The Evolving American Policy on Investment Protection: Evidence from Recent FTAs and the 2004 Model BIT

Twelve years after the inception of the North American FreeTrade Agreement (NAFTA), the US policy on the protection offoreign investment is evolving. This article compares the provisionson investment in the recent US free trade agreements (FTAs)and the 2004 model bilateral investment treaty (BIT) with NAFTA’s.While most of the provisions are similar, some differences canbe identified, both in substantive and procedural forms. Weexplain this evolution by a learning process of the US administrationfrom the NAFTA experience. We argue that the new features ofthe FTAs and of the revised model BIT result from the US interestin reaching a better balance between the protection of investmentand the protection of state sovereignty. This American concernstems from a reaction to the claims filed by foreign investorsunder NAFTA Chapter 11, at least some of which were perceivedas ‘frivolous’ by the US government. However, therecent US FTAs and model BIT do not reveal a thorough policyreorientation but rather adjustments to the policy at the basisof NAFTA’s investment chapter.     

Offshore IT Outsourcing and the 8th Data Protection Principle - legal and regulatory requirements - with reference to Financial Services

In the global sourcing world, particularly in financial services,offshore outsourcing and associated data transfers are commonplaceand increasing, searching out lower cost third countries, whichmay have even fewer data protections. In such an environment,the1998 Data Protection Act’s 8^th Principle and associated7^th Principle security provisions become critical protectionsfor UK data subjects. Yet the few statistics that exist indicate that unrestrictedtransfers appear to occur from several EEA countries. Furthercriticisms are that the UK 1998 Act does not fully align withthe EEA Directive, the Schedule 4 exceptions are overly wide,the country assessment process can be ignored with the InformationCommissioner’s ‘blessing’ and his powers andresources are limited. Financial Services may be a contrasting exception, where theindustry regulator, the FSA, ‘incidentally’ enforcesmany of the data protection requirements of overseas data transfers,has significant direct enforcement powers and a model ADR approachthrough the Financial Ombudsman. Although the UK banking lawand regulation meets many privacy requirements, it falls shortof the full data protection requirements, clearly illustratingthe value that data protection legislation brings. The alternative self regulatory approach exemplified by theUS Safe Harbor illustrates the weaknesses of pure self regulation,recognized by the US financial services which are moving towardscentralized data privacy supervision with the Gramm-Leach-BlileyAct, reinforcing the worldwide trend towards a more EEA-stylesupervised personal data protection world. In short, seven years after the 1998 Act was passed, we areready for an appropriate mid-course correction, with the 8thPrinciple (& 7^th Principle) needed more than ever in thegrowing outsourced world.     

The 'final' privacy frontier? Regulating trans-border data flows

This article examines the threat to privacy posed by the transferof personal information from one jurisdiction to another. Despiteinternational trends towards greater protection of personalinformation, significant challenges to personal privacy arisein this context. These include the use of outsourcing by businesses,the encroachment of security laws and the potential ‘spill-over’of technologies developed for combating terrorism into the privatesector. Also significant are technologies enabling the ‘profiling’of individuals and ‘data mining’ across borders.Against this backdrop, the article considers existing jurisdictionalresponses towards regulating personal information flows acrossborders. It considers various actual or proposed solutions including‘safe-harbours’, contractual mechanisms and extra-territorialapplications. The article concludes that many of the existingapproaches to regulating trans-border information flows areto some extent deficient and suggests the need for a new ‘fourthgeneration’ set of data protection protocols. In formulatingthe latter, analogies are drawn from other relevant areas ofthe law in order to furnish creative solutions to the problem.     

Diego Garcia: British-American Legal Black Hole in the Indian Ocean?

Environmental risks from US military construction on the atollof Diego Garcia (British Indian Ocean Territory) since 1971include damage caused by large-scale ‘coral mining’,the introduction of invasive alien plant species, continuoustransits of nuclear material and unreported major fuel spills;these risks are now compounded by those of sea-level rise andocean acidification due to global climate change. The US andUK governments have evaded accountability by way of a persistent‘black hole’ strategy, contending that some nationallaws and international treaties for the protection of humanrights and the environment do not apply to the island—aposition confirmed by a controversial appellate judgment ofthe House of Lords in October 2008, essentially relying on ‘prerogative’colonial law. This article draws attention to the fallacy ofthe black-hole syndrome, and to its potentially fatal consequencesfor the British claim to a 200-mile environment protection zonein the Chagos Archipelago.     

