Dispute Resolution and Arbitration Commons^™

Shifting From 'Consent' To Advice: Reimagining The Role Of The Senate In Foreign Affairs, Benjamin Dynkin

Cardozo Journal of Conflict Resolution

This Note will begin by discussing the JCPOA, its history and enactment, as well as some of the hostile responses to its procedural posture. The procedural posture in this case is that of a Congressional-Executive Agreement, and this Note will examine what that means, as well as other methods that our Nation has for implementing foreign policy, and the issues that those options present. It will then examine Article II, section 2 of the United States Constitution and the JCPOA, and the weaknesses in the procedure of its enactment, as well as identifying where progress can be made in the …

Rescuing The “Supreme Court” Of Sports: Reforming The Court Of Arbitration For Sport Arbitration Member Selection Procedures, Jennifer R. Bondulich

Brooklyn Journal of International Law

The international athletic community’s preference for arbitration over traditional domestic courts to settle disputes between individual athletes and their respective sports governing bodies has led to the development of an authority specializing in international sports dispute resolution—the Court of Arbitration for Sport (CAS). Originally created in 1984 by the International Olympic Committee (IOC) to hear Olympic disputes, CAS has developed into the exclusive arbitral body for international sports disputes, and clauses granting CAS exclusive authority are found in essentially all contracts between individual athletes and their respective athletic federation. Although, CAS functions as the “Supreme Court” of Sports and is …

Tpp Would Let Foreign Investors Bypass The Canadian Public Interest, Lisa E. Sachs, Lise Johnson

Columbia Center on Sustainable Investment Staff Publications

In early October, prime ministerial candidate Justin Trudeau promised Canadians “a full and open public debate” on the Trans-Pacific Partnership. With 30 chapters that would bind Canada to sweeping agreements on everything from services to intellectual property to the environment to procurement, there is much to debate.

Next Generation Treaty – India’S New Model Bit Makes It Clear That Its Goal Is To Accomplish More Than Investor Protection, Lisa E. Sachs, Lise Johnson, Sudhanshu Roy

Columbia Center on Sustainable Investment Staff Publications

The April release of India’s draft model bilateral investment treaty 1(BIT), which is expected to be approved by the cabinet soon, has generated a rich public debate on its international investment regime. There are important questions about the purpose and content of investment treaties, both in India and other countries. However, some reactions – like Augusts Law Commission report suggesting that the model BIT was not sufficiently investor-friendly – frame the discussion too narrowly, ignoring key questions and objectives behind India’s transitioning investment policy regime.

The Tpp’S Investment Chapter: Entrenching, Rather Than Reforming, A Flawed System, Lise Johnson, Lisa E. Sachs

Columbia Center on Sustainable Investment Staff Publications

During the negotiations of the Trans-Pacific Partnership (TPP) agreement, many stakeholders raised strong concerns about the Investment Chapter of the TPP, and in particular, the investor-state dispute settlement mechanism (ISDS). The US Trade Representative (USTR) and other representatives of the negotiating partners assured the stakeholders that the TPP’s investment chapter would respond to the legitimate concerns about expansive investor protections and ISDS. The actual text, however, when made public, showed the opposite: a further evisceration of the role of domestic policy, institutions, and constituents. In their current form, the TPP’s substantive investment protections and ISDS pose significant potential costs to …

Reasoned Awards In International Commercial Arbitration: Embracing And Exceeding The Common Law-Civil Law Dichotomy, S. I. Strong

Michigan Journal of International Law

Unlike many types of domestic arbitration where unreasoned awards (often called “standard awards”) are the norm, international commercial arbitration routinely requires arbitrators to produce fully reasoned awards. However, very little information exists as to what constitutes a reasoned award in the international commercial context or how to write such an award. This lacuna is extremely problematic given the ever-increasing number of international commercial arbitrations that arise every year and the significant individual and societal costs that can result from a badly written award. Although this Article is aimed primarily at specialists in international commercial arbitration, the material is also useful …

‘Pro Enforcement Bias’ Under Article V Of The New York Convention In International Commercial Arbitration: Comparative Overview, Fifi -. Junita -

Indonesia Law Review

This article explores the main features of exceptions to enforcement under Article V of the NYC, including its exhaustive and discretionary natures. It then specifically provides an overview of narrow judicial control over the grounds for refusing enforcement under the Article V of the NYC. It points out the fundamental principles of the provision in determining the enforceability of international arbitral awards. Then this article will occasionally refer to international arbitral cases in some jurisdictions, such as the United States, France and Switzerland. It is noted that courts and legislatures in those jurisdictions have moved towards pro-enforcement policy to questions …

Gravitating Toward Sensible Resolutions: The Pca Optional Rules For The Arbitration Of Disputes Relating To Outer Space Activity, Caroline Arbaugh

Georgia Journal of International & Comparative Law

No abstract provided.

