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- Articles in Law Reviews & Other Academic Journals (9)
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Articles 31 - 60 of 81
Full-Text Articles in Law
Rendering Arbitral Awards With Reasons: The Elaboration Of Common Law Of International Transactions, Thomas E. Carbonneau
Rendering Arbitral Awards With Reasons: The Elaboration Of Common Law Of International Transactions, Thomas E. Carbonneau
Thomas Carbonneau
With the growth of international trade, arbitration has emerged as the preferred remedy for resolving private international commercial disputes. In fact, among major Western legal systems such as those of England, the United States and France, statutory and decisional law developments indicate a nearly complete acceptance of international arbitral adjudication. This recognition of arbitral procedure and the enforcement of awards, which are given uniform legal recognition and enforcement by domestic legal systems, either as provisions in international conventions or as principles of national statutory or decisional law. These rules, in effect, represent an international consensus on arbitration and constitute a …
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 …
Foreign Investment In The People's Republic Of China: Compensation Trade, Joint Ventures, Industrial Property Protection And Dispute Settlement, Kevin K. Maher
Foreign Investment In The People's Republic Of China: Compensation Trade, Joint Ventures, Industrial Property Protection And Dispute Settlement, Kevin K. Maher
Georgia Journal of International & Comparative Law
No abstract provided.
Is The Albert H Kritzer Database Telling Us More Than We Know?, Thomas Neumann
Is The Albert H Kritzer Database Telling Us More Than We Know?, Thomas Neumann
Pace International Law Review
This article is the first in a series of articles attempting to provide a geographical and temporal overview of the application practice of the United Nations Convention on Contracts for the International Sale of Goods (CISG). In this first article, the success of CISG is explored. The article develops the idea of using the Albert H. Kritzer Database to achieve an overview of the success of the Convention in practice. It is argued that the success of the Convention is useful to measure by its uniformity in practice, and therefore a set of criteria relating to the Convention’s application by …
Valuation Standards For Calculating Icsid Awards, Jason Pan
Valuation Standards For Calculating Icsid Awards, Jason Pan
Pepperdine Dispute Resolution Law Journal
This article offers information on the history, development and significance of International Centre for Settlement of Investment Disputes (ICSID) and its approach to award valuation. It analyzes the challenges of implementing the International Valuation Standards Council (IVSC) valuation standards for calculation of awards during ICSID arbitrations for valuation of property.
Growing Pains And Coming-Of-Age: The State Of International Arbitration In India, Jory Canfield
Growing Pains And Coming-Of-Age: The State Of International Arbitration In India, Jory Canfield
Pepperdine Dispute Resolution Law Journal
The article offers information on the history, development and significance of international arbitration in India. It analyzes the decision of the Indian Supreme Court in the case of Bharat Aluminium Co. v. Kaiser Aluminium Technical Services Inc., which marks the era of major changes in Indian law regarding international arbitration. It mentions that development of Indian arbitration law enhances global standards and attitudes toward international dispute resolution in India.
Book Review, Anna Spain
The Politics Of International Arbitration And Adjudication, Stephen E. Gent
The Politics Of International Arbitration And Adjudication, Stephen E. Gent
Penn State Journal of Law & International Affairs
Arbitration and adjudication have proven to be effective means of producing long-lasting settlements on contentious issues, but states are generally reluctant to use such legal forms of dispute resolution, especially in resolving issues of national security. To understand when policymakers can and should promote the use of legal mechanisms, they need to understand the political reasons behind the reluctance of states to use these forums. This essay identifies five factors that significantly influence the willingness of states to relinquish decision control and pursue arbitration or adjudication: third-party bias, salience, uncertainty, bargaining power, and armed conflict. To promote the use of …
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.
The Protection Of Foreign Direct Investments In Developing And Emerging Markets Through The Instrumentality Of Arbitration: Fair Game?, Florence Shu-Acquaye
The Protection Of Foreign Direct Investments In Developing And Emerging Markets Through The Instrumentality Of Arbitration: Fair Game?, Florence Shu-Acquaye
Faculty Scholarship
Investment treaties have tripled in the twenty-first century with over 170 countries signing onto bilateral investment treaties (BITs). Most BITs are made between a developed and a developing country, whereby a host country promises to protect home country's foreign direct investment (FDI) in exchange for the prospect of increased capital in the future. Hence, BITs tend to reduce the expected risks to FDI in that they stabilize a host country's existing investment environment, as well as provide a substitute for weak domestic laws and institutions that are often ill-equipped to protect FDI.
