This thesis seeks to systematically examine the contributions made by the dispute settlement bodies established under the United Nations Convention on the Law of the Sea (UNCLOS) to the development of the law of the sea. The two main research questions to be answered are: (i) what kind of contribution have UNCLOS dispute settlement bodies made to the development of the law of the sea? and (ii) what are the factors that impact the performance of UNCLOS dispute settlement bodies in developing the law of the sea? To that end, Chapter 1 provides a working definition for the concept of 'judicial development of international law' in order to establish a framework for an assessment of the contributions of UNCLOS tribunals. Based on this working definition, Chapters 2, 3 and 4 examine the significance of UNCLOS tribunals' decisions in the development of three main areas of the law of the sea, respectively the law on fisheries, the law on the outer continental shelf and the law on marine environmental protection. Based on the findings of these chapters, Chapter 5 analyses the factors that help explain the contributions of UNCLOS tribunals to the law of the sea as identified in the preceding chapters. These factors include: (i) the jurisdictional scope of UNCLOS tribunals, (ii) the institutional design of UNCLOS, (iii) the interpretative method employed by UNCLOS tribunals in deciding their cases and (iv) the perception that UNCLOS tribunals hold regarding their roles. Chapter 6 concludes by taking stock of the contribution of UNCLOS tribunal in these areas and offering some final observations on the role of UNCLOS tribunals in the development of the law of the sea.

Values matter in both legal decision (lawmaking and lawapplying) and discourse (lawshaping and lawinfluencing). Yet, their purported subjectivity means that gaining or improving knowledge about values (whether they be epistemic, legal, moral, ethical, economic, political, cultural, social, or religious) in the context of analytic legal thought and understanding is often said to be at odds with its goal of objectivity. This phenomenon is amplified at the international level where the infusion of seemingly subjective political values by sovereigns, and the decisionmakers to whom they delegate, can, and does, interfere with an idealized and objective rule of law. The discourse on value subjectivity, and its relation to the purpose and function of the law, is particularly apparent in evolving international legal orders such as investment treaty arbitration. The primary aim of this work is to provide a new method for gaining empirical knowledge about value subjectivity that can help close a weak link in all nonpositivist (value-laden) legal theory: a weakness that has manifest itself as skepticism about the possibility of measuring value objectively enough to permit its incorporation as a necessary component of analytic jurisprudence. This work proposes a theory of configurative fairness for addressing the problem related to the development or evolution of legal regimes, and how legal regimes perceived as subjectively unfair can be remedied. Such a theory accepts the premise that perceptions of fairness matter in directing the way that legal orders develop, and that perceptions of fairness relate to the manner in which values are distributed and maximized in particular legal orders. It is posited that legal orders perceived as fair by their participants are more likely to be endorsed or accepted as legally binding (and are therefore more likely to comply with the processes and outcomes that such laws mandate). The purpose of a theory of configurative fairness is an attempt to provide a methodological bridge for improving knowledge about value in the context of legal inquiry through the employment of a technique called Q methodology: an epistemological and empirical means for the measurement and mapping of human subjectivity. It is a method that was developed in the early twentieth century by physicist-psychologist William Stephenson: the last research student of the inventor of factor analysis, Charles Spearman. What Stephenson did was to create a way for systematically measuring subjective perspectives, and although not previously used in jurisprudential thought, Q methodology will facilitate a means for the description and evaluation of shared subjectivities. In the context of law generally, and in investment treaty arbitration specifically, these are the subjectivities that manifest themselves as the conflicting perspectives about value that are omnipresent in both communicative lawshaping discourse and authoritative and controlling lawmaking and lawapplying decision. Knowledge about these shared value subjectivities among participants in investment treaty arbitration will allow the legal analyst to delineate and clarify points of overlapping consensus about the desired distribution of value as they relate to the regime-building issues of evolving legal orders. The focus for a theory of configurative fairness pertains to the identification of the various value positions that participants hold about a particular legal order and to configure those values, through its rules and principles, in a manner that is acceptable (and perceived as fair) by all of its participants. If such a value consensus can be identified, then particular rules in the legal order can be configured by decisionmakers in a way so as to satisfy participants’ shared value understandings. To engage such a theory, a means for identifying shared value subjectivities must be delineated. This work conducts a Q method study on the issues under debate relating to regime-building questions in investment treaty arbitration. The Q method study asked participants knowledgeable about investment treaty arbitration to rank-order a set of statements about the way that the values embraced by this legal order ought to be configured. The results of the study demonstrate that there is significant overlap about how participants in investment treaty arbitration perceive the desired distribution of values across the regime. The Q method study identified six distinct perspectives that represent shared subjectivities about value in the context of the development of investment treaty arbitration. The Q method study was also able to identify where there is an overlapping consensus about value distribution across the distinct perspectives. It is these areas of overlapping consensus that are most likely to reflect shared value understandings, and it is proposed that it is upon these shared value understandings that the future development of investment treaty arbitration ought to aim.

