MJIL Online

MJIL Online brings you timely short-form articles that represent a wide range of views on contemporary issues in international law. The views and opinions expressed in these articles are those of the authors only.


 

Amin R. Yacoub
Guest Editor
The due diligence standard of Full Protection and Security Obligation (“FPS”) of Bilateral Investment Treaties (“BITs”) remains vague until today. I have argued before - in a post on the Cambridge International Law Journal (CILJ) Blog - that the Ampal Tribunal had failed to define the parameters of the Due Diligence standard.[1] On the other hand, a post published by CILJ Blog counter-argued that the Ampal case was “rightly decided.”[2] It contended that the Tribunal’s award sits well within the existing jurisprudence on FPS especially that the tribunal gave enough weight to the exceptional circumstances that Egypt was facing at the time while reaching its conclusive award.[3]


I do not disagree that the Ampal Tribunal had recognized and cited some important Arbitral Awards such as Pantechiniki in its reasoning.[4] However, I argue that it did not seem to benefit from them. By providing no guidelines to the parameters of the due diligence standard,[5] the Ampal Tribunal had returned to ground zero. This is where the counter CILJ post fails to answer the pivotal question I ask: what are the parameters of the due diligence standard?[6] Put differently, while the Ampal award’s reasoning seems incorrect and inadequate to me,

Brooke Simone
Guest Editor
Many international law scholars purport that treaties are the most effective and binding source of international law.[1] However, the efficacy of multilateral treaties may be exaggerated, as demonstrated by minimal penalties for noncompliance, particularly for strong states, and the United States’ absence from and self-interested interpretation of various treaties.

The promotion of credible commitment is held as an essential benefit of treaties; proponents argue that treaties raise the cost of noncompliance more effectively than informal methods and are unique in showing the seriousness of a party to a commitment.[2] These contentions lose some force after investigating three enforcement mechanisms for treaty breaches, and the lack of negative impacts thereof.



First, while the Vienna Convention on the Law of Treaties (VCLT) Article 60 allows for termination or suspension of a treaty in the event of material breach,[3] the likelihood of that termination occurring is minimal, especially for certain types of treaties. For human rights, nuclear non-proliferation, or environmental treaties, termination would undermine the global stability and norms that the parties entered into the treaty to protect.[4] States’ commitment to the International Covenant on Civil and Political Rights, a key human rights treaty, has not wavered despite numerous breaches, even as recent

Raghav Pandey
Guest Editor
The UN High Commissioner for Human Rights Michelle Bachelet recently undertook the unprecedented decision to file an intervention application at the Supreme Court of India.[1] The court is hearing a series of petitions which challenge the constitutional validity of the Citizenship Amendment Act (CAA).

This instance raises very pertinent issues relating to the nature of functions of an entity in this case a United Nations (UN) intergovernmental body, under the aegis of public international law. It is important in this light to analyse the role, capacity of legal representation at national courts, and functions of the Office of the United Nations High Commissioner for Human Rights (OHCHR).



The OHCHR functions under a mandate, which it has received under the UN General Assembly Resolution 48/141. The mandate under its Section 3 (a) mentions inter alia



“…to respect the sovereignty, territorial integrity and domestic jurisdiction of States….”[2]

Further, under Section 4 (d) of the mandate, it is mentioned:


“To provide, through the Centre for Human Rights of the Secretariat and other appropriate institutions, advisory services and technical and financial assistance, at the request of the State concerned….”[3]


Therefore, the state concerned needs to place a request to the OHCHR, only then can

Divyansh Sharma
Guest Editor
Today, internet censorship and social media blockages have become global concerns as states increasingly adopt these measures, purporting to protect public order by curbing hate speech and misinformation. Countries have repeatedly perceived that some degree of regulation of the internet is necessary. Consider the blockage of LinkedIn in Russia following the company’s failure to abide by the data retention law.[1] While free speech defenders argue that the ban was not motivated by public order concerns,[2] this has not stopped Russia from pressuring other platforms, such as Facebook and Twitter, to abide by the much-criticized law.[3] In April 2019, Sri Lanka also blocked access to several websites, including Facebook, fearing communal hate speech in the wake of a terrorist attack.[4] Other states across the globe are following suit, including India[5] and Germany.[6] Given the alarming rise in internet regulation, it is pertinent to understand the potential remedies available to social media companies as foreign investors under the bilateral investment treaty [‘BIT’] framework.



