Applying the Full Protection and Security Standard of International Investment Law to Digital Assets

This article considers the possibility that digital assets of foreign investors such as websites and computer systems could be protected by the full protection and security (‘FPS’) standard common to many bilateral investment treaties. Such assets can properly be described as investments and the flexible nature of the FPS standard observed in recent arbitration practice could be extended to cover civil disturbances such as 'cyber attacks' against companies. The article considers host state liability with respect to the prevention of harm to digital assets as well as failure to enforce laws that prohibit it. The lack of governmental control over websites suggests that it would be difficult to ascribe state liability under an FPS clause, except possibly in situations of large scale internet infrastructure collapse. A duty to prosecute attacks against digital assets, while common to many jurisdictions and seen in international instruments, is inappropriate as an investment treaty claim because of difficulties in compensation. The FPS standard further appears to incorporate a degree of contextual proportionality linked to the host state’s resources and this may prevent successful claims against Developing States where many cyber attacks occur

Fair Trade City Subsidization and WTO Agreement Violation

Numerous local governments in the UK have achieved the designation Fairtrade City for their provision of special assistance to Fairtrade certified goods “ which originate from producers in the developing world who enjoy a higher wage and healthy living standards. This article examines the legality of such policies through the framework of the World Trade Organization agreements and argues that such favourable treatment is both an illegal subsidy and a violation of the Most Favoured Nation principle. Discrimination against non-Fairtrade goods is likely not defensible through the WTO's permissible exceptions for developing nations; nor does it fit under any of the general exceptions under GATT. The article concludes that Member states from the developed world injured as a result of Fairtrade City policies should seek consultations as provided by the WTO Agreement on Subsidies and Countervailing measures

Fracking in Pennsylvania: A Spatial Analysis of Impacts on Land Cover and Land Use, the Viewshed, and the Audioshed

Hydraulic fracturing is the process of extracting natural gas from layers of shale rock beneath the surface of the Earth. The largest source of natural gas in the US is the Marcellus Shale, largely located in Pennsylvania, and it is believed to hold about 141 trillion cubic feet of natural gas in its shale deposits. My study examined the impacts of well sites on land cover and land use, the viewshed, and the audioshed. To study the effect of wellpads on land use and land cover, we overlaid a layer of wellpads over land cover data as well as a layer of Pennsylvania natural resources. To study the visual and sound impacts of wellpads and compressor stations, we generated viewsheds and audiosheds and then calculated the percent of land, road, and trails impacted within different environment types. We found that the majority of producing wells are currently found in forested areas and within 1320 feet of a stream or wetland. However, we found that there is also seemingly a bias against placing wellpads near wetland areas. Additionally, rural land cover areas were found to have a disproportionate number of wellpads in relation to their area within the Marcellus shale region. Rural environments were also found to be impacted the highest in regards to the viewshed, having over 20% of the tile within the fracking viewshed for tiles with at least 2 wellpads. In regards to noise impacts, high road density areas and state forest areas were found to have similar percentages within the audioshed for tiles with at least one compressor station. So overall, in areas with at least 2 wellpads, rural areas have the most potential impacts due to fracking for both land cover and land use as well as the viewshed

Efficient Breach, Reliance and Contract Remedies at the WTO

Purpose - To propose a remedy of monetary damages for efficient trade agreement breaches within the World Trade Organization (WTO). Design/methodology/approach - Defines the concept of an efficient breach as one where breach of an obligation leads to more optimal allocation of resources than compliance with the obligation. Discusses WTO remedies and monetary damages for efficient breach, the expectation measure, the reliance measure, WTO violations as tort, and enforcement. Findings - The main remedies for WTO violations are non-monetary compensation and retaliation. However, the problems facing a doctrine of efficient breach are that the parties mainly injured by such breaches are private third party exporters rather than Member States, and that it is difficult to calibrate counterfactually a suitable remedy based on foregone trade. To overcome these problems, the proposed reliance-based monetary remedy would institute a periodic decreasing payment which corresponds to the out of pocket expenses incurred, in anticipation of liberalized trade, by exporters in the injured state. This quantifiable and verifiable method of assessing compensation is in harmony with the common law of contract and can be used to establish third-party contractual rights; it also has parallels in international law, which should encourage compliance with it, while WTO violations are similar to the law of tort, which typically uses a restorative remedy. Originality/value - The proposed method fulfils the WTO's Dispute Settlement Understanding's goal of predictability, and it is both fair and welfare maximizing

