Browsing by Author "Ward, Shannon"

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Annulment of Investment Arbitration Awards on the Basis of 'Serious Departure from a Fundamental Rule of Procedure: Time for a U-Turn?
(Te Herenga Waka—Victoria University of Wellington, 2010) Ward, Shannon
Article 52(1)(d) of the Convention on the Settlement of Investment Disputes between States and Nationals of Other States entitles ad hoc committees to annul investment arbitration awards where there has been a ‘serious departure from a fundamental rule of procedure’. Despite being one of the most commonly argued grounds for annulment, only one applicant has been successful on this basis, with the low success rate apparently stemming from uncertainty inherent in art 52(1)(d) as to what constitutes a ‘fundamental rule of procedure’. Successive ad hoc committees have perpetuated this uncertainty by failing to conduct a proper analysis of the scope and international law origins of the phrase ‘serious departure from a fundamental rule of procedure’. This paper argues that future ad hoc committees must make a ‘u-turn’ in approach in order to remedy this analytical gap. Starting from application of the Vienna Convention on the Law of Treaties rules of treaty interpretation, the paper demonstrates that art 52(1)(d) references a hierarchy of rules of procedure where fundamental rules of procedure form the basis from which subsidiary rules of procedure are derived. These findings are then applied to identify four essential procedural principles - ‘fundamental rules of procedure’ - that underpin the conduct of arbitral proceedings as well as the right to a fair trial in international human rights law and procedural review of international commercial arbitration awards. Finally, a four-step ‘road map’ is developed for future ad hoc committees to follow in order to achieve clarity and coherence on the legal standard for annulment that applies under art 52(1)(d).
Open Access
Cleaning Up Our Act: Using The Agreement On Climate Change Trade And Sustainability To Clarify World Trade Organization Rules On Process And Production Methods
(Te Herenga Waka—Victoria University of Wellington, 2021) Ward, Shannon
This paper observes that uncertainty in the application of World Trade Organization (WTO) rules on ‘like products’ has prevented States from using trade measures that distinguish products by their levels of embedded carbon as part of their toolkit to support the adoption of more sustainable, low carbon production and processing measures (PPMs). It argues that there is potential for the environmental and trade impact of the Agreement on Climate Change, Trade and Sustainability (ACCTS) to be increased by broadening the scope of the environmental goods negotiations to provide tariff preferences for ‘environmentally preferable products’ with carbon footprints below a benchmark. Doing so could also enhance legal certainty as there is a low risk of a WTO Panel finding that ACCTS tariff preferences for ‘environmentally preferable products’ discriminated against ‘like products’ in breach of General Agreement on Tariffs and Trade (GATT) Article I.1. This is because the ACCTS participating countries’ intend to extend the negotiated tariff preferences to all other WTO Members on an ‘most-favoured-nation’ (MFN) basis, and otherwise-identical products produced using less climate-friendly means could still be imported attracting the usual applied tariff rates. Though there are practical and implementation challenges that would need to be overcome during negotiations, agreeing tariff preferences for ‘environmentally preferable products’ in ACCTS would break new ground and serve as a lightning rod to normalise the adoption of trade measures to incentivise the transition to low carbon PPMs.