Law in the Service of Human Dignity: Essays in Honour of Florentino Feliciano Edited by Steve Charnovitz, Debra P
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Cambridge University Press 0521852536 - Law in the Service of Human Dignity: Essays in Honour of Florentino Feliciano Edited by Steve Charnovitz, Debra P. Steger and Peter Van den Bossche Frontmatter More information LAW IN THE SERVICE OF HUMAN DIGNITY The accelerating pace of international law developments in multiple fora present a challenge for studying, influencing, and predicting these changes. This volume assembles essays from over twenty-five notable jurists, academics, and practitioners from around the world who offer new insights regarding the jurisprudence of world trade law, the chang- ing landscape of investment arbitration, and other vital topics in inter- national adjudication. These essays are assembled in celebration of Justice Florentino Feliciano of the Philippines, who continues to be one of the most inspirational figures in the international law community. This collection will be of special interest to analysts of the World Trade Organization as the contributors include six current or former members of the WTO Appellate Body, as well as several leading trade law com- mentators. Among the key issues discussed are the WTO environmental cases, trade and human rights, and potential reforms of the WTO dispute system. STEVE CHARNOVITZ is Associate Professor of Law at George Washington University Law School. Previously, he practised law at Wilmer Cutler Pickering Hale and Dorr LLP. DEBRA P. STEGER is Professor of Law at University of Ottawa Faculty of Law. She is currently Chair of the Trade and Customs Law Committee of the International Bar Association. PETER VAN DEN BOSSCHE is Professor of International Economic Law and Head of the Department of International and European Law at Maastricht University. © Cambridge University Press www.cambridge.org Cambridge University Press 0521852536 - Law in the Service of Human Dignity: Essays in Honour of Florentino Feliciano Edited by Steve Charnovitz, Debra P. Steger and Peter Van den Bossche Frontmatter More information LAW IN THE SERVICE OF HUMAN DIGNITY Essays in Honour of Florentino Feliciano edited by STEVE CHARNOVITZ, DEBRA P. STEGER AND PETER VAN DEN BOSSCHE © Cambridge University Press www.cambridge.org Cambridge University Press 0521852536 - Law in the Service of Human Dignity: Essays in Honour of Florentino Feliciano Edited by Steve Charnovitz, Debra P. Steger and Peter Van den Bossche Frontmatter More information CAMBRIDGE UNIVERSITY PRESS Cambridge, New York, Melbourne, Madrid, Cape Town, Singapore, Sa˜oPaulo CAMBRIDGE UNIVERSITY PRESS The Edinburgh Building, Cambridge CB2 2RU, UK Published in the United States of America by Cambridge University Press, New York www.cambridge.org Information on this title: www.cambridge.org/9780521852531 # Cambridge University Press 2005 This book is in copyright. Subject to statutory exception and to the provisions of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of Cambridge University Press. First published 2005 Printed in the United Kingdom at the University Press, Cambridge A catalogue record for this book is available from the British Library ISBN-13 978-0-521-85253-1 hardback ISBN-10 0-521-85253-6 hardback Cambridge University Press has no responsibility for the persistence or accuracy of URLs for external or third-party internet websites referred to in this book, and does not guarantee that any content on such websites is, or will remain, accurate or appropriate. © Cambridge University Press www.cambridge.org Cambridge University Press 0521852536 - Law in the Service of Human Dignity: Essays in Honour of Florentino Feliciano Edited by Steve Charnovitz, Debra P. Steger and Peter Van den Bossche Frontmatter More information CONTENTS List of contributors page x Preface xv Biographical note xix List of abbreviations xxi PART I Reflections on the contributions of Florentino Feliciano to international law 1 1 A judge’s judge: Justice Florentino P. Feliciano’s philosophy of the judicial function 3 W . MICHAEL REISMAN 2 The benign first mate 11 ROSALYN HIGGINS 3 The Aristotelian 14 JAMES BACCHUS 4 Trade and economic justice according to law 22 JULIO A. LACARTE v © Cambridge University Press www.cambridge.org Cambridge University Press 0521852536 - Law in the Service of Human Dignity: Essays in Honour of Florentino Feliciano Edited by Steve Charnovitz, Debra P. Steger and Peter Van den Bossche Frontmatter More information vi CONTENTS PART II Insights into the World Trade Organization 27 5 Justice Feliciano and the WTO environmental cases: laying the foundations of a ‘constitutional jurisprudence’ with implications for developing countries 29 JOHN H. JACKSON 6 International trade law, human rights and theories of justice 44 ERNST- ULRICH PETERSMANN 7 Developing countries and the international trading system 58 SAID EL- NAGGAR 8 North–South issues of foreign direct investments in the WTO: is there a middle-of-the-road approach? 