Sanctions and the Blurred Boundaries of International Economic Law

Economic sanctions are often said to occupy a middle space between communiqués and combat. As this description makes clear, sanctions are a political tool – but a political tool that operates through economic regulation. They are simultaneously economic and political. Their dual nature seems to place sanctions in a twilight zone, neither truly in nor out of the academic discipline of international economic law (“IEL”). Sanctions tend to be marginalized in IEL scholarship, generally taking little space in the IEL literature and at the podiums of IEL conferences and courses. While economic sanctions loom large today in headline news and the practice of international trade law, they are not proportionately represented in recent IEL literature. Rather, IEL scholarship seems content to leave sanctions to other disciplines like public international law, economics, and international relations. To be sure, sporadic controversies capture attention – but typically when they implicate other IEL concerns, as when the Helms-Burton brouhaha erupted at the then-fledgling World Trade Organization (“WTO”). This article contends that sanctions are part of IEL and they warrant more rigorous consideration in IEL scholarship. Sanctions cross both the borders between IEL and other fields, and the borders within IEL itself, thus nicely illustrating Andreas Lowenfeld’s observation in his treatise on International Economic Law that “everything is related to everything else” and “the boundaries between them are inevitably blurred.” These arguments are supported by a deep look at the economic sanctions programs administered by the Office of Foreign Assets Control (“OFAC”) of the U.S. Treasury, especially the OFAC sanctions against Cuba

Microinvestment Disputes

Salini v. Morocco sparked one of the liveliest controversies in the dynamic field of international investment disputes. Salini held that the word investment in the Convention establishing the International Centre for Settlement of Investment Disputes (ICSID), although undefined, has an objective meaning that limits the ability of member states to submit disputes to ICSID arbitration. The Salini debate is central to this field because it shapes the nature, purpose, and volume of ICSID arbitration--and also determines who gets to decide those matters. In particular, Salini\u27s decision to include a contribution to development as an element of its objective definition of investment transformed development promotion from a generalized goal of ICSID as an institution into a jurisdictional requirement for each case. This Article introduces the concept of a microinvestment dispute, which focuses attention on small investments giving rise to ICSID cases. The microinvestment lens reveals the failings of Salini\u27s contribution-to-development prong. By conditioning ICSID jurisdiction on an individualized showing of such a contribution, this prong disproportionately burdens microinvestors, inhibiting their access to ICSID despite the fact that the drafters of the ICSID Convention specifically rejected a minimum size requirement. In so doing, the development prong also limits ICSID\u27s value to those who need it most. In the name of promoting development, Salini may well undercut it In addition, this Article also offers a third way alternative to both Salini\u27s objectivity and pure subjectivity. This alternative--bounded deference--draws on the principles of autonomy, consent, and good faith to strike a better balance between states and arbitral tribunals

Investor-State Arbitrators\u27 Duties to Non-Parties

The notion that arbitrators owe duties to the parties in investor-state disputes is familiar. This article explores less-trodden terrain. It argues that, notwithstanding the party-centric norms of arbitration, investment arbitrators also owe duties to non-parties. It begins by establishing a beachhead – a clear example of a duty to a non-party, as a proof of concept – before moving into rougher territory. The article catalogs and surveys various duties owed to non-parties, discussing the nature of these duties and how they are enforced. Finally, the article shows that recognizing duties to non-parties both informs a proper understanding of the investment arbitration system and may help improve that system