Law Commons^™

Anticipatory Deference: What Will Courts Decide And Not Decide Before Enforcing An Agreement To Arbitrate?, George A. Bermann

Faculty Scholarship

The question of deference in international arbitration usually arises when the issue before a decision-maker, be it a tribunal or a court, is one that has already been addressed and ruled upon by another decision-maker over an arbitration’s life-cycle. The salience of this question stems from the fact that international arbitration is a highly iterative and staged process over the course of which different actors are successively confronted with the same issue. This is particularly the case in regard to jurisdictional issues because the authority of a tribunal to entertain a dispute is potentially an issue at all stages.

But …

Status Report On Principles Of International And Human Rights Law Relevant To Climate Change, Katelyn Horne, Maria Antonia Tigre, Michael B. Gerrard

Faculty Scholarship

The report aims to provide high-level guidance on the legal issues to be analyzed by the ICJ on the advisory opinion request on climate change. The status report addresses (i) advisory proceedings before the ICJ, including the Court’s jurisdiction and procedure (Section II), and (ii) key legal principles relevant to the request for an advisory opinion, including principles of international environmental law and international human rights law (Section III). The report identified, in a non-exhaustive manner, key relevant principles of international environmental law, key relevant principles of international human rights law, and issues of intergenerational equities that apply to the …

Doctrinal Conflict In Foreign Investment Regulation In India: ​​Ntt Docomo Vs. Tata Sons And The Case For “Downside Protection”, M. P. Ram Mohan, Nobuhisa Ishizuka, Sidharth Sharma

Faculty Scholarship

The strategic importance of India as an investment destination for foreign investors is highlighted by ongoing tensions in the Indo-Pacific region and the recognition that a strong economic relationship with India is in the interests of countries seeking a more stable balance of power in the region. From a policy perspective, India has struggled to balance its own economic interests with the commercial requirements of investors. Rules attempting to strike this balance have created uncertainties that have resulted in investors seeking greater protections for their investments, which in turn have triggered additional regulatory responses that enforce India’s policy preferences. The …

Principles For Responsibility Sharing: Proximity, Culpability, Moral Accountability, And Capability, Michael W. Doyle, Janine Prantl, Mark J. Wood

Faculty Scholarship

In this Essay, we explore how responsibility based on culpability, moral accountability, and capability can improve the current regime that rests on responsibility by proximity. In doing so, we draw on the 2017 Model International Mobility Convention (MIMC), a model convention drafted by a commission of independent experts and currently supported as a project of the Carnegie Council for Ethics in International Affairs.

Floors And Ceilings In International Copyright Treaties: Berne/Trips/Wct Minima And Maxima, Jane C. Ginsburg

Faculty Scholarship

This paper addresses “floors” – minimum substantive international protections, and “ceilings” – maximum substantive international protections, set out in the Berne Convention and subsequent multilateral copyright accords. While much scholarship has addressed Berne minima, the “maxima” have generally received less attention. This Comment first describes the general structure of the Berne Convention, TRIPS and WCT regarding these contours, and then analyzes their application to the recent “press publishers’ right” promulgated in the 2019 EU Digital Single Market Directive. Within the universe of multilateral copyright obligations, the Berne maxima (prohibition of protection for facts and news of the day), buttressed by …

Annual Hudson Medal Discussion, Catherine Amirfar, Paul Reichler, Lori Fisler Damrosch, Bernard H. Oxman

Faculty Scholarship

Welcome everyone to the 2021 Hudson Medal Presentation. The Manley O. Hudson Medal, the Society’s highest honor, has been awarded since 1959 to a distinguished person of American or other nationality for outstanding contributions to scholarship and achievement in international law. The medal has been conferred on many luminaries, including Rosalyn Higgins, Tom Franck, Michael Reisman, Eli Lauterpacht, John Jackson, Bruno Simma, Peter Trooboff, and Stephen Breyer.