Work, the Right to Work, and Durable Solutions: A Study on Sierra Leonean Refugees in The Gambia

It is rare indeed that the forced movement of people will nothave an economic dimension. Economic issues related to the movementof people have generally been viewed as beyond the scope ofthe debate on the international status and protection of refugees.Instead, ‘economics’ and ‘refugees’when heard together, or even in loose association, have evokedthe pejorative images of those who move to seek a ‘betterlife’. While recognising on the one hand the inevitabilityof economic dimensions to refugee movements, many advocatesfor refugees have traditionally taken great care in their policyand advocacy work to downplay the economic element of the complexmatrix of motivations that lead refugees and other forced migrantsto move. This paper takes a different approach. It promotesthe right to work, a social and economic right, as integralto protection and to all durable solutions. It explores itsrelevance, and indeed its significance, as a matter of law,policy and practice to the lives of refugees and those responsiblefor their protection, including their hosts. After all, ‘[d]espitethe statistical existence of unemployment in every country inthe world, work continues to be "an essential part of the humancondition"’. In addition, the paper examines the importanceof a rights-based analysis of work in understanding its relevancein the field both of international and national protection.In doing so, it explores the connections between work and theright to work and the three durable solutions. It acknowledgesthat social and economic conditions and inequities are oftenamongst the root causes of conflict which then lead to the failureof national protection and precipitate flight.     

Shadows in Paradise - Exploring Non-Refoulement as an Open Concept

The principle of non-refoulement contains a paradox. While stateshave committed to respecting the principle by joining the 1951Refugee Convention and key human rights conventions, its contentis not established in international law. In other words, stateshave committed to a principle the content of which is indeterminate.Since no common definition exists, in practice, national andinternational bodies have extensive powers of discretion togive content to the terms ‘persecution’, ‘torture’,‘degrading’ or ‘cruel’ treatment. Thepurpose of this article is to explore non-refoulement as anopen and ambiguous concept. Acknowledgement of the indeterminacyis important, as open concepts never remain such in practicebut are always issued with content or interpreted. This approachcalls for a further question: how do interpretations come aboutand what kind of factors influence them? The conclusion of thearticle is that different national and international actorspromote their own ‘correct’ interpretations of thiskeystone of refugee protection.     

Time to play Catch-Up

‘Catch Us If You Can!!!’ is the improbable nameof an Italian weblog managed by Lorenzo Litta and mastermindedby veteran IP expert Stefano Sandri. Although it is rarely possibleto measure what a blog achieves, it is usually quite feasibleto identify what it tries to do. In this instance the bloggers’objective is to raise their readers’ sensitivity towardsintellectual property rights issues and to create a greaterawareness of the parameters of protection and permitted usein a culture which places a     

The Proprietary Foundations of Corporate Law

Recent work in both the theory of the firm and of corporatelaw has called into question the appropriateness of analysingcorporate law as ‘merely’ a set of standard formcontracts. This article develops these ideas by focusing onproperty law's role in underpinning corporate enterprise. Rightsto control assets are a significant mechanism of governancein the firm. However, their use in this way predicates somearrangement for stipulating which parties will have controlunder which circumstances. It is argued that ‘propertyrules’—a category whose scope is determined functionally—protectthe entitlements of parties to such sharing arrangements againsteach other's opportunistic attempts to grant conflicting entitlementsto third parties. At the same time, the legal system uses arange of strategies to minimize the costs such protection imposeson third parties. The choice of strategy significantly affectsco-owners’ freedom to customize their control-sharingarrangements. This theory is applied to give an account of the‘proprietary foundations’ of corporate law, whichhas significant implications for the way in which the subject'sfunctions are understood and evaluated.     

