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Full-Text Articles in Law
International Arbitration And Attorney-Client Privilege — A Conflict Of Laws Approach, Susan Franck
International Arbitration And Attorney-Client Privilege — A Conflict Of Laws Approach, Susan Franck
Articles in Law Reviews & Other Academic Journals
Privilege determinations in international arbitration are currently the equivalent of the “wild west,” with minimal predictability and massive pockets of tribunal discretion. Yet protecting privilege in international arbitration — when the same document or communications with lawyers that is protected by United States law may receive no protection under another law — is fundamental to safeguarding attorney-client relationships within a global environment, incentivizing procedural integrity of dispute resolution, and ensuring that justice is done. As it is not clear what law applies to privilege and client confidentiality (let alone how the law is determine), this Essay begins to bridge the …
International Arbitration - Between Myth And Reality: The 9th John E.C. Brierly Memorial Lecture, Susan Franck
International Arbitration - Between Myth And Reality: The 9th John E.C. Brierly Memorial Lecture, Susan Franck
Articles in Law Reviews & Other Academic Journals
The first woman to deliver the John E.C. Brierly Memorial Lecture in November 2016, Susan Franck explores common but flawed accounts of international arbitration based on anecdotes and myths while encouraging the audience to pay more attention to scientific facts. While acknowledging the challenges of living in a “post-factual” society, she argues that international arbitration, whether commercial or investment-based, is caught within a larger geo-political maelstrom which includes a backlash against globalization, the popularization of populism, and a turn toward nationalism. Rather than permitting decisions to be affected by an emotive torrent of intuitive forces that facilitate decisions based upon …
Inside The Arbitrator's Mind, Susan Franck
Inside The Arbitrator's Mind, Susan Franck
Articles in Law Reviews & Other Academic Journals
Arbitrators are lead actors in global dispute resolution. They are to global dispute resolution what judges are to domestic dispute resolution. Despite its global significance, arbitral decision making is a black box. This Article is the first to use original experimental research to explore how international arbitrators decide cases. We find that arbitrators often make intuitive and impressionistic decisions, rather than fully deliberative decisions. We also find evidence that casts doubt on the conventional wisdom that arbitrators render “split the baby” decisions. Although direct comparisons are difficult, we find that arbitrators generally perform at least as well as, but never …
The Investment-Related Aspects Of Intellectual Property Rights, Peter K. Yu
The Investment-Related Aspects Of Intellectual Property Rights, Peter K. Yu
American University Law Review
No abstract provided.
The Diversity Challenge: Exploring The 'Invisible College' Of International Arbitration, Susan Franck
The Diversity Challenge: Exploring The 'Invisible College' Of International Arbitration, Susan Franck
Articles in Law Reviews & Other Academic Journals
As diversity can affect the perceived legitimacy of a state’s dispute resolution system and the quality of judicial decisions, diversity levels in the national bench and bar have been an area of transnational concern. By contrast, little is known about diversity of adjudicators and counsel in international arbitration. With a lack of accurate, complete, and publicly available data about international arbitrators and practitioners, speculation about membership in the “invisible college” of international arbitration abounds. Using data from a survey of attendees at the prestigious and elite biennial Congress of the International Council for Commercial Arbitration permitted one glimpse into the …
Conflating Politics And Development? Examining Investment Treaty Arbitration Outcomes, Susan Franck
Conflating Politics And Development? Examining Investment Treaty Arbitration Outcomes, Susan Franck
Articles in Law Reviews & Other Academic Journals
International dispute settlement is an area of ongoing evaluation and tension within the international political economy. As states continue their negotiations for the Trans-Pacific Partnership (TPP) and the Transatlantic Trade and Investment Partnership (TTIP), the efficacy of international arbitration as a method of dispute settlement remains controversial. Whereas some sing its praises as a method of protecting private property interests against improper government interference, others decry investment treaty arbitration (ITA) as biased against states. The literature has thus far not disentangled how politics and development contribute to investment dispute outcomes. In an effort to control for the effect of internal …