Law Commons^™

Reform Of Investor-State Dispute Settlement: Lessons From International Uniform Law, Joshua D H Karton

Joshua Karton

This article argues that significant improvements in the quality and consistency of decision-making in investor-state arbitration can be achieved without taking such drastic (and possibly unachievable) steps as creating a global appellate body or standing international investment court, or enacting a new treaty that codifies the substantive obligations of international investment law for all signatory states. The article draws on the experience of the international uniform law movement to suggest realistic and achievable steps that could nevertheless be effective.

Although investor-state arbitration and uniform law are not entirely analogous, they do share some important similarities. In particular, they share the …

International Arbitration Culture And Global Governance, Joshua Karton

Joshua Karton

Academics increasingly characterize international commercial arbitration (ICA) as a form of global governance. However, this literature rarely discusses why ICA should come to provide truly global governance, as opposed to being simply an atomized form of governance derivative of national court litigation — more neutral, more widely enforceable, perhaps faster and cheaper, but essentially the same adjudicative exercise in a different venue. For ICA to constitute global governance, as opposed to merely disconnected resolutions of individual cross-border disputes according to national laws, there are at least two prerequisites. First, legal rules must be formulated at the global level and apply …

Canadian Courts And Uniform Interpretation - An Empirical Reality Check, Joshua D H Karton, Samantha Wynne

Joshua Karton

The uniform interpretation of uniform law instruments is justifiably a preoccupation of the international uniform law community. However, despite the issue’s importance to the success of legal harmonisation efforts, remarkably little is known about how national courts actually interpret international uniform laws. The literature remains almost entirely anecdotal; no systematic study has been made of the courts of even one state or region to determine whether, as a group, they do or do not interpret international uniform law instruments with an eye to the international legal context.

This article describes an empirical study of Canadian courts’ interpretations of five representative …

International Commercial Arbitrators' Approaches To Contractual Interpretation, Joshua D H Karton

Joshua Karton

This article considers the available international arbitral awards that involve interpretation of a contract. It divides the awards according to the applicable substantive law, and concludes that international commercial arbitrators generally follow the interpretive rules prescribed by the laws of civil law jurisdictions, but sometimes depart from common law interpretive methods. When international arbitrators depart from the applicable law, or when they apply general principles of international law or act as amiables compositeurs, they tend to follow a civil law approach. They see discerning the true (subjective) common intention of the parties as the goal of contractual interpretation, and while …

Global Law: The Spontaneous, Gradual Emergence Of A New Legal Order, Joshua D H Karton

Joshua Karton

This article argues that the debate over whether international law can apply to non-state actors misses the point. The useful distinction is not between rules that regulate the obligations of states and those that regulate the obligations of non-state actors, but rather between rules that regulate the reciprocal obligations of states to each other (international laws) and rules that set global standards that must be obeyed by all entities, state and nonstate alike, regardless of national laws and boundaries. This latter category is the emerging phenomenon of global law. Global laws take varying forms, but they all seek to bind …

Conflict Of Interests: Seeking A Way Forward On Publication Of International Arbitral Awards, Joshua D H Karton

Joshua Karton

There now appears to be general agreement that greater publication of awards would benefit the international commercial arbitration system, yet most awards remain unpublished. This article explains the current state of affairs by reference to the conflict between party and systemic interests. Since international arbitration is a private, consent-based system, party interests in keeping awards confidential are likely to trump systemic interests in publishing them—even if those systemic interests align with the long-term interests of commercial parties generally.

The conflict of interests not only explains why confidentiality of international arbitral awards remains the rule, it also points the way to …

Can The Cisg Advisory Council Affect The Homeward Trend?, Joshua D H Karton, Lorraine De Germiny

Joshua Karton

The CISG is intended to serve as a uniform law for international sales. Like all conventions and uniform laws, it suffers from a practical weakness: there is little benefit in enacting uniform rules if they are applied inconsistently. A particular danger is posed by the so-called homeward trend—the tendency for national courts to be influenced by domestic laws and modes of legal reasoning. Since 2001, a group of scholars called the International Sales Convention Advisory Council (CISG-AC) has issued opinions on unsettled matters of CISG jurisprudence. A private initiative with no official status, the CISG-AC has nevertheless begun to garner …

Has The Cisg Advisory Council Come Of Age?, Joshua D H Karton, Lorraine De Germiny

Joshua Karton

No abstract provided.

Contract Law In International Commercial Arbitration: The Case Of Suspension Of Performance, Joshua D H Karton

Joshua Karton

Despite much attention to the controversial lex mercatoria, international commercial arbitration remains underanalysed as a venue for contract law unification. This article considers a specific case of substantive contract law in arbitration, the remedy of suspension of performance: When will one party’s nonperformance enable the other party to withhold performance without terminating the contract? In domestic laws, suspension of performance is governed by clearly-defined doctrines; however, it remains unclear whether it constitutes a general principle of international law. This article places suspension in a comparative context, then analyses the published arbitral awards for indications of arbitrators’ preferences.

Lost In Translation: International Criminal Courts And The Legal Implications Of Interpreted Testimony, Joshua D. H. Karton

Joshua Karton

When courtroom interpreters translate a witness's testimony, errors are not just possible, they are inherent to the process. Moreover, the occurrence of such errors is not merely a technical problem; errors can infringe on the rights of defendants or even lead to verdicts based on faulty findings of fact. International criminal proceedings, which are necessarily multilinguistic, are both particularly susceptible to interpretation errors and sensitive to questions of procedural fairness.

This Article surveys the history and mechanics of courtroom interpretation, explains the inherent indeterminacy of translated language, and describes the other sources of inaccuracy in interpreted testimony. It then assesses …