Dispute Resolution and Arbitration Commons^™

The Cape Town Convention’S Improbable-But-Possible Progeny Part Two: Bilateral Investment Treaty-Like Enforcement Mechanism, Charles W. Mooney Jr.

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This Essay is Part Two of a two-part essay series that outlines and evaluates two possible future international instruments. Each instrument draws substantial inspiration from the Cape Town Convention and its Aircraft Protocol (together, the “Convention”). The Convention governs the secured financing and leasing of large commercial aircraft, aircraft engines, and helicopters. It entered into force in 2006. It has been adopted by sixty-six Contracting States (fifty-eight of which have adopted the Aircraft Protocol), including the U.S., China, the E.U., India, Ireland, Luxembourg, Russia, and South Africa.

This Part of the Essay explores whether an investor-state dispute settlement (ISDS) feature …

Law – Made In Germany: Global Standort Or Global Standard?, James Maxeiner

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Earlier this year the Federal Ministry of Justice released the second edition of the brochure, Law - Made in Germany. For those readers who do not know the brochure, it is the product of an umbrella group of German professional organizations known as the Bündnis für das deutsche Recht. A purpose of the Bündnis, as stated at its founding in 2008, and of the brochure, is to improve the position of German law in the ― "international competition of legal systems" (internationalen Wettbewerb der Rechtsordnungen). Catalyst for founding of the Bündnis and for publication of Law - Made in Germany …

The Argentine Financial Crisis: State Liability Under Bits And The Legitimacy Of The Icsid System, William W. Burke-White

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This essay examines the jurisprudence of the International Center for the Settlement of Investment Disputes (ICSID) arbitral tribunals in a series of cases brought against the Republic of Argentina in the wake of the 2001-2002 Argentine financial collapse. The essay considers the ICSID tribunals' treatment of non-precluded measures provisions in Argentina's bilateral investment treaties (BITs) and the customary law defense of necessity and argues that the ICSID tribunals have sought to radically narrow the opportunities available to states to craft policy responses to emergency situations while strengthening investor protections beyond the intent of the states parties to the BITs under …

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

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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 …

The Tuna Court: Law And Norms In The World's Premier Fish Market, Eric Feldman

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Legal scholars have long emphasized the corrosive impact of conflict on long-term commercial and interpersonal relationships. To minimize the negative consequences of such conflict, members of close-knit groups who anticipate future interactions create ways of resolving their disputes with reference to internal group norms rather than relying on state-mandated legal rules. From farmers in California’s Shasta County to jewelers in midtown Manhattan and neighbors in Sanders County, the literature describes people who create norms of conflict management that are faster and less expensive than relying on formal law, and lessen the harm that conflict causes to their relationships. This article …