bring suit.

Thankfully, there are several steps and missing pieces any potential bad actor would have to put in place to get from a successful government on-the-ground, stationary hack test that couldn’t reach the plane’s control system to a successful hack of a mobile airborne target that completely takes over control of the craft. 

In the wake of the DHS test hack news, cybersecurity analyst and former State Department adviser Morgan Wright joined FOX News to discuss the test’s implications. Citing our aircrafts’ aging infrastructure and the successful hack, Wright expressed his concern: “If you take down one plane, I have to act as though every plane is vulnerable, and now I have to defend every single plane.”
By Jesse Van Genugten

Photo: The World Bank, Creative Common License

The practice of international arbitration continues to develop in complex ways that sometimes address discontent with the legal system as a whole. It thus remains useful to gauge the experience and expertise of practitioners familiar with the growth within and around the field of international arbitration. Only then can we explore the intricacy of the changes afoot. 

Hosted by the Center on International Commercial Arbitration, at the American University Washington College of Law, a panel of lawyers convened on a cold day in November 2017 to do just that. Three attorneys more than capable of holding their own in arbitral proceedings sat down to discuss current salient issues in Bilateral Investment Treaty (“BIT”) and International Centre for Settlement of Investment Disputes (“ICSID”) arbitration. Professor Susan Franck opened the debate by describing the speakers’ qualifications.  There were legal representatives from both sides of the typical arbitral proceeding with experience in fields from infrastructure, mining and energy corporations to sovereign states. Each attorney, when asked, highlighted the interplay between public perception and the legitimacy of the institutional framework. 

The variety of different actors and interests has produced a difficult interaction for international arbitration lawyers to analyze, particularly in ad hoc BIT and ICSID arbitration proceedings. This list of actors includes the parties to the arbitration – most commonly international corporations and a sovereign state – as well as the citizens of that state and other states. The current environment of international investment law was crafted largely with the intention of ensuring the protection of international corporate investments, a one-sided affair that, in case of arbitral awards against the state, can lead to the perceived lack of legitimacy in the system. This systemic structure has recently come under scrutiny in a search for the protection of state sovereign interests in enacting relevant regulatory protections. 

Nevertheless, that push can fail to gain legal traction in international arbitral bodies, which are forced to rely on black-letter law rather than public interest in making determinations, leading often to disastrous results. In the paradigm cases, particularly the cases readily available to the casual newsreader – e.g. Philip Morris and Australia's plain packaging laws – corporate interests clash with the international normative construct of comity, which favors the ability of a foreign jurisdiction to legislate as it wishes. In the Philip Morris case in 2012, Australia banned companies selling tobacco products from displaying their corporate logo and brand on cigarette packages, drawing immediate backlash from the tobacco industry. Philip Morris initiated arbitration proceedings against Australia under the Hong Kong-Australia BIT, and although the three-arbitrator panel found it lacked jurisdiction to hear the case in December 2015, the dispute prompted toxic reactions in the national and international press. 

It has often been left to three panel arbitrators to decide the clash between public health, environmental, or human rights interests and the legal obligations states owe to international investors, which had led critics to question the one-sided recourse settlement process set out in bilateral treaties and by the World Bank’s ICSID. 

Moving forward, the speakers discussed the attributes of several proposed systemic changes, yet failed to agree on one solution. The first, and perhaps the most ambitious, is the creation of an external multilateral court designed to create legal precedent and ensure the equality of representation. A second alternative proposes that reforms to the current system, though no less significant, be achieved by a more piecemeal strategy that encourages adopting transparency provisions for arbitration proceedings as well as creating an appellate mechanism. Whether the international arbitration and bilateral treaty system will adopt any of the above changes remains to be seen, but the stimulation of the discussion by organizations such as the Center on International Commercial Arbitration provides a vital foundation for such modification.