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Andreas R. Ziegler - One of the best experts on this subject based on the ideXlab platform.

  • irreconcilable perspectives like in an escher s drawing extension of an arbitration agreement to a non Signatory State and attribution of State entities conduct privity of contract in swiss and investment arbitral tribunals case law
    Arbitration International, 2020
    Co-Authors: Martina Magnarelli, Andreas R. Ziegler
    Abstract:

    A matter of perspective? When a dispute arises and on the government’s side a non-Signatory to the arbitration agreement or investment treaty adopted the contested action, privity of contract and rules of attribution of conduct may apply. Both have been interpreted in different manners. When one put all these interpretations together, the result is a picture of impossible spaces and irreconcilable scenarios like in a drawing of Escher. If Escher expressed his artistic inspiration by challenging gravity and visual logic, practitioners may nowadays find challenging solving the dilemma of when and how an arbitration agreement can be extended to a non-Signatory State or the conduct of a State entity be attributed to the State. In its recent decision 4 A_636/2018, the Swiss Supreme Court confirmed its case law that exceptions to the doctrine of privity of contract exist under Swiss law, but these are limited in number and scope. The same applies regardless of whether private or public entities are concerned. This article will examine decision 4 A_636/2018 in light of Swiss case law and draw a comparison with investment arbitral tribunals’ jurisprudence applying rules of attribution of conduct of customary international law when privity of contract lacks on the government’s side.

  • Irreconcilable perspectives like in an Escher’s drawing? Extension of an arbitration agreement to a non-Signatory State and attribution of State entities’ conduct: privity of contract in Swiss and investment arbitral tribunals’ case law
    Arbitration International, 2020
    Co-Authors: Martina Magnarelli, Andreas R. Ziegler
    Abstract:

    A matter of perspective? When a dispute arises and on the government’s side a non-Signatory to the arbitration agreement or investment treaty adopted the contested action, privity of contract and rules of attribution of conduct may apply. Both have been interpreted in different manners. When one put all these interpretations together, the result is a picture of impossible spaces and irreconcilable scenarios like in a drawing of Escher. If Escher expressed his artistic inspiration by challenging gravity and visual logic, practitioners may nowadays find challenging solving the dilemma of when and how an arbitration agreement can be extended to a non-Signatory State or the conduct of a State entity be attributed to the State. In its recent decision 4 A_636/2018, the Swiss Supreme Court confirmed its case law that exceptions to the doctrine of privity of contract exist under Swiss law, but these are limited in number and scope. The same applies regardless of whether private or public entities are concerned. This article will examine decision 4 A_636/2018 in light of Swiss case law and draw a comparison with investment arbitral tribunals’ jurisprudence applying rules of attribution of conduct of customary international law when privity of contract lacks on the government’s side.

Martina Magnarelli - One of the best experts on this subject based on the ideXlab platform.

  • irreconcilable perspectives like in an escher s drawing extension of an arbitration agreement to a non Signatory State and attribution of State entities conduct privity of contract in swiss and investment arbitral tribunals case law
    Arbitration International, 2020
    Co-Authors: Martina Magnarelli, Andreas R. Ziegler
    Abstract:

    A matter of perspective? When a dispute arises and on the government’s side a non-Signatory to the arbitration agreement or investment treaty adopted the contested action, privity of contract and rules of attribution of conduct may apply. Both have been interpreted in different manners. When one put all these interpretations together, the result is a picture of impossible spaces and irreconcilable scenarios like in a drawing of Escher. If Escher expressed his artistic inspiration by challenging gravity and visual logic, practitioners may nowadays find challenging solving the dilemma of when and how an arbitration agreement can be extended to a non-Signatory State or the conduct of a State entity be attributed to the State. In its recent decision 4 A_636/2018, the Swiss Supreme Court confirmed its case law that exceptions to the doctrine of privity of contract exist under Swiss law, but these are limited in number and scope. The same applies regardless of whether private or public entities are concerned. This article will examine decision 4 A_636/2018 in light of Swiss case law and draw a comparison with investment arbitral tribunals’ jurisprudence applying rules of attribution of conduct of customary international law when privity of contract lacks on the government’s side.