Defining The Scope Of Indirect Expropriation For International Investments , Peter D. Isakoff
Defining The Scope Of Indirect Expropriation For International Investments , Peter D. Isakoff
Global Business Law Review
At present, arbitral tribunals have applied a variety of standards to ascertain when indirect expropriation occurs. This article examines the complexities and ambiguities of current indirect expropriation standards and argues that a clear, uniform standard is needed to identify indirect expropriation. Ultimately, this article proposes that arbitral tribunals should only find that indirect expropriation occurs when (i) a state takes actions that substantially deprive the foreign investor of the profitability of its investment, and (ii) the state action was not reasonably predictable to the investor. Part I of this article provides a summary of the current state of expropriation doctrine. …
Prospects For Satisfactory Dispute Resolution Of Private Commercial Disputes Under The North American Free Trade Agreement, Jonathan I. Miller
Prospects For Satisfactory Dispute Resolution Of Private Commercial Disputes Under The North American Free Trade Agreement, Jonathan I. Miller
Pepperdine Law Review
No abstract provided.
Pre-Hearing Techniques To Promote Speed And Cost-Effectiveness--Some Thoughts Concerning Arbitral Process Design , Jack J. Coe Jr.
Pre-Hearing Techniques To Promote Speed And Cost-Effectiveness--Some Thoughts Concerning Arbitral Process Design , Jack J. Coe Jr.
Pepperdine Dispute Resolution Law Journal
This essay considers factors and pre-hearing techniques that bear on international arbitration hearings by attempting to answer this question: "What can be done to promote speed and efficiency in the hearing process?" First, it offers general observations, including the goals and by-products of efficiency, issues related to defining terms and frames of reference, the flexibility of arbitration practice techniques, and the role of technology in arbitration proceedings. Then, it discusses specific factors that influence the expeditiousness of arbitration, especially the arbitration clause and its use to define critical elements of the proceedings, such as situs, number of arbitrators, and time …
The Boundaries Of Most Favored Nation Treatment In International Investment Law, Tony Cole
The Boundaries Of Most Favored Nation Treatment In International Investment Law, Tony Cole
Michigan Journal of International Law
Contemporary international investment law is characterized by fragmentation. Disputes are heard by a variety of tribunals, which often are constituted solely for the purpose of hearing a single claim. The law applicable in a dispute is usually found in a bilateral agreement, applicable only between the two states connected to the dispute, rather than in a multilateral treaty or customary international law. Moreover, the international investment community itself is profoundly divided on many issues of substantive law, meaning both that the interpretation given to international investment law by a tribunal will be determined largely by those who sit on it, …
The Alternative Forms Of Dispute Settlement And The Essential Difference Between These And Arbitration, Michael Diathesopoulos
The Alternative Forms Of Dispute Settlement And The Essential Difference Between These And Arbitration, Michael Diathesopoulos
Michael Diathesopoulos
The paper examines the characteristics of some common alternative forms of dispute settlement and their key differences from arbitration regarding their nature and scope. Its purpose is to explore each mechanism's suitability for specific types of disputes.
Mexico And The Settlement Of Investment Disputes: Icsid As The Recommended Option, Bernardo Sepúlveda
Mexico And The Settlement Of Investment Disputes: Icsid As The Recommended Option, Bernardo Sepúlveda
Pepperdine Dispute Resolution Law Journal
The changes that have taken place in arbitration conditions, the greater fairness in the arbitration process, and the increasingly stringent qualifications to be met by arbitrators, as well as contemporary economic realities, have been instrumental in causing Mexico's about-face on its approach to arbitration. Although in certain quarters doubts remain in Mexico as to the advantages of international arbitration, it would be ill advised to ignore a legal and political reality. In signing treaties that include an arbitration clause, Mexico has assumed rights and obligations. Politically speaking, a border has already been crossed. In the face of this indisputable fact, …
Looking Into A Crystal Ball: Courts' Inevitable Refusal To Enforce Parties' Contracts To Expand Judicial Review Of Non-Domestic Arbitral Awards, Eric Chafetz
Pepperdine Dispute Resolution Law Journal
This article will first discuss the legislative history of the NY Convention in general and the history of its vacatur provisions in particular. Second, it will summarize certain federal court decisions that address the Expansion Issues and reach the Consensus. Third, it will argue that the Expansion Issues were resolved incorrectly, because the courts addressing them do not recognize how the operative/material language in section 207 of Ch. 2 of the FAA and section 9 of Ch. 129 of the FAA has a virtually identical meaning, and therefore should have been construed and applied in the same manner. Fourth, this …
East Meets West: An International Dialogue On Mediation And Med-Arb In The United States And China, Thomas J. Stipanowich, Jung Yang, Jay Welsh, Chen Qiming, Peter Robinson, Tan Jinghui, Chen Guang, Jeff Kichaven, Denise Madigan, Wang Hongsong, Zhang Jianhua
East Meets West: An International Dialogue On Mediation And Med-Arb In The United States And China, Thomas J. Stipanowich, Jung Yang, Jay Welsh, Chen Qiming, Peter Robinson, Tan Jinghui, Chen Guang, Jeff Kichaven, Denise Madigan, Wang Hongsong, Zhang Jianhua
Pepperdine Dispute Resolution Law Journal
This Second Beijing Arbitration Commission (BAC)/Straus Institute for Dispute Resolution International Videoconference, following up on last year's successful inaugural program, will provide different perspectives on the current BAC initiative and evolving attitudes toward mediation and med-arb. Topics include: (1) the development and current state of business mediation in the U.S.; (2) the challenges and opportunities confronting China in developing stand-alone business mediation; (3) reflections on the skills necessary for mediators; (4) common pitfalls in mediation; (5) perspectives on med-arb (as opposed to stand-alone mediation); and (6) how to most effectively use mediation in conjunction with arbitration procedures.
