Law Commons^™

The International Law Profile Of The Ali, George A. Bermann

Faculty Scholarship

Though its focus, most notably in its Restatements, has traditionally been on domestic U.S. law, the American Law Institute (ALI) has conspicuously turned “international” in recognition of the fact that U.S. law does not, in the present world, operate in isolation from the law of foreign jurisdictions and international institutions. To be sure, the two most prominent Restatements in the field continue to bear the term “U.S.” in their title: “Restatement of the Foreign Relations Law of the United States” and “The U.S. Law of International Commercial and Investor-State Arbitration.” But both present bodies of law profoundly influenced by, and …

Anticipatory Deference: What Will Courts Decide And Not Decide Before Enforcing An Agreement To Arbitrate?, George A. Bermann

Faculty Scholarship

The question of deference in international arbitration usually arises when the issue before a decision-maker, be it a tribunal or a court, is one that has already been addressed and ruled upon by another decision-maker over an arbitration’s life-cycle. The salience of this question stems from the fact that international arbitration is a highly iterative and staged process over the course of which different actors are successively confronted with the same issue. This is particularly the case in regard to jurisdictional issues because the authority of a tribunal to entertain a dispute is potentially an issue at all stages.

But …

"Keep To The Code”: A Global Code Of Conduct For Third-Party Funders, Victoria Sahani

Faculty Scholarship

Global commercial third-party funding has given rise to wide-ranging regulatory approaches worldwide. Consequently, funders can engage in cross-border regulatory arbitrage by exploiting regulatory gaps within and among nations. This Article argues that the global community of nations should articulate a universal approach to the behavioral expectations of third-party funders operating transnationally, independent of local laws regarding the technical business of funding. It asserts that the key to fostering the ethical development of the third-party funding industry is to develop a globally applicable but locally enforced code of conduct or professional responsibility for the industry. Moreover, a successful regime for funder …

L’Utilité Du Droit Comparé (The Utility Of Comparative Law), Vivian Grosswald Curran

Book Chapters

French Abstract: Cette contribution était le discours d’ouverture à la Conférence des 100 ans de l’Institut Édouard Lambert à l’Université de Lyon. Elle discute de l’utilité du droit comparé dans le monde actuel d’une perspective technique dans le cadre d’une situation aux États-Unis et d’une perspective plus politique dans le cadre d’un arrêt de la CJUE.

English Abstract: This essay was delivered as a keynote address to the conference to celebrate the 100th anniversary of the Institut Édouard Lambert at the University of Lyon. It argues for the usefulness of comparative law in today’s world from a technical angle in …

Servotronics, Inc. V. Rolls-Royce Plc And The Boeing Company: Brief Of Professor Yanbai Andrea Wang As Amicus Curiae In Support Of Neither Party, Yanbai Andrea Wang, Michael H. Mcginley

All Faculty Scholarship

Rather than expressing a view on the issues raised and ably briefed by the parties, amicus submits this brief to inform the Court of the scholarly research she has conducted regarding Section 1782 proceedings since this Court’s seminal decision in Intel. As Section 1782 applications have proliferated, the lower courts have struggled to apply the Intel factors as this Court had envisioned. Especially in the context of Section 1782 applications submitted by parties to an international proceeding (as opposed to those made by the international tribunal itself), lower courts have frequently found themselves unable to analyze and apply the …

Digital Readiness Index For Arbitration Institutions: Challenges And Implications For Dispute Resolution Under The Belt And Road Initiative, Allison Goh

Research Collection Yong Pung How School Of Law

Post-COVID-19, a paradigm shift has occurred in the adoption of technology in arbitration. Leading arbitral institutions have adapted quickly, highlighting the foresight of institutions who have existing technological infrastructure in place. This article proposes a ‘Digital Readiness Index’, which aims to evaluate arbitral institutions on their level of digital readiness based on five evaluative indicators. Cross referenced against Institute for Management Development (IMD’s) 2019 World Digital Competitiveness Rankings, the findings reveal synergies between an economy’s digital competitiveness and the adoption of technology in dispute resolution. To further the development of dispute resolution processes under the Belt and Road Initiative, strategic …

In Memoriam: Emmanuel Gaillard, George A. Bermann

Faculty Scholarship

It is difficult to add meaningfully to all that has been said and written about the extraordinary Emmanuel Gaillard who left us far too soon. But I shall try.

