There are currently no rules in international commercial arbitration law and practice assuring the coordination between (partial or final) arbitral awards and/or national court judgments rendered in identical or related cases. This lack of coordination is unsatisfactory, particularly in light of the ever-growing tendency of parties to submit their commercial disputes to international arbitration and the increasing complexity of international arbitration. Today, international commercial transactions and the disputes to which they give rise regularly involve multiple parties, contracts and issues. As a consequence, these disputes (or certain aspects of these disputes) are increasingly tried in multiple fora. In such circumstances, difficult issues regarding the res judicata effects of prior judgments or awards are likely to arise before international commercial arbitral tribunals. The central hypothesis underlying this research is that transnational principles of res judicata should be elaborated for international commercial arbitral tribunals. This solution is justified for several reasons. First, it is justified given the differences among domestic laws regarding res judicata and the difficulties surrounding the formulation of appropriate conflict-of-laws rules. Second, it avoids inappropriate analogies between international arbitration proceedings and litigation. Finally, the solution provides guidance and ensures a certain degree of fairness, certainty and predictability, which is expected by arbitration users. This PhD thesis seeks to achieve its aims in two stages: Part One examines the doctrine of res judicata in litigation, analysing the doctrine as applied in different domestic laws, as well as in private and public international law. Part Two will determine whether and to what extent the res judicata doctrine may be applied by international commercial arbitral tribunals. It will demonstrate that transnational principles of res judicata should be elaborated and will seek to formulate such principles.

There is no doubt that international arbitration has become one of the most favoured dispute resolution mechanisms in national and international transactions. International arbitration has evolved into a credible alternative replacement for traditional litigation. International arbitration as a private neutral forum is gaining overwhelming recognition in the world. The extent of this popularity varies in different commercial fields and this dispute settlement mechanism is treated differently in various sectors around the globe. For instance, in international construction contracts, arbitration clauses are an integral part of the contract whereas in an international syndicated loan agreement, incorporating an arbitration clause may seem rather unusual. This trend is now changing and banking industry’s traditional loyalty towards litigation and court jurisdictions is changing. According to statistics and market practice, in the past recent years, popularity of arbitration has been growing in banking and finance sector for various reasons. Among the reasons are the unique characteristics that international arbitration has to offer, characteristics such as global enforceability and worldwide recognition of arbitral awards, which have contributed to this paradigm shift. Moreover, the possibility of using knowledgeable finance and banking experts as arbitrators to resolve disputes and conflicts in the banking and financial sector is another appealing feature of arbitration. All the perceived advantages of international arbitration, which are claimed to be the drive force of this change of trend, are scrutinised in this research. This research analyses the historical hesitation and reluctance to use arbitration in the banking and financial sector, and elaborate the change of trend in this area and reasons for this change of attitude. The focus is on arbitrability of banking and financial disputes in the international sphere. The practical benefits of incorporating an arbitration clause in banking and financial transactions are considered in this research. At the end it is recommended that the banking and finance sector will benefit from a wider use of international arbitration in cross-border transactions and the wider use of this neutral independent mechanism 3 can led to a harmonised use of international arbitration in the aforementioned sectors. This research underpins the use of international arbitration as a sensible dispute resolution mechanism in international banking and financial transactions.

It has been increasingly argued that international commercial arbitration is stripping off its intrinsic features of an alternative dispute resolution method and turning into a mechanism that is almost indistinguishable from litigation. The development describing the metamorphosis of international commercial arbitration into a method that is very similar in process and substance to national litigation is referred to as the judicialisation of international commercial arbitration. The focus of this research is the process of judicialisation. The thesis questions whether it exists at all and, if yes, to what extent it has permeated both international arbitration proceedings and arbitral decision-making. While attempting to answer those questions other salient considerations are raised, such as: • Which characteristics of international commercial arbitration are fundamental for this method of dispute resolution and should remain intact; • What are the driving forces of the process of judicialisation; • Is the judicialised approach entirely consistent with the benefits of international commercial arbitration and to what extent? The ultimate objective of this thesis is to answer the question whether the judicialisation of international commercial arbitration is a positive development and thus be encouraged. Where negative implications are recognised, an attempt is made to identify the causes of the judicialisation process and offer solutions, if attainable.