What Constitutes An "Agreement In Writing" In International Commercial Arbitration? Conflicts Between The New York Convention And The Federal Arbitration Act, S. I. Strong
Faculty Publications
This article investigates whether and to what extent a party must produce an “agreement in writing” when seeking to enforce an international arbitration agreement or award in a U.S. federal court. This issue has recently given rise to both a circuit split and a petition for certiorari to the U.S. Supreme Court, and involves matters of formal validity as well as federal subject matter jurisdiction. The problem arises out of subtle differences in the way an “agreement in writing” is defined in the Federal Arbitration Act (FAA) and the 1958 United Nations Convention on the Recognition and Enforcement of Foreign …
Arbitration And Antitrust: Navigating The Contours Of Mandatory Law, Charles H. Brower Ii
Arbitration And Antitrust: Navigating The Contours Of Mandatory Law, Charles H. Brower Ii
Law Faculty Research Publications
No abstract provided.
Through The Looking Glass: Understanding Social Science Norms For Analyzing International Investment Law, Susan Franck, Calvin Garbin, Jenna Perkins
Through The Looking Glass: Understanding Social Science Norms For Analyzing International Investment Law, Susan Franck, Calvin Garbin, Jenna Perkins
Articles in Law Reviews & Other Academic Journals
When social science methods are being employed in a new context — such as the assessment of international investment law — there is value in exploring the underlying assumptions and normative baselines of the enterprise. This article and response address critiques about the methodology of an article in the Harvard International Law Journal by: (1) describing the value of social science in international investment law; (2) replicating the research using new methodologies to conduct more than 20 new tests that were still unable to ascertain the existence of a reliable relationship between development status and outcomes on the basis of …
The Icsid Effect? Considering Potential Variations In Arbitration Awards, Susan Franck
The Icsid Effect? Considering Potential Variations In Arbitration Awards, Susan Franck
Articles in Law Reviews & Other Academic Journals
The legitimacy of the World Bank's dispute resolution body - The International Centre for the Settlement of Investment Disputes (ICSID) - is a matter of heated debate. Some states have alleged that ICSID is biased, withdrawn from the ICSID Convention, and advocated creating alternative arbitration systems. Using pre-2007 archival data of the population of then- known arbitration awards, this Article quantitatively assesses whether ICSID arbitration awards were substantially different from arbitration awards rendered in other forums. The Article examines variation in the amounts claimed and outcomes reached to evaluate indicators of bias. The results indicated that there was no reliable …
Rationalizing Costs In Investment Treaty Arbitration, Susan Franck
Rationalizing Costs In Investment Treaty Arbitration, Susan Franck
Articles in Law Reviews & Other Academic Journals
International investment and related disputes are on the rise. With national courts generally unavailable and difficulties resolving disputes through diplomacy, investment treaties give investors a right to seek redress and arbitrate directly with states. The costs of these investment treaty arbitrations - including the costs of lawyers for both sides, as well as administrative and tribunal expenses - are arguably substantial. This Article offers empirical research indicating that even partial costs could represent more than 10% of an average award. The data suggested a lack of certainty about total costs, which parties had ultimate liability for costs, and the justification …
Enforcing International Insurers’ Expectations: Can States Unilaterally Quash Commercial Arbitration Agreements Under The Mccarran-Ferguson Act?, Mary Pennisi
Fordham Journal of Corporate & Financial Law
This Note examines the split in federal circuit courts created by Safety National Casualty Corp. on whether the MFA reverse-preempts the New York Convention and allows states to quash arbitration agreements in international insurance contracts.
