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Articles 1 - 20 of 20
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General Principles Of Procedural Law And Procedural Jus Cogens, S. I. Strong
General Principles Of Procedural Law And Procedural Jus Cogens, S. I. Strong
Faculty Publications
General principles of law have long been central to the practice and scholarship of both public and private international law. However, the vast majority of commentary focuses on substantive rather than procedural concerns. This Article reverses that trend through a unique and innovative analysis that provides judges, practitioners, and academics from around the world with a new perspective on international procedural law. The Article begins by considering how general principles of procedural law (international due process) are developed under both contemporary and classic models and evaluates the propriety of relying on materials generated from international arbitration when seeking to identify …
Developing A Matrix For Intellectual Property As Subject Of International Law, Sam F. Halabi
Developing A Matrix For Intellectual Property As Subject Of International Law, Sam F. Halabi
Faculty Publications
Intellectual property disputes implicating diverse and seemingly unrelated international legal regimes have become more frequent, acrimonious, and high-stakes. This trend has spawned an enormous academic literature endeavoring to rationalize the approach various interpretive authorities take to intellectual property disputes. Graeme Austin and Larry Helfer's Human Rights and Intellectual Property offered a framework by which to resolve claims for or against intellectual property protection based on human rights arguments; Susy Frankel has extensively assessed the application of customary international rules of interpretation in furtherance of a rationalizing approach to complex IP conflicts; and Jerry Reichman. Paul Uhlir. and Tom Dedeurwaerdere have …
The Evolution Of Interstate Arbitration And The Peaceful Resolution Of Transboundary Freshwater Disputes, Tamar Meshel
The Evolution Of Interstate Arbitration And The Peaceful Resolution Of Transboundary Freshwater Disputes, Tamar Meshel
Journal of Dispute Resolution
This Article sets out to examine the potential for arbitration to be effectively employed by states in the resolution of transboundary freshwater disputes. Part II will describe the unique nature of TFDs, briefly examine the international law principles governing such disputes as well as the main mechanisms used for their resolution, and evaluate their adequacy. Part III will suggest a new approach to interstate arbitration, intended to ‘revive’ it in the context of TFD resolution. The first element of this approach calls for a return to the original purpose and true nature of arbitration, which rather than constituting a purely …
An Innovative Matrix For Dispute Resolution: The Dubai World Tribunal And The Global Insolvency Crisis, Jayanth K. Krishnan, Harold Koster
An Innovative Matrix For Dispute Resolution: The Dubai World Tribunal And The Global Insolvency Crisis, Jayanth K. Krishnan, Harold Koster
Journal of Dispute Resolution
This study examines a legal experiment that occurred during the height of the global financial crisis. As markets from the United States to Europe to the Global South shook, one country – the United Arab Emirates (U.A.E.) – found itself on the brink of economic collapse. In particular, in 2009 the U.A.E.’s Emirate of Dubai (Emirate) was contemplating defaulting on $60 billion of debt it had amassed. Recognizing that such a default would have cataclysmic reverberations across the globe, Dubai’s governmental leaders turned to a small group of foreign lawyers, judges, accountants, and business consultants for assistance. Working in a …
Realizing Rationality: An Empirical Assessment Of International Commercial Mediation, S. I. Strong
Realizing Rationality: An Empirical Assessment Of International Commercial Mediation, S. I. Strong
Faculty Publications
For decades, parties, practitioners and policymakers have believed arbitration to be the best if not only realistic means of resolving cross-border business disputes. However, the hegemony of international commercial and investment arbitration is currently being challenged in light of rising concerns about increasing formalism in arbitration. As a result, the international community has sought to identify other ways of resolving these types of complex commercial matters, with mediation reflecting the most viable option. Numerous public and private entities have launched initiatives to encourage mediation in international commercial and investment disputes, and the United Nations Commission on International Trade Law (UNCITRAL) …
Clash Of Cultures: Epistemic Communities, Negotiation Theory, And International Lawmaking, S. I. Strong
Clash Of Cultures: Epistemic Communities, Negotiation Theory, And International Lawmaking, S. I. Strong
Faculty Publications
This Article seeks to illuminate a number of truths about the current deliberations at UNCITRAL by applying the concept of epistemic communities to the UNCITRAL negotiation process. This analysis will help various participants, including state delegates, inter-governmental organizations (IGOs), and non-governmental organizations (NGOs), appreciate the dynamics at issue in the treaty deliberations and thereby improve negotiation techniques and outcomes.' In particular, this Article considers how disparities between different epistemic communities involved in the UNCITRAL process could affect the shape and future of the proposed convention and whether the clash of cultures could prove fatal to the development of a new …
Understanding The Judicial Conference Committee On International Judicial Relations, Sam F. Halabi, Nanette K. Laughrey
Understanding The Judicial Conference Committee On International Judicial Relations, Sam F. Halabi, Nanette K. Laughrey
Faculty Publications
