TDM Call for Papers for a Special Issue on the "The Changing Paradigm of Dispute Resolution and Investment Protection in Post-soviet and Greater Eurasian Space"
6 February 2019
Update January 2020: The TDM 1 (2020) - Dispute Resolution and Investment Protection in Post-soviet and Greater Eurasian Space has been published, table of contents and free excerpt here www.transnational-dispute-management.com/journal-browse-issues-toc.asp?key=89
Eurasian Economic Union (EAEU), Silk Road Economic Belt (SREB), Northern Sea Route (NSR), new infrastructural projects and privatization of energy sectors.
A. Aseeva, J. Górski, D. Kotova, A. Tugushev, and K.L. YIP invite you to contribute to a Transnational Dispute Management (TDM, ISSN 1875-4120, www.transnational-dispute-management.com) Special Issue on "The Changing Paradigm of Dispute Resolution and Investment Protection in Post-soviet and Greater Eurasian Space."
The rules of cross-border trade and investment in Eurasian space are undergoing a significant transformation. The latter results from the shift in trade routes across post-Soviet jurisdictions, which still rely on natural resources' trade and transit. Those are so far controlled by state-owned enterprises sometimes operating in joint ventures with Western investors. This shift could already be seen in dozens of rail connections bridging East Asia with Western Europe along Silk Road Economic Belt (SREB). The number of cargo trains passing through Xinjiang, Kazakhstan, Russia and Belarus increases every year and today competes with sea trade passing through Strait of Malakka. Road transport sees similar prospects after China joined the TIR (Transit international routier) Convention in May 2018. In addition to the SREB, the melting ice of Arctic opened the Northern Sea Route (NSR) to commercial shipping, raising questions of a preparedness of Russian maritime laws for accommodating high-volume international sea transport. With the shifting trade routes come possible conflicts over transit and other potential disputes, hence, specific questions of choice of law or alternative dispute resolution (ADR) solutions for the sales, transport and service contracts.
Gradual changes in global trade patterns have coincided with trade facilitation efforts of a few former Soviet Republics led by Russia aiming at the economic reintegration of the region. Their objective was to remove tariff and non-tariff barriers introduced by the newly independent states since the collapse of the Soviet Union. After a number of earlier ill-fated regional economic integration endeavours, the Customs Union eventually launched in 2010 has indeed cut the rail transport time by a few days. Yet, the operation of even more ambitious Eurasian Economic Union (EAEU) underway since 2015 only further exposes the reluctance of leadership of the involved states to partially cede their sovereignty to supranational institutions. Additionally, the Eurasian project had to compete with a number of other regional trade facilitation efforts, including EU's Eastern Partnership, US-backed GUAM (Georgia, Ukraine, Azerbaijan, and Moldova), China's Southern Corridor or any prospects for the Pan-Turkic economic space considered by Turkey.
Since the 1990s, a competition between integration projects in the area went hand-in-hand with a race for hydrocarbons marketable in Western Europe, and more recently in China. The status quo in the region meant that an access to upstream sectors was usually confined to state-controlled enterprises (SCE), or at best joint ventures between SCEs and foreign investors. Today this balance is likely to change, as, for example Chinese SCEs diversified the mix of previously mostly Western investors in energy projects in the region whereas Russia's entry into the LNG market through the NSR along with the exploitation of shelf deposits will likely shake-up pipeline natural monopolies. In terms of dispute settlement, this means that such breed of investors might seek more of autonomous ADR systems instead of relying on governments' diplomatic protection or local courts.
The themes of cross-border dispute resolution in Eurasia embrace today all three possible levels, namely, government-to-government, investor-to-government, and business-to-business levels. To wit, at the government-to-government level, the Economic Court of the CIS and the EAEU Court pragmatically balance the supranational objectives of economic integration with the intergovernmental stance of sovereign interests of their member states. The investors/business-to-government disputes in the region feature prominently in energy, extractive, and infrastructure sectors in which investors, whether domestic or foreign, and whether private or government-backed, cannot operate without exclusive rights granted by host governments. At the business-to-business level, world's major arbitration institutions, particularly the Hong Kong International Arbitration Centre (HKIAC) have expressed their interest in helping to solve SREB-related disputes, presenting themselves as impartial fora for both Chinese businesses going global and their counterparties in former Soviet Republics. Meanwhile, with about 300 cases per year, the International Commercial Arbitration Court (ICAC) at the Chamber of Commerce and Industry of the Russian Federation (RFCCI) has been a rather vibrant ADR institution, even despite a parallel regional tendency to outsource ADR to the Arbitration Institute of the Stockholm Chamber of Commerce (SCC) or to Vienna International Arbitral Centre (VIAC).
