Law Commons^™

Foreword, Stephen M. Schwebel

Vanderbilt Journal of Transnational Law

I was glad to return to Vanderbilt Law School to take part in this Symposium on International Commercial Arbitration. I came because Jon Charney telephoned me last autumn to ask me to come. Jon Charney was a superb international lawyer and a splendid human being. He became a reigning expert on the Law of the Sea. But his interests in international law were wider than that wide subject. He wrote, for example, on the proliferation of international tribunals and on the position of the persistent objector in international law with exceptional acuity and insight.

Jon's professional accomplishments were increasingly large. …

Corporate Hypergoals, Sustainable Peace, And The Adapted Firm, Thomas W. Dunfee, Timothy L. Fort

Vanderbilt Journal of Transnational Law

Hypergoals are a set of specifiable goals applicable to all publicly-owned, for-profit corporations independent of their purpose, type, business, or legal governance. The identification of hypergoals should be limited to those factors for which a plausible empirical case can be made concerning their role as essential foundations for efficient business interaction. In the context of hypergoals, corporations have a role to play in working toward global, sustainable peace. In working toward the hypergoal of sustainable peace, corporations must attend to two tiers: an immediate, short-term orientation to foster solidarity with local populations in which the corporation works and a longer-term …

Governing For Genuine Profit, Michael J. O'Hara

Vanderbilt Journal of Transnational Law

Business corporations can have many purposes. The shareholder wealth maximization goal is the proper one for business. This maximization, however, must look to the long-term as well as the short-term. Terrorism is a major threat to the long-term stability, profitability, and even viability of business corporations. Because of a focus on the short-term to the exclusion of the long-term, businesses are likely to shirk their responsibilities related to terrorism and its causes. A paradigm-shift is necessary to bring business to accept their responsibilities and internalize their costs...

This Article will not challenge the shareholder wealth maximization goal. Instead, this Article …

Choice Of Law In Third-Millennium Arbitrations, Fabrizio Marrella

Vanderbilt Journal of Transnational Law

There is little doubt that third-millennium international arbitrators will face the flowering of a transnational rule such as the UNIDROIT Principles for international commercial contracts. They will be used to solve problems of characterization, preliminary questions, and choice of law to the merits of the dispute. In this sense, it appears clearly that these rules are to be construed under a triangular scheme. Thus, lex mercatoria and transnational rules like the UNIDROIT Principles will intervene more and more in the arbitral choice-of-law process in three competing contexts: (1) as a lex contractus; (2) as a means to interpret, supplement, or …

The Problem With Arbitration Agreements, Stephen J. Choi

Vanderbilt Journal of Transnational Law

Arbitration procedures today have become highly standardized. Institutions such as the International Chamber of Commerce (ICC), the London Court of International Arbitration (LCIA), and the American Arbitration Association Center for International Dispute Resolution (AAA) each have detailed provisions for administering arbitration proceedings (often involving parties of different nationalities). Parties entering into arbitration can expect to have limited discovery, a hearing, and the ability to bring attorneys to the proceedings. While typically providing less process than formal court proceedings, the standardized nature of arbitration can lead parties to view arbitration much like court proceedings--a fixed, pre-determined process to settle disputes. Thomas …

Structure, Legitimacy, And Nafta's Investment Chapter, Charles H. Brower, Ii

Vanderbilt Journal of Transnational Law

In this Article, Professor Brower examines the investment chapter of the North American Free Trade Agreement (NAFTA). He argues that the relevant treaty provisions lack a substantial measure of textual clarity. In addition, he argues that ad hoc tribunals based on the commercial arbitration model have generated incoherent doctrine and are relatively less accountable, transparent, and accessible than permanent tribunals. Furthermore, he argues that the NAFTA Parties and their courts so far appear to place a higher priority on the pursuit of narrow self-interest than on the principled administration of international governance. Collectively, these circumstances help to explain the frequency …

Nationbuilding 101: Reductionism In Property, Liberty, And Corporate Governance, O. L. Reed