Emmanuel has been described lately as a “titan” and a “giant.” Though he was those things, they fail to capture the humility and humanity that marked Emmanuel for the length of his career. Notwithstanding the monumental achievements he made, and the recognition he so richly deserved, Emmanuel remained throughout a modest, loyal and supportive member of the international arbitration community.

Costs Allocation In International Arbitration: What Normative Source, If Any?, George A. Bermann

Faculty Scholarship

Costs in arbitration is one of those many issues that arises constantly (at least in any arbitration that gets underway), but as to which there is by no means any universally accepted standard of judgment. It is also not particularly usual for parties to address the issue of costs directly in their arbitration agreement, or for the matter to be addressed in the law of arbitration of the seat. If the rules of arbitral procedure that the parties may have incorporated into their arbitration agreement address the matter, they may not do so in highly informative terms. The Rules of …

A Hardy Case Makes Bad Law, Victoria Sahani

Faculty Scholarship

This Article is the first ever to analyze a direct clash between the inherent power of US courts regarding the enforcement ofjudgments and the obligations of the United States as one of the 163 member countries of the 1965 Convention on the Settlement of Investment Disputes between States and Nationals of Other States, commonly known as the "ICSID Convention. " The ICSID Convention includes a self-enforcement mechanism whereby the courts of the member countries are obligated to enforce the pecuniary obligations in multimillion (and sometimes over one billion) dollar ICSID arbitration awards as though they were court judgments of the …

International Arbitration: Out Of The Shadows, George A. Bermann

Faculty Scholarship

This article discusses a diverse number of issues that have affected the strength and popularity of international arbitration among its users. It emphasises the importance of the arbitration community recognising the force and validity of a number of critiques of the process and developing strategies for dealing with them. It is an edited version of a Keynote Address delivered at the ADR in Asia Conference on 29 October 2018.

Unity And Diversity In International Law, William W. Park

Faculty Scholarship

The primordial Greek sea-god Proteus could alter his shape at will, notwithstanding that his divine substance remained the same. Reinventing himself by adapting to new circumstances, Proteus still stayed unchanged in essence.

Unlike the sea-god’s protean nature, the substance of international law may well undergo alterations when examined through the telescope of legal culture, or with predispositions of divergent educational backgrounds. For the thoughtful reader, scholarly speculation on such variations will be triggered by reading Is International Law International?. In that book, Professor Anthea Roberts explores a variety of elements in the teaching and practice of international law, viewed …

Precedent And Dialogue In Investment Treaty Arbitration, Richard C. Chen

Faculty Publications

Since the turn of the century, investment treaty arbitration (ITA) tribunals have begun citing past decisions with increasing frequency. They do so despite the absence of any formal doctrine of stare decisis and the presence of structural obstacles to the use of precedent in this context. Scholarship in this area has focused on explaining the rise of this de facto doctrine of precedent and evaluating the merits of the practice. Few have grappled with more practical questions about how precedent should operate in this unique sphere, but even a cursory examination of ITA decisions would reveal that some order and …

The Cisg: Applicable Law And Applicable Forums, Ronald A. Brand

Articles

Despite being in effect for over thirty years, a debate continues on whether the United Nations Convention on Contracts for the International Sale of Goods (CISG) has been a success. With 89 Contracting States, it clearly is widely accepted. At the same time, empirical studies show that private parties regularly opt out of its application. It has served as a model for domestic sales law, and as an important educational tool. But has it been a success? In this article I consider that question, and suggests that the scorecard is not yet complete; and that it will perhaps take significantly …

Retour Sur L’Affaire De L’Alabama: De L’Utilité Et De L’Histoire Pour L'Arbitrage International, William W. Park, Bruno De Fumichon

Faculty Scholarship

For any aficionado of international law and international arbitration, the 1872 Alabama case represents a rich historical landmark, as promising a mine as the wreck of the Confederate Ship Alabama itself, sunk off Cherbourg, in 1864, by the United States Ship Kearsarge. This arbitration represents a turning point in relations between the United States and Great Britain, from repeated conflict to a “Special Relationship” that has grown stronger during the past century and a half. The case also marked the revival of international arbitration, after centuries of uncertainty. Not least, the case introduced long-lasting procedural innovations: the neutral collegial tribunal, …

European Union Law And International Arbitration At A Crossroads, George A. Bermann