Since 1993, the Judicial Conference Committee on International Judicial Relations has coordinated outreach and exchange activities of the federal judiciary in support of rule-of-law initiatives. While the Federal Judicial Center has endeavored to publicize the Committee’s work, and members of the Committee have on occasion written and spoken about their work for the Committee, the scholarly treatment of the Committee remains sparse. What discussion does exist in the academic literature tends to depict the Committee in one of two ways. First, the Committee formed in response to the emergence of newly independent states after the 1991 Soviet collapse. Those states …
A New Framework For Assessing Clinical Data Transparency Initiatives, Erika Lietzan
A New Framework For Assessing Clinical Data Transparency Initiatives, Erika Lietzan
Faculty Publications
Biopharmaceutical companies submit vast amounts of clinical data and analysis to support approval of their medicines, expecting the information to be kept confidential, as has been the practice of regulators around the world for decades. Over the last ten years, however, pressure has been mounting for regulators or industry to release this information. Legal scholars have generally taken the view that no relevant doctrines or bodies of law preclude the release of this material and that public policy considerations compel its release. This article argues that the scholarship to date has overlooked key considerations: the special issues presented by operation …
Jerusalem In The Courts And On The Ground, Sam F. Halabi
Jerusalem In The Courts And On The Ground, Sam F. Halabi
Faculty Publications
This Article analyzes presidential speeches and the pleadings of the U.S. Government in response to a lawsuit by Jerusalem-born U.S. citizen Menachem Zivotofsky seeking to have "Israel" listed in his U.S. passport rather than "Jerusalem" as U.S. law now requires. The picture that emerges is one of a growing flexibility in U.S. policy toward Israel/Palestine in general and Jerusalem in particular. That flexibility moves away from adherence to two states (and impliedly two capitals in Jerusalem) to one emphasizing various "kinds" of democracy that may characterize a future Israeli state. Part I of this Article provides a brief summary of …
Beyond International Commercial Arbitration? The Promise Of International Commercial Mediation, S. I. Strong
Beyond International Commercial Arbitration? The Promise Of International Commercial Mediation, S. I. Strong
Faculty Publications
Although international commercial arbitration has long been the preferred means of resolving cross-border business disputes, the international corporate community has become increasingly concerned about increasing costs, delays and procedural formalities. As a result, parties are looking for other means of resolving cross-border business disputes. One of the more popular alternatives is mediation. Advocates of mediation extol its many benefits, including its ability to resolve disputes more quickly and with fewer costs and formalities than other alternatives. However, very little research exists on how mediation operates in the international commercial context. This Essay therefore considers whether and to what extent international …
Beyond The Self-Execution Analysis: Rationalizing Constitutional, Treaty And Statutory Interpretation In International Commercial Arbitration, S. I. Strong
Faculty Publications
International commercial arbitration has long been considered one of the paradigmatic forms of private international law and has achieved a degree of legitimacy that is virtually unparalleled in the international realm. However, significant questions have recently begun to arise about the device’s public international attributes, stemming largely from a circuit split regarding the nature of the New York Convention, the leading treaty in the field, and Chapter 2 of the Federal Arbitration Act, which helps give effect to the Convention in the United States. Efforts have been made to place the debate about the New York Convention within the context …
Discovery Under 28 U.S.C. §1782: Distinguishing International Commercial Arbitration And International Investment Arbitration, S. I. Strong
Discovery Under 28 U.S.C. §1782: Distinguishing International Commercial Arbitration And International Investment Arbitration, S. I. Strong
Faculty Publications
For many years, courts, commentators and counsel agreed that 28 U.S.C. §1782 – a somewhat extraordinary procedural device that allows U.S. courts to order discovery in the United States “for use in a proceeding in a foreign or international tribunal” – did not apply to disputes involving international arbitration. However, that presumption has come under challenge in recent years, particularly in the realm of investment arbitration, where the Chevron-Ecuador dispute has made Section 1782 requests a commonplace procedure. This Article takes a rigorous look at both the history and the future of Section 1782 in international arbitration, taking care to …
Constitutional Borrowing As Jurisprudential And Political Doctrine In Shri Dk Basu V. State Of West Bengal, Sam F. Halabi
Constitutional Borrowing As Jurisprudential And Political Doctrine In Shri Dk Basu V. State Of West Bengal, Sam F. Halabi
Faculty Publications
Under prevailing theories of comparative constitutional law, courts use foreign precedent in one of three ways: to identify “universal” principles of law applicable across jurisdictions; to sharpen understanding of domestic law through contrasting foreign judgments; and, in the case of legal systems with shared origins, to consider alternative jurisprudential paths. While the terminology differs, the concepts broadly hold across current theoretical treatments. Methodologically, these theories are built by analyzing certain foreign decisions, while scholars devote less effort in trying to test prevailing theories by applying theory to a court judgments outside those used to build their theories. In building a …