Vimar Segurosy Reaseguros V. M/V Sky Reefer: A Change In Course: Cogsa Does Not Invalidate Foreign Arbitration Clauses In Maritime, C. Christine Fahrenback

Akron Law Review

The purpose of this Note is to analyze the Supreme Court's reasoning in Vimar Seguros Y Reaseguros, S.A. v. M/V Sky Reefer, and to explore the case's domestic and international implications. Part II discusses the statutory history of COGSA and the Arbitration Act, and the lineage of cases preceding the Supreme Court's decision in this case. Part III looks at the specifics of the case, presenting the facts, procedural history, and reasoning of the majority and dissent. Finally, the Note concludes with an analysis of the Court's decision to abandon precedent and depart into uncharted waters by upholding the foreign …

The Investigation Procedures Of The United Nations Office Of Internal Oversight Services And The Rights Of The United Nations Staff Member: An Analysis Of The United Nations Judicial Tribunals’ Judgments On Disciplinary Cases In The United Nations, Tamara A. Shockley

Pace International Law Review

An employee of an international organization misappropriates over one million dollars from a United Nations Peace-Keeping Mission’s designated for procurement of supplies. As a staff member of an international organization, he or she has functional immunity and cannot be investigated by the local jurisdiction or by authorities in his home country. Is this the “perfect crime”? Taking into consideration that these misappropriated funds are contributions from Member States of the United Nations, is there any recourse to investigate the facts of the incident to determine culpability?

International organizations have a legal obligation to ensure compliance with internal regulations, rules and …

Slides: The Columbia River Treaty, Barbara Cosens

Innovations in Managing Western Water: New Approaches for Balancing Environmental, Social and Economic Outcomes (Martz Summer Conference, June 11-12)

Presenter: Barbara Cosens, Professor, University of Idaho College of Law and Waters of the West Graduate Program

22 slides

Agenda: Innovations In Managing Western Water: New Approaches For Balancing Environmental, Social, And Economic Outcomes, University Of Colorado Boulder. Getches-Wilkinson Center For Natural Resources, Energy, And The Environment

Innovations in Managing Western Water: New Approaches for Balancing Environmental, Social and Economic Outcomes (Martz Summer Conference, June 11-12)

Many aspects of western water allocation and management are the product of independent and uncoordinated actions, several occurring a century or more ago. However, in this modern era of water scarcity, it is increasingly acknowledged that more coordinated and deliberate decision-making is necessary for effectively balancing environmental, social, and economic objectives. In recent years, a variety of forums, processes, and tools have emerged to better manage the connections between regions, sectors, and publics linked by shared water systems. In this event, we explore the cutting edge efforts, the latest points of contention, and the opportunities for further progress.

Preclusion Of Remedies Under Article 16(3) Of The Uncitral Model Law, Nata Ghibradze

Pace International Law Review

In search of actual consequences of (mis)use of the available remedies, Chapter II of the foregoing article starts by exploring whether the Model Law implies “choice of remedies” policy by examining its travaux préparatoires (hereinafter “travaux”). It also seeks to determine existence of “alternative system of defences” at cross-border level between remedies at the seat of arbitration and in the enforcement country. Chapter III engages in a determination of general framework of preclusions under the Model Law by analyzing specific provisions such as Article 4, 13 and 16(2).

Chapter IV, by analyzing the travaux, determines the primary purpose of the …

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 …

Criminal Responsibility For Arbitrators In Chinese Law: Perversion Of Law In Commercial Arbitration, Duan Xiaosong

Pace International Law Review

This article is prompted by a recent Chinese criminal provision governing the impartiality of arbitration. The goals of the article fare to critically examine the new criminal statute created by the provision and to put forward some proposals for reform, which could be employed to resolve the tension that exists between arbitrator impartiality and deference to arbitration. Although the new provision appears to eliminate the abuse of arbitral power, it may raise more questions than it resolves. This article explores the problems and undertakes a comparative analysis of the corresponding U.S. provision, as well as an analysis of some cultural …

International Arbitration: Demographics, Precision And Justice, Susan Franck, James Freda, Kellen Lavin, Tobias A. Lehmann, Anne Van Aaken

Contributions to Books

ICCA Congress Series No. 18 comprises the proceedings of the twenty-second Congress of the International Council for Commercial Arbitration (ICCA), held in Miami in 2014. The articles by leading arbitration practitioners and scholars from around the world address the challenges, both perceived and real, to the legitimacy of international arbitration.

The volume focusses on the twin pillars of legitimacy: justice, in procedure and outcome, and precision at every phase of the proceedings. Contributions on justice explore issues related to diversity, fairness and whether arbitral institutions can do more to foster legitimacy – based on the responses of nine international arbitral …

Investor-State Dispute Settlement, Public Interest And U.S. Domestic Law, Lise Johnson, Lisa E. Sachs, Jeffrey D. Sachs

Columbia Center on Sustainable Investment Staff Publications

As negotiations are ongoing in the Trans-Pacific Partnership (TPP) and the Trans-Atlantic Trade and Investment Partnership Agreement (TTIP), CCSI staff and Jeffrey Sachs discuss the implications of investor-state dispute settlement (ISDS) for domestic law and policy, focusing on effects within the US. The paper concludes that the risks ISDS poses for domestic law are significant and unjustified, and that there are preferable policy alternatives to pursue as a means of protecting the rights of investors operating overseas.