Protection Elsewhere/Nowhere

The Australian Government takes the position that it does notowe protection obligations to an asylum seeker who could havesought protection elsewhere. In taking this position it is purportingto invoke the so-called ‘safe third country’ principlewhich has developed out of international practice. This articleexamines Australia's purported applications of the ‘safethird country’ principle and concludes that in some instancesthey represent an attempt to extend that principle beyond whatthe international community presently considers acceptable orever should consider acceptable.     

Law's Legitimacy and 'Democracy-Plus'

Is it the case that the law, in order to be fully legitimate,must not only be adopted in a procedurally correct way but mustalso comply with certain substantive values? In the first partof the article I prepare the ground for the discussion of legitimacyof democratic laws by considering the relationship between law’slegitimacy, its justification and the obligation to obey thelaw. If legitimacy of law is seen as based on the law beingjustified (as in Raz’s ‘service conception’),our duty to obey it does not follow automatically: it must bebased on some additional arguments. Raz’s conception oflegitimate authority does not presuppose, as many critics claim,any unduly deferential attitude towards authorities. Disconnectionof the law’s legitimacy from the absolute duty to obeyit leads to the second part of the article which consists ina critical scrutiny of the claim that the democratically adoptedlaw is legitimate only insofar as it expresses the right moralvalues. This claim is shown to be, under one interpretation(‘motivational’), nearly meaningless or, under anotherinterpretation (‘constitutional’), too strong tosurvive the pressure from moral pluralism. While we cannot hopefor a design of ‘pure procedural democracy’ (byanalogy to Rawlsian ‘pure procedural justice’),democratic procedures express the values which animate the adoptionof a democratic system in the first place.     

The Implied Duty of Mutual Trust and Confidence: An Emerging Overarching Principle?

There is an argument in academic circles that the implied dutyof mutual trust and confidence will evolve to form an all-embracingsuper-principle under which each of the more ‘traditional’implied duties will rest, including the employer’s impliedduty to exercise reasonable care for the welfare and well beingof the employee. The theme of this article is that, on balance,there is no evidence for the emergence of the implied duty ofmutual trust and confidence as a super-principle. If anything,the recent trends in the case law emphasise the distinctivenessof the employer’s duties to exercise reasonable care andtrust and confidence. The article’s aim was to demonstratethat both duties are separate, free-standing duties, sittingon an equal plane in terms of importance. To rationalise one,or all of the implied duties (i.e. the duty to exercise reasonablecare and/or all of the other ‘traditional duties’),as one of the means by which the super-principle of trust andconfidence is, or may be expressed, is to a large extent, aspirational.     

Work/Family Policy in France: From State Familialism to State Feminism?

When one looks at the policies that target the relationshipbetween work and family (here labelled ‘work/family policies’),contradictory views come from France. On the one hand, the staterecognition of family interests is very strong, and was initiallyrooted in familialism, an ideology that promotes the familyas an institution, and has often played against women’srights. On the other hand, women’s – and especiallymothers’ – labour force participation has alwaysbeen relatively high compared to other western countries. Toaccount for this ‘French paradox’, this paper putswork/family policies into historical perspective, in order toanalyse them as a mix of policies coming from various publicpolicy institutions (work, education, family). While state familialismhas always been strong in France, it has been challenged andshattered by several social and political trends since the 1960s.Among these is the development of ‘state feminism’,with the creation of governmental bodies endowed with the formalmission of furthering women’s rights. Based on an empiricalstudy of these institutions, this paper shows how they reframedwork/family policy in terms of a policy of equality in employment.     

The Unorganised Worker: The Decline in Collectivism and New Hurdles to Individual Employment Rights

The ‘unorganised’ worker (neither unionised norcovered by a collective agreement) is the norm in Britain, especiallyin the private sector, which employs about 70% of employees.In 2003, union membership was down to 29.3%, and 18.2% in theprivate sector. Collective bargaining covers 72.2% of workersin the public sector, but only 22.1% in the private,¹ leavingstatutory regulation of individual employment rights as theonly protection for the majority of workers. In this context,access to these rights, and ease of enforcement, while neverpreviously straightforward, are becoming increasingly crucial.The individualisation of the employment relationship, whichbegan before New Labour returned to power in 1997, has continuedwith little restoration of collective rights and new legislationenhancing individual rights. The government’s commitmentto neo-liberalism and maintaining a ‘flexible’ labourforce has ensured that these further rights are circumscribedby new legislation, which places them further out of reach.This paper discusses this process in the context of the difficultiesworkers already face in obtaining support and guidance, thelack of affordable professional legal advice and representationand the impediments to providing an adequate service by theunder-funded voluntary sector.     

