Law & Justice
Law & Justice
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(2021) Li, XunThesisThe aim of this thesis is to utilise transnational regulatory network (TRN) theory to examine the effectiveness of the regulatory framework promulgated by the International Organisation of Securities Commissions (IOSCO) — to address the activities of transnational hedge funds. Scholarship employing TRN theory has not previously accounted for the distinctive role that IOSCO — a body well-described as a TRN — has played in developing hedge fund regulation to prevent, identify and mitigate systemic risk related to transnational hedge funds. It is a gap that this thesis attempts to fill. This thesis asks whether and in what ways the IOSCO framework contributes to systemic risk mitigation in relation to transnational hedge funds operating at the global level. It does so to help academics and policymakers to better understand and appreciate the value, and overcome the limitations of IOSCO in this respect. Using the case studies of the failure of Long-Term Capital Management at the end of the 20th century and the demise of Bear Stearns’ hedge funds during the global financial crisis, it argues that it is the systemic hazards posed by hedge funds that make them merit extra regulation at both national and transnational levels. Deploying the findings of the TRN theory, it further demonstrates that the IOSCO framework for transnational hedge fund regulation holds not only advantages to be maintained but also shortcomings to be overcome in addressing these systemic hazards. The significance of this study lies in its contribution to advancing comprehension of the global regulatory framework for transnational hedge funds. It makes the advance by introducing a focus on systemic risk mitigation, hitherto lacking, and developing a critical, doctrinal understanding of the relatively understudied rules and standards under IOSCO.
(2022) Xiao, ZhenyuThesisChina is a key actor in global investment governance and has experienced incredible growth of inward and outward investment over the past four decades. It has also built a dense network of investment treaties. China’s engagement with the investor-state dispute settlement (ISDS) mechanism in investment treaties has followed a distinctive trajectory. This thesis is an attempt to explain the evolution of China’s ISDS policymaking over time. In particular, it seeks to explain why China expanded access to investor-state arbitration in the late 1990s and why that expansion of access involved integration with China’s domestic administrative review procedures. The thesis also examines subsequent changes in China’s approach to ISDS up to the present, paying particular attention to questions of whether the key policy shift of the late 1990s achieved its intended objectives and how Chinese policymakers’ concerns about domestic investment governance continue to shape the design of the ISDS mechanism in China. This thesis combines close analysis of primary and secondary materials, including newly uncovered government policy documents, with insights from semi-structured interviews with government officials and academics exposed to the policymaking processes. It finds that existing accounts of the key policy shift of the late 1990s, which emphasize China’s economic interests in protecting outward Chinese investments and encouraging inward foreign investments, are inadequate. Instead, an analytical framework incorporating China’s domestic investment governance and policymaking processes is necessary to build a new, more sophisticated explanation. This thesis argues that Chinese policymakers’ decision to expand access to investor-state arbitration emerged from an incremental internal reflection process that began with China’s accession to the ICSID Convention in the early 1990s. The objectives of this policy process were to understand the source of investor-state disputes in China and to develop a plan for how investor-state arbitration could be integrated with existing processes and structures of domestic investment governance. Chinese policymakers’ concerns about domestic investment governance, especially local governments’ interactions with foreign investors, shaped the drafting of ISDS provisions in China’s investment treaties in the late 1990s. The administrative review procedure was integrated with a stronger consent to investor-state arbitration, aimed at dispute prevention, dispute management and regulatory control over local governments. Despite the central role that considerations of domestic investment governance played in the policy shift of the late 1990s, this thesis finds that the policy change did not achieve its intended objectives. Concerns about managing the interface of domestic and international regimes of investment governance continue to shape the evolution of China’s approach to ISDS.
(2022) Frishling, NanaThesisThis thesis is about multi-stakeholder initiatives that seek to regulate the human rights impacts of global apparel supply chains (Apparel MSIs). MSIs have the aim of improving human rights for millions of apparel workers worldwide, but after two decades they show little evidence of such improvement. Civil society critics argue that MSIs are ineffective, unreformable private regulation that is not fit-for-purpose and lacks legitimacy. This thesis argues that Apparel MSIs still perform a valuable regulatory function, however they must adopt new regulatory approaches. These include moving beyond social audit as a regulatory technique, expanding stakeholder participation and better measuring and communicating impact. MSIs must transform to realise their aim of improving apparel workers human rights and consequently preserve their legitimacy. To understand and contribute to this transformation the thesis method incorporates existing literature; it applies theoretical frameworks; and the insights of original empirical research. From the latter the voices of worker advocates, union leaders and academics reveal recent and promising regulatory innovations and changes in MSIs. Along with this empirical research, the original contributions of this thesis are to emphasise the interconnected nature of legitimacy criteria and assess the overall legitimacy of Apparel MSIs in the light of the functional model adopted by each MSI. This legitimacy analysis is supported by the regulatory theory of responsive regulation, which explicitly contemplates self-regulatory forms like MSIs. The original contribution of bringing responsive regulation to bear on Apparel MSIs, provides new insights into how they can bolster their regulatory effectiveness and legitimacy. Interviews undertaken with key stakeholders provide a sociological perspective to this analysis. Interview data also drive the final recommendations for reform which coming from MSI stakeholders point to recent innovations in private regulation as a more promising alternative. Given the opportunity to build a more just world after the Covid-19 pandemic, these recommendations could not come at a more critical juncture.
