International Law Commons^™

From The Chair, Lela P. Love

Articles

No abstract provided.

Development And Outcomes Of Investment Treaty Arbitration, Susan Franck

Scholarly Articles in Law Reviews & Journals

The legitimacy of investment treaty arbitration is a matter of heated debate. Asserting that arbitration is unfairly tilted toward the developed world, some countries have withdrawn from World Bank dispute resolution bodies or are taking steps to eliminate arbitration. In order to assess whether investment arbitration is the equivalent of tossing a two-headed coin to resolve investment disputes, this article explores the role of development status in arbitration outcome. It first presents descriptive, quantitative research about the developmental background of the presiding arbitrators who exert particular control over the arbitration process. The article then assesses how (1) the development status …

Schisms In Humanitarianism: The Khmer Rouge Tribunal's First Hearing, Mahdev Mohan

Research Collection Yong Pung How School Of Law

Mass atrocity invokes humanitarian impulses in all of us. But when a genocidaire casts himself as a victim, the right response is less straightforward. This article analyzes a recent hearing of one of Cambodia's most feared Khmer Rouge cadres who stands trial before a newly established hybrid tribunal and suggests the consequences of responding to war crime trials with polemics rather than principle.

Imbalance Of Power: Procedural Inequities Within The Wto Dispute Settlement System, Amanda Bergstrom

Global Business & Development Law Journal

No abstract provided.

Cartel Price Controls Vs. Free Trade: A Study Of Proposals To Challenge Opec's Influence In The Oil Market Through Wto Dispute Settlement, Tim Carey

American University International Law Review

No abstract provided.

Legitimacy And International Adjudicative Bodies, Nienke Grossman

All Faculty Scholarship

This article proposes a theory of legitimacy tailored to international courts and tribunals. In Part II of this paper, the article defines an "international adjudicative body" as a dispute resolution mechanism - also called a "court" or "tribunal" - which decides disputes between litigants, at least one of whom must be a state, and comments on this definitional choice. The analysis in this article is limited only to adjudicative bodies where states are involved as litigants because a different set of legitimacy-influencing factors may be present when only private parties are involved. Next, it lays out a theory of legitimacy …

Dispute Systems Design: The United Nations Compensation Commission, Francis Mcgovern

Faculty Scholarship

The Security Council of the United Nations established the United Nations Compensation Commission (“UNCC”) with its Resolution 687 on April 3, 1991.1 It was the first compensation system established under the authority of Chapter VII of the U.N. Charter and was designed to process and pay claims arising from the Iraqi invasion of Kuwait in 1990. The purpose of this paper is to examine the design of the UNCC from a variety of perspectives: its historical setting, the alternative design approaches that have been taken in other compensation contexts, the details of its design, and its role in the design …

Why The Chinese Public Prefer Administrative Petitioning Over Litigation, Taisu Zhang

Faculty Scholarship

In recent years, the Chinese public, when facing disputes with government officials, have preferred a non-legal means of resolution, the Xinfang system, over litigation. Some scholars explain this by claiming that administrative litigation is less effective than Xinfang petitioning. Others argue that the Chinese have historically eschewed litigation and continue to do so habitually. This paper proposes a new explanation: Chinese have traditionally litigated administrative disputes, but only when legal procedure is not too adversarial and allows for the possibility of reconciliation through court-directed settlement. Since this possibility does not formally exist in modern Chinese administrative litigation, people tend to …

International Advocate For Peace Award Acceptance Speech, Amira Dotan

Cardozo Journal of Conflict Resolution

The Ninth International Peace Award Recipient

The Sounds Of Silence: Are U.S. Arbitrators Creating Internationally Enforceable Awards When Ordering Class Arbitration In Cases Of Contractual Silence Or Ambiguity?, S. I. Strong

Michigan Journal of International Law

Before outlining the structure of this Article, it is useful to clarify two matters regarding definitions and scope. First, in the context of this Article, an "international class award" is an award resulting from an international class arbitration. There are three different types of international class arbitrations: (1) a class arbitration that includes at least one defendant from a country other than the seat of the arbitration, which means that enforcement of an award will have international implications; (2) a class arbitration that involves defendants that may be based in the arbitral forum but that also hold significant foreign assets …

The Jurisprudence Of Mediation: Between Formalism, Feminism And Identity Conversations, Michal Alberstein

Cardozo Journal of Conflict Resolution

The paper explores the ties between schools of mediation and schools of law through an examination of their theoretical foundations. By weaving together discussions of rights, the rule of law, and formalism, with elements of dispute resolution as it is studied today, this article will demonstrate the importance of Alternative Dispute Resolution ("ADR") and mediation as a form of social order. It will also demonstrate the influence of philosophical jurisprudential debates on the development of mediation programs. The paper begins by exploring the ties between different jurisprudential traditions and evolving models of mediation. Scholars portray mediation models as incorporating diverse …

Dancing With The Dragon: What U.S. Parties Should Know About Chinese Law When Drafting A Contractual Dispute Resolution Clause, Marcus Wang

Student Articles and Papers

This paper draws on scholarly and field research in both the United States and China to present a legal and practical primer for U.S. parties entering the Chinese marketplace.

