Articles scientifiques

Fair and Equitable Treatment in Investor-State Dispute Settlement: A New Interpretative Framework

D. RESTREPO AMARILES, A. VAN WAEYENBERGE

Journal of Business Law

2017, vol. 8, pp.632-650

Départements : Droit et fiscalité, GREGHEC (CNRS)


The fair and equitable treatment (FET) standard has become the cornerstone of investor-state dispute settlement, and one of the most disputed notions in international business law. With investors facing increasing uncertainty, and states moving closer to denouncing treaties they see as limiting their sovereign right to regulate, FET has come to pose a significant risk to the entire investor-state dispute resolution system. This paper outlines an alternative way to consider FET, by acknowledging its thick and indeterminate character as a legal standard. It argues that previous traditional taxonomies have inherent limitations, and that practitioners should instead seek to understand the FET standard through the lens of the rule of law. The paper offers an analysis of the jurisprudence of the International Centre for the Settlement of Investment Disputes (ICSID) to show that three principles of the rule of law – due process, legal certainty, and the prohibition of arbitrariness – constitute an operational and certain, yet flexible framework of interpretation for the application of the FET standard

France’s Commercial courts: a good example of the administration of justice by ordinary citizens

N. STOLOWY, M. BROCHIER

Journal of Business Law

2017, vol. 1, pp.1-22

Départements : Droit et fiscalité, GREGHEC (CNRS)

Mots clés : Accessto justice; Commercial law; Courts' powers and duties;France; Judges; Legal history

https://1.next.westlaw.com/Document/I23461760B0A411E6B1DFACFF35803E0B/View/FullText.html?navigationPath=Search%2Fv1%2Fresults%2Fnavigation%2Fi0ad6ad3b0000015fc9730919545f7414%3FNav%3DINTERNATIONAL-ANALYTICAL%26fragmentIdentifier%3DI23461760B0A411E6B1DFACF


Commercial courts occupy a highly specific position in the French judiciary landscape, since their judges are elected.French commercial court judges are not members of the legal professions but business executives and tradespeoplechosen by their peers. This encourages a pragmatic view that takes into account the economic constraints faced by companies. InFrance, certain courts of first instance,such asthe commercial courts, delegate the function of judgment to ordinary citizens, whereas in most courts of first instance, and the appeal courts Cour d’appel and Cour de cassation, only full-time professional magistrates can rule on the cases brought before the court

Italy’s Gentle Revolution: The New Law on Same-Sex Partnerships

M. M. WINKLER

The Digest - National Italian American Bar Association (NIABA) Law Journal

2017, vol. 25, pp.1-31

Départements : Droit et fiscalité, GREGHEC (CNRS)

Mots clés : Italy; Constitutional Law; Human Rights; LGBT Rights

http://heinonline.org/HOL/LandingPage?handle=hein.journals/digst25&div=1&src=home


This Article comments the genesis and the content of the Italian law on civil partnerships between people of the same sex, enacted in May, 2016, and eventually entered into operation, together with a bunch of administrative regulations, in early 2017. As the last country of Western Europe to adopt such a law, the Italian law recognises civil partnerships for same-sex couples but presents several flaws in terms of equality and nondiscrimination based on sexual orientation

James Elliott Construction (C-613/14) : A "New(ish) Approach" to judicial review of standardization

A. VAN WAEYENBERGE, D. RESTREPO AMARILES

European Law Review

2017, vol. 42, pp.883-894

Départements : Droit et fiscalité, GREGHEC (CNRS)


This article analyses the decision of the Court of Justice of the European Union in the James Elliot Construction case delivered on 27 October 2016. In its decision, the Court has for the first time affirmed its jurisdiction to interpret harmonised technical standards on a preliminary reference. In this contribution, we argue that the decision marks an important breakthrough in the evolution of EU law by recognising harmonised technical standards as part of Union law. This opening offers new possibilities for litigating technical standards and assuring the centrality of the rule of law in the achievement of the internal market. The article concludes by analysing the implications of the decision in relation to the Meroni doctrine, the potential conflicts between the principle of free access to the acts of the Union and the protection of intellectual property, and the impact that greater litigation over harmonised technical standards may have on the caseload of the Court

Questionable Transactions, Unquestionable Rules: The Odebrecht/Braskem Case and the Foreign Corrupt Practices Act

L. SCOLLO, M. M. WINKLER

Diritto del Commercio Internazionale

2017, vol. XXXI, n°3, pp.521-542

Départements : Droit et fiscalité, GREGHEC (CNRS)


This article offers a critical analysis of the Odebrecht/Braskem case under theForeign Corrupt Practices Act (FCPA ). Two Brazilian companies, Odebrecht S.A.and its subsidiary Braskem S.A., have been caught in a massive bribery machinethat concerned Brazil as well as many other countries, including Switzerland andthe United States. Not only did these companies create a true consortium throughwhich they controlled Brazil’s public procurement system in a way to adjudicateand make profit out of multibillion projects in South America and abroad, but theyalso exploited the U.S. financial market to transfer money to corrupt public officers.The two companies cut a deal with the U.S. prosecutors under the FCPA, which thearticle comments in two parts. First, it recounts the case’s factual background,casting a light on the companies’ business models and corrupt conduct. The secondpart delineates the legal arsenal underlying the deal signed with the U.S. prosecu-tors, which reflects a consolidated practice of the U.S. government to prosecutenon-American multinational enterprises pursuant to the FCPA. Such practice isbased on the broad discretion enjoyed by U.S. federal prosecutors in exercising their prosecutorial power, which includes the possibility to halt or defer theprosecution upon the condition that the defendant pays a penalty and submits to certain compliance and self-reporting obligations. Through the FCPA, they cantarget foreign corporations whose bribery scheme involved, even indirectly, theU.S. financial market. Finally, the Odebrecht/Braskem case represents the firstexample of a deal that was indirectly participated by foreign governments, whosesanctions were considered part of the deal itself

Contacts  

Département Droit et Fiscalité

Campus HEC Paris
1, rue de la Libération
78351 Jouy-en-Josas cedex
France

Faculté  

Arnaud VAN WAEYENBERGE

Droit et Fiscalité (GREGHEC)

Voir le CV

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