Dispute Resolution and Arbitration Commons^™

Pricing Compliance: When Formal Remedies Displace Reputational Sanctions, Rachel Brewster

Faculty Scholarship

The conventional wisdom in international law is that dispute resolution institutions sharpen the reputational costs to states. This article challenges this understanding by examining how the inclusion of dispute resolution tribunals and remedy regimes can alter reputational analysis by shifting the audience¹s understanding of how mandatory a treaty's substantive obligations are. Drawing on the distinction between prices and sanctions, this article contests the assumption that the introduction of a remedy regime in international agreements will regularly increase compliance with the treaty¹s substantive terms. Instead, some remedy regimes may 'price' deviations from the treaty¹s terms and thereby facilitate breaches of the …

The Politics Of International Investment Arbitrators, Catherine A. Rogers

Faculty Scholarship

Arbitrators are the lightning rod for investment arbitration’s most contentious political debates. Investment arbitration was originally conceived as a means to depoliticize international investment law. The regime was designed to extricate investment disputes from national courts and gunboat diplomacy, entrusting them instead to a neutral law-bound process. According to its critics, however, investment arbitration is neither a neutral, nor a legitimate law-bound process. They lay most of the blame with international arbitrators. Critics contend that, instead of law and appropriate policy considerations, investment arbitrators’ decisions are often the product of extra-legal factors — from their own ideology, to the nature …

The U.N. Security Council's Duty To Decide, Anna Spain

Publications

When faced with a global crisis within the scope of its mandate, the United Nations Security Council (UNSC or Council) has no obligation to decide whether or not to take action. This Article argues that it should. The UNSC is the only governing body with the legal authority to authorize binding measures necessary to restore peace and security, yet neither the United Nations Charter nor the UNSC's own rules clarify the extent of its obligations. Unlike courts, the UNSC lacks a procedural rule establishing that it has a duty to decide. Unlike the United States Congress, which accepts its practical …

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 …

Cross-Border Insolvency Problems: Is The Uncitral Model Law The Answer?, S. Chandra Mohan

Research Collection Yong Pung How School Of Law

This paper examines the impact that the UNCITRAL Model Law on Cross-border Insolvency has had on States in the light of the central problems often associated with transnational insolvencies. Despite the accolades that it has received, the Model Law has been adopted in only 19 countries in the last 15 years and that too in many different ways. If the number of adoptees and the rather conditional acceptance of the Model Law’s provisions represent a lack of international enthusiasm for adopting the Model Law, what are the reasons for this? The paper concludes by asking whether the UNCITRAL Model Law …

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.

The 2012 Us Model Bit And What The Changes (Or Lack Thereof) Suggest About Future Investment Treaties, Lise Johnson

Columbia Center on Sustainable Investment Staff Publications

In April of this year the US State Department released a new version of its model bilateral investment treaty (BIT). This text, like the various models the US has used over roughly the past 3 decades, represents the US’s basic policy position when it starts negotiations on investment treaties with other countries, and is therefore an important benchmark for the outcome US investors might hope for as a result of ongoing and potential future talks with countries such as China, Russia, and India. Overall, this new model text follows the approach taken by the US in its investment treaties over …

67. International Investment Arbitration: Winning, Losing And Why, Susan Franck, Karl P. Sauvant, Jennifer Reimer, Todd Allee, Ilan Alon, Alice H. Amsden, Tadahiro Asami, Reuven S. Avi-Yonah, Paul Barbour, Christian Bellak, Axel Berger, Sjoerd Beugelsdijk, Subrata Bhattacharjee, Harry G. Broadman, Elizabeth Broomfield, Gert Bruche, Matthias Busse, John A. Cantwell, Aleh Cherp, Lorenzo Cotula, Nandita Dasgupta, Kenneth Davies, Alexandre De Gramont, Armand Claude De Mestral, Kabir Duggal, Persephone Economou, John Evans, David N. Fagan, Mark Feldman, Hermann Ferré, Daniel M. Firger, Veljko Fotak, Kevin P. Gallagher, Nilgun Gokgur, Kathryn Gordon, Jose Guimon, Thilo Hanemann, Torfinn Harding, Jean-François Hennart, Seev Hirsch, Wing (Xiaoying) Huo, Beata Smarzynska Javorcik, Nathan M. Jensen, Lise Johnson, Thomas Jost, George Kahale Iii, Kalman Kalotay, Laza Kekic, John M. Kline, Charles Kovacs, Jürgen Kurtz, Jo En Low, Miguel PéRez LudeñA, Edmund J. Malesky, Geraldine Mcallister, William L. Megginson, Sophie Meunier, Michael Mortimore, Joel Moser, Michael D. Nolan, Peter Nunnenkamp, Terutomo Ozawa, Clint Peinhardt, Nicolás M. Perrone, Luke Eric Peterson, Mark Plotkin, Joachim Pohl, Lauge N. Skovgaard Poulsen, Carlos Razo, Daniel Rosen, Martin Roy, Giorgio Sacerdoti, Premila Nazareth Satyanand, Manfred Schekulin, Stephan W. Schill, Francisco Colman Sercovich, Arjen Hl Slangen, Roger Smeets, Hans Smit, M. Sornarajah, Frederic G. Sourgens, Jonathan Strauss, Kenneth P. Thomas, Margo Thomas, Perrine Toledano, Julien Topal, Anne Van Aaken, Gus Van Harten, Daniel Villar, Sandy Walker, Mira Wilkins, Jason W. Yackee, Chen Zhao

