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Full-Text Articles in Law
The Thoughtful Integration Of Mediation Into Bilateral Investment Treaty Arbitration, Nancy A. Welsh, Andrea Kupfer Schneider
The Thoughtful Integration Of Mediation Into Bilateral Investment Treaty Arbitration, Nancy A. Welsh, Andrea Kupfer Schneider
Faculty Scholarship
While the current system of investment treaty arbitration has definitely improved upon the “gunboat diplomacy” used at times to address disputes between states and foreign investors, there are signs that reform is needed: states and investors increasingly express concerns regarding the costs associated with the arbitration process, some states refuse to comply with arbitral awards, other states hesitate to sign new bilateral investment treaties, and citizens have begun to engage in popular unrest at the prospect of investment treaty arbitration. As a result, both investors and states are advocating for the use of mediation to supplement investor-state arbitration. This Article …
Beyond The Self-Execution Analysis: Rationalizing Constitutional, Treaty And Statutory Interpretation In International Commercial Arbitration, S. I. Strong
Faculty Publications
International commercial arbitration has long been considered one of the paradigmatic forms of private international law and has achieved a degree of legitimacy that is virtually unparalleled in the international realm. However, significant questions have recently begun to arise about the device’s public international attributes, stemming largely from a circuit split regarding the nature of the New York Convention, the leading treaty in the field, and Chapter 2 of the Federal Arbitration Act, which helps give effect to the Convention in the United States. Efforts have been made to place the debate about the New York Convention within the context …
Discovery Under 28 U.S.C. §1782: Distinguishing International Commercial Arbitration And International Investment Arbitration, S. I. Strong
Discovery Under 28 U.S.C. §1782: Distinguishing International Commercial Arbitration And International Investment Arbitration, S. I. Strong
Faculty Publications
For many years, courts, commentators and counsel agreed that 28 U.S.C. §1782 – a somewhat extraordinary procedural device that allows U.S. courts to order discovery in the United States “for use in a proceeding in a foreign or international tribunal” – did not apply to disputes involving international arbitration. However, that presumption has come under challenge in recent years, particularly in the realm of investment arbitration, where the Chevron-Ecuador dispute has made Section 1782 requests a commonplace procedure. This Article takes a rigorous look at both the history and the future of Section 1782 in international arbitration, taking care to …
The History Of International Adjudication, Mary O'Connell, Lenore Vanderzee
The History Of International Adjudication, Mary O'Connell, Lenore Vanderzee
Book Chapters
This chapter on the history of international adjudication will show that courts and tribunals have been part of international law since the emergence of modern international law with the rise of the state system in the mid-seventeenth century. Courts and their role within international law have also been a persistent part of the theoretical debates about the nature of international law. From an early emphasis on arbitration, support grew for the creation of courts with general compulsory jurisdiction. By the late twentieth century, the theoretical trend shifted toward interest in courts with special subject matter jurisdiction, including human rights, trade, …
The Restatement Of The U.S. Law Of International Commercial Arbitration: An Interim Report, George A. Bermann
The Restatement Of The U.S. Law Of International Commercial Arbitration: An Interim Report, George A. Bermann
Faculty Scholarship
Despite its title, the American Law Institute's Restatement (Third) of the U.S. Law of International Arbitration is the ALI's first Restatement ever on the subject of international commercial arbitration. The ALI commissioned this Restatement not merely because the subject has become so important in international commerce, but because the American law on the subject is deeply unsettled. After all, the purpose of Restatements is to bring clarity and coherence and, where necessary, improvement to the law. Historically, Restatements have concentrated on state rather than federal law subjects precisely because of the discrepancies among the laws of the several states on …