Cross-Border Collective Redress And Individual Participatory Rights: Quo Vadis?, S. I. Strong
Cross-Border Collective Redress And Individual Participatory Rights: Quo Vadis?, S. I. Strong
Faculty Publications
This article fills a critical gap in the commentary by undertaking a rights-based analysis of the various issues that arise in cases involving large-scale international litigation, focusing in particular on the Brussels I Regulation and what may be called ‘individual participatory rights’. In so doing, the discussion considers the nature and scope of individual participatory rights in collective litigation as well the ways in which these rights should be weighed and considered. Although the analysis is set in the context of European procedural law, this discussion is of equal relevance to parties outside the European Union, either because they will …
International Trademark Protection And Global Public Health: A Just-Compensation Regime For Expropriations And Regulatory Takings, Sam F. Halabi
International Trademark Protection And Global Public Health: A Just-Compensation Regime For Expropriations And Regulatory Takings, Sam F. Halabi
Faculty Publications
Lawmakers in developed and developing countries are expanding legal protections for trademarks – words, combinations of colors, signs, letters, numerals, figurative elements and designs meant to convey the origin and quality of firms’ goods or services. The purported rationales underlying trademark protection are promotion of competition and reduction of consumers’ information costs. Trademark law promotes competition by giving trademark holders an incentive to invest in the quality of goods or services and then associate that quality with a relatively easy-to-identify brand, mark or logo. The law punishes private actors who attempt to free-ride on the goodwill built by the trademark …
Navigating The Borders Between International Commercial Arbitration And U.S. Federal Courts: A Jurisprudential Gps, S. I. Strong
Navigating The Borders Between International Commercial Arbitration And U.S. Federal Courts: A Jurisprudential Gps, S. I. Strong
Faculty Publications
This article provides just that sort of guide, outlining the various ways in which U.S. federal courts can become involved in international commercial arbitration and introducing both basic and advanced concepts in a straightforward, practical manner. However, this article provides more than just an overview. Instead, it discusses relevant issues on a motion-by-motion basis, helping readers find immediate answers to their questions while also getting a picture of the field as a whole. Written especially for busy lawyers, this article gives practitioners, arbitrators and new and infrequent participants in international commercial arbitration a concise but comprehensive understanding of the unique …
Jurisdictional Discovery In Transnational Litigation: Extraterritorial Effects Of United States Federal Practice, S. I. Strong
Jurisdictional Discovery In Transnational Litigation: Extraterritorial Effects Of United States Federal Practice, S. I. Strong
Faculty Publications
This article describes the device in detail, distinguishing it both practically and theoretically from methods used in other common law systems to establish jurisdiction, and discusses how recent US Supreme Court precedent provides international actors with the means of limiting or avoiding this potentially burdensome procedure.
Participation And The Right To Health: Lessons From Indonesia, Sam F. Halabi
Participation And The Right To Health: Lessons From Indonesia, Sam F. Halabi
Faculty Publications
The right to participation is the “the right of rights” — the basic right of people to have a say in how decisions that affect their lives are made. All legally binding international human rights treaties explicitly recognize the essential role of participation in realizing fundamental human rights. While the substance of the human right to health has been extensively developed, the right to participation as one of its components has remained largely unexplored. Should rights-based health advocacy focus on participation because there is a relationship between an individual’s or a community’s active involvement in health care decision-making and the …
Research In International Commercial Arbitration: Special Skills, Special Sources, S. I. Strong
Research In International Commercial Arbitration: Special Skills, Special Sources, S. I. Strong
Faculty Publications
Experts agree that international commercial arbitration relies far more heavily on written advocacy than litigation does, yet very few practitioners and arbitrators have ever received any specialized training in how to research and present written arguments in this unique area of law. Newcomers to the field are particularly disadvantaged, since the legal authorities used in international commercial arbitration are unique and novices often do not know how to find certain materials, if they are even aware that these items exist. This article helps deepen the understanding of the practice of international commercial arbitration by describing how experienced international advocates and …
Enforcing Class Arbitration In The International Sphere: Due Process And Public Policy Concerns, S. I. Strong
Enforcing Class Arbitration In The International Sphere: Due Process And Public Policy Concerns, S. I. Strong
Faculty Publications
This article appears to be the first to address the unique issues relating to international class arbitration and to discuss the status of class arbitration in other countries. To date, the only published articles on class arbitration - a dispute resolution mechanism that has been in existence in the United States since the early 1980s - have focused on domestic arbitration. However, with a number of known international class arbitrations in progress, all seated in the United States, questions concerning the transnational legitimacy of the class arbitration process and the ability to enforce class awards under the New York Convention …