76 MITSUO MATSUSHITA 9 The participation of developing countries in WTO dispute settlement and the role of the Advisory Centre on WTO Law 90 LEO PALMA 10 Reform of the WTO dispute settlement system: what to expect from the Doha Development Round? 103 PETER VAN DEN BOSSCHE © Cambridge University Press www.cambridge.org Cambridge University Press 0521852536 - Law in the Service of Human Dignity: Essays in Honour of Florentino Feliciano Edited by Steve Charnovitz, Debra P. Steger and Peter Van den Bossche Frontmatter More information CONTENTS vii 11 Interpretation and Application of WTO Rules: Florentino Feliciano and the First Seven 127 LUIZ OLAVO BAPTISTA 12 Dispute settlement in the WTO: on the trail of a court 136 HE´ LE` NE RUIZ FABRI 13 A proposal to introduce an Advocate General’s position into WTO dispute settlement 159 A . L . C . DE MESTRAL AND M. AUERBACH- ZIOGAS 14 Arbitration at the WTO: a terra incognita to be further explored 181 LAURENCE BOISSON DE CHAZOURNES 15 The challenges to the legitimacy of the WTO 202 DEBRA P. STEGER 16 The World Trade Organization after Cancu´ n 222 GUIGUO WANG PART III The changing landscape of investment arbitration 239 17 The reshaping of the international law of foreign investment by concordant Bilateral Investment Treaties 241 STEPHEN M. SCHWEBEL © Cambridge University Press www.cambridge.org Cambridge University Press 0521852536 - Law in the Service of Human Dignity: Essays in Honour of Florentino Feliciano Edited by Steve Charnovitz, Debra P. Steger and Peter Van den Bossche Frontmatter More information viii CONTENTS 18 ICSID arbitration and the state’s increasingly remote consent: apropos the Maffezini case 246 BRIGITTE STERN 19 The notion of investment in recent practice 261 RUDOLF DOLZER 20 Arbitration of investment disputes under UNCITRAL Rules and the choice of applicable law 276 GIORGIO SACERDOTI PART IV New challenges in international adjudication 299 21 From Preston to Prescott: globalizing legitimate expectation 301 FRANCISCO ORREGO VICUN˜ A 22 The independence of the international judiciary: some introductory thoughts 313 PHILIPPE SANDS 23 ‘Straddling and highly migratory flags’ before the International Tribunal for the Law of the Sea 323 TULLIO TREVES 24 Collective security and the personalization of peace 336 CHARLOTTE KU © Cambridge University Press www.cambridge.org Cambridge University Press 0521852536 - Law in the Service of Human Dignity: Essays in Honour of Florentino Feliciano Edited by Steve Charnovitz, Debra P. Steger and Peter Van den Bossche Frontmatter More information CONTENTS ix 25 Some thoughts on ‘Asian’ approaches to international dispute resolution 350 M . C . W . PINTO 26 The Cameroon v. Nigeria; Equatorial Guinea Intervening (Land and Maritime Boundary) Judgment 378 BARBARA KWIATKOWSKA Bibliography of works by Florentino Feliciano 409 Index 412 © Cambridge University Press www.cambridge.org Cambridge University Press 0521852536 - Law in the Service of Human Dignity: Essays in Honour of Florentino Feliciano Edited by Steve Charnovitz, Debra P. Steger and Peter Van den Bossche Frontmatter More information CONTRIBUTORS M . AUERBACH- ZIOGAS holds BCL/LLB from McGill University in Montre´al, Canada. He is a member of the Bar of New York. JAMES BACCHUS is a former Chairman of the WTO Appellate Body. He currently practises law as the Chairman of the Global Trade Practice Group of Greenberg Traurig, PA in Orlando, USA. He is also a Professor at Vanderbilt University Law School. He had previously been a Member of the United States Congress and before that served as a Special Assistant to the United States Trade Representative. LUIZ OLAVO BAPTISTA is Member of the WTO Appellate Body, Professor of International Trade Law at the University of Sa˜o Paulo Law School and senior partner at the L. O. Baptista Law Firm, in Sa˜o Paulo. He is also a Member of the Permanent Court of Arbitration at The Hague and of the International Chamber of Commerce Institute for International Trade Practices. LAURENCE BOISSON DE CHAZOURNES is Professor at the Law Faculty of the University of Geneva and Head of the Department of Public International Law and International Organisation at the Graduate Institute of International Studies, also in Geneva. Previously, she worked as a senior counsel in the World Bank’s legal department as well as a consultant for various international organizations including the United Nations and the WTO. RUDOLF DOLZER is the Director of the Institute for International Law at the University of Bonn, Germany. Some of his previous positions include a research fellowship