Faculty Scholarship

It is no exaggeration to describe the relationship between the European Union and international arbitration as the most dramatic confrontation between two international legal regimes seen in a great many years. International law scholars commonly lament the "fragmentation" of international law, i.e., the co-existence of multiple international legal regimes whose competences overlap and whose policies may differ, resulting in a degree of regulatory disorder. However, seldom do these regimes actually "collide." By contrast, the two international regimes in which we are interested this evening international arbitration and the European Union may be described, without hyperbole, as on a collision course. …

A Conversation With Professor William W. (Rusty) Park, William W. Park

Faculty Scholarship

ABBY COHEN SMUTNY*: The ITA’s Academic Council has an interesting and very useful project, which is called Preserving Perspectives. It is a project to interview leading arbitrators regarding the development and evolution of international arbitration. This has led to a series of wonderful videos that are posted on ITA’s website. These videos are a tremendously rich resource and I encourage you to check them out on ITA’s website.

I’m now delighted to introduce to you the next interview in this important series. Professor and member of our academic council Catherine Rogers will be interviewing Professor Rusty Park, and …

Feel The Earth Move – Shifts In The International Dispute Resolution Landscape, Eunice Chua

Research Collection Yong Pung How School Of Law

This blog post discusses the themes in international dispute resolution that emerged from a panel on 25 July 2018 at the 2018 UNCITRAL Emergence Conference, moderated by Professor Nadja Alexander, CEO of the Singapore International Dispute Resolution Academy.

Columbia Law School Arbitration Newsletter, Center For International And Commercial Investment Arbitration

Center for International Commercial and Investment Arbitration

This Newsletter is prepared under the flagship of Center for International Commercial & Investment Arbitration (CICIA). The Center has become one of the most active research incubation centres in the realm of international arbitration, both commercial and investor-State, and with this new initiative, we welcome readers to be informed and explore the new avenues available for becoming associated with real time projects that would benefit the readers through greater information and ideas.

The Limitations Of Comparative Institutional Analysis, Sadie Blanchard

Journal Articles

Atul Gawande’s Checklist Manifesto became a sensation in 2009 because it promised that a simple technique could powerfully discipline decision-making. Gawande had saved lives using hospital checklists, and he argued that checklists could improve outcomes in other complicated endeavors. Checklists, he explained, “provide a kind of cognitive net. They catch mental flaws.” Neil Komesar’s method of comparative institutional analysis is by necessity messier than the checklist and does not claim to produce faultless policy-making. But Komesar similarly seeks to improve cognitive processing by imposing a disciplining framework on decision-making. Sergio Puig and Gregory Shaffer’s effort to introduce Komesar’s technique to …

The Blurring Of The Public/Private Distinction Or The Collapse Of A Category? The Story Of Investment Arbitration, Guillermo J. Garcia Sanchez

Faculty Scholarship

The paper is a response piece to Deborah Hensler and Damira Khatam’s new article, Re-inventing Arbitration: How Expanding the Scope of Arbitration Is Re-Shaping Its Form and Blurring the Line Between Private and Public Adjudication. Their main argument regarding the public-private distinction is that the arbitral procedure has changed as a consequence of the substantive issues resolved in this particular ADR system. According to them the arbitral system, which was originally conceived for commercial purposes, has become another way of litigating public law, but without the accountability mechanisms attached to public courts. In this paper, I agree in large part …

Third-Party Funding In International Arbitration, Victoria Sahani

Shorter Faculty Works

Third-party funding, also known as litigation funding, is a financing method in which an entity that is not a party to a particular dispute funds another party’s legal fees or pays an order, award, or judgment rendered against that party, or both. Third-party funding is a growing phenomenon that is becoming more mainstream in both the litigation and the international arbitration communities. The leading jurisdictions worldwide — in terms of volume and sophistication of third-party funding arrangements — are Australia, the U.K., the U.S. and Germany. In the past, third-party funding was a smaller niche market, but in recent years, …

Reshaping Third-Party Funding, Victoria Sahani

Faculty Scholarship

Third-party funding is a controversial business arrangement whereby an outside entity—called a third-party funder—finances the legal representation of a party involved in litigation or arbitration or finances a law firm’s portfolio of cases in return for a profit. Attorney ethics regulations and other laws permit nonlawyers to become partial owners of law firms in the District of Columbia, England and Wales, Scotland, Australia, two provinces in Canada, Germany, the Netherlands, New Zealand, and other jurisdictions around the world. Recently, a U.S.-based third-party funder that is publicly traded in England started its own law firm in England. In addition, some U.S. …