Contributions to Books

This second edition of this publication provides an overview of important contemporary issues relating to foreign direct investment (FDI) and multinational enterprises for all those who are interested in this subject, but are not always in a position to follow diverse perspectives and what is being written in the various corners of this field. The contributions are grouped under the following headings: attracting FDI and its impact; the rise of emerging market investors; national policies; sustainable international investment; and international investment treaties and arbitration. The volume brings together all Perspectives published since the inception of this series until 2012.

Book Review: The Public International Law Regime Governing International Investment, By Jose E. Alvarez, The Hague: Hague Academy Of International Law, Susan Franck

Book Reviews

Jose Alverez's recent book, The Public International Law Regime Governing International Investment, places international investment law firmly within the rubric of public international law. Historically, international investment law might have been classified as pure private international law given the private commercial actors and investment activities involved. Alvarez posits that a dichotomous public versus private law paradigm does not work in the context of international investment and makes the implicit explicit by considering investment law’s unique, arguably sui generis, hybrid essence that crosses the public and private international law divides. This book review explores Alvarez's primary thesis and his extended exposition …

Inching Towards Consensus: An Update On The Uncitral Transparency Negotiations, Lise Johnson

Columbia Center on Sustainable Investment Staff Publications

From October 1-5, 2012, a working group of the United Nations Commission on International Trade Law (UNCITRAL) met in Vienna to continue work on how to ensure transparency in treaty-based investor-state arbitration. It was the working group’s fifth week-long meeting on the topic, but will not be the last. Although some issues were settled, many very significant ones remain contentious, and will be picked up again by the working group when it meets in February 2013.

Introduction & Coda, Multi-Party Dispute Resolution, Democracy And Decision Making: Vol. Ii Of Complex Dispute Resolution, Carrie Menkel-Meadow

Georgetown Law Faculty Publications and Other Works

The Complex Dispute Resolution series collects essays on the development of foundational dispute resolution theory and practice and its application to increasingly more complex settings of conflicts in the world, including multi-party and multi-issue decision making, negotiations in political policy formation and governance, and international conflict resolution. Each volume contains an original introduction by the editor, which explores the key issues in the field. All three volumes feature essays which span an interdisciplinary range of fields, law, political science, game theory, decision science, economics, social and cognitive psychology, sociology and anthropology and consider issues in the uses of informal and …

Leveraging The Mining Industry’S Energy Demand To Improve Host Countries’ Power Infrastructure, Perrine Toledano

Columbia Center on Sustainable Investment Staff Publications

The initial phase of the Leveraging Mining-Related Infrastructure Investments for Development project consisted of a worldwide survey of regulatory, commercial and operating case studies of shared use of mining-related infrastructure. This Policy Paper delivers the findings for power infrastructure.

A Defense Of Dissents In Investment Arbitration, Pedro J. Martinez-Fraga, Harout Jack Samra

University of Miami Inter-American Law Review

No abstract provided.

The Applicability Of Arbitration In The Americas: An Avant-Garde Approach To The Panama Convention, Elizabeth A. Briggs

University of Miami Inter-American Law Review

No abstract provided.

Background Paper For Second Workshop On Contract Negotiation Support For Developing Host Countries, Vale Columbia Center On Sustainable International Investment, Humboldt-Viadrina School Of Governance

Columbia Center on Sustainable Investment Staff Publications

The Columbia Center on Sustainable Investment (CCSI) and the Humboldt-Viadrina School of Governance (HSVG) have initiated a process to discuss the desirability and feasibility of mechanisms to provide negotiation support for developing host countries in their negotiations with major investors.

At a first workshop held in October 2011, participants agreed on the need for an expansion of support for developing countries in their contract negotiations.

A second workshop was held at Columbia University in July 2012 that undertook a gap analysis between the existing sources of support for developing countries in relation to complex contracts and the countries’ needs for …

Forums For International Economic Adjudication: Threads In Fragments, Francis N. Botchway

Cardozo Journal of International and Comparative Law

The article challenges the notion of fragmentation in international law, arguing that the proliferation of international adjudicatory bodies, such as the ICJ, WTO DSB, and ECJ, does not lead to fragmentation but instead fosters integration and coherence in international jurisprudence. It highlights the alignment of procedures, shared sources of law, and interpretative approaches among these bodies, demonstrating that institutional diversity enhances efficiency and enriches international law rather than causing discord. The article emphasizes the role of these institutions in addressing complex legal issues, ensuring legal certainty, and promoting transparency and inclusivity in global dispute resolution.

