Law Commons^™

Empirically Evaluating Claims About Investment Treaty Arbitration, Susan Franck

Articles in Law Reviews & Other Academic Journals

With the blossoming of empirical legal scholarship, there is an increased appreciation for the insights it offers issues of international importance. One area that can benefit from such inquiry is the resolution of disputes from investment treaties, which affects international relations, implicates international legality of domestic government conduct, and puts millions of taxpayer dollars at risk. While suggesting there has been a "litigation explosion", commentators make untested assertions about investment treaty disputes. Little empirical work transparently explores this area, however. As the first research that explains its methodology and results, this article is a modest attempt to evaluate claims about …

Process Purity And Innovation In Dispute Resolution: A Response To Professors Stempel, Cole, And Drahozal, Richard C. Reuben

Faculty Publications

This article uses a "process characteristics and values" approach to make the case against displacing arbitration finality with substantive judicial review. It responds to a trio of articles in a forthcoming Nevada Law Review symposium on whether and how the Federal Arbitration Act should be amended. In one article, Nevada Law Professor Jeffrey Stempel contends all arbitration awards should be subject to substantive judicial review similar to that of public trial courts. In a second article, Ohio State Professor Sarah Cole argues that substantive review should generally be permitted when the parties agree to it by contract, an issue now …

Consideration Of 'Contracting Culture' In Enforcing Arbitration Provisions, Amy J. Schmitz

Faculty Publications

The Federal Arbitration Act mandates strict and uniform enforcement of standardized pre-dispute arbitration provisions. This may not be proper, however, in light of the importance of context with respect to these provisions. This Article therefore seeks to remind courts of the importance of exchange context by proposing a "contracting culture" continuum for enforcing these arbitration provisions that acknowledges the impacts of these provisions in a particular communal context. "Contracting culture" encompasses economic and non-economic relational factors that impact dispute resolution agreements, but go beyond common conceptions of "culture" focused on ethnicity, nationality, or religion. It also explores beyond the primary …

Is Open Source Software The New Lex Mercatoria?, Fabrizio Marrella, Christopher S. Yoo

All Faculty Scholarship

Early Internet scholars proclaimed that the transnational nature of the Internet rendered it inherently unregulable by conventional governments. Instead, the Internet would be governed by customs and practices established by the end user community in a manner reminiscent of the lex mercatoria, which spontaneously emerged during medieval times to resolve international trade disputes independently and autonomously from national law. Subsequent events have revealed these claims to have been overly optimistic, as national governments have evinced both the inclination and the ability to exert influence, if not outright control, over the physical infrastructure, the domain name system, and the content flowing …

Dangers Of Deference To Form Arbitration Provisions, Amy J. Schmitz

Faculty Publications

This Article is part of my larger project exploring what I call "contracting culture," which borrows from legal realism and relational contract theory by considering contextual factors such as negotiators' relations, understandings, and values. As part of this project, I am pursuing various threads, including empirical studies of how contracting realities impact arbitration. In this Article, however, I focus on how these realities in business to consumer contracts combine with the Federal Arbitration Act and formulaic contract law to foster dangerous deference to form arbitration provisions. The Article then invites procedural reforms and offers suggestions for regulations aimed to temper …

Ibeto Petrochemical Industries Ltd V. M/T Beffen, 475 F. 3d 56 - Court Of Appeals, 2nd Circuit 2007, Roger J. Miner '56

Circuit Court Opinions

Plaintiff-Counter-Defendant-Appellant Ibeto Petrochemical Industries Limited ("Ibeto") appeals from an Order entered in the United States District Court for the Southern District of New York (Scheindlin, J.) in an action arising out of the contamination by seawater of a shipment of oil being carried by motor tanker. The Order granted the motions of Defendant-Appellee M/T Beffen, Her Engines, Tackles, Boiler, etc. (in rem) ("the Beffen") and Defendant-Counter-Claimant-Appellee Bryggen Shipping and Trading A/S (in personam) ("Bryggen") (collectively "defendants") to stay this action, to compel arbitration, and to enjoin an action pending in Nigeria. The Order also denied Ibeto's motion for voluntary …

El Desarrollo Del Arbitraje Comercial Internacional: Sofisticacion O Complejdad, Horacio A. Grigera Naón

Articles in Law Reviews & Other Academic Journals

No abstract provided.

