As business transactions and the global economy become increasingly digitalized, international investment disputes will deal with novel assets in new boundary-defiant contexts. Indeed, jurisdictional arguments and objections will likely require arbitral tribunals to confront with the uneasy task of delineating the ‘localization’ of investments in digital economy assets such as cryptocurrency, non-fungible tokens, and data-related investments. However, given that even more traditional assets have raised a variety of problems relating to territorial nexus and localization, the authors believe that the digital economy emphasizes what are essentially differences in degree rather than in kind. This chapter discusses the complexities that arise in considering the idiosyncrasies of investments in digital economy assets within a traditional territorially defined jurisdictional framework. First, the authors present some of those new digital economy assets and canvass several typical cross-border challenges inherent in international investment arbitration. Second, they question how traditional objections to jurisdiction ratione personae and jurisdiction ratione materiae might be employed when the investments in question relate to those digital developments. Third, the chapter raises questions about states’ jurisdiction to prescribe, and ponders the potential effects for purposes of jurisdiction of states asserting their authority to prescribe over investments or investors outside their territory.
This chapter discusses the possible impact of blockchain or distributed ledger technology on private maritime law in the near to mid future. It suggests that tamperproof logs are likely to be relevant in four areas. These are (1) shipping documentation (especially negotiable documents of title); (2) payment in connection with letters of credit governed by the eUCP 2.0 and similar transactions; (3) cargo care and monitoring, especially in connection with claims between buyers and sellers, cargo claims against carriers, and possibly dangerous cargo suits against shippers; and (4) the monitoring of vessels themselves with a view to establishing the cause of casualties, a matter relevant in particular to charter disputes, insurance and collision claims. In all of these areas the use of distributed ledgers is likely to give rise to substantial savings in evidence-gathering and litigation costs, leading to the smoother and more efficient handling of claims.
Abstract After a lengthy incubation period, electronic bills of lading (eBLs) are at last taking their first tentative steps in the shipping world. Systems currently in operation, however, are closed; only traders, carriers and banks who are members can participate. These closed schemes are not, therefore, true replacements for traditional paper bills of lading (pBLs), which can be used by anyone. Open eBL implementations are very difficult, which is no doubt why practical schemes so far have been closed. While blockchains and smart contracts make no difference to what is possible, they do to what is practicable. In particular, they may render feasible eBL implementations more open than those that have existed until now. They can obviate the need for distrusted central registries, and resolve the digital islands problem which can plague closed schemes. This article considers how an open eBL implementation might work. The schemes suggested here are rendered practicable by the new technology, should the industry choose to go down the eBL route. It may not so choose, at any rate in the short term, but if it does take this route, the article examines the legal obstacles that would need to be overcome. It assumes no change in the existing law, but concludes with a discussion of what lawmakers should consider, were they minded to assist.
Notwithstanding the general acknowledgment of its importance, there are still uncertainties and ambiguities as to the precise meaning and actual application of the precautionary principle in international environmental law. In the context of decision making at the inter‐State level, it has been explained that one of the interpretations of this principle means a ‘shift’ in the allocation of the burden of proof. Unsurprisingly, a similar effect of the principle can be, and has been, claimed in dispute settlement. Given these claims, the general aim of this article is twofold: first, to define what a ‘shift’ in the allocation of the burden of proof actually means; and second, to explore and assess whether this theoretical/conceptual understanding of the ‘shift’ is applied when the precautionary principle is at stake, and whether there are good reasons to apply it in dispute settlement and decision‐making processes.
1 Arbitration — Applicable law — Relation between concession contract, bilateral investment treaty and ICSID Convention — Dispute with provincial authorities relating to interpretation and application of contract to be submitted to administrative courts Economics, trade and finance — Bilateral investment treaty — Argentina-France bilateral investment treaty, Article 8(2) — “Fork in the road” provision — Relevance to Tribunal’s jurisdiction over treaty claim — Relevance to merits of claim Arbitration — Jurisdiction — Jurisdiction issue joined to merits — Failure to designate or consent to application of ICSID Convention to province under Article 25(1) and (3) does not deprive Tribunal of jurisdiction — Local forum clause in concession contract does not divest Tribunal of jurisdiction for claims against State State responsibility — Imputability — Attribution of responsibility for actions of political subdivisions — Responsibility not limited by federal or decentralized character of State — No factual basis for attribution — State’s obligation under bilateral investment treaty to pursue in good faith and with reasonable efforts the resolution of the dispute — State’s constructive role in renegotiation process Relationship of international law and municipal law — Impossibility of separating claims for breaches of contract from bilateral investment treaty violation without prior resort to administrative courts — Claimant required under contract to assert its rights in proceedings before administrative courts prior to invoking ICSID procedure — Claimant not precluded from asserting its rights in administrative courts — No evidence that courts lacked independence or fairness or would have denied claimant’s rights procedurally or substantively — No principle of exhaustion of remedies Claims — Exhaustion of local remedies — Requirement incompatible with Article 8 of bilateral investment treaty and Article 26 of ICSID Convention — Resort to administrative courts required under contract for purposes of interpretation and application