I would like to thank Paul Reichler, Larry Martin, and ASIL Law Firm Leadership Circle Partner Foley Hoag LLP, for sponsoring this program—their eighth year of continuous sponsorship.

Making America A Better Place For All: Sustainable Development Recommendations For The Biden Administration, John C. Dernbach, Scott E. Schang, Robert W. Adler, Karol Boudreaux, John Bouman, Claire Babineaux-Fontenot, Kimberly Brown, Mikhail Chester, Michael B. Gerrard, Stephen Herzenberg, Samuel Markolf, Corey Malone-Smolla, Jane Nelson, Uma Outka, Tony Pipa, Alexandra Phelan, Leroy Paddock, Jonathan D. Rosenbloom, William Snape, Anastasia Telesetsky, Gerald Torres, Elizabeth Ann Kronk Warner, Audra Wilson

Faculty Scholarship

In 2015, the United Nations Member States, including the United States, unanimously approved 17 Sustainable Development Goals (SDGs) to be achieved by 2030. The SDGs are nonbinding; each nation is to implement them based on its own priorities and circumstances. This Article argues that the SDGs are a critical normative framework the United States should use to improve human quality of life, freedom, and opportunity by integrating economic and social development with environmental protection. It collects the recommendations of 22 experts on steps that the Biden-Harris Administration should take now to advance each of the SDGs. It is part of …

After First Options: Delegation Run Amok, George A. Bermann

Faculty Scholarship

The proper allocation of authority between courts and arbitral tribunals over the enforceability of agreements to arbitrate has long occupied a central place in U.S. arbitration law, domestic and international alike. From U.S. Supreme Court case law over the years, there has emerged a reasonably well-understood distinction between those issues of enforceability that a court will address if asked by a party to do so and those that it will not. Fundamental to the Court’s jurisprudence is a recognition that some enforceability issues – “gateway issues” – so seriously implicate the consent of parties to arbitrate their disputes that a …

Should Human Rights Practice Be Rights-Based?, Sarah Knuckey, Margaret Satterthwaite

Faculty Scholarship

Human rights scholars and organizations often call on governments to adopt ‘human rights-based approaches’ (HRBAs) to many policy areas, from climate change to health policy. HRBAs identify rights and obligations, and advance the principles of participation, accountability, equality, and non-discrimination. This chapter argues that HRBAs have been exported to many fields without ever being sufficiently integrated within human rights advocacy. We find that NGOs often fail to adhere to foundational human rights principles in their own work, reproducing unjust power hierarchies, objectifying victims, and disempowering rights-holders. Were HRBAs adopted by more human rights organizations, the face of human rights advocacy …

Design Justice In Municipal Criminal Regulation, Amber Baylor

Faculty Scholarship

This article explores design justice as a framework for deeper inclusion in municipal criminal court reform. Section I provides a brief summary of a typical litigant’s path through modern municipal courts. Then, section I explores the historic role of municipal courts, the insider/outsider dichotomy of municipal criminal regulation, and the limitations of past reform efforts. Section II shifts into an overview of participatory design and discusses the new emergence of design justice. Within the discussion of design justice, the article focuses on three precepts of design justice: excavating the history and impact of the courts, creating tools for participation, and …

Removing Carbon Dioxide Through Ocean Alkalinity Enhancement And Seaweed Cultivation: Legal Challenges And Opportunities, Romany M. Webb, Korey Silverman-Roati, Michael B. Gerrard

Faculty Scholarship

This paper explores two ocean-based carbon dioxide removal strategies – ocean alkalinity enhancement and seaweed cultivation. Ocean alkalinity enhancement involves adding alkalinity to ocean waters, either by discharging alkaline rocks or through an electrochemical process, which increases ocean pH levels and thereby enables greater uptake of carbon dioxide, as well as reducing the adverse impacts of ocean acidification. Seaweed cultivation involves the growing of kelp and other macroalgae to store carbon in biomass, which can then either be used to replace more greenhouse gas-intensive products or sequestered.

