Law Commons^™

The Uncitral Model Law At The Us State Level, George A. Bermann

Faculty Scholarship

The arbitration law of the United States remains, regrettably, the Federal Arbitration Act (FAA), enacted in 1925 and essentially unchanged. Despite its age, it has been significantly amended only once, in order to transpose into law the New York and Panama Conventions. Otherwise, it reads just as it did when enacted almost a century ago. Given its age and the remarkable developments in the law of arbitration over past decades, the FAA unsurprisingly fails to address a very large number of issues that have arisen in arbitral proceedings and judicial decisions on arbitration in the many intervening years. Even the …

Third Party Funding Of Investment Arbitration, Maya Steinitz

Faculty Scholarship

This Essay discusses Third-Party Funding in Investment Arbitration. It describes the rise of third-party funding of investment arbitration; the debate over the definition of litigation/arbitration finance; the forms arbitration finance takes; the normative debate in favor and against third-party funding of investment arbitration; the effects of arbitration funding on the arbitral process; developments in national, international, and soft law governing investment arbitration funding; and the likely effects of third-party funding on the international bar.

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 …

Wto Dispute Settlement: Can We Go Back Again?, Rachel Brewster

Faculty Scholarship

The world's twenty-year experiment with a rule-based international trading order is most likely ending. Trade wars are raging again for the first time in two decades as World Trade Organization (WTO) members unilaterally impose and counterimpose sanctions. In Geneva, the WTO Appellate Body, whose existence is essential to the functioning of the WTO Dispute Settlement Understanding (DSU), is on a trajectory to shut down in December 2020. For all the fireworks, however, many commentators retain an optimism that the recent events will be a passing phase and that the world will return to a more law-oriented trading system after the …

A Reply To "Hollow Spaces", George A. Bermann, Jack J. Coe Jr., Christopher R. Drahozal, Catherine A. Rogers

Faculty Scholarship

This short essay responds to Chip Brower's thoughtful and meticulous critique of Tentative Draft No. 2 of the Restatement Third of the U.S. Law of International Commercial Arbitration. While we appreciate the concerns he raises, we disagree with the conclusions he draws both about the Restatement and the drafting process. We address here what we understand to be Professor Brower's major criticisms of the work.

The "Gateway" Problem In International Commercial Arbitration, George A. Bermann

Faculty Scholarship

Participants in international commercial arbitration have long recognized the need to maintain arbitration as an effective and therefore attractive alternative to litigation, while still ensuring that its use is predicated on the consent of the parties and that the resulting awards command respect. A priori, at least, all participants – parties, counsel, arbitrators, arbitral institutions – have an interest in ensuring that arbitration delivers the various advantages associated with it, notably speed, economy, informality, technical expertise, and avoidance of national fora, while producing awards that withstand judicial challenge and otherwise enjoy legitimacy.

National courts play a potentially important policing role …

'Domesticating' The New York Convention: The Impact Of The Federal Arbitration Act, George A. Bermann

Faculty Scholarship

Much as one may try to universalize and even ‘de-nationalize’ international commercial arbitration – whether through Conventions, uniform or model laws or soft law – the phenomenon remains profoundly affected by national law and policy. That is indeed very much one of the leitmotifs of this book.

The incongruities – big and small – between domestic and international arbitration regimes typically present themselves on a purely ad hoc basis; that is to say, in specific and often isolated contexts, as when a particular case in a national court produces a result that looks anomalous from the point of view of …