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Articles 1 - 30 of 38
Full-Text Articles in Law
Against Imperial Arbitrators: The Brilliance Of Canada's New Model Investment Treaty, Charles H. Brower Ii
Against Imperial Arbitrators: The Brilliance Of Canada's New Model Investment Treaty, Charles H. Brower Ii
FIU Law Review
Investment treaty arbitration has become politically “toxic” even in states that pioneered the development of investment treaties. There is consensus on the need for reform. But there is a dearth of historical research on what went wrong with investment treaties, when it happened, or how to find the way forward in light of the past. As a result, reform efforts have a stumbling quality. One can see this in multilateral fora, such as the United Nations Commission on International Trade Law (UNCITRAL), where over four years of study and negotiations have produced little consensus. One can also see it in …
Much Dispute About Nothing? A Critical Examination Of The Backlash Against Investment Treaty Arbitration In International Intellectual Property Disputes, Andy Taylor
Cybaris®
No abstract provided.
Uncitral's Working Group Iii Discussion On Dispute Prevention, Judith Knieper
Uncitral's Working Group Iii Discussion On Dispute Prevention, Judith Knieper
University of St. Thomas Law Journal
No abstract provided.
Bargaining In The Shadow Of Investor-State Mediation: How The Threat Of Mediation Will Improve Parties' Conflict Management, Andrea Kupfer Schneider, Nancy A. Welsh
Bargaining In The Shadow Of Investor-State Mediation: How The Threat Of Mediation Will Improve Parties' Conflict Management, Andrea Kupfer Schneider, Nancy A. Welsh
University of St. Thomas Law Journal
No abstract provided.
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 …
Houston, We Have An Arbitration: International Arbitration’S Role In Resolving Commercial Aerospace Disputes, Carson W. Bennett
Houston, We Have An Arbitration: International Arbitration’S Role In Resolving Commercial Aerospace Disputes, Carson W. Bennett
Pepperdine Dispute Resolution Law Journal
This article explores the complimentary nature between the burgeoning private aerospace industry and international arbitration, as well as detailing how it could be advantageous to resolve these aerospace disputes in California. Part II outlines the new space race. It begins with the Ansari XPrize and follows some of the industry’s most significant developments. Part III explores the benefits of arbitration and how the characteristics of international arbitral proceedings cater to the common concerns of aerospace companies. Part IV catalogues the initiatives arbitral institutions have taken to customize an arbitration for aerospace disputes. This article argues that a specialized institution could …
The Applicability Of Economic Sanctions To The Merits In International Arbitration Proceedings: With A Focus On The Dynamics Between Public International Law Principles, Private International Law Rules And International Arbitration Theories, Taejoon Ahn
Pepperdine Dispute Resolution Law Journal
No abstract provided.
A Case Of Motivated Cultural Cognition: China's Normative Arbitration Of International Business Disputes, Pat K. Chew
A Case Of Motivated Cultural Cognition: China's Normative Arbitration Of International Business Disputes, Pat K. Chew
Articles
The centuries-old conception of judges and arbitrators as highly predictable and objective is being dismantled. In its place, a much more textured, complicated, and challenging understanding of legal decision-making is being constructed. New research on “Motivated Cognition” demonstrates that judges and arbitrators are more human than mechanical, pouring themselves – and the cultural and institutional contexts within which they act – into their decision making. This article extends the emerging model of Motivated Cultural Cognition, a form of Motivated Cognition, to the global stage, investigating arbitration of business disputes between two world-powers: United States and China. Through a first-of-its-kind empirical …
Soft Law And Transnational Standards In Arbitration: The Challenge Of Res Judicata, William W. Park
Soft Law And Transnational Standards In Arbitration: The Challenge Of Res Judicata, William W. Park
Faculty Scholarship
In international proceedings, a transnational “soft law” often finds expression in rules, guidelines and canons of professional associations which serve to supplement the “hard law” of national statutes and court decisions. Memorializing the experience of those who sit as arbitrators or serve as counsel, such standards contain a degree of circularity, in that relevant norms both derive from and apply to cross-border arbitration. Neither the nature nor the limits of “soft law” always present themselves with clarity. Often the litigants’ agreement fails to provide standards on controverted questions whose answers fall beyond common practice. In such instances, the integrity of …
Arbitration And Fine Dining: Two Faces Of Efficiency, William W. Park
Arbitration And Fine Dining: Two Faces Of Efficiency, William W. Park
Faculty Scholarship