As China's role in the global economy becomes more prominent, American companies are finding that doing business in China is necessary to retaining a competitive edge. As the number of transactions between American and Chinese companies increases, however, the number of potential disputes increases correspondingly. Unique legal and practical circumstances in China require a China-specific approach to managing such disputes.

The paper identifies one such approach – the use of a …

Research In International Commercial Arbitration: Special Skills, Special Sources, S. I. Strong

Faculty Publications

Experts agree that international commercial arbitration relies far more heavily on written advocacy than litigation does, yet very few practitioners and arbitrators have ever received any specialized training in how to research and present written arguments in this unique area of law. Newcomers to the field are particularly disadvantaged, since the legal authorities used in international commercial arbitration are unique and novices often do not know how to find certain materials, if they are even aware that these items exist. This article helps deepen the understanding of the practice of international commercial arbitration by describing how experienced international advocates and …

The Sounds Of Silence: Are U.S. Arbitrators Creating Internationally Enforceable Awards When Ordering Class Arbitration In Cases Of Contractual Silence Or Ambiguity, S. I. Strong

Faculty Articles

The Article's overall aim is to determine the international enforceability of international class awards in cases in which the arbitration agreement is silent or ambiguous as to class treatment. Part I therefore describes the current consensus on class arbitration in the United States to lay the groundwork for further discussion. This Part also describes the incidence of class arbitration in other domestic contexts, showing that class arbitration is not as "uniquely American" as opponents have claimed. Part I continues with an overview of international class arbitration to date and identifies the likelihood of international class arbitration's expansion in the future. …

Ica And The Writing Requirement: Following Modern Trends Towards Liberalization Or Are We Stuck In 1958?, Jack Graves

Scholarly Works

Article 7 of the Model Law was revised in 2006 to liberalize any requirements of form, consistent with modern commercial practices and modern legal trends reflected in national laws. To the extent adopted by national legislatures, either of the two available options under this revision will effectively eliminate any requirement of a “record of consent,” thus making arbitration agreements more easily enforceable in the adopting jurisdiction. However, any such revision of national laws on arbitration based on the revisions of Article 7 of the Model Law will not necessarily have any effect on enforcement of awards in other jurisdictions under …

Racing For The Arctic? Better Bring A Flag, Jordan Hellman

Cardozo Journal of Conflict Resolution

This Note will explore the current dispute over Arctic seabed resources surrounding the North Pole, evaluate methods for resolving this conflict, and finally suggest particular Alternative Dispute Resolution ("ADR") methods which would be best suited to resolve the conflict peacefully and equitably. Part II will introduce the appropriate statutory law and discuss its relative effects on the disputing countries. Further, as with most conflicts, it is important to understand how the history of the area impacts the involved countries. This will be assessed in Part III. In Part IV, this Note will show how this particular conflict is better suited …

Private Military Companies & International Law: Building New Ladders Of Legal Accountability & Responsibility, Jackson Nyamuya Maogoto, Benedict Sheehy

Cardozo Journal of Conflict Resolution

The Private Military Company ("PMC") is a relatively new and growing phenomenon. An urgent and ongoing problem facing courts and policy makers is the accountability of PMCs. This article proposes new approaches to developing accountability by examining the potential of two well-established doctrines: command responsibility and state responsibility.

Opening Remarks, Jack Himmelstein

Cardozo Journal of Conflict Resolution

No abstract provided.

Coping With Combat Claims: An Analysis Of The Foreign Claims Act's Combat Exclusion, Jordan Walerstein

Cardozo Journal of Conflict Resolution

The purpose of this Note is to show that, although the FCA has positively impacted U.S. military operations, the so-called "combat exclusion" severely hampers its effectiveness. Therefore, Congress should eliminate the distinction between combat and noncombat claims and adopt a unified, permanent claims system to adjudicate all claims made by civilians against U.S. military forces operating overseas. Part II of this Note explores the origins of the "combat exclusion" in international law, and Part III traces the history of civilian compensation through World War I and World War II. Part IV surveys U.S. military use of the FCA and ad …

Lawyers Without Borders, Catherine A. Rogers

Faculty Scholarship

Professional regulation of attorneys is still attempting to catch up with the burgeoning international legal profession, which until recently has been wholly unregulated. The primary effort has been through revisions to Model Rule 8.5 to extend the reach of the Rule to international cases and professional activities in foreign countries. Because Rule 8.5 was drafted for domestic multi-jurisdiction practice, however, it is based on assumptions about territoriality and the historical relationship between the jurisdiction of tribunals and the licensing of attorneys that are simply inapposite in international settings. As a result, applying Rule 8.5 to international tribunals and international advocacy …

Restating The U.S. Law Of International Commercial Arbitration, Catherine A. Rogers

Faculty Scholarship

In December 2007, the American Law Institute ("ALI") approved the development of a new Restatement, Third, of the U.S. Law of International Commercial Arbitration (the "Restatement"). On February 23, 2009, the Restaters and authors of this Essay presented a Preliminary Draft of a chapter of the Restatement (the "Draft") at an invitational meeting in New York. The Draft addresses Recognition and Enforcement of Arbitral Awards. This brief Essay provides some reflections of the Reporters from the process of producing and presenting the Draft. Subsequent Drafts have been produced and approved by the ALI.