The fundamental aims of this thesis is to demonstrate problems regarding key forms of liability formulated under the Fair and Equitable Treatment Standard (‘FET’ hereinafter). These are problems that are likely to occur for developing countries who are attempting to prevent future breaches of the same type illustrated in the current jurisprudence, through developing appropriate responses. Principal Propositions: This thesis will propose the following regarding the FET standard: 1. The FET standard has been used to create rules. 2. The rules created under the FET standard operate on state institutions and state policy creating a framework of administrative liability that is unique as it operates without classic constitution constraints. 3. This form of unique administrative liability of FET confers a governance role on arbitrators, to control state institutions and policy sanctioned by liability, through transplantation of administrative law into the investment treaty framework. 4. This unique administrative liability is applied to developing countries through the investment treaty framework. 5. For reasons of lack of coherence of this unique administrative law and problems faced by developing countries accommodating legal transplants in the law and development movement; developing countries, those most likely to face administrative law claims, may not be able to comply with this unique administrative law. 6. If FET is to create unique rules of administrative liability, investment treaty arbitration must alter its current institutional approach to dispute-resolution under FET in order to, increase legal certainty, be sensitive to both problems faced by the law and development movement regarding legal transplantation and be aware of reasons why national courts may operate with constitutional constraints. Brief Note on Methodology Tudor’s work on the Fair and Equitable Treatment Standard gives a comprehensive account of the origins and content of the standard.1 The aim here was not to repeat on what was done there but to initial key questions of acceptability regarding the content. Hence although a ten year period of jurisprudence is surveyed, between 1999- 2009, the aim here as been to predominantly highlight not only inconsistencies to deal with the important issue of coherence, but also to demonstrate the impact such interpretations may have on investment treaty arbitration as a system of rule-making, along-side issues of compliance of the content by developing states. To this end some focus is given to the following questions, which are considered questions of fundamental importance to the viability of the approach of rule-making under FET in the analysed period: What does this system of rule-making seek to do, and can it achieve those ends? If not, how can it be improved in such a role, if feasible, or is it realistic to detach such a role from it? Hence the method here is to survey the cases and illustrate what rules the FET standard is creating. Then it is to highlight whether these rules can be identified by those who may rely on them, investors, and those who face a burden under them, states. Critically, this approach does no t weigh approaches in the jurisprudence according to chronological patterns. This is fundamentally because this system was not designed to be a rule-making institution. Thus at present all decisions are of equal validity through both the existing method of identifying sources of international law and a procedural omission of a system of precedent governing what decisions take precedence over others. It is felt that to do this would be not only to create a criteria that does not exist as a matter of law, and to do so would be, as a matter of international law, wrong. It would also undermines the flexibility of afforded to the system of using a vast jurisprudence of international decisions, including previous investment treaty disputes, at its disposal in order to formulate arguments and judgments for both parties and adjudicators, respectively. My approach as outlined above, is thus to bring to the surface key positions in FET jurisprudence that illustrate the scope or rights available under three elements of it: (i) Legitimate Expectations; (ii) Transparency and (iii) Denial of Justice. Under first two, as it shall be seen, claims are posited predominantly with respect to acts of organs of the state. Under the third claims exist with respect to institutions and processes that may exist to deal with the investor’s complaints. These elements are chosen as they form the bulk of the current issues dealt with under FET, and due to a limitation of space available here to address the above key questions. The above three elements shall form an empirical basis in order to formulate a discursive and critical narrative that seeks to address the key questions. The steps in this process are outlined briefly below: Stages of the Argument: 1 I. Tudor, The Fair and Equitable Treatment Standard in the International Investment Law (OUP) (2007).The argument proceeds in the following stages: Chapter 1 explores the distinction between adjudication and norm-making, arguing that FET is used to make rules by arbitrators. Chapters 2 to 4 look at the following rules applied by the FET standard: legitimate expectations, transparency, and denial of justice. Chapter 5 and 6 discuss the implications of legitimate expectations and transparency on both investment treaty arbitration and developing countries, and any difficulties that may be encountered in practice. Chapter 7 proposes changes that may assist in dealing with these difficulties.

