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Full-Text Articles in Law
Differentiating Among International Investment Disputes, Julie A. Maupin
Differentiating Among International Investment Disputes, Julie A. Maupin
Faculty Scholarship
Can investor-state arbitration tribunals, which exercise jurisdiction over limited claims involving discrete parties, render awards that deliver individualized justice while also promoting systemic fairness, predictability and coherence? The answer, I argue, is a qualified yes – provided that the methods employed are tailored to the particular characteristics of each dispute. Using three well-known investment arbitrations as case studies, I illustrate that investor-state disputes vary widely in terms of their socio-legal, territorial, and political impacts. Significant variances along these three dimensions call for a differentiated approach to investor-state dispute resolution. I outline what such an approach might look like and analyze …
Pricing Compliance: When Formal Remedies Displace Reputational Sanctions, Rachel Brewster
Pricing Compliance: When Formal Remedies Displace Reputational Sanctions, Rachel Brewster
Faculty Scholarship
The conventional wisdom in international law is that dispute resolution institutions sharpen the reputational costs to states. This article challenges this understanding by examining how the inclusion of dispute resolution tribunals and remedy regimes can alter reputational analysis by shifting the audience¹s understanding of how mandatory a treaty's substantive obligations are. Drawing on the distinction between prices and sanctions, this article contests the assumption that the introduction of a remedy regime in international agreements will regularly increase compliance with the treaty¹s substantive terms. Instead, some remedy regimes may 'price' deviations from the treaty¹s terms and thereby facilitate breaches of the …
Why The Chinese Public Prefer Administrative Petitioning Over Litigation, Taisu Zhang
Why The Chinese Public Prefer Administrative Petitioning Over Litigation, Taisu Zhang
Faculty Scholarship
In recent years, the Chinese public, when facing disputes with government officials, have preferred a non-legal means of resolution, the Xinfang system, over litigation. Some scholars explain this by claiming that administrative litigation is less effective than Xinfang petitioning. Others argue that the Chinese have historically eschewed litigation and continue to do so habitually. This paper proposes a new explanation: Chinese have traditionally litigated administrative disputes, but only when legal procedure is not too adversarial and allows for the possibility of reconciliation through court-directed settlement. Since this possibility does not formally exist in modern Chinese administrative litigation, people tend to …
Shadow Unilateralism: Enforcing International Trade Law At The Wto, Rachel Brewster
Shadow Unilateralism: Enforcing International Trade Law At The Wto, Rachel Brewster
Faculty Scholarship
This short essay briefly traces the evolution of trade law enforcement from the the GATT to the WTO regime. The WTO's Dispute Settlement Understanding (DSU) is widely viewed as a major innovation from the GATT regime in that it subordinates unilateral enforcement of trade law to a rule-based system of multilateral enforcement. I recognize the successes of the WTO regime but the institution effective permits (if not encourages) the unilateral enforcement of trade law outside of the DSU framework Specifically, I examine how the DSU system only provides a prospective remedy - that is, the DSU permits retaliation only for …