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Articles 1 - 9 of 9
Full-Text Articles in Dispute Resolution and Arbitration
The 2012 Us Model Bit And What The Changes (Or Lack Thereof) Suggest About Future Investment Treaties, Lise Johnson
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 …
Book Review: The Public International Law Regime Governing International Investment, By Jose E. Alvarez, The Hague: Hague Academy Of International Law, 2011, Pp. 502, 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
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.
Managing Expectations: Beyond Formal Adjudication, Susan Franck
Managing Expectations: Beyond Formal Adjudication, Susan Franck
Articles in Law Reviews & Other Academic 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 U.S. Proposal For An Intellectual Property Chapter In The Trans-Pacific Partnership Agreement, Sean Flynn, Brook Baker, Margot Kaminski, Jimmy Koo
The U.S. Proposal For An Intellectual Property Chapter In The Trans-Pacific Partnership Agreement, Sean Flynn, Brook Baker, Margot Kaminski, Jimmy Koo
Articles in Law Reviews & Other Academic Journals
This article takes advantage of the breach in the Trans-Pacific Partnership negotiation’s secrecy to contribute to a new and growing collection of published scholarship on leaked proposals for international intellectual property agreements as they are being negotiated. We begin with the general provisions of the agreement, which define its relationship to the multilateral system. We then progress to analysis of some of the most important copyright, patent and data protection, and enforcement sections of the proposal, before providing some concluding observations. Our ultimate conclusion is that the U.S. proposal, if adopted, would upset the current international framework balancing the interests …
What Constitutes An "Agreement In Writing" In International Commercial Arbitration? Conflicts Between The New York Convention And The Federal Arbitration Act, S. I. Strong
Faculty Publications
This article investigates whether and to what extent a party must produce an “agreement in writing” when seeking to enforce an international arbitration agreement or award in a U.S. federal court. This issue has recently given rise to both a circuit split and a petition for certiorari to the U.S. Supreme Court, and involves matters of formal validity as well as federal subject matter jurisdiction. The problem arises out of subtle differences in the way an “agreement in writing” is defined in the Federal Arbitration Act (FAA) and the 1958 United Nations Convention on the Recognition and Enforcement of Foreign …
Penalty Clauses And The Cisg, Jack Graves
Penalty Clauses And The Cisg, Jack Graves
Scholarly Works
Commercial agreements often provide for “fixed sums” payable upon a specified breach. Such agreements are generally enforced in civil law jurisdictions. In contrast, the common law distinguishes between “liquidated damages” and “penalty” clauses, enforcing the former, while invalidating the latter as a penalty. The UN Convention on Contracts for the International Sale of Goods (CISG) does not directly address the payment of “fixed sums” as damages, and the validity of “penalty” clauses has, traditionally, been relegated to otherwise applicable domestic national law under CISG Article 4. This traditional orthodoxy has recently been challenged—suggesting that the fate of a penalty clause …
Arbitrating Trade Disputes (Who's The Boss?), Petros C. Mavroidis
Arbitrating Trade Disputes (Who's The Boss?), Petros C. Mavroidis
Faculty Scholarship
World Trade Organization (“WTO”) dispute settlement has attracted a lot of interest over the years and there is a plethora of academic papers focusing on various aspects of this system. Paradoxically, there is little known about the identity of the WTO judges: since, at the end of the day, the WTO has evolved into the busiest forum litigating state-to-state disputes. There are many writings regarding the appointment process in other international tribunals. At the risk of doing injustice to many papers on this issue, we should mention the following works: Terris et al. look at various courts and especially those …
One (Firm) Is Not Enough: A Legal-Economic Analysis Of Ec-Fasteners, Chad P. Brown, Petros C. Mavroidis
One (Firm) Is Not Enough: A Legal-Economic Analysis Of Ec-Fasteners, Chad P. Brown, Petros C. Mavroidis
Faculty Scholarship
The WTO’s Appellate Body (AB) dealt with a number of issues for the first time in the Report of EC-Fasteners. Importantly, the AB discussed the consistency of the European Union (EU) regulation with the multilateral rules on the conditions for deviating from the obligation to calculate individual dumping margins. Although China formally won the argument, the AB may have opened the door to treat China as a non-market economy (NME) even beyond 2016 when China’s NME-status was thought to expire under the terms of China’s 2001 WTO Accession Protocol. The AB further dealt with numerous other issues ranging from statistical …