Reconstructing Embedded Liberalism: John Gerard Ruggie and Constructivist Approaches to the Study of the International Trade Regime

In 1982, John Gerard Ruggie published a study of the postwarinternational trade and monetary regimes in which he introducedthe concept of ‘embedded liberalism’. A large andgrowing number of international trade scholars are finding Ruggie’sconcept of embedded liberalism an appealing one, and it nowoccupies a significant place on our conceptual horizon. In thisarticle, the author returns to Ruggie’s original articleto excavate lessons which are peculiarly relevant for currenttrade law scholarship. He argues that Ruggie’s accountof embedded liberalism usefully serves to destabilize commonassumptions about the objectives and normative underpinningsof the trade regime and thereby to expand our conceptions ofwhat a liberal trade regime might plausibly look like. On theother hand, he explains why he does not share the enthusiasmof those who see in embedded liberalism an attractive normativevision to guide WTO reform. In addition, and most importantly,the author draws attention to the constructivist theoreticalframework of Ruggie’s piece. He suggests that Ruggie’sarticle provides a useful introduction to the central elementsof constructivist thinking about international institutionsand shows how attention to constructivist insights has the potentialto significantly enrich and expand our understanding of thetrade regime and of trade law.     

The Vessel Hull Design Protection Act of 1998: is it still afloat?

Legal context. The Vessel Hull Design Protection Act (‘VHDPA’or ‘Act’) is a unique form of industrial designprotection under US law, part of the Digital Millennium CopyrightAct 1998. Congress provided this sui generis form of protectionin response to the Supreme Court's decision in Bonito Boatsv Thunder Craft Boats, Inc. This statute has been underutilizeddue to the difficulty in proving infringement, as unintendedconsequences were caused by the way ‘hull’ was originallydefined under the Act. A bill is pending in Congress that addresseshow a ‘hull’ is defined, eliminating any inclusionof ‘deck’ features, when passed, registrants shouldbe able to pursue infringers with greater success. Key points. The recreational boat manufacturing industry hasbeen plagued by low-cost boat makers who think nothing of takinga competitor's boat hull design, and using it as a ‘plug’to make a casting for their own unauthorized manufacturing use,a counterfeiting technique known in the trade as ‘splashing’a hull. In the eight years since enactment, the boating industryhas generally overlooked this form of intellectual propertyprotection due to the difficulty in proving infringement—thatis likely to change soon. Practical significance. The Act includes the right to excludeothers from making, having made, importing, offering for sale,or using in any trade, any boat hull embodying the protectedhull design. The Act provides compensatory recovery for damagesas well as injunctive relief. The newly revised Act has thepotential to provide a low-cost and effective form of intellectualproperty protection for recreational boat manufacturers whobuild hulls from moulded fibreglass or similar materials.     

The Rights of Victims: Participation, Representation, Protection, Reparation

Victims have the right under Cambodian law to participate inthe Cambodian Extraordinary Chambers’ trials. The mannerin which they will exercise this right remains unsettled, butwill affect whether these trials are eventually fair, theirimpact on national reconciliation, and the establishment ofprecedents for future Cambodian litigation. The exercise ofvictims’ rights should be adapted to the context of trialsfor mass crimes, affecting victim participation, representation,protection and reparation.     

From Benchmarking to Final Status? Kosovo and The Problem of an International Administration's Open-Ended Mandate

This contribution examines certain inherent shortcomings ofan ‘open-ended’ institution-building operation forwhich the future status of the entity in statu nascendi remainsundecided. It first addresses the policy of conditionality throughwhich Kosovo’s international administration attempts tomeasure the performance of local institutions against imported‘standards’. The external representation functionof an international administration acting on behalf of a non-stateterritorial entity, as an agent of necessity, is then analysed,considering recent and little-known developments and suggestingthat UNMIK’s practice supports the argument that ‘internationalized’territories possess limited legal personality. Turning ‘inward’to a sphere of domestic governance, the contribution highlightssome of the problems encountered with regard to the privatizationof public assets in Kosovo. Here, it argues that UNMIK is awkwardlycaught between the pursuit of both the interests of the territoryunder its administration and the collective interest of theorganized international community – two sets of interestswhich can collide head-on. The article concludes by suggestingthat an international territorial agent should not, as a rule,attempt to mediate a solution, but endeavour to represent theterritory in good faith.

