Integration and International Dispute Resolution in Small States

Foreword

Preface

Contents

About the Editors and Authors

Part I: Introduction

Chapter 1: Small States and Integration: An Introduction

1.1 Introduction

1.2 Small States

1.2.1 Challenges Due to Size

1.2.1.1 Vulnerability to Economic Shocks and Income Volatility

1.2.1.2 Limited Capacity

1.2.1.3 Difficulty Accessing External Capital

1.2.2 Challenges Due to Geography

1.2.2.1 Limited Competitiveness

1.2.2.2 Susceptibility to Natural Disasters and Climate Change

1.3 Integration in Small States

1.3.1 Definition

1.3.2 Examples

1.3.3 Impact

1.3.4 Integration Issues Faced by Small Island States

1.3.4.1 Regional Agreements

1.3.4.2 Dichotomy Between Ambition and Reality

1.3.5 Approaches to Regulation of Trade and Finance in Small States

1.3.5.1 Opportunities Based on Innovative Regulations for Trade and Finance in Small States

1.3.5.2 Renewable Energy

1.3.5.3 Traditional Knowledge

1.3.6 Small States as Financial Centres

1.4 Dispute Resolution and Small States

1.4.1 Dispute Resolution Involving Small States

1.4.1.1 State-to-State Disputes Involving Small States

1.4.1.2 Investor-State Dispute Settlement Involving Small States

1.4.2 International Business-to-Business Dispute Resolution in Small States

1.4.2.1 Cross-Border Litigation in Small States

1.4.2.2 International Commercial Arbitration in Small States

1.4.2.3 International Tax Dispute and Small States

1.4.2.4 International Mediation in Small States

1.5 Conclusions

References

Part II: Integration

Chapter 2: Small States and Regional Dispute Resolution Mechanisms: The Caribbean and Pacific Experiences

2.1 Introduction

2.1.1 Rationale

2.1.2 Critique

2.1.3 Chapter Outline

2.2 Analytical Framework

2.2.1 The Relevance of State-Size

2.2.2 Small States as a Contested Concept

2.2.3 Small States and Regional Dispute Resolution

2.2.4 Conclusions

2.3 Regional Dispute Resolution and Small States: The Caribbean and the Pacific

2.3.1 Caribbean Integration: The CARICOM Experience

2.3.1.1 General Characteristics of the CARICOM Member States

2.3.1.2 CARICOM and Its Dispute Settlement Mechanisms

2.3.2 Pacific Island Countries Integration

2.3.2.1 General Characteristics of Pacific Islands Countries

2.3.2.2 The MSG, PICTA, PACER, PACER Plus and Their Dispute Settlement Mechanisms

2.4 Concluding Remarks

References

Chapter 3: Enforcement of Regional Economic Integration in the Caribbean: Treaty Enforcement by the Caribbean Court of Justice...

3.1 Introduction

3.2 The Caribbean Community

3.3 Nature of CARICOM Single Market and Economy (CSME)

3.4 Nature of the Court

3.5 Domestic Enforcement of Community Law: The Role of the CCJ

3.5.1 Shanique Myrie v Barbados

3.5.2 Maurice Tomlinson v Trinidad and Tobago and Belize

3.6 Closer Co-operation by a Sub-Unit within the CARICOM Context

3.6.1 Focal Topic: Free Movement

3.6.2 Enhanced Co-operation Under EU Law

3.6.3 Subsequent Regime: Balanced Substantive Rights

3.7 Conclusions

References

Part III: Business Relations with and within Small States

Chapter 4: Achieving Sustainable Development Goal 8 in Small Island Developing States by Capital Raising Law Reform: Case Stud...