The Paradox Of Victim-Centrism: Victim Participation At The Khmer Rouge Tribunal, Mahdev Mohan

Research Collection Yong Pung How School Of Law

It has been claimed - though not proved - that victims will be benefited by participation in international criminal tribunals. This article interrogates this claim in the context of victim participation at the Extraordinary Chambers in the Courts of Cambodia (ECCC), commonly referred to as the Khmer Rouge Tribunal. Based on interviews with Cambodian victims and Tribunal affiliates, it examines why and how the Tribunal permits victims to intervene as les parties civile, pulling together the normative and legal basis for this mode of victim participation. This article does not purport to generalize with confidence about Cambodian victims in general, …

Using International Dispute Resolution To Address The Compliance Question In International Law, Anna Spain

Publications

A fundamental critique of international law is that it fails to ensure compliance and, thus, has limited influence on state behavior. Existing compliance theories consider how interests, norms and legal process impact states. Within the legal process school, theories either narrowly define process as methods that achieve a legal aim or broadly consider diplomatic activities without connecting them to the structural elements of process. Thus, despite the prolific scholarship in this area, understanding of how an international dispute resolution process, such as the Six-Party Talks, influences state behavior, such as North Korea’s actions toward nuclear disarmament, remains limited.

To address …

A Comparative Look At Domestic Enforcement Of International Tribunal Judgments, Lori Fisler Damrosch

Faculty Scholarship

Problems of compliance with international arbitral and judicial decisions have been with us for as long as such tribunals have existed. In general, the consensual foundations for the jurisdiction of international tribunals have ensured that the parties were in principle willing to have their disputes resolved by the tribunal and thus were usually prepared to carry out the resulting award or judgment. Commentators on international arbitration generally characterize the compliance record as favorable.

Occasions when states refuse to carry out arbitral awards are rare, but when they do occur, states have sometimes asserted the nullity of the award on the …

Enforcing Class Arbitration In The International Sphere: Due Process And Public Policy Concerns, S. I. Strong

Faculty Publications

This article appears to be the first to address the unique issues relating to international class arbitration and to discuss the status of class arbitration in other countries. To date, the only published articles on class arbitration - a dispute resolution mechanism that has been in existence in the United States since the early 1980s - have focused on domestic arbitration. However, with a number of known international class arbitrations in progress, all seated in the United States, questions concerning the transnational legitimacy of the class arbitration process and the ability to enforce class awards under the New York Convention …

Condominium Arrangements In International Practice: Reviving An Abandoned Concept Of Boundary Dispute Resolution, Joel H. Samuels

Articles

No abstract provided.

Discovery, Judicial Assistance And Arbitration: A New Tool For Cases Involving U.S. Entities?, Peter B. Rutledge

Scholarly Works

Limited discovery is one of the regularly cited advantages of international arbitration, as opposed to international litigation, particularly in contrast to litigation in the US. courts. Recent decisions by US. courts, however, have threatened to upend this comparative advantage. Invoking a little known US. law, 28 U.S.C. section 1782, these courts have permitted parties in an arbitration to petition for subpoenas issued by US. courts against their adversaries or third parties. Bucking the trend in the academic literature, which largely supports this development, this article opposes reading section 1782 to authorize subpoenas in support of an arbitration. Not only does …

Condominum Arrangements In International Practice: Reviving An Abandoned Concept Of Boundary Dispute Resolution, Joel H. Samuels

Michigan Journal of International Law

This Article attempts to revive the consideration of condominium as a possible solution to contemporary boundary disputes. Part I describes specific historic instances of condominia and derives relevant lessons from each instance. Part II notes that some critics of condominium have in fact confused condominium with other forms of joint dominion over territory. This Part proceeds, therefore, to distinguish condominium from these other arrangements. Next, Part III discusses how experiences with common property regimes over common resources (such as water supplies) might inform the contemporary use of condominium. Finally, informed by lessons articulated in Parts I through III, Part IV …

2007 Cardozo International Advocate For Peace Award: Acceptance Speech, Jeffrey Sachs

Cardozo Journal of Conflict Resolution

The Eighth International Peace Award Recipient

"Arbitration As A Final Award: Challenges And Enforcement" Published As Chapter 10 In International Sales Law And Arbitration: Problems, Cases, And Commentary, Jack M. Graves, Joseph F. Morrissey

Scholarly Works

No abstract provided.