A restaurant meal might turn into disappointment either when good food arrives late, or when prompt service delivers bad food. The chef cannot become preoccupied with any one aspect of fine dining to the exclusion of others. Likewise, arbitral proceedings implicate proportionality and balance among a multitude of factors which can make the experience good or bad. Several elements play key roles in evaluating any arbitration, namely: accuracy, fairness, cost, speed, and award enforceability. An inevitable tension exists among these goals. Decisions reached quickly and cheaply will do few favors if the award gets it wrong on the substantive merits. …
Opening The Red Door To Chinese Arbitrations: An Empirical Analysis Of Cietac Cases (1990-2000), Pat K. Chew
Opening The Red Door To Chinese Arbitrations: An Empirical Analysis Of Cietac Cases (1990-2000), Pat K. Chew
Articles
This article reveals evidence-based details of the China International Economic and Trade Arbitration Commission (CIETAC) arbitral proceedings (1990-2000), allowing unprecedented insights into Chinese international business arbitration. It begins by confirming the prominence of Chinese foreign trade and foreign investment in the global economy and CIETAC’s critical role in securing that prominence. Among other results, the empirical study of CIETAC awards finds: (i) the parties were of diverse nationalities, most commonly with disputes between a Chinese party and a foreign party; and (ii) the majority of cases were sales and trade disputes, although a sizable number were investment/joint venture disputes. Regarding …
Predicting Outcomes In Investment Treaty Arbitration, Susan Franck
Predicting Outcomes In Investment Treaty Arbitration, Susan Franck
Articles in Law Reviews & Other Academic Journals
Crafting appropriate dispute settlement processes is challenging for any conflict-management system, particularly for politically sensitive international economic law disputes. As the United States negotiates investment treaties with Asian and European countries, the terms of dispute settlement have become contentious. There is a vigorous debate about whether investment treaty arbitration (ITA) is an appropriate dispute settlement mechanism. While some sing the praises of ITA, others offer a spirited critique. Some critics claim that ITA is biased against states, while others suggest ITA is predictable but unfair due to factors like arbitrator identity or venue. Using data from 159 final cases derived …
International Arbitration Rules And Their Effect On The Merits Of Energy Sector Disputes, Brian Abbas
International Arbitration Rules And Their Effect On The Merits Of Energy Sector Disputes, Brian Abbas
Brian Abbas
International Arbitration Rules and Their Effect on the Merits of Energy Sector Disputes Many countries around the world rely on the energy sector for industry, national security, mobility, economy, and countless other benefits. The importance of the energy sector makes disputes likely and necessitates dispute resolution mechanisms. Through International Investment Agreements (IIAs), arbitration has become an integral part of the dispute resolution process in international energy sector disputes. Thus, understanding the arbitration rules and how choosing one set of rules can affect the outcome of an international energy sector dispute becomes an important task. The most prevalent arbitration rules are …
How Urgent Shall An Emergency Be. The Standards Required To Grant Urgent Relief By Emergency Arbitrators, Edgardo Muñoz
How Urgent Shall An Emergency Be. The Standards Required To Grant Urgent Relief By Emergency Arbitrators, Edgardo Muñoz
Edgardo Muñoz
In recent years, many arbitration institutions have adopted so-called ‘emergency relief rules’. These rules allow parties to request an ‘emergency arbitrator’ to issue interim measures before the arbitral tribunal is constituted. The author submits that while emergency arbitrators might apply the same substantive requirements that arbitral tribunals apply for granting interim relief, the standard required to meet each substantive requirement shall be different. In addition, the author explores the power of emergency arbitrators to grant urgent relief ex parte and a particular fact scenario where emergency arbitrators will add imminent value to the process of arbitration.
A Fair Fight: Professional Guidelines In International Arbitration, William W. Park
A Fair Fight: Professional Guidelines In International Arbitration, William W. Park
Faculty Scholarship
Depending on context and content, a regulatory framework can either help or hinder efforts to enhance aggregate social and economic welfare. Lively debate has arisen with respect to the net effects of two recent sets of directives for lawyer comportment in cross-border arbitration: the guidelines adopted by the International Bar Association and the new arbitration rules promulgated by the London Court of International Arbitration. Each instrument aims to promote a more level playing field on matters where legal cultures differ, such as document production and counsel independence. Each has caused thoughtful commentators to question the need and the merits of …
Keynote Address: Arbitration And The Freedom To Associate, Gary B. Born
Keynote Address: Arbitration And The Freedom To Associate, Gary B. Born
Georgia Journal of International & Comparative Law
No abstract provided.