This paper also examines the international and U.S. legal frameworks that apply to …

The Right To Mental Health In Yemen, Waleed Alhariri, Amanda Mcnally, Sarah Knuckey

Faculty Scholarship

Mental health issues are all too common consequences of conflict and atrocity crimes, often causing upwards of one-quarter of the post-conflict, post-atrocity population to suffer from physical and mental sequelae that linger long after weapons have been silenced. After more than six years of ongoing conflict, Yemen’s already weak health care system is on the brink of collapse, and population resilience has been severely stressed by indiscriminate attacks, airstrikes, torture, food insecurity, unemployment, cholera, and now the COVID-19 pandemic. This paper examines Yemen’s responsibilities regarding the right to mental health and details the few actions the government has taken to …

Regulating Antitrust Through Trade Agreements, Anu Bradford, Adam S. Chilton

Faculty Scholarship

Antitrust law is one of the most commonly deployed instruments of economic regulation around the world. To date, over 130 countries have adopted a domestic antitrust law. These countries comprise developed and developing nations alike, and combined produce over 95 percent of the world’s GDP. Most of the countries that have adopted an antitrust law have done so since 1990. This period of significant proliferation of antitrust laws also coincides with a notable expansion of international trade agreements, including the creation of the World Trade Organization (WTO) in 1995 and the negotiation of numerous bilateral and multilateral trade agreements. These …

International Law Association's Guidelines On Intellectual Property And Private International Law ("Kyoto Guidelines"): Applicable Law, Marie-Elodie Ancel, Nicolas Binctin, Josef Drexl, Mireille Van Eechoud, Jane C. Ginsburg, Toshiyuki Kono, Gyooho Lee, Rita Matulionyte, Edouard Treppoz, Dário Moura Vicente

Faculty Scholarship

The chapter “Applicable Law” of the International Law Association’s Guidelines on In­tellectual Property and Private International Law (“Kyoto Guidelines”) provides principles on the choice of law in international intellectual property matters. The Guidelines confirm the traditional principle of the lex loci protectionis for the existence, transferabil­ity, scope and infringement of intellectual property rights. The law applicable to the initial ownership of registered rights is governed by the lex loci protec­tionis whereas the law of the closest connection is applied to determine the ownership of copyright. For contracts, freedom of choice is acknowledged. With regard to ubiquitous or multi-state infringement and …

Principles Of International Law And The Adoption Of A Market-Based Mechanism For Greenhouse Gas Emissions From Shipping, Hillary Aidun, Daniel J. Metzger, Michael B. Gerrard

Faculty Scholarship

Emissions from shipping are a significant driver of human-induced climate change. International action to date has not succeeded in setting those emissions on a sustainable trajectory. The International Maritime Organization has committed to implementing an effective, international approach to tackle international shipping’s contribution to climate change.

This paper considers international law principles, exploring whether and how these principles may provide a basis for the IMO to address those contributions. The polluter pays principle, which counsels that whoever produces pollution should cover the costs their pollution imposes on others, is a doctrine of international law that offers strong support for the …

Legal Internalism In Modern Histories Of Copyright, Shyamkrishna Balganesh, Taisu Zhang

Faculty Scholarship

Legal internalism refers to the internal point of view that professional participants in a legal practice develop toward it. It represents a behavioral phenomenon wherein such participants treat the domain of law (or a subset of it) as normative, epistemologically self-contained, and logically coherent on its own terms regardless of whether the law actually embodies those characteristics. Thus understood, legal internalism remains an important characteristic of all modern legal systems. In this Review, we examine three recent interdisciplinary histories of copyright law to showcase the working of legal internalism. We argue that while their interdisciplinary emphasis adds to the conversation …