Contextual Analysis In Arbitration, Pat K. Chew

Articles

The arbitration process is embedded in a much larger context than the four walls in which the arbitration occurs. Exploring and studying that context—including the arbitral institution, the arbitrators, each party, the arbitration process, and the broader cultural and political environment— inform what actually occurs and to what extent one party may have inherent advantages over the other. This article illustrates this contextual analysis in two diverse settings: domestic employment arbitrations and international trade arbitrations. These analyses reveal one party’s advantages over the other, which are explained in part by market and cultural forces in which these arbitrations are embedded. …

Bilateral Investment Treaties And Domestic Institutional Reform, Richard C. Chen

Faculty Publications

The bilateral investment treaties (BITs) signed between developed and developing countries are supposed to increase the flow of investment from the former to the latter. But the evidence indicates that the existing approach of guaranteeing special protections for foreign investors has only a modest impact on luring their dollars. At the same time they are failing to produce meaningful benefits, these treaty commitments create substantial costs for the host states that make them, exposing them to liability and constraining their regulatory authority. Given this state of imbalance, the time seems ripe for a new approach, but existing proposals for revising …

Qui Custodiet Custodes? A Hard Look At International Arbitral Institutions, Jan Paulsson

Articles

No abstract provided.

Beyond Trade Deals: Charting A Post-Brexit Course For Uk Investment Treaties, Lise Johnson, Lorenzo Cotula

Columbia Center on Sustainable Investment Staff Publications

The Brexit referendum has raised questions about the future terms of the United Kingdom’s engagement with the world economy. While a debate over the UK’s future approach to trade deals has already begun, a similar discussion has yet to develop on the treaties that govern foreign investment. As this briefing note by Lorenzo Cotula of the International Institute for Environment and Development, and Lise Johnson of CCSI highlights, the stakes are high: ill-designed treaties could leave the UK excessively exposed to legal claims by foreign companies and could fail to address relevant economic, social and environmental challenges. While meaningful negotiations …

Private Party Enforcement Of International Intellectual Property Law, Marketa Trimble

Boyd Briefs / Road Scholars

Professor Marketa Trimble presented these slides in conjunction with her talk Private Party Enforcement of International Intellectual Property Law, given at the 35th Annual Teaching and Research in Intellectual Property Conference (ATRIP) held in Krakow on June 26 - 29, 2016.

Judging Third-Party Funding, Victoria Sahani

Faculty Scholarship

Third-party funding is an arrangement whereby an outside entity finances the legal representation of a party involved in litigation or arbitration. The outside entity—called a “third-party funder”—could be a bank, hedge fund, insurance company, or some other entity or individual that finances the party’s legal representation in return for a profit. Third-party funding is a controversial, dynamic, and evolving phenomenon. The practice has attracted national headlines and the attention of the Advisory Committee on the Federal Rules of Civil Procedure (Advisory Committee). The Advisory Committee stated in a recent report that “judges currently have the power to obtain information about …

Between Flexibility And Stability: Ad Hoc Procedures And/Or Judicial Institutions?, Chiara Giorgetti

Law Faculty Publications

The choice between the flexibility offered by ad hoc procedures and the stability proper of established judicial institutions poses many interesting questions for those interested in international dispute resolution. This chapter seeks to assess some of these questions and, possibly, to offer suggestions to future parties and their counsel on how to select the most appropriate resolution mechanism to resolve their international inter-state dispute. To begin with, it is worth noting two important and related trends that characterize contemporary international dispute resolution: first, the increased use of international litigation by diverse international actors, and second, the multiplication of dispute resolution …

Gateway-Schmateway: An Exchange Between George Bermann And Alan Rau, Alan Scott Rau, George Bermann

Faculty Scholarship

What role do national courts play in international arbitration? Is international arbitration an “autonomous dispute resolution process, governed primarily by non-national rules and accepted international commercial rules and practices” where the influence of national courts is merely secondary? Or, in light of the fact that “international arbitration always operates in the shadow of national courts,” is it not more accurate to say that national courts and international arbitration act in partnership? On April 27, 2015, the Pepperdine Law Review convened a group of distinguished authorities from international practice and academia to discuss these and other related issues for a symposium …