Esta tese teve por objeto analisar a viabilidade de implementação de, no âmbito do sistema de solução de controvérsias (SSC) da OMC, um mecanismo de contramedidas (retaliação) coletiva, à luz da teoria de formação de alianças, tal qual desenvolvida na teoria de relações internacionais. O objetivo foi perquirir se e em que condições poderão se formar coalizões visando à aplicação de retaliação coletiva, caso tal mecanismo seja incorporado ao SSC/OMC. A tese se baseou na premissa de que o enforcement do SSC/OMC ainda se funda em soluções de self-help, ou seja, dependente da força, do poder, do Membro demandante de induzir o Membro demandado a cumprir as recomendações do Órgão de Solução de Controvérsias (OSC), mediante a aplicação de retaliação bilateral, centrada na reciprocidade. Observa-se todavia uma insuficiência e/ou ineficácia de tais contramedidas bilaterais para induzir o Membro demandado a cumprir com as recomendações do OSC em situações envolvendo desequilíbrio de poder (entre Membro demandante e Membro demandado). A teoria de formação de alianças se mostrou adequada para a análise pretendida, primeiramente porque o desequilíbrio de poder é objeto de estudo de tal teoria. Em segundo lugar, com ênfase na sistematização apresentada por Glenn N. Snyder, tal teoria se mostrou apropriada para a questão em vista da configuração do sistema de comércio internacional como uma anarquia, dentro de uma estrutura de multipolaridade, em que não é possível perceber ex ante os possíveis alinhamentos, diante de uma determinada configuração, justificando o emprego de tal teoria. A tese então confirmou a necessidade de adoção de um mecanismo de retaliação coletiva no SSC/OMC, tendo indicado quando a retaliação coletiva deverá ser desnecessária, facultativa ou obrigatória. Para tanto, a tese desenvolveu conceitos como capacidade relativa, menor coalizão vencedora, aliança-dependência, além de perquirir sobre a situação pré-aliança dos interesses das unidades envolvidas, como propulsionadora ou limitadora da formação de alianças. Tais conceitos foram aplicados sobre as situações fáticas das onze arbitragens do Artigo 22.6 do Entendimento sobre Solução de Controvérsias (ESC). Por meio da aplicação da Teoria da Paisagem de Agregação, a tese confirmou a necessidade de implementação, em determinadas circunstâncias, de um mecanismo obrigatório de retaliação coletiva. Assim, propôs a tese que um mecanismo de retaliação coletiva poderá ter caráter meramente facultativo quando, em uma situação de desequilíbrio de poder: (i) houver outros Membros com interesses comuns, intensos e específicos a propulsionar a formação de uma aliança; e (ii) tais Membros reunirem capacidade relativa suficiente para formar uma menor coalizão vencedora, juntamente com o Membro demandante. De outra parte, o mecanismo de retaliação coletiva deverá ter caráter obrigatório quando, diante de uma situação de desequilíbrio de poder: (i) seja patente a baixa capacidade relativa do Membro demandante; (ii) não haja Membros com interesses comuns, intensos e específicos a propulsionar a formação de uma aliança com o Membro demandante; e (iii) seja improvável a formação de uma menor coalizão vencedora. Por fim, a tese apresentou uma proposta de emenda aos Artigos 22.3 e 22.6 do ESC, para incorporação de um mecanismo de retaliação coletiva no SSC/OMC, explicitando os requisitos legais para tanto. / The objective of the thesis was to examine the viability of implementing a mechanism of collective countermeasures (retaliation) within the dispute settlement system (DS) of the WTO, as from the perspective of the alliance formation theory, as developed under international relations. The aim was to verify whether and under which conditions coalitions seeking at imposing collective retaliation will form, in case such mechanism is implemented in the DS/WTO. The thesis developed under the premise that enforcement under the DS/WTO is still founded on self-help, i.e., dependent on the force, the power, of the demanding Members to induce the demanded Member to adopt the Dispute Settlement Bodys (DSB) recommendations, by means of bilateral retaliation, based on reciprocity. However, one can note that the insufficiency and/or ineffectiveness of such bilateral countermeasures to induce the demanded Member to comply with the DSBs recommendations are generally associated with imbalance of power situations. The alliance formation theory proved to be appropriate for undertaking the envisaged analysis. Firstly, the analysis of imbalance of power situations is under the purview of the alliance formation theory. Secondly, with emphasis on the work developed by Glenn N. Snyder, the theory showed to be appropriate for the matter at hand, because the international trade system is structured under anarchy, in a multipolar structure, where it is not possible to predict ex ante the possible alignments in a given configuration, justifying the usage of the theory. The thesis thus confirmed the need to adopt a mechanism of collective retaliation at the DS/WTO, having indicated that collective retaliation can be unnecessary; allowed or mandatory. For that, the theory developed the concepts of relative capacity, minimal winning coalition, alliancedependence, besides the examination of the pre-alliance situation of the interests of the units involved, to verify whether there are fostering or preventing factors to the alliance formation. Such concepts were applied to the factual settings of the eleven arbitrations of Article 22.6 of the Dispute Settlement Understanding (DSU). By means of the application of the Landscape Theory of Aggregation, the thesis confirmed the need to implement, under certain circumstances, a mandatory mechanism of collective retaliation. Thus, the thesis submitted that the collective retaliation mechanism will be allowed, when, under an imbalance of power situation: (i) there are other Members with common, intense and specific interests fostering the alliance formation; and (ii) such Members bring about enough relative capacity to form a minimal winning coalition with the demanding Member. On the other hand, the collective retaliation mechanism will be mandatory, in an imbalance of power situation, when: (i) it is evident that the demanding Member has low relative capacity; (ii) there are no Members with common, intense and specific interests to foster the formation of an alliance with the demanding Member; and (iii) it is improbable that a minimal winning coalition will be formed. Finally, the thesis proposed an amendment to the text of Articles 22.3 and 22.6 of the DSU, to incorporate the collective relation mechanism in the DS/WTO, indicating the legal requisites thereof.