The Future Of International Commercial Arbitration, George A. Bermann

Faculty Scholarship

Although international commercial arbitration is not subject to as much criticism as investor-State arbitration, it is nonetheless facing challenges going forward. These challenges are several, and only some can be addressed in this chapter. Some relate to concerns that have been with international arbitration for a long time. These include costs, delay and excessive formality, as well as arbitrator neutrality. Others – arbitration ethics, diversity, and transparency – are not new, but are taking on greater urgency. Still others simply represent new developments more or less extrinsic to international arbitration but with which international arbitration must cope. Among these changes …

Costs Allocation In International Arbitration: What Normative Source, If Any?, George A. Bermann

Faculty Scholarship

Costs in arbitration is one of those many issues that arises constantly (at least in any arbitration that gets underway), but as to which there is by no means any universally accepted standard of judgment. It is also not particularly usual for parties to address the issue of costs directly in their arbitration agreement, or for the matter to be addressed in the law of arbitration of the seat. If the rules of arbitral procedure that the parties may have incorporated into their arbitration agreement address the matter, they may not do so in highly informative terms. The Rules of …

Stakeholder Preferences And Priorities For The Next Wto Director General, Matteo Fiorini, Bernard Hoekman, Petros C. Mavroidis, Douglas Nelson, Robert Wolfe

Faculty Scholarship

The WTO is looking for a new Director-General (DG). What does the trade community think is needed? This paper reports on the results of an expert survey undertaken as part of a research project on global trade governance at the European University Institute to solicit views on what WTO members and the international trade community consider the most important attributes of candidates for the position, as well as views on the substantive policy and institutional reform priorities confronting the WTO – and thus the new DG. The results suggest strong support for someone with managerial and political experience, and a …

Presidential Use Of Force In East Asia: American Constitutional Law And The U.S.-Japan Alliance, Matthew C. Waxman

Faculty Scholarship

The U.S. Constitution’s allocation of military authority has adapted over time to major shifts in American power and grand strategy. This paper explains, with a focus on U.S. military actions in East Asia and possible scenarios of special joint concern to the United States and Japan, that the president in practice wields tremendous power and discretion in using military force. Although formal, legal checks on the president’s use of force rarely come into play, Congress nevertheless retains some political power to influence presidential decision-making. The president’s powers are also constrained by interagency processes within the executive branch, and alliance relations …

Innovation Versus Encrustation: Agency Costs In Contract Reproduction, Stephen J. Choi, Mitu Gulati, Robert E. Scott

Faculty Scholarship

This article studies the impact of exogenous legal change on whether and how lawyers across four different deal types revise their contracts’ governing law clauses in order to solve the problem that the legal change created. The governing law clause is present in practically every contract across a wide range of industries and, in particular, it appears in deals as disparate as private equity M&A transactions and sovereign bond issuances. Properly drafted, the clause increases the ex ante economic value of the contract to both parties by reducing uncertainty and litigation risk. We posit that different levels of agency costs …

To Ab Or Not To Ab?: Dispute Settlement In Wto Reform, Bernard M. Hoekman, Petros C. Mavroidis

Faculty Scholarship

Recent debates on the operation of the WTO’s dispute resolution mechanism have focused primarily on the Appellate Body (AB). We argue that this neglects the first-order issue confronting the rules-based trading system: sustaining the principle of de-politicized conflict resolution that is reflected in the negative consensus rule for adoption of dispute settlement findings. Improving the quality of the work of panels by appointing a roster of full-time professional adjudicators, complemented by reforms to WTO working practices that reduce incentives to resort to formal dispute settlement, can resolve the main issues that led to the AB crisis. Effective, coherent, and consistent …

Preventing The Bad From Getting Worse: The End Of The World (Trade Organization) As We Know It?, Bernard Hoekman, Petros C. Mavroidis

Faculty Scholarship

Recent survey evidence and proposals made in long-running negotiations to improve WTO dispute settlement procedures illustrate that many stakeholders believe the system needs improvement. The Appellate Body crisis could have been avoided but for the use of consensus as WTO working practice. Resolving the crisis should prove possible because the matter mostly concerns a small number of more powerful WTO members. We make several proposals to revitalize the WTO appellate function but argue that unless the WTO becomes a locus for new rulemaking, re-establishing the appellate function will not prevent a steady decline in the salience of the organization. A …

Insulating A Wto Investment Facilitation Framework From Isds, George A. Bermann, N. Jansen Calamita, Manjiao Chi, Karl P. Sauvant

Faculty Scholarship

The authors identify several ways in which a WTO investment facilitation framework for development can be insulated from investor-state dispute settlement provisions in international investment agreements, and suggest specific formulations in this respect.