BITs are bilateral instruments that provide reciprocal guarantees for protection of investors of one contracting state in the territory of other contracting state.[7] While the particular standards vary from treaty to treaty, arbitral tribunals have used precedents to

Prajakta Pradhan
Guest Editor

The International Criminal Court (ICC) symbolizes hope around the world. The ICC, in its current form, was officially established in 1998 to prosecute individuals for only the worst international crimes such as genocide, crimes against humanity, war crimes, and the crime of aggression.[1] It functions independently of the United Nations' International Court of Justice.[2] Calls for a universal judicial body like this had been increasingly abundant since World War I.[3] Precursor court to the ICC includes the Nuremberg Trials in the 1940s and ad hoc courts, which were set up for Yugoslavia war. The Western powers advanced the idea of ICC in the aftermath of the failure of the United Nations to prevent the genocide of 8000 Bosnian Muslims in Srebrenica during the Balkan Wars in 1994-95[4] and the mass murder of 800,000 members of Tutsi tribe in Rwanda.[5] The court was created in the midst of repeated calls to put an end to exceptions for those criminals who engaged in the mass slaughter of civilians or any other abominable acts. [6]



The U.S. is not a party to the Rome Statute and has been highly ambivalent about the idea of the ICC since its inceptionNow, two decades after

Bodhisattwa Majumder & Ankit Malhotra
Guest Editors
There is a battle going on between the southern tip of India and the northernmost tip of Sri Lanka (‘Palk Bay’). It is not a battle for land or people but for fish, which are the lifeblood for the fishermen in these coastal villages of Sri Lanka and India.  In between these two coasts, there is treasure in the form of seafood, due to the rich fishing grounds, blessed by the absence of strong currents and latitudinal biodiversity.[1]



Background facts related to the Palk Bay dispute.

Historically, the coastal fishermen from both sides had an unregulated term with no governing law regarding fishing commercially in the area of Palk Bay. However, during the mid-1970s, the area was demarcated by the signing of maritime boundary agreements[2] of 1974 and 1976 between India and Sri Lanka. This demarcation of ‘Fisheries Line’ vis-à-vis the International Maritime Boundary Line (IMBL) made it illegal for fishermen from either side to cross over into each other's waters to fish.[3] This demarcation was the inception of what would eventually turn into a violent conflict.

In the 1960s, India was facing a financial crisis and in response, the government was looking for new ways to stimulate

Ed Cullen
Vol. 41 Associate Editor
A challenge facing developing countries in joining and participating in the global economy is the effect of cartel and monopoly behavior on economic development. The creation of self-sufficient institutions to address these competition issues in developing countries is of central importance to development. The inefficiencies created by the unchecked perpetuation of anticompetitive practices actively hinder economic development by undercutting competition and stifling incentives to innovate.[1] Competition law is one tool of many which when taken together can create an environment that can foster “economic growth and innovation that leads to greater variety, increased quality, and/or lower price—and makes it more likely that those benefits are widely shared”.[2]



The problem faced by many small developing states is not as easily solved as transplanting competition law from another jurisdiction.[3] Lack of access to adequate resources to support the requisite regulatory authority has stood as a barrier to effective application and enforcement of competition law in developing states. This resource constraint can be overcome by turning to supranational organizations, like the Economic Community of West African States (“ECOWAS”).  By coming together and adopting a joint competition law framework, member states don’t need to shoulder the cost of this endeavor alone.