<p>The master thesis provides a comprehensive and comparative analysis of the scope of most-favoured-nation clauses, focusing on the application of such clauses to dispute resolution mechanisms in bilateral investment treaty’s (BIT).</p><p>The ICSID decision in Maffezini was the first in a series to extend the scope of an MFN clause to dispute resolution in such context. Traditionally, such a clause had been relied on regarding substantive rights. The debate evoked by this and subsequent decisions of arbitral tribunals, which often conflict with each other in their outcome and in their analytic methodology, illustrates the controversy of this issue.</p>

The master thesis provides a comprehensive and comparative analysis of the scope of most-favoured-nation clauses, focusing on the application of such clauses to dispute resolution mechanisms in bilateral investment treaty’s (BIT). The ICSID decision in Maffezini was the first in a series to extend the scope of an MFN clause to dispute resolution in such context. Traditionally, such a clause had been relied on regarding substantive rights. The debate evoked by this and subsequent decisions of arbitral tribunals, which often conflict with each other in their outcome and in their analytic methodology, illustrates the controversy of this issue.

Special and differential treatment (SDT) provisions in GATT were created to assist developing countries achieve economic progress while assimilating into the multilateral trading system. Despite these intentions, global trade imbalances still persist. Within this context, I focus on the region of East Asia which has experienced astounding growth in just several decades, propelling it far beyond other developing country regions. Although international trade continues to be the crucial factor driving growth in the region, reliance on SDT has in certain circumstances hindered development. As such, East Asia should seek alternatives to SDT. In that vein, I argue that sustainable growth and trade liberalization can be achieved by enhancing integration through a regional trade agreement. I further discuss various proposals for an East Asian trade agreement such as ASEAN+3, FTAAP, and EARTA. Finally, I highlight the importance of governance and identify several institutions essential for a successful regional arrangement.

Special and differential treatment (SDT) provisions in GATT were created to assist developing countries achieve economic progress while assimilating into the multilateral trading system. Despite these intentions, global trade imbalances still persist. Within this context, I focus on the region of East Asia which has experienced astounding growth in just several decades, propelling it far beyond other developing country regions. Although international trade continues to be the crucial factor driving growth in the region, reliance on SDT has in certain circumstances hindered development. As such, East Asia should seek alternatives to SDT. In that vein, I argue that sustainable growth and trade liberalization can be achieved by enhancing integration through a regional trade agreement. I further discuss various proposals for an East Asian trade agreement such as ASEAN+3, FTAAP, and EARTA. Finally, I highlight the importance of governance and identify several institutions essential for a successful regional arrangement.

