Researchers' Activities

CIL participated as observer in the resumed 38th session of UNCITRAL Working Group III held in Vienna, Austria on 20–24 January 2020. CIL was represented by Research Associate Professor (CIL) N Jansen Calamita, Head of CIL’s Investment Law and Policy Programme, and Postdoctoral fellow Charalampos Giannakopoulos.

The Working Group brings together more than 200 government officials, UN officials and NGO representatives, with a mandate to identify concerns raised by the current mechanisms for resolving investor-State disputes, discuss the desirability of reform, and propose relevant solutions. During the resumed meeting in Vienna, discussions focussed on (i) the likely features and modalities of an appellate mechanism or a multilateral investment court to hear investment disputes; (ii) the possible sources and methods of financing such institutions; and (iii) the selection and appointment of adjudicators in a reformed system.

Research Associate Professor (CIL) Calamita and Dr Giannakopoulos contributed to the discussions by raising the question of enforcement of the awards produced by a possible appellate mechanism or a multilateral investment court, framing it against the existing legal framework, and presenting delegations with the associated challenges that would have to be overcome.

Postdoctoral Fellow Neha Mishra presented a paper titled ‘Unravelling the Trade—Cybersecurity Dilemma: Justifying Cybersecurity Measures in International Trade Law’ at the conference on International Economic Law and Security Interests. The conference was organised by Amsterdam Centre for International Law at the University of Amsterdam, and the European Society of International Law.  

The paper is about the various measures adopted by governments to address cybersecurity-related concerns. Some of these measures restrict cross-border flows of digital services/data and are thus inconsistent with obligations in trade agreements such as General Agreement on Trade in Services (GATS). However, certain governments might argue that such measures are justified under the GATS security exception (art XIVbis), as they protect national security. This paper investigates whether GATS art XIVbis is relevant in justifying cybersecurity measures and its potential impact on cybersecurity governance. Ms Mishra argues that GATS art XIVbis has limited relevance and is potentially problematic, when used in justifying majority of cybersecurity measures. First, a large majority of cybersecurity measures do not fall within the limited set of exceptional circumstances listed in GATS art XIVbis. Further, in applying this exception to cybersecurity measures, WTO Panels will be unfairly forced to balance trade and security interests in an environment of political, technological and policy uncertainty. Given these practical limitations and the normative boundaries of GATS art XIVbis, countries must avoid casually relying upon security exceptions as a basis for adopting/implementing unilateral measures on cybersecurity, but rather engage in meaningful cyber-diplomacy and regulatory cooperation mechanisms to resolve their differences on cybersecurity governance.

Postdoctoral Fellow Neha Mishra presented her paper titled ‘International Trade Law and Data Ethics: Possibilities and Challenges’ at the 6th Biennial Asian Economic Law Network Conference. The conference was held in Taipei on 25–27 October and was organised by National Tsing-Hua University; Ministry of Science and Technology, Taiwan; Research Center for Humanities and Social Sciences, National Tsing Hua University; and The Erasmus+ Program of the European Union.

Ms Mishra argued that the inherent tension between promoting data/digital innovation and ensuring ethical data management is likely to surface in international trade law, and is particularly prominent when data restrictive measures are examined under exceptions in international trade agreements. This tension appears irresolvable due to the technological uncertainty surrounding the future evolution and uses of AI and Big Data and the absence of international norms on data governance. Although international trade law cannot directly resolve these tensions, trade policymakers should remain open and responsive to relevant policy dialogues on data governance in various governmental and multistakeholder fora. Ms Mishra argued that by doing so, international trade law can play a more proactive and transformative role in dealing with ethical issues in data governance—addressing not only infrastructure-related issues (eg, access to telecommunications networks) but also regulatory concerns such as facilitating international cooperation on data policies, supporting internationally recognised internet standards, promoting fair competition and transparency in domestic data policies, and ensuring digital inclusion of developing countries. Trade rules should also not require countries to compromise on their data policies necessary for ethical reasons so as to participate in global digital markets. Although these outcomes appear ambitious, the ongoing dialogues at WTO on electronic commerce provide an opportunity to generate political goodwill and enhance cooperation among countries to achieve these results.

On 19–20 September 2019, the CIL hosted representatives of ten Asia-Pacific economies in Singapore for a workshop on the management of the reform of investment treaty portfolios. The workshop was convened by Research Associate Professor (CIL) N Jansen Calamita (Head, Investment Law and Policy) and attended by CIL researchers Dr Romesh Weeramantry (Head, International Dispute Resolution) and Dr Charalampos Giannakopoulos (Post-doctoral Fellow).

Participants discussed a broad range of issues, including the challenges of successfully updating and managing a country’s investment treaty portfolio, approaches to treaty drafting, options for reform of the ISDS regime, managing the coexistence of ‘reformed’ and ‘unreformed’ treaties in state treaty portfolios, and developing and implementing effective procedures for dispute avoidance and prevention.

The workshop is part of CIL’s broader research focus on international investment law and policy and international dispute resolution.