Joseph Lordi
Vol. 41 Associate Editor
On January 24, 2020, in Davos, Switzerland, the European Union, and 16 other WTO Member States declared their intent to establish a multi-party interim appeal arrangement in wake of the current WTO Appellate Body paralysis.[1] This interim appeal arrangement will be based on Article 25 of the WTO Dispute Settlement Understanding (DSU), which provides for alternative arbitration for WTO disputes.[2] According to the parties involved, the interim appeal arrangement will be in place until a reformed Appellate Body becomes fully operational.[3] While this strategy poses certain limitations, it does provide a temporary solution while WTO parties attempt to determine the reforms necessary to restore the Appellate Body. However, critical to this strategy is the WTO parties’ ability to reach a timely consensus on reform.



For approximately two years, the United States has blocked the appointment of new judges to the WTO’s Appellate Body in an attempt to force reform of the WTO’s dispute settlement process.[4] This tactic reached a critical stage on December 10, 2019 when the terms of two of the three remaining Appellate Body members expired and the Appellate Body lost the necessary quorum to hear appeals.[5] As a consequence, members which lose at the

Derek Kang
Vol. 41 Associate Editor
Since July 1, 2019, Japan and South Korea have been locked in a bitter trade war, bringing relations to their lowest point in 41 years.[1] Arising out of historical and political tensions, this standoff between the world’s third and twelfth largest economies has destabilized an already fraught region and disrupted major supply chains around the globe.[2], [3] Tensions have receded with the new year, but the threat of trade weaponization continues to loom large over East Asia.



The catalyst of this dispute was a pair of decisions by the South Korean Supreme Court in late 2018.[4] In these landmark rulings, South Korea ordered three Japanese steel manufacturers to pay reparations to Korean laborers forced to work in their factories during the 1910-1945 colonization of the peninsula.[5] Failure to provide compensation could be met with court seizure of the company’s assets in South Korea.[6] This dramatic development stemmed from the Court’s reinterpretation of the controversial 1965 Treaty on Basic Relations between Japan and South Korea.



For decades, Japan has read the 1965 treaty to have settled any and all South Korean claims concerning its actions prior to and during WWII.[7] As consideration, Japan provided $500 million USD in

Emma Xu
Vol. 41 Associate Editor
No one could have known that a niche international arbitral tribunal headquartered in Lausanne, Switzerland would break social media by deciding against South African athlete Caster Semenya for her naturally elevated testosterone.  The decision handed down by the Court of Arbitration for Sport (CAS) in the spring of 2019, Caster Semenya v. International Association of Athletics Federations (IAAF), is just one of the many instances where international tribunals have failed women of color on the international legal stage.



Semenya’s testosterone level is affected by a natural condition known as “hyperandrogenism.”[1]  This condition allows her to compete consistently at a high level.  However, her success has also led the IAAF to adopt a “differences of sex development” (DSD) regulation in 2011, which requires her to reduce her testosterone levels to a “normal female range” by taking medications for at least six months prior to any competition in order to be eligible for IAAF events.[2]  Semenya filed a request for arbitration with CAS, challenging this regulation.[3]



In the arbitral award, CAS determined that Semenya’s natural testosterone level is within the range of a normal adult male rather than female, concluding that her condition grants her a significant advantage over

Evan Harary
Vol. 41 Associate Editor
Russian incursion into Ukrainian territory—in the form of the annexation of Crimea and the ongoing conflict between Ukraine and Russia-backed separatists in Donbass—has provided for fertile territory for human rights abuses. Monitors report an uptick in generalized violence against women, as well as instances of torture, forced labor, illegal detentions, and appropriation of property under threat of violence.[1] Victims of these abuses are now seeking justice, both in Ukrainian national forums and in the European Court of Justice (hereinafter “ECtHR”).[2] And while Ukrainian forums have faced their own challenges in litigating cases arising from the conflict—namely a lack of resources and allegations of sham trials and the ECtHR has faced a still thornier dilemma: how should it apply the European Convention on Human Rights (“ECHR”) in the context of ongoing inter-state conflict, where control over land and actors is unclear? And is it possible to hold Russia—whom many blame for the suffering in Donbass and Crimea—responsible for human rights abuses, without resolving the much-larger issue of Russian and Ukrainian sovereignty over disputed territories?