隨著WTO爭端解決機構近年來的實踐，許多制度性問題紛紛浮現，特別是WTO爭端解決小組或上訴機構在反傾銷爭端中審查基準實踐上所引發之爭議。批評者主要認為上訴機構於反傾銷規範之法律解釋上不當適用解釋規則，並未遵循反傾銷協定第17.6(ii)條之規範。另外，上訴機構實質上近乎重新審理被訴會員之法律見解，似乎違反第17.6(ii)條之規範意旨。本文嘗試整理相關經由WTO上訴機構裁決之反傾銷爭端，觀察及彙整第17.6(ii)條於現行運作中之實踐情形，並檢視上述兩項爭議之正反意見。經分析後發現，上述兩項爭議皆涉及不同之政策考量與WTO組織間的互動。易言之，除爭端解決機構對於協定條文之法律解釋外，偏重與選擇不同之政策考量做為正當性基礎，將決定著審查基準之面貌。在進一步分析並檢討在反傾銷制度下可能影響審查基準之政策價值後，本文認為WTO爭端解決機制為維繫其準司法機關之正當性與確保經由多邊架構所帶來之合作利益，有統一法律解釋與重新審理被控訴會員之法律解釋之必要。另外，反傾銷協定第17.6(ii)條審查基準之解釋上，不宜採取其立法來源—美國法Chevron doctrine—之規範內涵。同時，為避免反傾銷制度遭濫用成為貿易保護政策之工具，應賦予WTO爭端解決機構於審理反傾銷爭端時較為自主之法律解釋權力。然而，基於適度尊重WTO會員主權之考量與司法自制之要求，本文建議，WTO爭端解決機構在審理反傾銷案件時，除須正確地援引並靈活運用國際法上習慣解釋規則外，更需適度參照第17.6(ii)條之立法目的，藉由嚴格適用WTO協定，以充實其所採取審查基準之正當性基礎。 / With practices of WTO Dispute Settlement Body (DSB), the institutional issues on Standards of Review have emerged, especially on WTO Anti-dumping disputes. Contestations are focus on whether Appellate Body has mal-applied rules of interpretations on Anti-Dumping Agreement (ADA) as to go beyond Article 17.6(ii). Moreover, Critics query whether Appellate Body De Novo reviewed member’s legal interpretations as to disregard purpose of Article 17.6(ii). By examining relevant anti-dumping penal and appellate body reports, current modes of practices on ADA Article 17.6(ii) are concluded, and probed to its different critiques. Further, issues of such are result from policy considerations of Standards of Review under Anti-Dumping System. In other words, apart from penal and appellate body’s interpretations on ADA, different policy ends will influence current practices of Standards of Review. Consequently, the article checks on and assays on relevant policy justifications of deferential standards of review under anti-dumping system. Concluded, for retaining its institution justifications and ensuring the cooperation gains under multilateral approach, WTO dispute settlement institutes have the necessities in de novo review and leveling legal interpretations. Moreover, due to the different characters, the Chevron mode interpretations on standards of review is without analogy to ADA article 17.6(ii); meanwhile, for preventing distorting antidumping measures as trade protection tools, WTO dispute settlement institutes should have much room on discretion of reviewing members’ ADA legal interpretations. However, in respecting WTO Member’s sovereignty and the requiring of judicial restraint, when taking the standards of review on examining anti-dumping disputes, WTO dispute settlement institutes would strictly and nimbly retain customary rules of interpretation of public international law with considering purposes of ADA article 17.6(ii).

Thesis (Ph. D.)--University of Chicago, Dept. of Political Science, December 2002. / Includes bibliographical references. Also available on the Internet.

Made available in DSpace on 2014-06-11T19:28:04Z (GMT). No. of bitstreams: 0 Previous issue date: 2010-04-16Bitstream added on 2014-06-13T19:36:35Z : No. of bitstreams: 1 lambert_ro_me_mar.pdf: 1329338 bytes, checksum: 8d0e461c554b4c9fc8b32543f83d9d35 (MD5) / Coordenação de Aperfeiçoamento de Pessoal de Nível Superior (CAPES) / Fundação de Amparo à Pesquisa do Estado de São Paulo (FAPESP) / A reconfiguração das estruturas de governança global é uma tendência verificada no contexto pós Guerra Fria. Com o objetivo de compreender qual o papel dos Estados Unidos na reorganização dos regimes liberais no início do século XXI, delimitamos nosso objeto em torno da análise da influência norte-americana na reforma do mecanismo de disputas da Organização Mundial do Comércio (OMC). Examinamos as negociações dos temas acesso ao sistema e implementação das decisões para identificar se o United States Trade Representative consegue moldar a revisão do Entendimento de Solução de Controvérsias em favor dos seus interesses. As ações norteamericanas têm uma influência importante, embora não decisiva, na reestruturação do sistema de disputas da OMC / The reconfiguration of the structures of global governance is a trend in the post-Cold War era. In order to understand the role of the United States in the reorganization of liberal regimes at the beginning of 21st century, we defined our object as being the analysis of the US influence on the reform the dispute settlement mechanism of the World Trade Organization. We examine the negotiations of system access and implementation of decisions to identify if the United States Trade Representative can shape the Dispute Settlement Understanding review in favor of their interests. The US actions exert an important influence, though not decisive, in restructuring the WTO disputes system