4.1 Introduction

4.2 Financing Constraints in Small Island Developing States

4.2.1 Differences Between Small Island States and Pacific Small Island States

4.2.2 The Case of Fiji: Fiji´s Progress Towards the Millennium Development Goals (MDGs)

4.2.3 The 2030 Agenda: How Can Fiji Realign Its Development Path to Meet the New Sustainable Development Goals?

4.3 Capital Raising Regime in Fiji Before January 2016

4.3.1 Unit Trusts Act 1978 (Cap 228)

4.3.2 Companies Act (Cap 247)

4.3.3 Capital Markets Decree 2009 (CMD)

4.4 Problems with the Prior Regime

4.5 The Companies Act 2015

4.6 Capital Raisings Under Part 26 of the Companies Act 2015

4.6.1 Obligation to Publish a Prospectus

4.6.2 Exemptions from the Obligation to Publish a Prospectus

4.6.3 Exceptions for Certain Issuances

4.6.4 Prospectus Content Requirements

4.6.5 Validity of a Prospectus and Liability for Defective Information

4.6.6 Limited Nature of Exemptions from the Obligation to Publish a Prospectus and the High Costs of Compliance

4.7 Reform Options

4.7.1 Reforming the Secured Transactions Regime: Secured Transactions as a Domestic Resource Mobilisation Tool

4.7.2 Introduction of ``Community Companies´´: Community Companies as a DRM Tool

4.7.3 Legislative Requirements Applying to Community Companies

4.7.4 A ``Small Business Access to Capital Bill´´

4.7.5 Amendments to the Companies Act 2015

4.8 Conclusions

References

Chapter 5: Getting the Definition of ``Consumer´´ Right: Worrying About the Smaller Ones in Fiji

5.1 Introduction

5.2 The Framework of Consumer Protection Legislation in Fiji

5.2.1 The Current Statutory Definitions of a `Consumer´ in Fiji and their Defects

5.2.1.1 Fijian Competition and Consumer Commission Act 2010

5.2.1.2 Consumer Council of Fiji Act 1976

5.2.1.3 Consumer Credit Act 1999

5.3 Background of Micro and Small Enterprises in Fiji

5.3.1 Fiji Bureau of Statistics Economic Survey 2004

5.3.2 The Reserve Bank of Fiji Comments

5.3.3 The National Centre for Small and Micro Enterprises Development Survey 2009

5.3.4 Case Studies

5.4 Rationale for Consumer Protection

5.5 A Critical Analysis of the Proposal to Broaden the Definition of `Consumer´

5.5.1 Arguments for Broadening the Definition of `Consumer´

5.5.1.1 Rationale for Consumer Protection

5.5.1.2 Importance of MSEs to the Economy

5.5.2 Arguments Against Broadening the Definition of `Consumer´

5.6 Issues in Broadening the Definition(s) of Consumer in Fiji

5.6.1 Consumer Credit Laws

5.6.2 Unfair Contract Terms

5.6.3 Expansion of the Definition to Businesses or ``Business-Consumers´´?

5.7 Proposed Definition of `Consumer´

5.7.1 The New Definition

5.7.2 Explanation

5.7.2.1 Scope of the Proposed Definition

5.7.2.2 Reference to the Definitions of Micro and Small Enterprise in Small and Micro Enterprises Development Act 2002

5.7.2.3 The Idea of the New Definition of `Consumer´

5.8 Conclusion

References

Chapter 6: Intellectual Property Consequences of Commercial Relations with Small States: A View from the Pacific

6.1 Introduction

6.2 Trade Agreements

6.3 Intellectual Property and Trade Agreements

6.3.1 The WTO in the Pacific

6.3.2 A Regional Response

6.4 Why Relying on Intellectual Property Protection in the Pacific May Be Challenging

6.5 Realising the Alternatives

6.6 Conclusion

References

Part IV: Small States as Financial Centres

Chapter 7: How Small Jurisdictions Compete in International Financial Services

7.1 Introduction

7.2 Small Jurisdictions in Cross-Border Finance

7.2.1 Bermuda

7.2.2 Dubai

7.2.3 Singapore

7.2.4 Hong Kong

7.2.5 Switzerland

7.2.6 Delaware

7.3 Why Certain Small Jurisdictions Succeed

7.3.1 ``MDSJs Are Small and Poorly Endowed with Natural Resources, Limiting Their Economic Development Options´´

7.3.2 ``MDSJs Possess Legislative Autonomy´´

7.3.3 ``MDSJs Are Culturally Proximate to Multiple Economic Powers, and Favorably Situated Geographically vis-à-vis Those Powe...

7.3.4 ``MDSJs Heavily Invest in Human Capital, Professional Networks, and Related Institutional Structures´´

7.3.5 ``MDSJs Consciously Balance Close Collaboration with and Robust Oversight of the Financial Professional Community, Seeki...

7.4 Conclusions

References

Chapter 8: The Value of IFCS and Focusing on Facts Rather than Fiction

8.1 Introduction

8.2 Exaggerated and Unsubstantiated Claims

8.3 An Emotive Argument

8.4 Offshore Does Not Equal Illicit

8.5 Research to Balance the Debate

8.6 A Booming Continent?

8.7 Engagement Is Key

8.8 Abandon Stereotypes

References

Chapter 9: Small State International Financial Centres: A Chance to Reclaim the High Ground on Human Rights?