Preserving Negotiation Whilst Promoting Global Order: Should We Bargain With Salt-Water Devils?, Lucas Bento
Preserving Negotiation Whilst Promoting Global Order: Should We Bargain With Salt-Water Devils?, Lucas Bento
Lucas Bento
This Article utilizes theories of negotiation to assess whether negotiating with pirates is sound policy, and argues for a solution that maximizes the interests of all stakeholders without compromising important policy-based considerations.
Stayin’ Alive?: Bg Group, Plc V. Republic Of Argentina And The Vitality Of Host-Country Litigation Requirements In Investment Treaty Arbitration, Stephen R. Halpin Iii
Stayin’ Alive?: Bg Group, Plc V. Republic Of Argentina And The Vitality Of Host-Country Litigation Requirements In Investment Treaty Arbitration, Stephen R. Halpin Iii
Washington and Lee Law Review
No abstract provided.
Using Investor-State Mediation Rules To Promote Conflict Management, Susan Franck
Using Investor-State Mediation Rules To Promote Conflict Management, Susan Franck
Articles in Law Reviews & Other Academic Journals
International investment treaties offer critical infrastructure for globalization and are one of the backbones of larger dialogues related to the international political economy. As the treaties grant substantive and procedural rights, the capacity of international investors to directly access dispute resolution involving States has been a story of both success and discontent. Investment treaty arbitration, in particular, has been a source of polarization; and stakeholders are actively seeking alternatives to formalized adjudication before ad hoc tribunals. Mediation, in addition to other forms of alternative dispute resolution and conflict management, has become an increasingly vital part of the debate about the …
Soft Law And The Principle Of Fair And Equitable Decisionmaking In International Contract Arbitration, Larry Dimatteo
Soft Law And The Principle Of Fair And Equitable Decisionmaking In International Contract Arbitration, Larry Dimatteo
Larry A DiMatteo
This article provides a survey of the special relationship between international commercial arbitration and soft law instruments. It briefly traces the historical roots of the lex mercatoria to its present enunciation in the Convention on Contracts for the International Sale of Goods (CISG) and the UNIDROIT Principles of International Commercial Contracts. It discusses the characteristic of the hardness and softness of laws in an international commercial law context. The CISG is studied not only as a hard law, but also as an example of soft law. The affinity between soft law and international commercial arbitration is explored, as well as …
Time To Join The “Bit Club”? Promoting And Protecting Brazilian Investments Abroad, Lucas Bento
Time To Join The “Bit Club”? Promoting And Protecting Brazilian Investments Abroad, Lucas Bento
Lucas Bento
The growing internationalization of Brazilian organizations calls for a greater array of investment protections available to them, particularly as they weave through an increasingly competitive and uncertain global economy. This article argues that the Brazilian government should consider ratifying BITs so as to provide greater protections to its own – domestic – investors.
The Legitimacy Crisis In Investment Treaty Arbitration: Privatizing Public International Law Through Inconsistent Decisions, Susan D. Franck
The Legitimacy Crisis In Investment Treaty Arbitration: Privatizing Public International Law Through Inconsistent Decisions, Susan D. Franck
Susan D. Franck
No abstract provided.
