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ISDS and Nazis or history without context : a reply to Gary Born

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Zivkovic, Velimir (2022) ISDS and Nazis or history without context : a reply to Gary Born. Journal of International Arbitration, 39 (4). pp. 575-592. ISSN 0255-8106.

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Official URL: https://kluwerlawonline.com/journalarticle/Journal...

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Abstract

Gary Born’s article ‘The 1933 Directives on Arbitration of the German Reich: Echoes of the Past?’ fascinates for good and not so good reasons in almost equal measure. The author skillfully illuminated a rarely-discussed episode of arbitral legal history and aimed to apply its lessons to current debates surrounding investor-state dispute settlement (ISDS) reform. The overarching argument is that criticism and/or reform of investor-state arbitration is reckless and reminiscent of National Socialist efforts to curb private-public arbitration – risking undermining the rule of law and even allowing ‘history to repeat itself’. As much as the legal history part is a worthy contribution, this later part is laden with problematic claims and unfortunate parallels. The criticisms and potential (fairly limited) reforms of ISDS are portrayed as missteps towards a totalitarian abyss. Yet as much as investor-state arbitration can sometimes help promote the rule of law, it is not an indispensable ‘bulwark’ against state oppression. ISDS is a historically recent invention, with an even more recent case law. It deals with wide-reaching and objectively often controversial substantive rules, making reform proposals unsurprising. Crucially, even if investorstate arbitration disappeared completely, the history of Nazi horrors would not repeat itself.

Item Type: Journal Article
Subjects: K Law [LC] > K Law (General)
K Law [Moys] > KC International Law
Divisions: Faculty of Social Sciences > School of Law
Library of Congress Subject Headings (LCSH): Arbitration (International law), Investments, Foreign (International law), International commercial arbitration
Journal or Publication Title: Journal of International Arbitration
Publisher: Kluwer Law International
ISSN: 0255-8106
Official Date: August 2022
Dates:
DateEvent
August 2022Published
28 April 2022Accepted
Volume: 39
Number: 4
Page Range: pp. 575-592
Status: Peer Reviewed
Publication Status: Published
Reuse Statement (publisher, data, author rights): Reprinted from Journal of International Arbitration, 39, 4, 2022, 575-592, with permission of Kluwer Law International.
Access rights to Published version: Restricted or Subscription Access
Date of first compliant deposit: 5 September 2022

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