Not So Fast, Jeffrey D. Sachs, Lisa E. Sachs, Lise Johnson

Columbia Center on Sustainable Investment Staff Publications

President Barack Obama and the Republican leadership in Congress are trying to pass "fast track" legislation in order to push through major economic agreements with eleven countries of the Pacific region (the Trans-Pacific Partnership) and Europe (the Trans-Atlantic Trade and Investment Partnership) without the possibility for Congressional amendments. Both are being sold generally as "trade agreements," yet they involve key areas of business law and regulation far beyond trade. Before Congress approves fast track, these agreements need to be made public and exposed to thorough public scrutiny.

Parliamentary Diplomacy And The North-South Dialogue, Noel Lateef

Georgia Journal of International & Comparative Law

No abstract provided.

The Role Of International And Regional Organizations In The Peaceful Settlement Of Internal Disputes (With Special Emphasis On The Organization Of African Unity), His Excellency Radha Krishna Ramphul

Georgia Journal of International & Comparative Law

No abstract provided.

Eyes Wide Shut On Isds, Lisa E. Sachs, Lise Johnson

Columbia Center on Sustainable Investment Staff Publications

Recent agreement among congressional leaders on a “fast-track” bill may have been a victory for the Obama administration’s trade agenda. However, members of congress should take a look at the recent Bilcon case, decided by a NAFTA tribunal, to understand what they are signing up for.

Enforcement Of Foreign Arbitral Awards - The United Nations Convention On The Recognition And Enforcement Of Foreign Arbitral Awards, Susan P. Brown

Georgia Journal of International & Comparative Law

No abstract provided.

The Transfer Of Technology And Unclos Iii, Douglas Yarn

Georgia Journal of International & Comparative Law

No abstract provided.

Maritime Boundary Dispute Settlement: The Nonemergence Of Guiding Principles, Marvin A. Fentress

Georgia Journal of International & Comparative Law

No abstract provided.

The New Law Of Treaties: The Codification Of The Law Of Treaties Concluded Between States And International Organizations Or Between Two Or More International Organizations, Neri Sybesma-Knol

Georgia Journal of International & Comparative Law

No abstract provided.

Settlement Of Disputes In Gatt Under The Subsidies Code: Two Panel Reports On E.E.C. Export Subsidies, Massimo Coccia

Georgia Journal of International & Comparative Law

No abstract provided.

Chernobyl's Legal Fallout - The Convention On Early Notification Of A Nuclear Accident, Sharon Mcbrayer

Georgia Journal of International & Comparative Law

No abstract provided.

The Conundrum Of Wto Accession Protocols: In Search Of Legality And Legitimacy, Julia Ya Qin

Law Faculty Research Publications

Accession to the World Trade Organization differs from that of other international organizations in one major aspect: the WTO may prescribe more stringent rules for acceded members, depending on the result of individual accession negotiations. These country-specific rules are set out in the protocols of accession and now form a significant part of WTO law. However, questions concerning the legality and legitimacy of such rules remain to be answered. The accession protocols effectively modify the provisions of the WTO multilateral trade agreements, but the legal basis for so doing has never been properly explained and the relationship between the accession …

Dispute Resolution Clauses In International Sponsored Research Contracts, Dennis Lazarev

Cardozo Journal of Conflict Resolution

Pharmaceutical companies are the greatest non-governmental sponsors of biomedical research in academia. Increasingly they sponsor foreign entities, typically universities or non-commercial research institutions. Another type of cross-border sponsorship occurs when two research institutions engage in a collaborative research effort. In either case disputes may arise. The most common types of disputes are the rights to the intellectual property developed in the course of sponsored research, and the scope of research activities that an agreement covers. Parties to these cross-border sponsorship arrangements have rarely incorporated dispute resolution clause in their contracts. This Article will argue that arbitrationis an approach far superior …

"Commercial Peacemaking"-The New Role Of The International Commercial Arbitration Legal Order, Tamar Meshel

Cardozo Journal of Conflict Resolution

International commercial arbitration (ICA) has risen to prominence over the past several decades as the most efficient and effective mechanism for resolving cross-border disputes between commercial entities, and has long been considered by the international business community as "the normal means of settling disputes arising from international transactions." ICA offers disputing parties an accessible, neutral, and private mechanism that is distinct from any specific national legal system; a "kind of social jurisdiction, opposed to State jurisdiction." It has thus been considered by some to constitute a specialized international regime, a form of "transnational" or "global" governance, or an autonomous legal …