Monismo Y Dualismo De Las Leyes De Arbitraje: ¿Son Todas Ellas Dualistas?, Xavier Favre-Bulle, Edgardo Muñoz
Monismo Y Dualismo De Las Leyes De Arbitraje: ¿Son Todas Ellas Dualistas?, Xavier Favre-Bulle, Edgardo Muñoz
Edgardo Muñoz
Un arbitraje puede ser interno o internacional. La distinción comúnmente funda en la existencia de elementos relacionados con más de una jurisdicción nacional. En algunos sistemas legales, un solo conjunto de disposiciones gobierna todo arbitraje independientemente de su naturaleza interna o internacional. En otros, el carácter interno o internacional de un arbitraje trae consigo la aplicación de dos conjuntos de disposiciones distintos. Dichos cuerpos legales podrían abordar de manera distinta cuestiones relacionadas, por ejemplo, con el tipo de controversias y entes que pueden someterse al arbitraje, los requisitos del convenio arbitral, el control que ejercen los tribunales estatales sobre el …
Desarrollos En Materia De Medidas Provisionales En Arbitrajes Internacionales Con Sede En Suiza, Miguel Oural, Edgardo Muñoz
Desarrollos En Materia De Medidas Provisionales En Arbitrajes Internacionales Con Sede En Suiza, Miguel Oural, Edgardo Muñoz
Edgardo Muñoz
En este artículo se analizan los desarrollos jurídicos y prácticos de las medidas provisionales realizadas en los arbitrajes con sede en Suiza, así como la sentencia del Tribunal Federal Suizo del 13 de abril de 2010, la entrada en vigor del Código Federal de Enjuiciamiento Civil y la versión revisada del Reglamento Suizo de Arbitraje Internacional que entró a regir a partir de junio de 2012.
The 2012 Swiss Rules Of International Arbitration More Efficiency And Effectiveness Of Arbitration Proceedings, Miguel Oural, Edgardo Muñoz
The 2012 Swiss Rules Of International Arbitration More Efficiency And Effectiveness Of Arbitration Proceedings, Miguel Oural, Edgardo Muñoz
Edgardo Muñoz
This article discusses the main changes brought by the 2012 revision of the Swiss Rules made as a response to the evolution of arbitration practice. As a result, a profound analysis concerning the main novelties of the new Swiss Rules of International Arbitration, which make the latter a successful attempt to respond to the concrete needs of the business community, is provided
Trips And Bits: An Essay On Compulsory Licenses, Expropriation, And International Arbitration, Peter B. Rutledge
Trips And Bits: An Essay On Compulsory Licenses, Expropriation, And International Arbitration, Peter B. Rutledge
Scholarly Works
This essay examines the potential for arbitration to resolve disputes between private companies and developing countries over the propriety of compulsory licenses. At bottom, my thesis is that arbitration supplies the medium through which to mediate the tension between the profit-seeking goals of private multinational companies and the development goals of foreign nations, especially in the developing world. The compulsory license debate raises a clash of fundamental interests between the patent holder, the patent holder’s state, and the host state. Arbitration can play an important role in balancing those interests, albeit a highly unusual one. Arbitration provides an essential forum …
Independence And Impartiality Of Arbitrators, Swiss Federal Court. J. October 29th, 2010, Edgardo Muñoz, Gustavo Moser
Independence And Impartiality Of Arbitrators, Swiss Federal Court. J. October 29th, 2010, Edgardo Muñoz, Gustavo Moser
Edgardo Muñoz
The parties to an arbitration give arbitrators considerable discretion to design the proceedings and decide on their dispute. Arbitrators hence are expected to develop and implement the framework that ensures equal treatment and fair awards. As arbitrators play so significant a role in the settlement of disputes, their independence and impartiality are of paramount importance to achieve their expected undertaking
Rescuing The International Arbitral Model: Identifying The Problem In Natural Resources Trade And Development, Jacob R. Shaffer
Rescuing The International Arbitral Model: Identifying The Problem In Natural Resources Trade And Development, Jacob R. Shaffer
West Virginia Law Review
No abstract provided.
Rectitude In International Arbitration, William W. Park
Rectitude In International Arbitration, William W. Park
Faculty Scholarship
Few criteria for evaluating arbitrator independence and impartiality will stay foolproof for long, given how ingenious fools often prove themselves to be. No less than in other areas of the law, elaboration of ethical standards for arbitrators implicates a tension between the transient and the permanent. Conflict-of-interest principles remain most useful if implemented with sensitivity to new trouble spots. Traditional ethical models serve as starting points for evaluating the fitness of those to whom business managers and nations entrust their treasure and their welfare. The constant evolution in expectations by users of the arbitral system call for regular adjustment in …
"Competence-Competence And Separability-American Style", Published As Chapter 8 In International Arbitration And International Commercial Law: Synergy, Convergence And Evolution, Jack M. Graves, Yelena Davydan
"Competence-Competence And Separability-American Style", Published As Chapter 8 In International Arbitration And International Commercial Law: Synergy, Convergence And Evolution, Jack M. Graves, Yelena Davydan
Scholarly Works
No abstract provided.