Trips And Bits: An Essay On Compulsory Licenses, Expropriation, And International Arbitration, Peter B. Rutledge

Scholarly Works

This essay examines the potential for arbitration to resolve disputes between private companies and developing countries over the propriety of compulsory licenses. At bottom, my thesis is that arbitration supplies the medium through which to mediate the tension between the profit-seeking goals of private multinational companies and the development goals of foreign nations, especially in the developing world. The compulsory license debate raises a clash of fundamental interests between the patent holder, the patent holder’s state, and the host state. Arbitration can play an important role in balancing those interests, albeit a highly unusual one. Arbitration provides an essential forum …

Leveraging Extractive Industry Infrastructure Investments For Broad Economic Development: Regulatory, Commercial And Operational Models For Railways And Ports, Perrine Toledano

Columbia Center on Sustainable Investment Staff Publications

The initial phase of the Leveraging Mining-Related Infrastructure Investments for Development project consisted of a worldwide survey of regulatory, commercial and operating case studies of shared use of mining-related infrastructure. This Policy Paper delivers the findings for mineral railways and ports.

Managing Expectations: Beyond Formal Adjudication, Susan Franck

Scholarly Articles in Law Reviews & Journals

The international investment system has depended heavily on international arbitration to provide guidance and clarification on the standards contained in international investment agreements. In order to assess the system realistically, this commentary discusses unpacking stakeholder expectations by recognizing where expectations may have been overly optimistic and thinking systematically about the mechanisms through which to capture and manage regulatory discretion. This article evaluates ideas expressed by Anne van Aaken and Bart Legum, which consider different ways to achieve regulatory and commercial balance, and offers a lens for thinking systematically about managing stakeholder expectations in the international investment system. A critical issue …

The Federal Mediation And Conciliation Service: A Partner In International Conflict Prevention, Andrea Strimling

Pepperdine Dispute Resolution Law Journal

The Federal Mediation and Conciliation Service ("FMCS"), an independent agency of the U.S. government with over a half-century of conflict management and institutional-development experience, is a valuable resource in U.S. efforts to prevent armed conflict and build the foundations for lasting security in the U.S. and around the world. Given the urgency and complexity of this challenge, the United States should identify, support, and leverage all appropriate resources for preventive diplomacy, including short-term operational prevention and long-term structural prevention. Through its International Program, FMCS has already made important contributions to both types of prevention, drawing on three strategic assets that …

The Dispute Settlement Understanding Of The Wto Agreement: An Inadequate Mechanism For The Resolution Of International Trade Disputes, Sean P. Feeney

Pepperdine Dispute Resolution Law Journal

The 1994 signing of the World Trade Organization (WTO) Agreement marked the initiation of the most far-reaching and comprehensive international agreement on trade in the history of the modern world. The creation of an actual trade organization was a marked improvement over the WTO's predecessor, the 1944 GATT, which never formed an organization per se. Among the many improvements to the GATT, the WTO Agreement substantially changed the mechanism for dispute settlement whenever conflict arose between member states. This change, codified as the Dispute Settlement Understanding ("DSU"), was initially hailed as a great improvement over the GATT dispute settlement provisions. …

The Icc Prosecutor V. President Medema: Simulated Proceedings Before The International Criminal Court , Pieter H. F. Bekker, David Stoelting

Pepperdine Dispute Resolution Law Journal

On July 18, 2000, as part of the Annual Meeting of the American Bar Association, an all star cast of American and English lawyers gathered in the Common Room of the Law Society of England and Wales in London to simulate oral argument before the International Criminal Court ("ICC"). The fictitious proceedings involved a head of state, President Luis Medema, charged with genocide, war crimes and crimes against humanity. The prosecutors and defense counsel engaged in lively oral argument before the Trial Chamber in the context of three critical issues: (1) jurisdiction of the ICC over citizens of non-state parties; …

Filling The Gap Between Morality And Jurisprudence: The Use Of Binding Arbitration To Resolve Claims Of Restitution Regarding Nazi-Stolen Art , Rebecca Keim

Pepperdine Dispute Resolution Law Journal

Recognizing the gaps in existing legislation, this article will argue that disputes arising between claimants and museums regarding the repatriation of Nazi-looted artwork should be decided by binding arbitration rather than litigation. To facilitate such arbitration, international law should support the creation of an arbitration commission, which would provide the most efficient and consistent way to resolve claims. Moreover, a neutral forum with clear rules of law and procedure capable of resolving claims would not only be more fair to claimants, but also to museums and personal collectors. This article will first discuss the severity and magnitude of Nazi looting …

Renegotiating Third World Debt , Arash S. Arabi

Pepperdine Dispute Resolution Law Journal

The debt crisis facing the Third World is one so severe that it threatens to shatter the economy of countless nations and leaves the future of their lenders in doubt. The only viable solution is to come up with an "alternative" method of dispute resolution to deal with the debt crisis - one that is a cross between arbitration and mediation. A disinterested body should be created to recover some, or if possible, all of the outstanding loans owed to financial institutions, while alleviating the extreme hardships the debt and current debt repayment methods have inflicted. It should be noted, …