Minimum And Maximum Protection Under International Copyright Treaties, Jane C. Ginsburg

Faculty Scholarship

This Comment addresses minimum and maximum substantive international protections set out in the Berne Convention and subsequent multilateral copyright accords. While much scholarship has addressed Berne minima, the maxima have generally received less attention. It first discusses the general structure of the Berne Convention, TRIPS, and the WCT regarding these contours, and then analyzes their application to the recent “press publishers’ right” promulgated in the 2019 EU Digital Single Market Directive.

The Paradox Of Contracting In Markets, Robert E. Scott

Faculty Scholarship

Traditional economic analysis distinguishes economic organization along three dimensions: firm, contract, and market. This categorization is misleading in any number of respects, but none more so than the assumption that contract and market are separate modes of exchange. In fact, other than barter, which is almost unknown in contemporary commercial transactions, every market transaction is implemented by contract. Thus, in markets the two modes of exchange are inextricably combined. Moreover, the vast majority of contract activity occurs in some form of market, so it does not require much loss of generalization to say that not only are contracts in all …

Legitimate Interpretation – Or Legitimate Adjudication?, Thomas W. Merrill

Faculty Scholarship

Current debate about the legitimacy of lawmaking by courts focuses on what constitutes legitimate interpretation. The debate has reached an impasse in that originalism and textualism appear to have the stronger case as a matter of theory while living constitutionalism and dynamic interpretation provide much account of actual practice. This Article argues that if we refocus the debate by asking what constitutes legitimate adjudication, as determined by the social practice of the parties and their lawyers who take part in adjudication, it is possible to develop an account of legitimacy that produces a much better fit between theory and practice. …

Cyberattacks And The Constitution, Matthew C. Waxman

Faculty Scholarship

Contrary to popular view, cyberattacks alone are rarely exercises of constitutional war powers – and they might never be. They are often instead best understood as exercises of other powers pertaining to nonwar military, foreign affairs, intelligence, and foreign commerce, for example. Although this more fine-grained, fact-specific conception of cyberattacks leaves room for broad executive leeway in some contexts, it also contains a strong constitutional basis for legislative regulation of cyber operations.

Strengthening The U.S.-Japan Alliance: Pathways For Bridging Law And Policy, Columbia Law School, 2020, Nobuhisa Ishizuka, Masahiro Kurosaki, Matthew C. Waxman

Faculty Scholarship

During the three years leading up to this year ’s 60th anniversary of the signing of the 1960 U.S.-Japan Security Treaty, a series of workshops were held under the joint sponsorship of Columbia Law School’s Center for Japanese Legal Studies and the National Defense Academy of Japan’s Center for Global Security. Bringing together experts in international law and political science primarily from the United States and Japan, the workshops examined how differing approaches to use of force and understandings of individual and collective self-defense in the two countries might adversely affect their alliance.

The workshop participants explored the underlying causes …

Intellectual Property Law And Redressive Autonomy, Shyamkrishna Balganesh

Faculty Scholarship

Intellectual property law remains a body of private law, but for reasons that transcend its reliance on ideas and concepts from the common law of property and tort. This essay argues that the connection between forms of intellectual property law and private law is rooted in a form of autonomy that characterizes private law regimes — known as “redressive autonomy.” It shows how a strong commitment to redressive autonomy undergirds the unique right–duty structure of intellectual property, informs intellectual property’s central doctrines, and injects an additional layer of normative complexity into its functioning.