This thesis argues that the distinction between UN peacekeeping operations and UN enforcement actions must be preserved so that the efficacy of peacekeeping will not be imperilled. It is submitted that the primary strength of peacekeeping has long been that it was not in the nature of enforcement. Whereas an enforcement operation is forceful, partial and imposed on a state against its wishes, peacekeeping adhered to three “fundamental principles,” whereby it used force only in self-defence, it remained impartial and it was only to be called into existence where the host-state(s) supported the idea. Because of the non-intrusive nature of peacekeeping operations, the political impediments preventing the establishment of enforcement action by the Security Council did not arise. The thesis begins by outlining the nature of peacekeeping, with a focus on the Cold War period. It considers how peacekeeping has been defined and how it differs from enforcement. It outlines how, despite the attribution by the Security Council of certain enforcement characteristics to the ONUC operation in the Congo, the two endeavours remained distinct during the Cold War. The thesis then sets out the law relating to peacekeeping and enforcement, including the impact that the characterisation may have on the Security Council’s power to act and on the rights and obligations of the peacekeepers. Next, it turns to the UN’s practice, during a brief period from 1992 to 1995, of bestowing peacekeeping operations with certain enforcement-type powers and considers whether any of the peacekeeping operations during this period were authorised under Article 42 of the Charter. It concludes that such operations were generally not successful and were decidedly rejected by the international community at the time. The balance of the thesis considers the current peacekeeping practice of the Security Council whereby the lines between peacekeeping and enforcement are, once again, being blurred. These peacekeeping operations—described herein as “New Millennium peacekeeping”—are established under Chapter VII and frequently authorised to use “all necessary means” to achieve their mandates. The operations have taken place with the consent of the host-state (at least where there was a government in existence to give such consent). In order to assess whether these operations represent an exercise by the Security Council of its enforcement power under Article 42, the thesis will consider not only the Security Council mandates for such operations, but also the actual functioning of the operations. In the process, the long list of problems associated with such operations will be considered. I will conclude that, despite the relatively entrenched nature of the Security Council’s practice as regards New Millennium peacekeeping, due to these problems, it is only a matter of time before the Security Council, and the international community more generally, decides to return to an approach whereby peacekeeping and enforcement operations are kept distinct.

Since the end of the Cold War, much has been written on the various overseas military adventures of Western powers, with significant focus being placed on the legality and legitimacy of these interventions. Despite the volume of work produced on the topic, this thesis argues that much of it has been framed incorrectly, allowing for a conflation of the concepts of legality and legitimacy to distract from the true source of international legitimacy and the true role of international law. Over this period of time, through a combination of selective application and lack of genuine understanding of its role, statutory international law has steadily lost traction and credibility. Through an analysis of a range of case studies from the post-Cold War era, this thesis argues that international legitimacy emanates not from the international legal order (as represented and overseen by the UN) but from consensus amongst kin countries. There are various potential avenues available to achieve consensus, but which is chosen depends on the circumstances of each individual case. National interest underpins state decision-making and, if significant enough, can, on its own, provide a route to consensus. Additionally, a shared national security concern - the pre-eminent catalyst for consensus during the Cold War - remains a powerful option. Furthermore, in the post-Cold War world, a new, norms-based justification, often classified as “humanitarian intervention” has also developed. Demonstrating compliance with international law can, depending on circumstances, be potentially available to strengthen the case for consensus but is not necessarily always an appropriate or productive choice and plays a secondary role to other, more powerful considerations. By focusing on key case studies it is possible to identify trends in approach to the use of international law and identify the nature of the role it plays in international power politics. Through close analysis of a wide variety of primary and secondary sources, it is possible to identify key drivers for decision-makers and detect the impact of past experience on the use of international law in the quest for legitimacy ahead of launching military action. The trends in approach and in relations between close Western allies (in particular the UK and US) have been identified from the Gulf War in 1990 through to the ongoing crisis engulfing Syria, and potentially hold valuable lessons for future strategic decision-making.

Nations are not becoming conflict-free zones as once envisioned. They remain zones of conflict and of competition. It has been argued that competition over the memory of foundational events or of national identity can strengthen national identities. In some cases, however, competition brings more competition, leading only to fragmentation. When such competition continues without producing a definite outcome, the question remains: why is there continuous competition? This thesis answers this question through a case study, that of Dersim in the Turkish Republic. Despite appearing from the outside to be a unified zone of insurgent conflict against the Turkish state, Dersim is, in fact, a contested ground and a zone of conflict where multiple insurgent movements struggle not only against the state but also against each other. Why is it that Dersim remains a conflict zone in which the number of conflicting groups simply increases? Why do we not see a victorious or dominant movement but, rather, continuous competition that does not strengthen the nation but engenders new, ‘sub-nation(alism)s’? This thesis does two things. Firstly, it explains why there is this incessant competition. Secondly, it maps out the arenas in which this competition takes place, tracing its origins further back than the 1990s. I argue that competition continues because nationalist movements impose concepts of ethnicity and nationalism on the region in order to homogenise what remains a heterogeneous community. The outcome of this competition may not be ‘nation-building’ nor ‘strong collective identity,’ but neither does Dersim totally fragment. On the one hand, Dersimlis have been torn apart particularly by ethno-linguistic definitions of their collective identity that are unsuitable for the type of community it is. On the other, such is the tradition of resistance to the central authority in Ankara, that Dersimlis exhibit the same degree of solidarity that one finds in more cohesive nationalist movements.