The answer to these questions depends on the ECrHR’s resolution of the interstate (as opposed to individual plaintiff) dispute of Ukraine v. Russia re

Reem El-Mehalawi
Vol. 41 Associate Editor
As the world becomes more globalized and connected, it is especially important to develop laws that will prevent global enterprises from being subject to double taxation. If every state were to tax a portion of a certain company’s profits, the sum of those portions might exceed the total income of the enterprise.[1] This can be an especially serious problem for shipping enterprises—their profits are generally quite modest, and taxation in developing countries can be quite high.[2]



The Problem of Tax Havens for Shipping Companies

Countries have widely agreed to combat double taxation by using residence- and source-based income taxation schemes.[3] Both the United Nations (UN) and the Organization for Economic Cooperation and Development (OECD) model tax treaties recommend that countries give taxing rights of business profits to a company’s state of residence.[4] An exception is made for profits derived from permanent establishment in a contracting state.[5]

This is not an effective way to tax shipping enterprises. A shipping company’s income is said to be earned on the high seas, and not in the various countries in which it operates.[6] The problem with resident- and source-based taxation is that shipping companies can pay virtually no taxes by using the very

Laura Boniface
Vol. 41 Associate Editor
Sicily, an island in the Mediterranean off the southwestern coast of Italy, is one of the world’s regions most strongly associated with organized crime. As recently as July 2019, officials in the United States and Italy arrested nineteen mafia suspects in an operation called “New Connection.”[1] The operation was successful in part because of the cooperation between the two nations, which is the sort of outcome envisioned by the United Nations Convention against Transnational Organized Crime (“UN-TOC”). While many countries have a long and legendary history with combatting organized crime, the United Nations developed this commission only twenty years ago.[2] Symbolically, it was signed in Palermo, Sicily.[3]



The increasingly transnational nature of organized crime prompted the UN to address the issue in 2000 through the development of the UN-TOC, and while it has facilitated operations such as the one just mentioned, it could benefit from an updated look at its member states’ strategies, particularly as the structure of organized criminal groups changes. “Generally, there is a consensus that organisations [sic] with well-structured hierarchies—the ‘mafia model’—have become an exception and have been replaced by crime which is much more ‘disorganized.’”[4] These non-hierarchical groups are increasingly comprised of “loosely affiliated networks

Cora Wright
Vol. 41 Associate Editor
On January 1st, 2020, South Africa significantly changed its refugee laws. However, these changes are inconsistent with international refugee law, specifically the 1951 Refugee Convention, to which South Africa is a party. These amendments to South African refugee law run contrary to the right of an asylum seeker to non-refoulment and to work.[1] Additionally, they add layers of red tape to South African’s asylum system while also subverting the right to human dignity, life, freedom, and security of the person as protected both by the South African Bill of Rights and various international instruments.



The 1988 Refugees Act, the South African legislation prescribing rules and regulations for asylum seekers and refugees, was modeled after the 1951 Refugee Convention.[2] In 2020, South Africa amended this Act in order to restrict access to work, curtail certain liberties, and discourage political activity of refugees and asylum seekers.[3] All this is under the threat of deportation for the refugee or asylum seeker.[4] Specifically, new provisions of the Act withdraw refugee status if the refugee participates in any political activity or campaigns,[5] sets an age limit for dependents of refugees,[6] and creates a committee to determine what field of study or work

Wooyoung Lee
Vol. 41 Associate Editor
It is a wave that may be turning. Provisions for the exchange of information are standard in tax treaties because one of the primary purposes of bilateral tax treaties is to facilitate the exchange of information.[1] Since the US is relatively unusual among countries because it insists on taxing the income of its citizens regardless of where they are geographically,[2] the US has comparatively needed more information on its citizens abroad.