  • Irreconcilable perspectives like in an Escher’s drawing? Extension of an arbitration agreement to a non-Signatory State and attribution of State entities’ conduct: privity of contract in Swiss and investment arbitral tribunals’ case law
    Arbitration International, 2020
    Co-Authors: Martina Magnarelli, Andreas R. Ziegler
    Abstract:

    A matter of perspective? When a dispute arises and on the government’s side a non-Signatory to the arbitration agreement or investment treaty adopted the contested action, privity of contract and rules of attribution of conduct may apply. Both have been interpreted in different manners. When one put all these interpretations together, the result is a picture of impossible spaces and irreconcilable scenarios like in a drawing of Escher. If Escher expressed his artistic inspiration by challenging gravity and visual logic, practitioners may nowadays find challenging solving the dilemma of when and how an arbitration agreement can be extended to a non-Signatory State or the conduct of a State entity be attributed to the State. In its recent decision 4 A_636/2018, the Swiss Supreme Court confirmed its case law that exceptions to the doctrine of privity of contract exist under Swiss law, but these are limited in number and scope. The same applies regardless of whether private or public entities are concerned. This article will examine decision 4 A_636/2018 in light of Swiss case law and draw a comparison with investment arbitral tribunals’ jurisprudence applying rules of attribution of conduct of customary international law when privity of contract lacks on the government’s side.

Lisa Larrimore Ouellette - One of the best experts on this subject based on the ideXlab platform.

  • Knowledge Goods and Nation-States
    Minnesota Law Review, 2016
    Co-Authors: Daniel Jacob Hemel, Lisa Larrimore Ouellette
    Abstract:

    The conventional economic justification for global IP treaties such as TRIPS begins from the premise that absent coordination, nation-States will rationally underinvest in innovation incentives such as IP laws, grants, tax credits, and prizes, and that they will free-ride on each other’s knowledge production (the “underinvestment hypothesis”). Under this account, nation-States seek to solve the free-rider problem by using IP treaties to harmonize their domestic laws (the “harmonization hypothesis”). Previous authors have adopted this logic while lamenting its implications: IP appears to be a necessary evil in an interconnected world—necessary to solve the free-rider problem; lamentable because it results in sizeable deadweight losses. This account of IP treaties is informative but incomplete. The underinvestment hypothesis is robust only to the extent its assumptions about the nature of knowledge goods and the behavior of nation-States are accurate. But not all knowledge goods are global public goods, and nation-States have motivations to invest in knowledge production that the conventional account fails to capture. More fundamentally, the harmonization hypothesis rests on a misapprehension of the link between global and domestic IP laws. States can comply with IP treaties such as TRIPS while relying primarily on non-IP innovation incentives and non-price mechanisms for allocating knowledge goods within their own borders. In the extreme case, a government body subsidizes the production of a knowledge good through prizes or grants, takes title to the resulting IP rights, and then licenses the knowledge good to the government of another nation-State. The government in the consumer nation-State has the option of financing royalty payments to the producing country through taxation and then distributing the knowledge good to its own citizens at marginal cost. In this example, IP law operates only at the international—not the domestic—level. While the example is admittedly unrealistic, we show that many realword arrangements resemble the extreme example in important respects. Our more nuanced account of nation-States and knowledge goods does not imply that international IP laws are misguided; rather, our analysis highlights the specific function that IP treaties serve. Most significantly, international IP laws establish a framework for setting the size of payments from States that consume knowledge goods to States that produce those knowledge goods. At the same time, international IP laws allow each Signatory State to choose its own menu of innovation incentives and its own method of allocating access to knowledge goods within its own borders. Put differently, the international IP regime does not relegate nation-States to a subordinate position in the production of knowledge goods; rather, it creates a framework in which nation-States still are dominant players in the innovation game. AUTHORS. Daniel Hemel is an Assistant Professor at the University of Chicago Law School. Lisa Ouellette is an Assistant Professor at Stanford Law School. For helpful comments, we thank Shyam Balganesh, Tun-Jen Chiang, Kevin Collins, Dick Craswell, Paul Goldstein, Amy Kapczynski, Jonathan Masur, Lisa Ramsey, Michael Risch, Lea Shaver, and Talha Syed. For outstanding research assistance, thanks to Connor Feuille, Michael Ohta, and James Xi. 2/2/16 KNOWLEDGE GOODS AND NATION-StateS 2

  • Knowledge Goods and Nation-States
    2016
    Co-Authors: Daniel Jacob Hemel, Lisa Larrimore Ouellette
    Abstract:

    The conventional economic justification for global IP treaties begins from the premise that nation-States, if left to their own devices, will rationally underinvest in innovation incentives such as IP laws, grants, tax credits, and prizes (the “underinvestment hypothesis”). Under this account, nation-States will free-ride on each other’s knowledge production unless they find some solution to their collective-action problem. The solution that nation-States have struck upon is international IP law: IP treaties harmonize domestic laws and thus ensure a baseline level of investment in knowledge production (the “harmonization hypothesis”). Moreover, IP is the only such solution available to nation-States because a global regime of grants, tax credits, or prizes would require a global public finance system — and no such system exists. IP is thus unique among innovation policy options in that it can be implemented at the international level (the “uniqueness hypothesis”). Previous authors have adopted this logic while lamenting its implications: IP appears to be a necessary evil in an interconnected world — necessary to solve the free-rider problem; lamentable because it results in sizeable deadweight losses.This account of IP treaties is informative but incomplete. The underinvestment hypothesis is robust only to the extent its assumptions about the nature of knowledge goods and the behavior of nation-States are accurate. But not all knowledge goods are global public goods, and nation-States have motivations to invest in knowledge production that the conventional account fails to capture. More fundamentally, the harmonization hypothesis rests on a misapprehension of the link between global and domestic IP laws. States can comply with IP treaties while relying primarily on non-IP innovation incentives and non-price mechanisms for allocating knowledge goods within their own borders. In the starkest case, a government body subsidizes production of a knowledge good through prizes or grants, takes title to the resulting IP rights, and then licenses the knowledge good to the government of another nation-State. The government in the consumer nation-State has the option of financing royalty payments to the producing country through taxation and then distributing the knowledge good to its own citizens at marginal cost. In this stylized example, IP law operates only at the international — not the domestic — level. While in practice States generally choose to rely on IP at least to some extent, we show that many real-word arrangements resemble the stylized example in important respects.Our more nuanced account does not imply that international IP laws are misguided; rather, our analysis highlights the specific function that IP treaties serve. Most significantly, international IP laws establish a framework for setting the size of payments from States that consume knowledge goods to States that produce those knowledge goods. At the same time, international IP laws allow each Signatory State to choose its own mix of innovation incentives and its own method of allocating access to knowledge goods within its own borders. The international IP regime thus allows nation-States to pursue non-IP policies at the domestic level while at the same time allowing those States to participate in an IP-based system of cross-border cost-sharing.

D’apollo Abraham Evelyna - One of the best experts on this subject based on the ideXlab platform.

  • Eficacia de los derechos humanos en el marco de la soberanía nacional en Latinoamérica. El camino a la justicia para la protección de los derechos humanos
    'Universidad Libre', 2020
    Co-Authors: D’apollo Abraham Evelyna
    Abstract:

    After the signing of the different international treaties, it gave way to the generations of rights in which the inherent rights of the person were recognized, such as the political and civil social rights, among others, which for the time were directly violated. Therefore, regional and universal systems are created that allow the guarantee of human rights to be systematically, since each Signatory State is obliged to enforce the agreement, bearing in mind that each declaration or treaty was the result of massacres and wars within the State or between StatesTras la suscripción de los diferentes tratados internacionales, se dio paso a las generaciones de derechos en las cuales se reconocieron derechos inherentes a la persona, como lo son los derechos sociales políticos y civiles, entre otros, que para la época se vulneraban de manera directa. Por lo cual se crean sistemas regionales y universales que permiten que la garantía de los derechos humanos sea de manera sistemática, por cuanto cada Estado firmante se encuentra en la obligación de hacer cumplir lo pactado teniendo en cuenta que cada declaración o tratado fue el resultado de masacres y guerras al interior del Estado o entre Estado

Daniel Jacob Hemel - One of the best experts on this subject based on the ideXlab platform.

  • Knowledge Goods and Nation-States
    Minnesota Law Review, 2016
    Co-Authors: Daniel Jacob Hemel, Lisa Larrimore Ouellette
    Abstract:

