The main aims of this thesis are to assess the efficiency of the current bankruptcy system in Oman and to offer specific proposals for bankruptcy reform to be adopted by the Omani legislator. Where appropriate, in proposing solutions for various issues lessons will be taken from the experience of both England and the US. This thesis consists of six chapters. The first chapter is a general introduction to the thesis which outlines the structure and scope of the study. Chapter Two critically explores the main theories underpinning bankruptcy law across the world. The aim of this exploration is to provide a general understanding of the policies underpinning bankruptcy laws and to establish the view of this thesis. Chapter Three discusses the experience of England and the US by identifying the main differences and similarities between bankruptcy proceedings in these jurisdictions; such discussion is necessary as a basis for determining the possibility of taking lessons from these developed bankruptcy regimes. Chapter Four provides a critical analysis of the current bankruptcy regime in Oman and outlines the key features of this regime. This chapter also discusses in detail the main issues with the current bankruptcy regime. This discussion includes: (1) the definition of bankruptcy; (2) the qualification of persons administering bankruptcy processes (3) ranking of creditors; (4) position of employees; (5) available alternatives under the current regime; and (6) the effect of declaration of bankruptcy on existing contracts. Chapter Five outlines the possibility of legal transplants and why it is desirable for Oman to adopt some of the bankruptcy principles that are found in England and the US. However, to avoid the risk of rejection of such transplants, this thesis will highlight the necessity of assessing the functionality and workability of western bankruptcy principles before transplanting them. This chapter also offers a proposal for future bankruptcy reform in Oman. Such reforms include having a clear statutory mandate, making bankruptcy law certain and predictable, and establishing a bankruptcy regime that encourage the rehabilitation of viable enterprises instead of liquidating them. Chapter Six is the overall conclusion of this thesis which explains the main ideas discussed and highlights the main contributions made by this study.

As the investment treaty arbitration regime matures, consensus is emerging as to the need for public interest considerations to be taken into account in resolving disputes under international investment agreements (IIAs). However, the question of how such considerations should be reflected remains contentious. This thesis proposes that the remedies stage of the process can, and should, play a role in taking account of public interest considerations and so in easing the tension between host state regulatory sovereignty and investment protection that lies at the heart of the investment treaty regime. Thus, this thesis argues that, while, on the one hand, there is a need to introduce an element of reciprocity into the investment treaty arbitration process in order to ensure continuing state co-operation and to reflect the broader underlying purposes of IIAs, on the other, the primary object of the system remains the protection of foreign investors. These competing imperatives can lead to difficulties in taking account of public interest considerations at the merits stage of the arbitration process. Therefore, in order to reconcile these competing imperatives and to achieve an optimal balance between host state regulatory sovereignty and investment protection, this thesis proposes that public interest considerations should be recognised at the remedies stage where such considerations cannot be taken into account either sufficiently or at all at the merits stage and identifies a number of situations in which this approach would be appropriate. Potential doctrinal bases for implementation of this approach are also examined and the conclusion reached that, given the significant degree of discretion afforded to tribunals in applying the full reparation principle and the role that equity can permissibly play in quantifying damages, this approach can, save in the case of lawful expropriations, be implemented within the parameters of existing legal principles.