The principle of party autonomy is widely accepted in the practice of international commercial arbitration. However, it still encounters certain limitations in its applications, especially for the fact that the demands of natural justice and the public good cannot be neglected by the parties. The various states in the international system have and operate peculiar systems of mandatory rules and public policies, which tend to impart significantly on the arbitral procedure, thereby creating a situation of discordance of outcomes of arbitration in different countries. For this reason, this writer intends to examine ways by which the various procedural laws can actually be harmonised. This thesis shall therefore focus on the discordances and confusion that often arise in the interacion of the various laws that may be applicable to the arbitral process in International commercial arbitration, as well as ways of achieving a harmonisation of these laws.

Several problems disquieting the developing world render the post-colonial state unstable, with recurrent, often violent conflict. The seeming incurable vulnerability of the nation-state construct reflects inherent problems in its basic constitutional philosophy for managing diverse identities in the global South. It suggests an incapacity for equality and justice, undermining the moral legitimacy of the colonial-state model. This is illustrated using Central Nigeria or Nigeria’s ‘Middle- Belt’ through numerous identities, largely veiled in non-recognition and misrecognition by the colonial and post-colonial state and its conflicts. The baggage of colonialism stalks the developing world through unjust socio-political orders. Therefore, the post-colonial liberal constitution (using Nigeria’s 1999 Federal Constitution) and mechanisms it imbibes for managing diversity (Consociationalism, Federalism/Federal Character, Human Rights, Citizenship), is exposed to be seriously misconceived epistemically and cartographically. I argue that effective peacebuilding in the global South is impossible without Cognitive Justice, which is 'the equal treatment of different forms of knowledge and knowers, of identities’. I articulate a political constitutional philosophy grounded upon Cognitive Justice as a conception of justice, advancing normative and conceptual frameworks for just post-colonial orders. This provides foundations for a proposed reconceptualisation and restructuring of the institutional and structural make-up of the post-colonial state through a ground-up constitution remaking process, for new orders beyond colonially stipulated delimitations. In search of appropriate constitutional designs, I engage Multiculturalism, National Pluralism and Plurinational State scholarship by Western Political Philosophers and Constitutional Theorists (Kymlicka, Taylor, Tully, Keating, Tierney, Norman, Anderson, and Requejo etc), as they address particularly the UK, Canadian and Spanish cases, as well as Awolowo’s philosophies. I also engage recent plurinational constitutional designs operational in Ecuador and Bolivia, and propose that the latter hold more appropriate conceptual and structural pointers for effective peacebuilding in the troubled, pluralist global South.

The purpose of this thesis is to examine the procedural democratic legitimacy of the Court of Justice of the European Union. The Court of Justice has been instrumental in the construction of the European Union. Through its interpretation of the Treaty of Rome since the 1960s, it has constituted a legal system distinctive in kind. In contrast to orthodox instances of the political community – international organisations and the nation-state – the EU exemplifies no general type. Its legal, constitutional, political, economic and social infrastructures are part of a complex and pervasive web of overlapping jurisdictions that goes some way beyond the ordinary international organisation (by virtue of constitutional principles such as direct effect and citizenship), but not quite as far as the nation-state (e.g. sovereignty contestation). This being the case, its interlocutors have long since understood that the EU is in a state of transformation – it is itself a project and a process, the end result of which (finalité) is unknown. As such, many questions have been asked about the legitimacy of this process; and, given the Court of Justice’s (in)famous generative role within this process, the Court also finds itself the subject of such scrutiny. The legitimacy of the Court of Justice has been the focus of attention from both academics and practitioners. Most of that attention has been on the Court’s jurisprudence and jurisdiction – scrutinising the legal reasoning of cases; or questioning the limits of its constitutional functions according to axiomatic conceptions of, for example, the separation of powers doctrine. By contrast, less attention has been paid to the democratic legitimacy of the Court of Justice, and much less in relation to the Court’s institutional design. The subject-matter of the analysis in this thesis is the Court’s structures and processes, such as: the composition and appointments processes for members of the Court; the mechanisms that give access to various kinds of participants (such as locus standi and third-party intervention); and the use of judicial chambers. Procedural democratic legitimacy, moreover, has two dimensions: intrinsic and instrumental. The intrinsic is a measure of the democratic credentials of the Court as a discrete decision-making authority (such as representativeness and democratic participation); whereas the instrumental is concerned with the ways in which the Court contributes to the overall democratic legitimacy of the EU. In this thesis, the structures and processes of the Court of Justice are examined in light of both of those criteria. In contrast to prevailing approaches of constitutional theorists – who tend to treat these criteria as functions that are quite discrete, and their performance as mutually exclusive – an important theoretical contribution of this thesis is to develop an analytical framework that allows for the inherent synergies and tensions that exist between intrinsic and instrumental criteria to be factored into analyses of the democratic legitimacy of constitutional courts.