Research Fellows Amber Rose Maggio and Dafina Atanasova participated in the 16th ASLI (Asian Law Institute) conference on ‘The Rule of Law and the Role of Law in Asia’. Dr Maggio gave a presentation on ‘Regional Cooperation for the Protection of the Marine Environment in Southeast Asia: Can Other Regions Provide Inspiration?’ She presented CIL’s work on this topic and some ideas about best practices and shared experiences.

Dr Atanasova presented her paper titled ‘Investment Treaties Viewed from Inside the Lion City’. The paper is part of the broader research project on ‘Investment Treaties and National Governance’ (headed by CIL Research Associate Professor Jansen Calamita), studying the extent to which the administrations of Asian states take investment treaties into account in their decision-making processes. Based on a series of interviews with government officials in Singapore and documentary research, the paper opens the ‘black box’ of the Lion City and looks at the impact of investment treaties on its governance. A unitary compact state, Singapore is considered to work as a well-oiled machine and provides a very fruitful terrain for testing some of the core tenets of arguments on investment treaties’ impacts on governance.

Research Fellow Dafina Atanasova participated in a two-day workshop titled ‘Engaging with Domestic Law in International Adjudication Factfinding or Transnational Law-Making?’ organised by the Amsterdam Center for International Law under the University of Amsterdam.

Dr Atanasova’s presentation—‘What Do We Actually Disagree About When Discussing the Fact-Law Dichotomy in International Adjudicators’ Engagement with Domestic Law?’—kick-started the workshop in a panel chaired by Professor Ingo Venzke. The paper demonstrates that the classic way of seeing domestic law in international adjudication along a fact-law divide serves as a rhetorical device with limited analytical import. Looking at the practice of investment arbitrators and WTO adjudicators, the paper brings to light the fallacy of relying on whether an adjudicator classifies domestic law as either ‘law’ or ‘fact’ for understanding its actual procedural place. It proposes a more granular analytical framework for this understanding, informed by questions that define the procedural place of foreign law in conflict of laws and suggesting the ‘otherness’ of domestic law as a more attuned lens. Indeed, judicial practice in both conflict of laws and international economic law shows that it is the recognition that different legal systems are habitually created, adjudicated and enforced by distinct, ie ‘other’ institutions, which better explains adjudicators’ approaches, independently of the formal characterisation of the ‘other’ law along a fact-law divide.

On 13 February 2019, Director Lucy Reed participated in the conference on ‘ISDS Reform: Mapping the Way Forward’ organised by the Asian Academy of International Law (AAIL) and the Hong Kong SAR Department of Justice. The welcoming speakers included Ms Teresa Cheng GBS SC JP, the Hong Kong SAR Secretary for Justice. The conference featured four panels—Investment Mediation, Appeal Mechanism for ISDS Awards, Third Party Funding in ISDS and Appointment of Arbitrators—and an Oxford Union style Debate on whether a Permanent Investment Court is a possible solution to ISDS problems. In an innovative approach, each panel had the benefit of a detailed discussion paper by a young private or government practitioner.

Professor Reed spoke on the Investment Mediation panel, on the topic of how to incentivise host governments and investors to use investor-State mediation. Also on the panel were (as pictured) Dr Anthony Neoh (AAIL Chairman), Professor Jack Coe from Pepperdine Law School and Paul Starr from King & Wood Mallesons. The discussion paper was from David Ng of the Hong Kong SAR Department of Justice.

On 29 January 2019, CIL participated in the 73rd meeting of the ASEAN Coordinating Committee on Investment (CCI) held in Bandar Seri Begawan, Brunei Darussalam. The meeting was attended by Research Associate Professor (CIL) N Jansen Calamita, Head of CIL’s Investment Law and Policy Programme, and CIL Visiting Research Consultant Dr Charalampos Giannakopoulos.

The meeting was convened to discuss, among others, proposals being put forward internationally on the topic of investor-state dispute settlement (ISDS) reform. Research Assoc Prof Calamita delivered a presentation, addressing the drivers for ISDS reform, available reform options, and modalities through which different reform options may be implemented.

CIL’s participation in the work of the ASEAN CCI is part of the Centre’s broader engagement with the topic of appellate mechanisms and standing tribunals in the settlement of investor-state disputes.

Research Associate Professor N Jansen Calamita was the lead facilitator at two-day regional forum in Manila on ‘Investment Disputes, Resolution and Prevention.’ The forum was organised by the Philippine Board of Investment, with support from the ASEAN Secretariat, under the ASEAN-Australia-New Zealand Free Trade Area (AANZFTA) Economic Cooperation Support Program (AECSP). The forum aimed to support AANZFTA Parties on effectively managing commitments, improving investor confidence in the AANZFTA investment environment, and increasing government confidence in investment policy making.

Research Assoc Prof Calamita noted that the forum served as an opportunity to share experiences among the AANZFTA Parties and helped build the capacities of participants in considering measures for the implementation and management of investment treaty commitments.

Dr Ayelet Berman presented a paper at the American Society of International Law Research Forum at UCLA. The paper is on ‘Investment Treaties and National Governance’, co-written with Research Associate Professor N Jansen Calamita. The paper sets out a conceptual framework for examining the internalisation of investment treaties in national governance. It is the draft framing paper of a project on ‘Investment Treaties and National Governance’ launched by CIL’s Investment Law and Policy research group, which examines the internalisation of investment treaties in a select group of East Asian countries.