This thesis proposes that conscious and increased co-operation and coordination of the relationship between investment tribunals and domestic courts can greatly improve the efficacy of the international investment arbitration system, and further the rule of law. The extent of the power both forums wield, the level of influence both systems have on each other and the critical roles both systems play in the resolution of investment disputes warrant a systematic approach to cooperation and coordination. This study finds justification for this proposition by analyzing the policy implications of investment arbitration outcomes. It goes on to explore the relationship between domestic courts and investment tribunals by examining the roles they play and the areas of jurisdictional friction between the two systems. The core issues addressed include the jurisdiction and competence of international investment tribunals and domestic courts in the resolution of investment disputes; the support roles of domestic courts; anti-suit/anti-arbitration injunctions; pre-conditions to arbitration; the effects and implications of the review of investment tribunals’ decisions by domestic courts, and the review of the lawfulness of the conduct of domestic judicial systems by investment arbitration tribunals. In addressing these issues, the work examines the extent to which domestic courts and international arbitration tribunals should accord deference to each other with respect to their involvement in the resolution of investment disputes. Based on the analysis of the areas of intersection between the domestic and international investment dispute settlement systems, instances of ‘positive interactions’ are highlighted and encouraged. The study also proposes ways in which further cooperation and coordination can take place. In making these proposals, and acknowledging the differences that exist, this thesis considers the collaboration between other international adjudicatory bodies and domestic courts so as to distill lessons for the international investment arbitration system.

The minimalist state of the national treatment provision in the investment treaties has provided limited guidance for the tribunals for interpretation. As a result, there were inconsistencies in the interpretation of national treatment, in particular the question of likeness. This thesis aims to develop the doctrinal understanding of the determination of appropriate comparator guided by the underlying philosophies, historical evolution and relevant investment decisions. The methods applied in this thesis are doctrinal and comparative studies of international investment law and the compared jurisprudences. A major part of this thesis is dedicated to examine the comparison and relevance of the GATT/WTO, EU and international human rights law in the interpretation of discrimination based on nationality. The interpretative methods applied by the respective jurisprudences in determining likeness and related questions of legitimate regulatory measures are examined to see whether there are lessons that could be learnt in the interpretation of national treatment in investment law. The finding of this thesis confirms that there is potentially a range of insightful guidance from the jurisprudences under comparison which could provide a structured understanding of national treatment in international investment law. The observations put forth highlight the underlying philosophies and values of the national treatment principle in protecting the investors and addressing the host states’ regulatory needs. It reflects the contemporaneous development in international investment law and provides a positive response to public administrative principles benefited by way of international comparative administration law.

One of the striking features of modern globalization is the rising prominence of international law as governing institution for state-market relations. Nowhere has this been as pronounced as in the international investment regime. Although hardly known to anyone but specialized international lawyers merely 15 years ago, bilateral investment treaties (BITs) have today become some of the most potent legal tools underwriting economic globalization. This thesis seeks to explain why developing countries adopted investment treaties as part of their governing apparatus. The study combines econometric analysis with archival work as well as insights from more than one hundred interviews with decision-makers in the international investment regime. On this basis, it finds ‘traditional’ explanatory models of international policy diffusion insufficient to account for the BIT-movement. Instead, both qualitative and econometric evidence strongly indicates that a bounded rationality framework is best suited to explain the popularity of BITs in the developing world. Although careful cost-benefit considerations drove some developing countries to adopt investment treaties, this was rare. By overestimating the benefits of BITs and ignoring the risks, developing country governments often saw the treaties as merely ‘tokens of goodwill’. Many thereby sacrificed their sovereignty more by chance than by design, and it was typically not until they were hit by their first claim, officials realised that the treaties were enforceable in both principle and fact. The thesis is relevant to a wide range of literature. Apart from being the first comprehensive international relations study on investment treaties, its multimethod approach provides a robust and nuanced view of the drivers of international policy diffusion. Moreover, the study is the first major work in international political economy literature applying insights on systematic – and thus predictable – cognitive heuristics found in the behavioural economics discipline.