    The conventional economic justification for global IP treaties such as TRIPS begins from the premise that absent coordination, nation-States will rationally underinvest in innovation incentives such as IP laws, grants, tax credits, and prizes, and that they will free-ride on each other’s knowledge production (the “underinvestment hypothesis”). Under this account, nation-States seek to solve the free-rider problem by using IP treaties to harmonize their domestic laws (the “harmonization hypothesis”). Previous authors have adopted this logic while lamenting its implications: IP appears to be a necessary evil in an interconnected world—necessary to solve the free-rider problem; lamentable because it results in sizeable deadweight losses. This account of IP treaties is informative but incomplete. The underinvestment hypothesis is robust only to the extent its assumptions about the nature of knowledge goods and the behavior of nation-States are accurate. But not all knowledge goods are global public goods, and nation-States have motivations to invest in knowledge production that the conventional account fails to capture. More fundamentally, the harmonization hypothesis rests on a misapprehension of the link between global and domestic IP laws. States can comply with IP treaties such as TRIPS while relying primarily on non-IP innovation incentives and non-price mechanisms for allocating knowledge goods within their own borders. In the extreme case, a government body subsidizes the production of a knowledge good through prizes or grants, takes title to the resulting IP rights, and then licenses the knowledge good to the government of another nation-State. The government in the consumer nation-State has the option of financing royalty payments to the producing country through taxation and then distributing the knowledge good to its own citizens at marginal cost. In this example, IP law operates only at the international—not the domestic—level. While the example is admittedly unrealistic, we show that many realword arrangements resemble the extreme example in important respects. Our more nuanced account of nation-States and knowledge goods does not imply that international IP laws are misguided; rather, our analysis highlights the specific function that IP treaties serve. Most significantly, international IP laws establish a framework for setting the size of payments from States that consume knowledge goods to States that produce those knowledge goods. At the same time, international IP laws allow each Signatory State to choose its own menu of innovation incentives and its own method of allocating access to knowledge goods within its own borders. Put differently, the international IP regime does not relegate nation-States to a subordinate position in the production of knowledge goods; rather, it creates a framework in which nation-States still are dominant players in the innovation game. AUTHORS. Daniel Hemel is an Assistant Professor at the University of Chicago Law School. Lisa Ouellette is an Assistant Professor at Stanford Law School. For helpful comments, we thank Shyam Balganesh, Tun-Jen Chiang, Kevin Collins, Dick Craswell, Paul Goldstein, Amy Kapczynski, Jonathan Masur, Lisa Ramsey, Michael Risch, Lea Shaver, and Talha Syed. For outstanding research assistance, thanks to Connor Feuille, Michael Ohta, and James Xi. 2/2/16 KNOWLEDGE GOODS AND NATION-StateS 2

  • Knowledge Goods and Nation-States
    2016
    Co-Authors: Daniel Jacob Hemel, Lisa Larrimore Ouellette
    Abstract:

    The conventional economic justification for global IP treaties begins from the premise that nation-States, if left to their own devices, will rationally underinvest in innovation incentives such as IP laws, grants, tax credits, and prizes (the “underinvestment hypothesis”). Under this account, nation-States will free-ride on each other’s knowledge production unless they find some solution to their collective-action problem. The solution that nation-States have struck upon is international IP law: IP treaties harmonize domestic laws and thus ensure a baseline level of investment in knowledge production (the “harmonization hypothesis”). Moreover, IP is the only such solution available to nation-States because a global regime of grants, tax credits, or prizes would require a global public finance system — and no such system exists. IP is thus unique among innovation policy options in that it can be implemented at the international level (the “uniqueness hypothesis”). Previous authors have adopted this logic while lamenting its implications: IP appears to be a necessary evil in an interconnected world — necessary to solve the free-rider problem; lamentable because it results in sizeable deadweight losses.This account of IP treaties is informative but incomplete. The underinvestment hypothesis is robust only to the extent its assumptions about the nature of knowledge goods and the behavior of nation-States are accurate. But not all knowledge goods are global public goods, and nation-States have motivations to invest in knowledge production that the conventional account fails to capture. More fundamentally, the harmonization hypothesis rests on a misapprehension of the link between global and domestic IP laws. States can comply with IP treaties while relying primarily on non-IP innovation incentives and non-price mechanisms for allocating knowledge goods within their own borders. In the starkest case, a government body subsidizes production of a knowledge good through prizes or grants, takes title to the resulting IP rights, and then licenses the knowledge good to the government of another nation-State. The government in the consumer nation-State has the option of financing royalty payments to the producing country through taxation and then distributing the knowledge good to its own citizens at marginal cost. In this stylized example, IP law operates only at the international — not the domestic — level. While in practice States generally choose to rely on IP at least to some extent, we show that many real-word arrangements resemble the stylized example in important respects.Our more nuanced account does not imply that international IP laws are misguided; rather, our analysis highlights the specific function that IP treaties serve. Most significantly, international IP laws establish a framework for setting the size of payments from States that consume knowledge goods to States that produce those knowledge goods. At the same time, international IP laws allow each Signatory State to choose its own mix of innovation incentives and its own method of allocating access to knowledge goods within its own borders. The international IP regime thus allows nation-States to pursue non-IP policies at the domestic level while at the same time allowing those States to participate in an IP-based system of cross-border cost-sharing.