This Call for papers raises the following points for discussion:
Government-to-Government Dispute Resolution
- governance and decision-making in the EAEU,
- operation and case-law of the EAEU Court,
- governance and decisions making in the CIS,
- operation and case-law of the CIS Economic Court,
- dispute settlement under FTA collectively concluded by all EAEU members with third countries,
- WTO DSU disputes between Russia and the EU regarding mutually imposed sanctions,
- territorial disputes and border delimitation along the NSR,
- claims to natural resources in extended continental shelf (ECS) under the United Convention of the Law of the Sea (UNCLOS),
- disputes leading to a conclusion of the 2018 Convention on the Legal Status of the Caspian Sea (Aktau Convention).
Investor/Business-to-Government Dispute Resolution
- the network of BITs and investment-related FTAs chapters concluded by former Soviet republics between them and with third countries along with case studies of disputes resolved based on their provisions,
- investors' protection under FTAs collectively concluded by the EAEU, the case study of the investment chapter of the EAEU-Vietnam FTA,
- the case law under the implementation of the Energy Charter Treaty in the former Soviet Republic, the implications of Bucharest Energy Charter Declaration for post-Soviet space;
- non-discriminatory access to government contracts and participation in public-private partnerships along with domestic challenge procedures replicating requirement of the WTO GPA,
- conditions of foreign investments in SEZs with emphasis on mechanism of resolution of potential disputes with administrators of such zones,
- terms and conditions of production-sharing agreements along with their dispute resolution rules,
- interference of MDB and other financing institutions with the dispute resolution between borrowing/institutions and general contracts selected by such institutions to carry out finance projects,
- controversies between foreign shipping companies and Russian authorities regarding freedom of navigation (FON) and safety of navigation and marine pollution along the NSR,
- non-discriminatory access to navigation, ice-advisory and ice-breaking services and to post infrastructure along the NSR, along with domestic procedure allowing foreign vessels operators to challenge the conduct of Russian authorities and SCEs with monopolies over NSR-related services.
Business-to-Business Dispute Resolution
- practical dimension of ADR preferred choice of law, forum, language etc) in commercial relations of entities based in post-Soviet jurisdictions in between them and with trade countries, of particular interest are practical issue arising out of trade with China, Iran and Turkey,
- commercial arbitration and mediation-related development in national law of former Soviet Republics,
- operation and case law of the RFCCI ICAC,
- bespoke solution of non-regional arbitration centers for post-Soviet space, including HKIAC, CIETAC, CIETAC HK etc.,
- recognition of arbitral awards and foreign judgments in post-Soviet jurisdictions,
- adequacy of the Russian implementation of conventions related to covering liability and compensation at sea for the increased trade flows along the NSR, including 1) 1992 Protocol to the International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage (FUND), 2) 1996 Protocol to the Convention on Limitation of Liability for Maritime Claims (LLMC) 1976, 3) International Convention on Liability and Compensation for Damage in Connection with the Carriage of Hazardous and Noxious Substances by Sea (HNS), and 4) International Convention on Civil Liability for Bunker Oil Pollution Damage (BUNKER).
- discussion of specific ISDS cases,
- discussion of specific energy related-projects, including investment in exploitation/expansion of specific hydrocarbon deposits and development of power/cogeneration plants along with the financing arrangements, dispute resolution and social/environmental/sustainability aspect of such particular projects,
- specific transportation projects (rail, road, marine infrastructure) long with the financing arrangements, dispute resolution and social/environmental/sustainability aspect of such particular projects.
Faculty of law, Higher School of Economics (HSE)
City University of Hong Kong
HSE-Skolkovo Institute for Law and Development
School of law, City University of Hong Kong
Freshfields Bruckhaus Deringer
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