This thesis explores regulatory mechanisms of managing the phenomenon of file sharing in the online environment without impeding key aspects of digital innovation, utilising a modified version of Lessig’s modalities of regulation to demonstrate significant asymmetries in various regulatory approaches. After laying the foundational legal context, the boundaries of future reform are identified as being limited by extra-jurisdictional considerations, and the regulatory direction of legal strategies to which these are related are linked with reliance on design-based regulation. The analysis of the plasticity of this regulatory form reveals fundamental vulnerabilities to the synthesis of hierarchical and architectural constraint, that illustrate the challenges faced by the regulator to date by countervailing forces. Examination of market-based influences suggests that the theoretical justification for the legal regulatory approach is not consistent with academic or policy research analysis, but the extant effect could impede openness and generational waves of innovation. A two-pronged investigation of entertainment industry-based market models indicates that the impact of file sharing could be mitigated through adaptation of the traditional model, or that informational decommodification could be harnessed through a suggested alternative model that embraces the flow of free copies. The latter model demonstrates how the interrelationships between extant network effects and sub-model externalities can be stimulated to maximise capture of revenue without recourse to disruption. The challenges of regulating community-based norms are further highlighted where the analysis submits that the prevalence of countervailing forces or push-back from the regulated act as an anti-constraint to hierarchical and design-based regulation, due to an asymmetry between legal, architectural and traditional market-based approaches, and effective control of the file sharing community. This thesis argues that file sharing can be regulated most efficaciously by addressing this asymmetry through alternative market-based strategies. This can be influenced through extending hierarchical regulation to offer alternative legal and norm-based models that complement, rather than disrupt, the community-based norms of file sharing.

L’expansion du commerce international a élevé l’arbitrage au rang de mode habituel de règlement des litiges commerciaux. L’accroissement des contentieux complexes, la juridictionnalisation ainsi que la judiciarisation de l’arbitrage sont cependant devenus source d’une multiplication des incidents de compétence dans l’arbitrage. Ainsi, la répétition d’un litige identique ou la fragmentation de litiges liés sont des situations susceptibles de se manifester entre le juge et l’arbitre, entre deux tribunaux arbitraux ou encore entre deux juridictions étatiques saisies d’une question relevant de l’arbitrage. En dépit de l’existence d’une convention d’arbitrage matérialisant la compétence de l’arbitre, une partie peut en contester l’applicabilité devant le juge étatique, engendrant une situation de litispendance. La situation de connexité dans l’arbitrage n’est pas non plus une hypothèse isolée : la pluralité de contrats ou de parties est susceptible d’entraîner la fragmentation de litiges connexes entre le juge et l’arbitre. Ces incidents de compétence portent atteinte aux principes directeurs de la procédure qui prônent l’efficacité, la célérité et la bonne administration de la justice. Si des mécanismes destinés à résoudre les situations de litispendance et de connexité existent, leurs formes et leurs implications diffèrent en droit anglais et en droit français de l’arbitrage. La méthode bilatérale, fondée sur les droits anglais et français, permet d’appréhender les mécanismes visant à résoudre les incidents de compétence dans l’arbitrage et le droit comparé, de révéler une part de l’essence du droit de l’arbitrage propre à chacun des droits étudiés. / The expansion of international trade has raised arbitration to the rank of usual procedure for the resolution of commercial disputes. However, the increasing number of complex litigations, jurisdictionalisation and “judicialisation” of arbitration create a source of multiples conflicts of jurisdiction in arbitration. Thus, the repetition of an identical dispute or the fragmentation of related litigations are likely to occur between State courts and arbitral tribunals, between two arbitral tribunals or between two States courts hearing a matter for arbitration. Despite the existence of an arbitration agreement embodying the arbitrator’s jurisdiction, a party may challenge its applicability before a State court, leading to a lis pendens situation. The situation of related actions in arbitration is not an isolated case: a plurality of contracts or parties may cause fragmentation of related litigations between a judge and an arbitrator. These incidents affect the principles of arbitration proceedings intended to promote efficiency, promptness and the proper administration of justice. Although mechanisms to resolve situations of lis pendens and related actions exist, their forms and implications differ from English to French arbitration law. The bilateral comparative law method, based on English and French laws, helps understanding the mechanisms resolving jurisdiction incidents in arbitration and comparative law allows revealing a part of the essence of arbitration law specifics to legal national system studied.

