Treaty Signature

This chapter is a contribution to The Oxford Guide to Treaties (Duncan Hollis, ed., Oxford University Press, forthcoming 2012). Under international law, in order for a State to become a party to a treaty, it must express its consent to be bound by the treaty. Such consent can be expressed in a variety of ways, including through signature of the treaty by a proper representative of the State. Under modern treaty practice, however, States often express their consent to be bound by a separate act of ratification that is carried out after signature. When a treaty is subject to discretionary ratification after signature, the signature is referred to as a \u27simple signature,\u27 whereas a signature that indicates consent to be bound is referred to as a \u27definitive signature\u27. Part I of the chapter considers why States often prefer simple signature subject to ratification in lieu of other methods of joining a treaty. Part II discusses the international legal consequences of a simple signature. Part III reviews the process by which a State can terminate its signatory obligations. The chapter concludes with a brief consideration of the strategic issues raised by the ability of States to decide not to ratify a treaty after signature

Corporate Social Accountability Standards in the Global Supply Chain: Resistance, Reconsideration and Resolution in China

This Article provides a view on corporate social accountability standards from a Chinese perspective, a slightly different angle from that of legal scholars in the United States. The legal literature in the United States typically only focuses on the importance and effectiveness of corporate social accountability standards to regulate the conduct of multinational companies in the era of globalization. However, the views of the outsourced companies in the developing countries on which the multinational companies impose the standards have seldom received attention. This Article tries to fill this void by examining the situation in China. As shown in this Article, effective implementation of corporate social accountability standards requires a refined approach that considers local circumstances in developing countries

INVESTMENTS IN FREE ECONOMIC ZONES: ANALYSIS OF FACTORS AND POLICIES UNDERLYING THEIR SUCCESS

This thesis will focus on the experience of those developing countries whose FEZs have been regarded as successful in attracting foreign investment and creating a suitable environment for the activity of zone-based foreign enterprises. Furthermore, it will examine the major aspects of FEZ operations and legal and economic strategies of host countries. Chapter I will concentrate on issues relating to foreign investment, types of attitudes towards foreign investment and their relationship with investment policies of host countries and the role of legal systems in attracting foreign investment. Chapter II will provide an overview of various types and characteristics of FEZs, reasons for their proliferation and some historical background. Benefits and costs associated with the operation of FEZs will be analyzed in this Chapter as well. Chapter III will be devoted to the major components of the FEZ framework, international economic arrangements, e.g. tariff concessions granted by the industrialized powers, and the impact they have on foreign investor behavior. Chapter IV will examine incentives that are usually offered by FEZs, their consequences for host countries and value to foreign investors. This Chapter will also give a general overview of constraints existing in foreign investment policies of developing countries. The conclusion will recapitulate the preceding chapters of the thesis and will outline probable future developments with regard to FEZs in Ukraine

Uncertain opportunities: Chinese investors establishing investments in New Zealand

Abstract: Despite the signing of a comprehensive free trade agreement between New Zealand and China and significantly deepening trade relations, there exists a discernable lag in the investment relationship between the two countries. This paper identifies that the operation and interaction of the two legal instruments governing the conditions of entry of Chinese foreign direct investment (FDI) into New Zealand – the New Zealand–China Free Trade Agreement (NZCFTA) and the New Zealand Overseas Investment Act 2005 – partially explain this disparity. These legal instruments offer an interesting illustration of the way in which international investment agreements (IIAs) interact with domestic law, managing the contention between investor rights and host state public interests. However, it is clear that the rights and obligations created by these legal instruments are not well understood by Chinese investors and New Zealand commentators alike, as illustrated by the recent Crafar farms saga. This paper seeks to clarify those rights and obligations, arguing that greater transparency and predictability in the operation of the legal instruments is necessary in order to encourage higher levels of Chinese FDI in New Zealand. This is particularly important in the New Zealand– China relationship as Chinese investors are still relative newcomers in the establishment of overseas investments and face in New Zealand a culturally different regulatory scheme from that operating in China

PUBLIC POLICY DEFENSE IN INTERNATIONAL COMMERCIAL ARBITRATION

The purpose of this thesis is to examine how public policy defense functions in international commercial arbitration and whether it will block the development of international commercial arbitration. Chapter II deals with the role of public policy in international private law. This chapter examines the origins of public policy in common law countries and its functions in international private law. It is difficult to evaluate public policy as a precise concept because of its relative nature. Nevertheless, to limit its application in international private law, legal scholars have tried to clarify differences between domestic public policy, international public policy, and transnational public policy. Chapter III discusses the legal history of the New York Convention and analyzes the role of the public policy exception under the Convention. Chapter IV gives an overview of the judicial application of the public policy exception in the United States. The case law shows that American courts narrowly read public policy defense in determining the arbitrability of subject matters, the propriety of arbitration procedures and the content of arbitration awards. This Chapter also analyzes why American courts adhere to a narrow construction of public policy defense. Chapter V examines how Chinese courts apply the public policy exception in practice. It seems that Chinese courts broadly, sometimes even incorrectly, invoke the public policy exception to refuse enforcement of arbitration agreements or arbitral awards though enacted laws indicate a narrow construction. Chapter VI discusses the role of the public policy exception in the future. It seems unlikely that the public policy exception will be removed from international arbitration any time soon. However, the tendency of narrowly reading the public policy exception has created the basis for the development of the notion of a transnational public policy, a policy that would facilitate predictability in international commercial arbitration

The Recognition of Foreign Privileges in United States Discovery Proceedings

Discovery of evidence that is not available in the United States is a frequent problem in international litigation before United States courts. A common element of international litigation in such complex cases is that key witnesses reside abroad or crucial business documents belonging to foreign litigants are located in other jurisdictions. Due to the fact-dependent nature of these cases, courts in the United States have been confronted with numerous legal and practical obstacles in their attempts to obtain evidence, whether written or oral, from foreign litigants or non-party witnesses. Discovery orders of United States courts relating to testimonial or documentary evidence situated in foreign countries have generated a great deal of legal and political controversy, not only in the area of private suits but also in the field of agency and grand jury investigations. The reasons for these conflicts are numerous and have given rise to an abundance of legal writing. Nevertheless, no guidelines as to how these international discovery disputes could be resolved have emerged. As will be demonstrated, one of the reasons for the continuing uncertainty is the insufficient evaluation of foreign laws opposing United States discovery proceedings

Extraterritoriality by Other Means: How Labor Law Sneaks Across Borders, Conquers Minds, and Controls Workplaces Abroad

This Article challenges the state-centered description of labor law and impoverished view of extraterritoriality. It suggests that transnational flows of technology and capital, goods and services, and ideas and information have brought in their wake changes in political economy and social relations that have transformed regimes of public and workplace governance in all countries. It proposes that the extraterritoriality doctrine operates, if at all, only in the formal sense of not allowing one state to overtly project its law into the territory of another. But extraterritoriality does little to prevent the rules governing employment relations in one country from taking root elsewhere, from shaping foreign labor market norms, institutions, and practices, and from being reproduced, in their original or mutant forms, in foreign systems of labor law. The result is the extraterritorial projection “by other means” of labor law and policy - a form of extraterritoriality that has the potential to enhance as well as undermine labor standards in global enterprises