“A Considerable Surgical Operation”: Article III, Equity, and Judge-Made Law in the Federal Courts

This Article examines the history of judge-made law in the federal courts through the lens of the early-nineteenth-century federal courts’ equity powers. In a series of equity cases, and in the Federal Equity Rules promulgated by the Court in 1822 and 1842, the Supreme Court vehemently insisted that lower federal courts employ a uniform corpus of nonstate equity principles with respect to procedure, remedies, and - in certain instances - primary rights and liabilities. Careful attention to the historical sources suggests that the uniform equity doctrine was not simply the product of an overreaching, consolidationist Supreme Court, but is best understood in the context of important and surprisingly underappreciated early-nineteenth-century debates concerning judicial reform. During this period, both Congress and the Court were preoccupied with the disuniformity in the administration of the federal judicial system, especially in the farther reaches of the republic. When reform was not forthcoming through legislation, the Supreme Court achieved a modicum of uniformity in the federal courts through the application of a single body of equity principles drawn from federal and English sources. But the Court did not act unilaterally. Congress’s repeated acquiescence to, and extension of, the Court’s uniform equity doctrine reveals a complex, interbranch dynamic at work. Retelling the story of nonstate, judge-made law in the federal courts through the lens of equity is not intended to demonstrate that such a formulation of federal judicial power was (or is) correct. Rather, by recuperating the history of federal equity power, this Article illuminates the significant metamorphosis of the meaning of Article III’s grant of judicial power. This change has been elided in modern accounts of federal judge-made law in an effort to bolster the legitimacy of a modern vision of federal judicial power

Settlement Agreements, Legal Information and the Mistake of Law Rule in Contract

The extent of the doctrine of contractual mistake of law is evaluated in light of the Court of Appeal’s decision in Brennan v Bolt Burdon through the lens of economic efficiency, the associated incentivization of productive information acquisition and contractual risk allocation. The Brennan court’s decision limits the relief available for claims of mistake grounded in unanticipated changes in the law to mistakes involving exceptional errors. In so doing it acknowledges the risk inherent in accepting contractual settlement offers as a matter of commercial risk taking which can be offset through express contractual limitation, subject to public policy concerns. The article considers the effects of such contractual risk allocation as well as the cost of dispelling ignorance to recommend a clarification of the scope of the mistake of law. This rule is based upon the gains to be achieved from the underlying contract to the contractual parties as well advantages to society engendered by the dissemination of information about the law itself

Reliance Remedies at the International Centre for the Settlement of Investment Disputes

Examines situations in which the International Centre for the Settlement of Investment Disputes has awarded damages for the cost of the investment, which may be compared to the contract law concept of reliance damages. Notes that this measure of damages is often used where lost profits are difficult to calculate because of the speculative nature of the future investment

Cruise Report 70-S-5: Big Game Fish

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The International Bar Association and Trade in Legal Services: Meta Law-Making in International Economic Law?

This article presents the International Bar Association as a highly-influential but often overlooked non-state actor through the lens of its involvement in the standardization of Mutual Recognition Agreements (MRA)s for legal services. Not only do most MRAs contemplate the active involvement of professional bodies such as law societies and bar associations in their construction and monitoring, the IBA’s guidelines for MRAs inform the content of these agreements, facilitating the practice of international law by a more highly mobile profession. This in turn underpins the capacity of the community of international lawyers to exercise their technical expertise to influence other non-state actors, exemplifying what may be described as the IBA’s “meta-lawmaking” on the global stage. As there has been poor uptake of MRAs by developing countries, initiatives of the IBA could help establish mutual recognition for legal services in the developing world