For the most part, information has flowed in one direction: from the rest of the world to the US.[3] The combination of the US’s greater incentive to hunt down information and its financial clout means that it has mostly been the US pursuing potential tax evaders in other countries.[4] This asymmetry is reflected when comparing the US’s model tax treaty with that of the Organization for Economic Cooperation and Development (OECD; a group of rich countries) The US version contains information-exchange provisions that are broader in scope than the OECD’s.[5] For example, the US treaty requires a party to allow the other party to take a deposition.[6] These kinds of conditions help ensure the US that the information gathered through these treaties can be used in

Amanda Swenson
Vol. 41 Associate Editor
Investor state dispute settlement (ISDS) is an international legal proceeding whereby individuals and entities that invest in foreign countries can bring suit in international tribunals in order to protect their property interests associated with their foreign investments. The institution has been widely criticized among scholars, civil society organizations and public figures for a wide variety of reasons, not least of which is the institution’s potential for interfering with the legitimate regulatory decisions of states.



In response to some of these criticisms, academics have considered application of the European Court of Human Rights’ (ECtHR) “margin of appreciation” (MoA) doctrine to ISDS decision making,[i] and some ISDS tribunals have begun to adopt the MoA into their decision making. For example, Philip Morris v. Uruguay provides one illustration of the application of the MoA doctrine in the context of ISDS. [ii] However, as Gary Born’s dissent in Uruguay indicates, the appropriateness of that doctrine in the context of arbitration under bilateral and multilateral investment treaties is contested.[iii] While I concur with Born’s contention that the “doctrine [of the MoA] is based upon the specific language of the [European Convention of Human Rights (ECHR)] and its Protocols and… [therefore] is not

Kay Li
Vol. 41 Associate Editor
This is the sixth month of the ongoing series of protests in Hong Kong, and with each passing day they get more and more violent, now involving baton beatings, water cannons, tear gas, petrol bomb attacks, and even gunfire (1)(2).

The protests started in June, when the first protest was triggered by the Hong Kong government’s proposal of the Fugitive Offenders and Mutual Legal Assistance in Criminal Matters Legislation (Amendment) Bill 2019, which would have allowed for criminal suspects in Hong Kong to be extradited to mainland China under certain circumstances (3). Protesters worried that the Bill would give mainland China greater influence over Hong Kong. (4) The Bill was withdrawn in September, but the protests continued, and developed into a cry for full democracy in Hong Kong. (5)



Many countries have heard Hong Kong’s cry, but one country has taken a particular interest in the event because of its history with China regarding Hong Kong – the United Kingdom. July 1 of this year marks the 22nd anniversary of the handover of the former British colony Hong Kong from Britain to China, an agreement stipulated in the Sino-British Joint Declaration in 1984 (6). Speaking ahead of the

Vijaya Singh
Guest Editor
Every technological innovation is accompanied by the good and the bad.

Henry Rollins

Introduction

Technology has revolutionised the way humans live by continually fulfilling their previously unmet needs. One example of this is the advent of Artificial Intelligence (“AI”), which is capable of performing human functions and even replacing them in the distant future. One such human function that AI has the potential to disrupt is warfare. In the foreseeable future, AI may give birth to unparalleled and innovative lethal autonomous weapons which can be used as an army for the purpose of war or defense.



In recent years, a new AI arms race has begun between technologically advanced nations. For example, America has developed an autonomous defense submarine capable of attacking and collecting data.[1] Meanwhile, Russia has announced the establishment of a new “technopolis” complex called “Era”, specifically dedicated for the development of technology relating to artificial intelligence for defense purposes.[2] With these advances, modern warfare is moving a step closer to resemble the “Transformers” movies.