Transnational Due Process and Article V(1)(b) of the New York Convention: Grounding Interpretation and Application of the Due Process Defence in the Public International Law Framework for Treaty Interpretation(2022) Xie, DanThesisThe thesis examines the interpretation and application of the due process defence under the New York Convention. It argues that the due process defence under the New York Convention should be interpreted consistently with the interpretative framework set out in the Vienna Convention on the Law of Treaties (VCLT) and, more specifically, by recourse to the general principle of audiatur et altera pars and subsequent practice of State Parties to the New York Convention. This interpretative approach ensures that due process under the New York Convention is a genuinely transnational standard distinct from any particular national legal system. In order to support this argument, chapter 2 establishes a particular understanding of the transnational approach grounded in the international interpretative rules contained in the VCLT. Chapter 3 shows that audiatur et altera pars is a well-accepted general principle of law and argues that its dimensions can concretise the normative content of the due process defence under the New York Convention. Chapters 4–7 explore relevant forms of ‘subsequent practice’ for the interpretation of the due process defence under the interpretative framework established by international law. The thesis makes three specific contributions to the theorisation and development of the transnational approach. First, arbitration scholars have talked about the importance of an autonomous approach to ensure predictability, but not fully articulated the scope and analytical possibilities of this approach. This thesis takes on this task via the VCLT, while also providing a structured way for domestic courts to consider and assess legal materials from beyond their own jurisdiction. It specifies a transnational informed approach to thinking about the general principle of audiatur et altera pars and subsequent state practice in interpreting and applying Article V(1)(b) of the New York Convention. Second, it shows how much of the arbitration scholarship on transnationalism can be recast within a public international law framework, thereby contributing to debates within international law about the decentralised interpretation of treaties by domestic courts. Third, the thesis’s preferred understanding of the transnational approach — one grounded in the public international law framework for treaty interpretation — resolves a range of practical questions about the precise content of the due process standard.
Forest Management, Resilience and Climate Change: An Analysis of Legal and Policy Frameworks in Tasmania and New South Wales(2023) Guidi, CaterinaThesisClimate change poses serious challenges for forests and thus for sustainable forest management (SFM). The concept of resilience has been identified as a useful tool in minimising the impacts of climate change on forests. However, while the utility of the concept has been recognised generally in the literature, and seven principles of ‘Resilience Thinking’ have been designed, application of the concept in the context of SFM has yet to be examined. Under international commitments, Australia is obliged both to account for climate change impacts in SFM and to work to increase forest resilience in order to minimise those impacts and ensure the sustainability of forests into the future. Using the ‘Resilience Thinking’ principles as a framework, this thesis examines SFM legislation and policies in Tasmania and New South Wales (NSW) to ascertain the extent to which they support forest resilience to climate change. In particular, it assesses whether and how each principle is considered in the development and implementation of SFM systems. Four major challenges to the development and implementation of SFM legislation and policies capable of supporting forest resilience are identified: fragmentation of SFM systems; inadequate participation in forest decision-making; the absence of active adaptive management in forest reserves; and SFM legislation and policy mechanisms that fall short in dealing with both the short and long-term uncertainties of climate change impacts on forests. Reflecting on those challenges, the thesis proposes and examines possible solutions including: the application of an integrated landscape approach to SFM; options for improved participation by a more diverse range of actors in periodic goal setting and management actions; the application of active adaptive management aimed specifically at building resilience in reserve areas; and the incorporation of short and long-term goals into decision-making through adequate monitoring, reporting and evaluation systems utilising specific resilience criteria and indicators. In applying the ‘Resilience Thinking’ principles in the SFM context for the first time, the thesis lays the groundwork for further consideration of the challenges and solutions to implementing resilience beyond the case studies.