9.1 Introduction

9.2 The Problem

9.3 Human Rights and Small Communities

9.4 Human Rights and International Finance: Finding a New Narrative

9.5 What Issues Matter to Communities in Small States?

9.5.1 Climate Change

9.5.2 Women´s Rights

9.6 Conclusion

References

Part V: Litigation and Arbitration

Chapter 10: Integration and Dispute Resolution in Small States

10.1 Introduction

10.2 Advantages of International Commercial Arbitration for Small States

10.3 Adoption of International Instruments for Arbitration

10.3.1 The New York Convention

10.3.2 The Model Law

10.3.3 How the Convention and Model Law Come Together

10.4 Adoption of a Bilateral Arbitration Treaty

10.4.1 What Are BATs?

10.4.2 BATs and Small States

10.5 Conclusion

References

Chapter 11: International Arbitration and Domestic Laws: A Symbiotic Interaction?

11.1 Introduction

11.2 Arbitration as a ``Go To´´ Option in Cross-Border Transactions

11.2.1 Empirical Efforts

11.2.2 The Application of the Law on an ``As Is´´ Basis

11.3 International Arbitration and Domestic Laws: Intersections, Cross-Fertilisation, Side Effects?

11.4 Conclusion

References

Chapter 12: International Tax Arbitration: A New Avenue for Small State International Financial Centres?

12.1 Introduction

12.2 Should Small State International Financial Centres Specialise in Tax Arbitrations?

12.2.1 What Is a SS IFC?

12.2.2 Why Should SS IFCs Make an Additional Offering of ``Tax Arbitration´´

12.3 How to or How Not to Offer Tax Arbitration

12.4 Investor-State Investment Treaty Tax Arbitration

12.4.1 Scope of Investment

12.4.2 Existence of a Treaty

12.4.3 Arbitrability of Tax Disputes

12.4.3.1 Different Clauses in BITs

12.4.3.2 Protections and Guarantees Under Tax-Related Claims

Expropriation

Fair and Equitable Treatment

Non-Discrimination

12.5 Modified Versions of BITs to Make the Offering

12.5.1 Investment Contracts

12.5.2 Private Investment Treaty

12.6 Small States Should Accede to the New York Convention

12.7 Conclusion

References

Chapter 13: Kosovo: The Perspective of a Pro-Arbitration Country

13.1 Introduction to Commercial Arbitration in Kosovo

13.2 National Arbitration Law

13.2.1 Introduction

13.2.2 Structure of the Law

13.2.3 Main Provisions

13.2.3.1 Arbitrability

13.2.3.2 The Arbitration Agreement

13.2.3.3 Competence-Competence and Separability

13.2.3.4 The Role of Local Courts in Arbitration Proceedings

13.2.3.5 Interim Measures

13.3 New York Convention and Its Applicability in Kosovo

13.3.1 General Observations

13.3.2 The Risk of Enforcing Kosovo Made Awards Abroad

13.3.3 Article 39: The Unilateral Accession

13.4 The Practice of Arbitration in Kosovo

13.4.1 Country-Specific Issue: Arbitration in Public Contracts

13.5 The Perspectives of the Country in International Arbitration

13.5.1 Investment Law and ICSID Membership

13.5.2 Membership to Permanent Court of Arbitration

13.6 Conclusion

References

Chapter 14: International Litigation and the Caribbean Court of Justice

14.1 The Caribbean Court of Justice: A Unique Judicial Institution

14.2 The CCJ and Public International Law Litigation: The Rule of Law

14.2.1 Rule of Stare Decisis

14.2.2 Judicial Review of Community Acts

14.2.3 Standing of Individuals to Bring Actions

14.2.4 Legal Threshold for Standing

14.2.5 Rights Found to Have Been Breached

14.3 Remedies

14.3.1 Damages

14.3.2 Coercive Orders

14.3.3 Reimbursements and Monitoring of Compliance

14.3.4 Declarations

14.4 Implementation by Member States

14.5 Greater Participation and Access

14.6 Private International Litigation: The Appellate Jurisdiction

14.7 Conclusion

References

Chapter 15: Cost-Efficiency in Inter-State Dispute Settlement

15.1 Introduction

15.2 Institutional Paths: Reducing Costs Through Established Funds

15.2.1 The ICJ Trust Fund

15.2.2 The ITLOS Trust Fund

15.2.3 The PCA Financial Assistance Fund

15.3 Independent Paths: Reducing Costs Through Third Parties or Internal Means

15.4 Mutual Paths: Reducing Costs Through Agreement of the Parties

15.5 Assessment and Proposals for Reform

References