However, the rise in AI weapons systems raises important questions for International Law. After all, the use of weapons in an armed conflict is guided by the principles of International Humanitarian Law (“IHL”).[3] IHL forbids the

Axelle Vivien
Vol. 41 Associate Editor
For decades, the United States (“US”) was the main – and unique? – driving force behind the worldwide prosecution of corporations and individuals bribing foreign officials. While the American Foreign Corrupt Practices Act (“FCPA”) was originally enacted in an effort to restore confidence in the integrity of the American business system and economy, the US’s unique leadership position in this worldwide fight led some foreign observers to criticize the US for using FCPA enforcement partly as an economic weapon to the detriment of foreign economies.



International law largely helps in solving this problem. Today, the US is not alone in this fight anymore and international law has been instrumental in creating a more neutral framework for the international fight against corruption. International law encourages all countries to use domestic law to aggressively investigate, prosecute, and punish companies and individuals “at home.” It empowers them to do so by setting harmonized anti-corruption standards. The adoption of harmonized standards across home countries undermines the need for far-reaching enforcement actions and ultimately helps avoid the appearance of impropriety. Thus, international institutions – using their standard-setting and pressure powers – help countries solve the problem of extra-territorial enforcement of anti-corruption laws

Elisabeth Brennen
Vol. 41 Associate Editor
In September of this year, Greece announced a new series of measures aimed at dealing with the tens of thousands of refugees living in island camps. In particular, the government stated that it will return 10,000 migrants to Turkey by the end of 2020[1] and that it will redistribute migrants and refugees across 13 regional authorities in the country (superseding the 2016 EU-Turkey deal that prohibited new arrivals from leaving specific Greek islands until their asylum claims were processed)[2]. The government will also bar asylum-seekers from accessing the public health system and is considering turning some island camps into detention centers.[3] These proposed changes are unlawful with respect to refugees, who are entitled to specific rights under the 1951 Convention Relating to the Status of Refugees.[4]



The government’s proposed policy has multiple bases. In part, it is an attempt by the newly elected government to establish themselves in contrast to the prior ruling party, which returned only 1,805 migrants over 4.5 years.[5] Furthermore, it is a reaction to the growing concern that re-escalating tension in Turkey and Syria will prompt a repeat of 2015 migrant flows[6], when more than one million refugees and migrants arrived in Greece.[7]

Jamie Guanciale
Vol. 41 Associate Editor
It is widely known that the fall of the Soviet Union coincided with a wave of nationalist independence movements among former Autonomous Soviet Socialist Republics (“ASSRs”), creating the modern states of Armenia, Moldova, Estonia, Latvia, Lithuania, Georgia, Azerbaijan, Tajikistan, Kyrgyzstan, Belarus, Uzbekistan, Turkmenistan, Ukraine, Kazakhstan, and Russia.[1] The wave of independence movements not only resulted in movements away from Russia, but also in regional independence movements in many of these newly independent states which were supported, or at least endorsed by, Russia, who sought to place its military forces in these regions as arbiters.[2] These ethnic conflicts with roots in the Soviet treatment of nations within their spheres of influence are even called “Stalin’s time bombs.”[3] The Soviet Union’s, and later Russia’s, creation and inflammation of national conflicts serves Russia’s goal to keep former Soviet states from integrating more closely with the West and their institutions, and does so effectively to this day.



Moldova, in particular, has had its development since the fall of the USSR crippled by conflicts seeded by Stalin’s policies regarding the establishment of rigid national boundaries and desire to create loyalty to a unified Soviet Socialist system in Eurasia.[4] This is evidenced by

Max LeValley
Vol. 41 Associate Editor
The People’s Republic of China is exploiting the ambiguity of its international agreements to violate its citizens’ human rights. China ratified the United Nations Convention Against Torture (“the Convention") on October 4, 1988 and is thus subject to its prohibitions.[1] Its official policies toward the Xinjiang autonomous region and its inhabitants—most notably the Muslim-minority Uighurs—have recently garnered widespread condemnation, and arguably violated the Convention.



