Papers by Holger Hestermeyer
The Journal of World Investment & Trade, 2020
Speed is often touted as an advantage of arbitration. In recent years, however, some have worried... more Speed is often touted as an advantage of arbitration. In recent years, however, some have worried that investment arbitration risks losing this advantage. Concerns about the length of investor-State dispute settlement (ISDS) proceedings have also been raised in the discussion about ISDS reform. This article analyses the duration of ISDS proceedings applying a data-centric approach and evaluates the impact of proposed ISDS reforms on the duration of proceedings. After some terminological clarifications on when proceedings are ‘excessively’ long, the article sets out the evidence on the length of proceedings using several data-sets. As a comparator, we present data on the length of World Trade Organization (WTO) proceedings, even though we urge caution as to the usefulness of such a comparator. The article then discusses the impact of various reform proposals on the duration of proceedings, namely improving ISDS, adding an appellate mechanism, establishing a multilateral investment co...
Africa. PULP endeavours to publish and make available innovative, high-quality scholarly texts on... more Africa. PULP endeavours to publish and make available innovative, high-quality scholarly texts on law in Africa. PULP also publishes a series of collections of legal documents related to public law in Africa, as well as text books from African countries other than South Africa. This book was peer reviewed prior to publication. For more information on PULP, see www.pulp.up.ac.za
Trade has had a stunning return to the spotlight since the results of the Brexit referendum were ... more Trade has had a stunning return to the spotlight since the results of the Brexit referendum were announced. While it is much too early to speak of failure or success of the UK's trade policy, we allege that the current debate shows a lack of understanding of modern international trade law and policy. This in turn leads to a lack of appreciation of the tasks ahead for the UK. The limited aim of this short article is to point out the scope of some of the key challenges and the complexities that the UK will face on the road towards a post-Brexit trade policy. We consider a proper appreciation of these complexities to be vital for a transparent, fair and inclusive formulation of the UK's trade policies, which will determine not only the UK's economic fate, but also the UK's laws and many of its domestic policies for decades to come.
IIC - International Review of Intellectual Property and Competition Law, 2013
For several years, research at the Max Planck Institute for Intellectual Property and Competition... more For several years, research at the Max Planck Institute for Intellectual Property and Competition Law (MPI) -in collaboration with experts from all over the world -has examined the trend of bilateral and regional agreements that include provisions on the protection and enforcement of intellectual property (IP) rights. By building on this research, the following principles -express core concerns regarding the use of IP provisions as a bargaining chip in international trade negotiations, the increasing comprehensiveness of international IP rules and the lack of transparency and inclusiveness in the negotiating process; and -recommend international rules and procedures that can achieve a better, mutually advantageous and balanced regulation of international IP.
The legal regime of the EU has a stunning impact on member states. Part of the secret of the succ... more The legal regime of the EU has a stunning impact on member states. Part of the secret of the success of EU law lies in the way in which it is implemented - creating a regime apart from international law. This book chapter explains how EU law is implemented, which most commonly is done according to the rules of EU law itself.
This chapter - co-authored with Rüdiger Wolfrum and Silja Vöneky - explores the relationship betw... more This chapter - co-authored with Rüdiger Wolfrum and Silja Vöneky - explores the relationship between international law and national law in the German legal system.
The rule of law has become a key notion of national law. Even though - or possibly because - ther... more The rule of law has become a key notion of national law. Even though - or possibly because - there are differences between the concepts of rule of law in different states and the concept remains frustratingly elusive even within a single state, the rule of law has become universally accepted as an attribute of a just, successful, modern state and as an essential requirement for legitimizing the exercise of public power. With more and more power wielded by international organizations, it is hardly surprising that the notion has also entered the realm of international law. What is the status and content of the rule of law under international law, both as a principle binding states and as a principle binding the United Nations and other international organizations? The paper alleges that in the realm of universal international law the principle of the rule of law suffers from three weaknesses: its source under public international law is dubious, its content poorly defined and there is no court of general jurisdiction that could fill the abstract notion with content. As a remedy, I propose a distinction between two notions of the rule of law on the international level: a binding principle of the rule of law, defined through a rights-based approach and containing rule of law-related obligations already binding under international law, and an aspirational notion of the rule of law, aspiring towards a fairer, more just and law-abiding society. The proposed solution is applied to the field of UN peacekeeping.
International Review of Intellectual Property and Competition Law, 2014
The comment discusses the notion of "trade-related" aspects of IP rights, describing its birth in... more The comment discusses the notion of "trade-related" aspects of IP rights, describing its birth in WTO law and its transplant into EU law - albeit as "commercial" aspects of IP rights. It discusses the ECJ's difficulty of defining the notion in Daiichi Sankyo and exposes the problems entailed in this vague notion: namely that a term that arguably was coined to create consent in the WTO without actually having any precise meaning suddenly became the basis of an EU competence.
Journal of World Trade (reprinted here with kind permission of Kluwer International), 2014
Local content measures have proliferated and become a popular tool for governments to incentivize... more Local content measures have proliferated and become a popular tool for governments to incentivize national industry. This article sets out a typology of such measures and analyses the legality of the different types of measures under WTO law. Questions arise not only with respect to national treatment, the government procurement exemption and the rules on state trading enterprises under the GATT, but also with respect to the TRIMs Agreement, the SCM Agreement as well as the GATS. The article concludes that very few measures can be considered compatible with WTO law.
The Changing Role of Nationality in International Law, 2013
What is it that makes a people? What is the identity of a nation? The question has been asked by ... more What is it that makes a people? What is the identity of a nation? The question has been asked by philosophers, sociologists and lawyers ever since the birth of the modern nation-state. This contribution highlights an aspect of this debate: it discusses the commonly mentioned requirement of a certain homogeneity of the people of a nation. It tells the story of the requirement during the Weimar Republic and in our times, drawing on studies in behavioral and cognitive science to argue that it is not the absence of a common tie, but its arbitrariness that makes homogeneity a meaningless criterion.
Can international trade law be utilized to promote the freedom of speech in the face of repressiv... more Can international trade law be utilized to promote the freedom of speech in the face of repressive censorship? Even before Google's abrupt departure from China, associated with Chinese restrictions on speech, academics and advocates were arguing that WTO dispute settlement can be used to promote freedom of speech and access to information in China and elsewhere by targeting internet censorship as an illegal trade barrier. If this were indeed one area in which international trade law might protect a human right in the face of adverse political restrictions, it could serve as a powerful vindication of economic liberalization that is otherwise often considered to contradict or compromise human rights. Through careful analysis of the gaps between human rights and international trade law we take a skeptical perspective towards this line of thinking, arguing instead that international trade disputes relating to censorship (such as a potential "Google" case) are indifferent towards the freedom of expression and ultimately promote economic interests with little, if any, impact on restricted speech.
American Society of International Law Insights, Jan 1, 2007
International Law Today: New Challenges and the …, Jan 1, 2008
Nw. J. Int'l L. & Bus., Jan 1, 2005
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Papers by Holger Hestermeyer