Mcmahon Turns Twenty: The Regulation Of Fairness In Securities Arbitration, Jill I. Gross

Elisabeth Haub School of Law Faculty Publications

I believe that current regulation of securities arbitration does ensure that it is fair to investors. Part II of this Commentary explores the various sources of law, including the FAA, which could require fairness in securities arbitration. It revisits the first critical assumption of the McMahon Court, that the FAA's provisions for post-award judicial review protect investors from an unfair arbitration process. This Part demonstrates that, while the FAA does require “fundamental fairness” in arbitration, courts loosely construe that requirement and find most arbitration proceedings meet it easily. Part IIII of this Commentary explores SEC oversight of securities arbitration, particularly …

The Arrival Of The "Have-Nots" In International Arbitration, Catherine A. Rogers

Journal Articles

Much has been written about the have-nots in domestic litigation and domestic arbitration, with an apparent assumption that their fate was mainly a domestic affair. In recent years, however, internet commerce has brought consumers to the international market, an increasingly globalized workforce has generated a class of international employees, and the link between international trade and human rights has revealed a host of victims. The arrival of these 'have-nots' in international arbitration means that previously latent questions about international arbitration's integrity as a system and role as a mechanism for transnational regulatory governance have been brought to the fore.

Using …

An Empirical Analysis Of Investment Treaty Awards, Susan Franck

Articles in Law Reviews & Other Academic Journals

I. INTRODUCTION

Earlier speakers offered insights about investment law and its implications for the future of domestic administrative law and international law. To bring us full circle, I will discuss where we are today so that we can consider where we want development law to be tomorrow. In pursuit of that goal, I offer empirical data related to investment treaty arbitration. My goal today is to focus on three claims about investment treaty arbitration and consider the data's potential implications.

Foreign Direct Investment, Investment Treaty Arbitration, And The Rule Of Law, Susan Franck

Articles in Law Reviews & Other Academic Journals

In the last decade, there has been a surge in the number of multi-lateral and bilateral investment treaties governments have signed; meanwhile there have been dramatic increases in the amount of foreign direct investment (FDI); and, more recently, the number of claims brought under investment treaties has spiked. This Article examines the relationship amongst these factors and is the first to review the emerging empirical economic literature investigating whether investment treaties achieve their goal of promoting FDI. The Article then specifically evaluates the impact that the procedural right to arbitrate investment claims plays in the process of promoting FDI and …

Does International Arbitration Need A Mandatory Rules Method?, Alexander K.A. Greenawalt

Elisabeth Haub School of Law Faculty Publications

The role of mandatory rules in international arbitration remains a persistent source of debate. The basic problem is a straightforward one: contractual arbitration arises as a matter of the parties’ consent, but the resolution of contractual disputes can implicate mandatory rules of law that are not waivable and are typically designed to protect broader public rights. The literature has often presented the issue in terms of conflict between the authority of the state and the party-derived authority of the arbitrator. Asserting an independent public duty to protect national mandatory laws as well as the enforceability of arbitral awards, some writers …

Keeping Arbitrations From Becoming Kangaroo Courts, Jeffrey W. Stempel

Scholarly Works

Arbitration has grown rapidly during the past 20 years. Particularly notable and problematic is the rapid onset of new or mass arbitration that has resulted from the judiciary's modern favorable attitude toward enforcement of arbitration clauses, even those imposed upon consumers, employees, small vendors, and debtors as part of a standardized contract of adhesion. In a separate article (See "Mandating Minimum Quality in Mass Arbitration," 76 U. Cin. L. Rev. (forthcoming 2007)), I present a more comprehensive list of what I regard as the necessary steps that must be taken to insure minimally acceptable quality and fairness in mass arbitration. …

In Defense Of Mandatory Arbitration (If Imposed On The Company), Jean R. Sternlight

Scholarly Works

Having spent much of her academic life battling companies' mandatory imposition of binding arbitration on consumers and employees, the author now switches gears. This Article contemplates whether mandatory binding arbitration is acceptable if imposed by the government on companies (governmental mandatory arbitration) rather than by companies on their employees and consumers (private mandatory arbitration). Specifically, the Article considers the possibility of statutes that would provide little guys (consumers and employees) with an opportunity to take their disputes to binding arbitration rather than litigation. If the little guys chose arbitration over litigation, post-dispute, companies would have to agree to such arbitration, …

Parallel Courts In Post-Conflict Kosovo, Elena Baylis

Articles

Even as American attention is focused on Iraq's struggle to rebuild its political and legal systems in the face of violent sectarian divisions, another fractured society - Kosovo - has begun negotiations to resolve the question of its political independence. Kosovo's efforts to establish multi-ethnic rule of law in the context of persistent ethnic divisions offer lessons in transitional justice and in managing legal pluralism for Iraq and other states.

In Kosovo today, two parallel judicial systems each claim sole jurisdiction over the province. One system was established by the United Nations administration in Kosovo, while the other system is …

Governance Of The Workplace: The Contemporary Regime Of Individual Contract, Kenneth G. Dau-Schmidt, Timothy A. Haley

Articles by Maurer Faculty

No abstract provided.