‘You gave us freedom, but not a future’.¹

     

EU Refugee Qualification Directive: a Brave New World?

This article aims to map some of the major implications forasylum–related law in Europe of the Refugee QualificationDirective, which twenty-four EU Member States were requiredto implement by 10 October 2006. It seeks to build on importantstudies of the Directive completed by, among others, Hemme Battjes,in his book European Asylum Law and International Law, Nijhoff2006, and Jane McAdam, in her book Complementary Protectionin International Refugee Law, OUP 2007, albeit it takes a differentview of some key questions. Part 2 deals with the impact of the Directive on the applicationand interpretation of the 1951 Refugee Convention and its 1967Protocol. It is argued that, even read simply as a set of provisionsgiving interpretive guidelines on the application of the RefugeeConvention, it affects many things concerned with refugee eligibility,since these provisions cover key elements of the refugee definition. Part 3 deals with the impact of the Directive on the asylum-relatedhuman rights jurisdiction that currently prevails in Europein one form or another.¹ It is argued that the effect of theDirective is and must be to render Article 3 ECHR protection– or its domestic equivalent – a largely residualcategory, save in exclusion cases. Part 4 addresses to what extent, if at all, the Directive containsmandatory provisions and how, post-implementation, these canbe integrated into the national law of Member States. It isargued that, considered in purely textual terms, the key definitionaland interpretive provisions of the Directive are mostly in mandatoryform. Further, that whilst, by virtue of being a minimum standardsdirective, the Directive allows Member States to introduce orretain more favourable standards (A3), the same article stipulatesthat such standards must be compatible with the Directive. Thatproviso is of some importance given that the Directive’spreamble (at R7) identifies as one objective the avoidance ofsecondary movements. In relation to articles of the Directivewhich specify in mandatory terms how elements of the refugeedefinition are to be applied, Member States cannot be free tointroduce or retain differing standards. Parts 5 and 6 analyse suggested differences, first, betweenthe Directive’s refugee definition and the Refugee Convention(it is argued that the only potential difference of real significanceconcerns the Directive’s rendering of the Article 1F exclusionclauses of the Refugee Convention) and, secondly, between theDirective’s subsidiary protection definition and Article3 ECHR. The extent of symmetry between the new subsidiary protectioncriteria and ECHR protection under Article 3 is explored, inparticular, arguing that, whilst there are three respects inwhich subsidiary protection criteria are narrower (relatingto personal scope; the existence of cessation and exclusionclauses; and limited application to ‘health cases’),there may be limited respects in which it may be broader inscope than Article 3 ECHR. Part 7 examines patterns of implementation in the light of earlyevidence to hand from, for example, the November 2007 UNHCRsurvey of five Member States. The UK is considered as a furtherexample, that of a member state where, despite it being seenas unnecessary to make any substantial changes, the implementingmeasures have required important changes in method of approachand in conceptual language.     

Family Values in the Classroom? Reconciling Parental Wishes and Children's Rights in State Schools

This article examines the extent to which the law should permitdivergence in various aspects of state education by allowingschools to accede to a parent’s request for differenttreatment for his or her child. With a view to this the articleexplores some of the areas where contention is likely to occur;describes the current legal frameworks for responding to theserequests; and articulates the competing rights and interestsat stake when a parent makes a request for his or her childto be exempt from part of the education on offer at a publiclyfunded school. It emerges that the current legal responses arenot only inconsistent but are also in many instances incompatiblewith the United Kingdom’s international human rights obligations.The article concludes by suggesting a new model for the resolutionof these disputes which provides a mechanism for balancing parents’wishes with children’s rights and the broader public interestsat stake.