Overview Of International Arbitration In The Intellectual Property Context, Kenneth R. Adamo
Overview Of International Arbitration In The Intellectual Property Context, Kenneth R. Adamo
Global Business Law Review
Resolving intellectual property rights (“IPR”) issues through alternative dispute resolution (“ADR”) proceedings was a technique long-developing in many major countries. Despite the earlier presence of the Arbitration Act in United States law, the subject of use of arbitration in IPR situations, especially regarding U.S. patents, remained an open and contested issue, until the original addition of 35 U.S.C. § 294 to the U.S. Patent Act in 1982. U.S. law is now resolved in the availability of IPR arbitration as an ADR tool, either through a “pre-problem” contract, such as a license, or as a “post-problem” mechanism elected and/or established by …
How Developing Countries Can Adapt Current Bilateral Investment Treaties To Provide Benefits To Their Domestic Economies, Joshua Boone
How Developing Countries Can Adapt Current Bilateral Investment Treaties To Provide Benefits To Their Domestic Economies, Joshua Boone
Global Business Law Review
Bilateral investment treaties (hereinafter "BIT") have been created with the goal of promoting economic prosperity through the facilitation of international investment flows. The idea was to facilitate these investment flows by the opening up of secure channels for foreign direct investment (hereinafter "FDI"), stabilizing the investment climate, granting protective investment guarantees, and providing neutral dispute mechanisms for "injured" investors. Since their inception in 1959, BITs have experienced a "massive and sudden proliferation . . . which has been . . . a 'remarkable' event in international law[,]" and as of the end of 2008, there were over 2,600 BITs in …
East Asia’S Engagement With Cosmopolitan Ideals Under Its Trade Treaty Dispute Provisions, Chin Leng Lim
East Asia’S Engagement With Cosmopolitan Ideals Under Its Trade Treaty Dispute Provisions, Chin Leng Lim
Chin Leng Lim
An East Asian view about how trade dispute settlement systems should be designed is slowly emerging. This paper argues that democratically-inspired trade law scholarship and cultural explanations of the international law behaviour of the Southeast and Northeast Asian trading nations have failed to capture or prescribe the actual treaty behaviour of these nations. Instead, such behaviour has resulted in the emergence of two different treaty models for the peaceful settlement of trade disputes. This article traces the practices of the Association of Southeast Asian Nations (ASEAN), together with that of China, Korea, Japan, Australia, and New Zealand. We find two …
Recent Private International Law Developments Before The Supreme Court Of Canada, Antonin I. Pribetic
Recent Private International Law Developments Before The Supreme Court Of Canada, Antonin I. Pribetic
Antonin I. Pribetic
A trilogy of interesting cases involving private international law recently wended their way to the Supreme Court of Canada: (1) King v. Drabinsky (an Ontario case addressing the applicability of the Charter in respect of the enforcement of a foreign judgment); (2) Teck Cominco Metals Ltd. v. Lloyd's Underwriters (a British Columbia case involving declaratory relief in the context of parallel proceedings and forum non conveniens); and (3) Yugraneft v. Rexx Management Corporation (an Alberta case which affirmed that the two-year limitation period under s.3 of Alberta's Limitations Act, governs when a party seeks the recognition and enforcement in Alberta …
Resolving The Softwood Lumber Dispute, Sarah E. Lysons
Resolving The Softwood Lumber Dispute, Sarah E. Lysons
Seattle University Law Review
This Comment argues that the London Court of International Arbitration will be able to resolve disputes involving softwood lumber but not resolve the softwood lumber dispute. Part II reviews the history of the dispute. Part III discusses the lessons that Canada and the United States have learned about resolving trade disputes, several of which are reflected in the current agreement. Part IV examines why, although the current agreement provides a degree of neutrality and finality to the dispute that prior regimes lacked, inherent political pressures will prove too large for even this agreement. Finally, Part V concludes that the dispute …
Bits, Ippas, Trips And Icsid: Justice For Some, Alphabet Soup For All, Christopher Wadlow
Bits, Ippas, Trips And Icsid: Justice For Some, Alphabet Soup For All, Christopher Wadlow
Christopher Wadlow
Examines the possibility that ICSID (the International Centre for Settlement of Investment Disputes) might be a more favourable forum than the WTO for private party complaints of violations of the TRIPs Agreement, if the state conduct alleged to violate TRIPs amounted to expropriation or breach of the principle of fair and equitable treatment.