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During its first day and into the morning session of the second day, the Panel reviewed three Supreme Court cases dealing with the admissibility of expert evidence and the implications of these cases for judges, juries, and expert witnesses. The law of expert evidence has changed.
Table of contents
- Convergence | Definition of Convergence by Merriam-Webster
- Ugo Mattei and Luca G. Pes
- Convergence: unexpected partnerships in engineering, medicine, and beyond
- Edited by Gregory A. Caldeira, R. Daniel Kelemen, and Keith E. Whittington
Control, Automation and Systems , pp.
Google Scholar. Sun and D. Zhou and S. Chwa and J. Yu, F. Zhou, and J. Shtessel, I. Shkolnikov, and A. Krupp, I. Shkolnikov, and Y. Sun, D. Zhou, and W. Yan, X. Wang, B. Yu, and H. Yan and H. Bhat and D. China 2. Personalised recommendations. Cite article How to cite? ENW EndNote. Yet, by the late s, it became clear that this model was producing disappointing results for those countries that had chosen this development path especially in Sub-Saharan Africa and Latin America. Unable to borrow to finance policies of economic development, most developing countries were eager to attract foreign direct investment for their development needs.
Convergence | Definition of Convergence by Merriam-Webster
The continuing suitability of the classic form of BITs is increasingly tied to these deep and structural shifts in the construction of a liberal market economy. BITs became a mechanism to allow developing states, in particular, to offer a credible commitment to foreign investors and their stakeholders that their newly liberalized markets were open to foreign investment and that these domestic liberalization efforts would not be reversed.
The close connection between the various aspects of domestic market reform and the entry into force of BITs is clearly evident in this account given by a former Costa Rican treaty negotiator:. The negotiation of every IIA is not only an international event, but also a manifestation of the domestic political economy of the signatory countries. In this regard, it is important to recognize that over the last two decades, most developing economies have undertaken deep and significant economic reform that has generated complex political and social dynamics within their own borders.
Ugo Mattei and Luca G. Pes
The negotiation of IIAs is then, to a great extent, the result of such domestic dynamics. Other developed country officials seem to have committed to these strong sovereignty constraints under conditions of bounded rationality, without sophisticated cost—benefit analyses at the point of signing. Yet the strength of the commitments represented by the entry into a stringent BIT — and, thus, the suitability of the older strict model — is especially important where the country concerned has a chequered history of relations with foreign investors and seeks to transition to a more liberal economic structure.
Argentina, for example, has a long history of defaulting on its foreign debt obligations 55 and had given birth to the Calvo and Drago doctrines in the late 19th to early 20th centuries. While most developing countries opted for BITs and investment arbitration throughout the s, some developing countries still remained sceptical of the merits of the market model.
Nonetheless, the structural adjustment policies imposed on them by international financial institutions left many of them with little alternative but to liberalize their domestic economies.
Convergence: unexpected partnerships in engineering, medicine, and beyond
Different historical paths bestowed the two systems with distinct institutional apparatus in the post-war era. While a centralized multilateral organization enshrined international trade law, international investment law was left largely to scattered bilateral arrangements. Nonetheless, a surprisingly salient current of jurisprudential convergence lurks underneath these diverging developmental pathways.
This convergence is structurally anticipated given that both operable legal systems have been forced to undergo identity formation in response to turbulent and shared environmental challenges. The completion of the Uruguay Round negotiations and the establishment of the WTO marked the first modern reconnection between the two fields with new rules governing the overlapping coverage. Two of the final sets of legal instruments in the WTO included direct provisions dealing with foreign investment issues.
However, some of these requirements are also often inherently trade restrictive. For the latter reason, the TRIMs Agreement sets out an illustrative list of performance requirements, encompassing, inter alia , local content and purchasing conditions, trade-balancing requirements, foreign exchange restrictions and export performance requirements, and it deems these to be inconsistent with Articles III national treatment or XI prohibition on quotas of the GATT. Indeed, mature investment treaty instruments such as Chapter 11 of the North American Free Trade Agreement [NAFTA] will often explicitly prohibit this type of performance requirement, further evidencing the modern overlap between the two fields.
Edited by Gregory A. Caldeira, R. Daniel Kelemen, and Keith E. Whittington
Indeed, the services sector is typically the largest recipient of inward FDI. The legal and institutional overlap between the trade and the investment regime is driven largely by contemporary economic logic and reality. Global value chains have reinforced the organic links between trade and investment. Not surprisingly, this has profoundly influenced the content not only of the WTO but also of the growing universe of bilateral and regional free trade agreements FTAs.
This economic driver will continue to push the two systems together. As global businesses embrace the increasing nexus between trade and investment, they will formulate their legal demands to reflect this new economic reality. Not surprisingly then, a growing number of disputes involve both trade and investment law issues. Uncertainty breeds enormous transaction costs. Opportunistic legal strategies are likely to emerge as some arbitrators might be tempted to cherry-pick scattered jurisprudential fragments for self-serving purposes.
Adventurous and frivolous lawsuits may ensue.
- Edited by Gregory A. Caldeira, R. Daniel Kelemen, and Keith E. Whittington.
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By the late s, both systems had developed a structural pro-market bias that would slowly drive convergence between them in the face of turbulent and shared environmental challenges. A structural pro-trade bias is located throughout the GATT. Since exceptions are typically interpreted narrowly, the prospect of successful invocation is low. It is thus perhaps unsurprising that there was not a single case in which any of these exceptions were accepted under the old GATT.
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In the case of international investment law, the colonialist past shaped an immediate pro-investor bias. BITs were conceived as a direct response to large-scale expropriation and nationalization throughout the developing world. Throughout the s and s, developed states would strategically deploy BITs to substitute for, and contest at the margins, radical downward shifts in the customary standard of property protection articulated by newly independent states. As discussed earlier, this pro-investor bias gathered enormous momentum with the Washington Consensus in the s and s when developing countries began to sign BITs in record numbers.
Therefore, any artificial distinction between market access liberalization and protection as mechanisms to divide the trade and investment regimes is practically and legally questionable. On the trade side, one can easily uncover this interrelation between market access and rights protection in the formatting of schedules of commitments under the GATS, especially on Mode 3 Commercial Presence. WTO members can opt in to legal coverage by either making horizontal commitments across all services sectors or sector-specific commitments which cover a particular economic sector to both the market access 88 and national treatment 89 obligations in the GATS.
The original purpose of the GATT as a trade contract was not to establish the general rule of law but, rather, to simply bind tariff reduction commitments and monitor cheating. In fact, GATT contracting parties in dispute had usually settled by the time working parties had decided on a recommendation. Such interpretative tendencies were perhaps inevitable when one considers that panels were composed largely of trade diplomats often without legal training.
The basic architecture of investor—state arbitration ISA had become a default pattern by the time developing countries began signing BITs competitively in the s and s.
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Here, arbitrators arbitrate, rather than judicially review, state measures with little room for states to justify law or regulation through the invocation of public interest.