Human rights groups say China detains Uighurs without due process of law and holds them in specially built “re-education camps”[2]—primarily in Southern Xinjiang—as part of a broader plan to “eliminate Islamic extremism” in the region.[3] Journalists outside China have decried the actions of Chinese authorities in the camps as blatant human rights abuses, and some have even described them as torture.[4] But because of the Convention’s inherent ambiguity, it is unable to provide a clear answer as to whether such actions constitute torture, thus rendering it an ineffective instrument of deterrence for China or any other State willing to follow its lead.



The Current Situation in Xinjiang

The Chinese government has detained over one million Uighurs in re-education camps, according to reports received by the United Nations Human Rights Council. Chinese officials have blocked

Cameron Mullins
Vol. 41 Associate Editor
In 2016, following a contentious political process, a peace agreement ended the half-century-long conflict between the Colombian Government and the Armed Revolutionary Forces of Colombia (FARC), which claimed over 220,000 lives and displaced nearly seven million people.[1] Yet the election of Ivan Duque, a politician who was notably against the peace process—combined with residual resentment against the ex-FARC militants—is slowly starting to chip away at the peace agreement and threatens to reignite the conflict in Colombia.[2]



Throughout these rising tensions, the international community and international organizations have not been particularly vocal in ensuring the successful completion of the peace process.[3] Some groups are trying to encourage organizations such as the EU and the UN to oversee the effective implementation of the peace accords, yet their pleas have not been translated into overt action.[4] The UN general assembly has not identified any actions by the Duque administration as threats to international peace,[5] nor have there been any meaningful statements by the international community against Duque’s continued attacks on the peace process.

This is not to say that the international community has been completely silent. Almost immediately after the successful passage of the peace agreement, the UN established the Verification

Chaila Fraundorfer
 Vol. 41 Associate Editor
The Committee on Foreign Investment in the United States (CFIUS) reviews corporate transactions involving foreign nationals to determine whether they pose a national security threat.[1] One area CFIUS focuses on protecting is critical technologies.[2] If a transaction is deemed dangerous, that is to share critical technologies with foreign nationals, CFIUS will impose sanctions or in some cases, block a transaction from going through entirely.[3]



Since its inception in 1988, CFIUS’s scope has increased exponentially.[4] The most recent expansion was the Foreign Risk Review Modernization Act (FIRRMA), which became effective on November 11, 2018.[5] FIRRMA extended CFIUS’s jurisdiction, created mandatory filing for selected transactions, and allocated twenty million dollars per year to CFIUS.[6] Given the Supreme Court’s deference to agency decisions and the countries’ national security concern, the message seems clear: CFIUS is here to stay.

The question then becomes, is CFIUS even allowed to stay? After evaluating CFIUS regulations and international agreements it seems clear that CFIUS runs the risk of violating the United States’ international technology transfer commitment.

The United States has been an active member of the World Trade Organization (WTO) since 1995.[7] Under the umbrella of the WTO is the General Agreement on Tariffs and Trade

Ellen Aldin
Vol. 41 Associate Editor
Canada has a good argument that the Investor-State Dispute Settlement (ISDS) provisions present in Chapter 11 of the North American Free Trade Agreement (NAFTA) have disproportionately harmed it. As of January 1, 2018, 48 percent of all NAFTA ISDS claims were lodged against Canada, with a tripling in claims lodged against it after 2005.[1] Of the 17 cases concluded where Canada was a respondent, the government lost eight and won nine, leading to a payout of over $219 million in damage awards to investors.[2] This number doesn’t even include the over $95 million Canada had to pay in legal fees to adequately defend itself in NAFTA ISDS tribunals.[3] This number is in stark contrast to its neighbor to the south; though the United States has an economy ten times the size of the Canadian one, it has never lost a NAFTA ISDS claim and has paid $0 in damages in its 11 concluded cases.[4] The U.S. Government maintains that this is due to a transparent regulatory system,[5] while skeptics point to a bias in favor of the United States[6] or Canada’s willingness to pay arbitral awards.[7]



Canada does not universally oppose ISDS; indeed, the country signed onto

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