Vanderbilt Journal of Transnational Law

In this Article, Professor Reed re-examines the importance of property as a formal legal institution. He continues by arguing that central to creating property is the right to exclude others from resources acquired without force, theft, or fraud. In countries where this right has been firmly established, per capita income far exceeds that of countries lacking a strong right to exclude. Professor Reed then asserts the importance to nation builders of appreciating the virtual semantic equivalence of the terms "property" and "liberty." Finally, he argues that both the specific and broad senses of corporate governance can be reduced to property …

Corporate Governance And Sustainable Peace: An Insider's View, Marina N. Whitman

Vanderbilt Journal of Transnational Law

The Author brings her 30 years of experience as a member of numerous corporate boards of directors to bear on the relationship between corporate governance and sustainable peace. In the Author's experience, over the last three decades corporate boards have become more diverse not only in terms of race and gender, but also through a greater focus on international participation. This diversity has led to concern for a broader set of stakeholders and, in many cases, these boards are presently conducting the affairs of their corporations in a more socially-responsible fashion. Despite these gains, however, the Author concedes that recent …

Who Decides The Arbitrators' Jurisdiction? Separability And Competence--Competence In Transnational Perspective, John J. Barcelo, Iii

Vanderbilt Journal of Transnational Law

Separability and competence-competence are two of the best known concepts in international commercial arbitration. They are different, but often linked, because they share a common goal: to prevent early judicial intervention from obstructing the arbitration process. Both concepts address the question, "Who decides arbitrability--courts or arbitrators?" but in different ways. I will discuss those differences later in this comment.

In his excellent paper delivered at this Symposium, "Everything You Really Need to Know About 'Separability' in Seventeen Simple Propositions, Professor Rau focuses principally on separability. His purpose is to defend separability in U.S. arbitration law from the surprisingly common and …

Adapting Corporate Governance For Sustainable Peace, Timothy L. Fort, Cindy A. Schipani

Vanderbilt Journal of Transnational Law

Acts of violence toward multinational corporations have important consequences for the way these companies will need to structure their approach to international business. This Article proposes four contributions that corporations can make to sustainable peace. By incorporating sustainable peace as a business objective, multinational corporations may be able to blend extant corporate governance principles with a goal that can significantly contribute to the reduction of violence in society.

700 Families To Feed: The Challenge Of Corporate Citizenship, Tara J. Radin

Vanderbilt Journal of Transnational Law

When Howard Lutnick, CEO of Cantor Fitzgerald, was first interviewed after September 11, 2001, a tragedy that devastated his firm and stole the life of his brother, Lutnick stated that he now had "700 families to feed." The view that he expressed was that his firm was responsible to the families of the wage earners lost in the tragedy, even though the firm was not responsible for the events that had occurred. Such assumed corporate responsibility, consistent with a stakeholder-based approach to management, is often considered to conflict with the law. The purpose of this Article is to demonstrate that …

The Culture Of Arbitration, Tom Ginsburg

Vanderbilt Journal of Transnational Law

The relationship between "legal culture" and the practice of international arbitration has received increasing attention in recent years. Many see arbitration as a meeting point for different legal cultures, a place of convergence and interchange wherein practitioners from different backgrounds create new practices. Some have suggested that this process has led to an emergent "international arbitration culture" fusing together elements of the common law and civil law traditions. Others see arbitration as a locus of conflict among traditions or as competition among various players.

This comment contests the view that the current state of convergence in arbitration is properly considered …

Corporate Governance And Sustainable Peace, Timothy L. Fort, Cindy A. Schipani

Vanderbilt Journal of Transnational Law

The Articles and Commentary in this Symposium are another step in a series of conferences exploring dimensions of business influence on sustainable peace. As is often the case with new intellectual initiatives, each step seems to open new doors of insight and new sets of questions. Other presentations delivered at this conference included discussions of how one could design architectural plans in keeping with company goals, while others focused on the development of compassion, forgiveness, and voice. Still others connected the topic to notions of ethical compliance models, dispute resolution, corporate citizenship, and economic development.

Beyond these notions, of course, …