The subject of this thesis is the operation of corporate insolvency law in post-colonial India. Indian corporate insolvency law has been widely condemned as dysfunctional, critics complaining of extreme delays and a series of associated harms to creditors in the disposal of formal proceedings. Surprisingly little is known, however, about why the law has ‘failed’ creditors in this way - why the law operates as it does. That is the question that motivates this thesis. The thesis reports the results of an in-depth study of the introduction and development of India’s two principal insolvency procedures for corporate debtors: liquidation (under the Companies Act 1956) and rescue (under the Sick Industrial Companies (Special Provisions) Act 1985, for industrial companies). The most significant contribution made by the thesis is the reporting of new evidence of the influence of judges on the development of these two insolvency procedures over time, drawn from an original analysis of a large body of Indian case law. This evidence suggests that the role of the courts (or more specifically, the role of judges) has been significantly underestimated in previous attempts to explain the demise of corporate insolvency law in post-colonial India.

Legal systems around the world vary widely in how they deal with the assignment of receivables. This legal variety makes it difficult for financiers to conduct their international receivables financing business. This thesis suggests an International Registration System for the Assignment and Security Interest of Receivables (‘IRSAR’) and proposes a model international convention for the IRSAR (‘proposed IRSAR Convention’), which could help financiers to overcome the obstacles they currently encounter. Under the proposed IRSAR Convention, the international assignment of receivables would be regulated by a unified legal system with respect to priority and perfection. The IRSAR would facilitate international project financing. Furthermore, the IRSAR would enable companies to raise finance from greater ranges of investors around the world through international receivables financing and to dispose of non-performing loans more easily. The proposed IRSAR Convention would succeed the UN Convention on the Assignment of Receivables in International Trade in the attempt of establishing a registration system for international assignments of receivables. The proposed IRSAR Convention confines its scope of application by defining the assignor (or the security provider), inventing the concept of ‘Vehicle for the International Registration System’ (‘VIRS’). The proposed IRSAR Convention applies where the assignor or security provider is a VIRS. An assignment of a receivable where the assignor is a VIRS and a security interest in a receivable where the security provider is a VIRS could be registered in the IRSAR. Under the proposed IRSAR Convention, priority of assignments of and security interests in receivables is determined by the order of registration in the IRSAR. The proposed IRSAR Convention would be a receivables version of the Cape Town Convention. With respect to the contents and effect of registration, it would prescribe a notice-filing system along the lines of that adopted in the UCC Article 9. With respect to the operation of the registration, it would adopt an automatic online registration system operating 24 hours a day, 365 days a year like the International Registry under the Cape Town Convention.

- / The United European legislation, as a result among other things, unified the markets. Products now circulate, freely, among the member states. This development allows the consumer who lives in one part of the world to be informed, to research and to buy products from other parts of the world. However, reservations have been observed, because of the different legislations among countries. Businesses take advantage of the situation and aspire to increase there capital and strengthen their superiority by adjusting prices (through the web or their stores) to their consumers, and different unfair commercial practices that don’t benefit the consumer. To face this situation the European Union (E.U) has set the goal of harmonization of laws in the area of protecting the consumer of illegal actions by businesses and in long term goals to simplify trading among borders. The laws of the E.U for protecting the economic benefits of the consumer from illegal trading practices, were until recently, sketchy, for example sect oral instructions 84/450/E.U for deceptive advertising, the instructions 97/55/E.U for comparative advertising (which therefore were coded by the instructions 2006/114/E.U and other detailed instructions. In May of 2005, the European Parliament voted in favor of the law 2005/29/E.C, with the object of protecting consumers of illegal trading practices by businesses. These directive are said to contribute to regulations, on the side of the businesses to activate boundry marketing and promote their sales on the other hand, it will help consumers approach overboundry buying with more trust with the result of assured and safe trade. It involves directive frameworks, fully harmonized which means that member-countries, will not have the power to preserve or introduce new strict regulations, but will restrict regulations of the directives.