"I realise that some of my criticisms may be mistaken; but to refuse to criticize judgements for fear of being mistaken is to abandon criticism altogether... If any of my criticisms are found to be correct, the cause is served; and if any are found to be incorrect the very process of finding out my mistakes must lead to the discovery of the right reasons, or better reasons than I have been able to give, and the cause is served just as well." -Mr. HM Seervai, Preface to the 1st ed., Constitutional Law of India.

Tuesday, February 1, 2011

Monthly Roundup of SSRN Articles on Arbitration (January 2011)

We used to do a fortnightly post giving links and the abstracts to the articles published in the Social Science Research Network that are related to arbitration and Alternative Dispute Resolution (ADR). Since we have started doing a fortnightly roundup of arbitration-related judgements in India, from now on we'll be doing a monthly roundup of the SSRN articles. In this post, we'll do a roundup of the articles on arbitration published in SSRN during the month of January 2011.

The Public-Private Dualities of International Investment Law and Arbitration
Dr Alex Mills
Abstract:
In recent years, the thousands of international investment treaties have given rise to hundreds of investor-state arbitrations. International investment law has thus become a topic of great practical importance, and one which has received significant attention in both arbitral awards and academic literature. International investment law, however, appears to possess inherent ‘dualities’ – analogous to an optical illusion, a single image or object which may appear strikingly different to different viewers or from different perspectives. The dualities of international investment law are presented in some of the most fundamental questions concerning its nature and purpose. This chapter explores the ideas or influences which lead analysis of the subject in conflicting directions and invite these seemingly contradictory viewpoints, by focusing on the ‘public-private’ distinctions or conceptions which lie at its contested foundations. These public-private dualities thus form a kind of conceptual lens through which international investment law may be viewed, and through which its different appearances or representations can be examined.

Beyond Fragmentation
Andrea K. Bjorklund and Sophie Nappert
Abstract:
The fragmentation of international law is in some ways an embarrassment of riches, with multiple tribunals creating jurisprudence in particularized areas. This richness leads also to complexity and to the phenomenon that Marti Koskiennemi has so accurately termed “fragmentation.” Our purpose in this essay is to look “beyond fragmentation” given that the status quo of multiple discrete nuclei developing in isolation from one another is unsatisfactory and, we argue, stands in the way of the continuing relevance of international law in modern times. The international investment arena, with its myriad ad hoc tribunals and legal doctrines enshrined in treaties that either codify or build on customary international law, offers an excellent laboratory in which to theorize about communication between the nuclei and when such communication is appropriate. We have suggested an inter-nuclei communication model for use when tribunals are obliged to give content to treaty norms that are inherently vague or to fill lacunae in treaties. This approach takes advantage of the positive aspect of fragmentation – the development of specialized jurisprudence in particular areas of the law. Yet this does not mean that all expertise is freely transferable. A specialized doctrine deeply embedded in a complex treaty might be a poor candidate for transfer to another regime in which the analogous doctrine operates in an altogether different context. For this reason we have suggested a cautious approach to inter-nuclei communication characterized by a willful awareness by tribunals in one sphere of international law of what goes on in other related spheres, and an exercise of canvassing the views expressed by other tribunals in these related spheres for guidance to inform, or test, one’s own analysis. We test our propositions by reference to two recurring issuing in international investment arbitration – the principle of denial of justice and the doctrine of necessity.

Exit and the American Illness
Erin A. O'Hara and Larry E. Ribstein
Abstract:
This essay, prepared for a book on the effect of regulatory, liability, and litigation inefficiencies on the global competitive position of the U.S., focuses on the role of the US federal system. We show that, although multiple US states offer significant potential for jurisdictional choice to address misguided or inappropriate law, this system is only a partial solution to these problems and can itself be a source of bad law and excessive litigiousness. Federal law and enforcement of contractual choice-of-law, choice-of-court, and arbitration clauses provide some, but only partial, relief. As a result, choice of law and jurisdiction rules potentially expose firms that do business nationally or internationally to oppressive law in any of the US states. Without reform of the rules regarding jurisdictional choice the US is losing an opportunity to exploit the edge in international competition it might get from its federal system.

Recent Developments to Promote Transparency and Public Participation in Investment Treaty Arbitration
James Harrison
Abstract:
In the past, concerns have been expressed about the secrecy of international treaty arbitration. This paper attempts to show how the investment treaty arbitration system has responded to these criticisms. It starts by reviewing the arguments in favour of transparency and what different forms transparency can take in the context of investment treaty arbitration. The paper then sketches out the main developments in relation to transparency and highlights key issues that still remain to be resolved. In conclusion it is noted that the extent of publicity and public participation in a particular arbitration will depend on the instrument under which the claim is being brought. Whilst a small number of states have sought to promote the transparency agenda in their investment treaties, much more could be done by the majority of states.

The Myth and Reality of 'Shari'a' Courts in Canada: A Delayed Opportunity for the Indigenization of Islamic Legal Rulings
Faisal Kutty
Abstract:
The Ontario government’s passage of the Family Statute Law Amendment Act, 2005 ostensibly precluding the enforcement of faith-based decisions issued by arbitration panels pursuant to the Arbitrations Act, 1991, in the area of family law, brought to the fore a debate that has been raging in liberal democracies for some time.

Those opposed to allowing the use of religious principles in resolving family disputes using the Arbitrations Act, 1991, raised some legitimate concerns about gender rights within religious communities. They also questioned the role of religion in secular society and opposed what they saw as privatization of the legal system. Opponents contended that religious groups should be able to govern their lives according to their conscience within the parameters of law if the constitutional right to freedom of religion and association is to have any real value. Consenting and informed adults, they argued, must be able to make religious choices even if others do not believe these are “correct” choices.

The issues, of course, transcend dispute resolution and tug at fundamental tensions surrounding multiculturalism and national identity, the limits of accommodation and legal pluralism within a liberal democracy and the separation of church and state. I argue that Ontario lost a timely opportunity to devise a way to balance these competing rights and interests in a manner that respects all parties and protects the vulnerable.

The controversy was a prime case to examine whether Islamic law and liberal democracy can co-exist within a liberal constitutional framework. Moreover, I also argue that Ontario also delayed an opportunity to indigenize or Canadianize Islamic law rulings in a manner that would help in the integration process of its Muslim citizens.

Fairness and Independence in Investment Arbitration: A Critique of Susan Franck's 'Development and Outcomes of Investment Treaty Arbitration'
Gus Van Harten
Abstract:
This short article provides a critique of a prominent study, Franck (2009), that used quantitative research tools in order to evaluate potential bias in investment treaty arbitration. The study has been referenced in policy and academic discussions in order to allay concerns about an apparent lack of fairness and independence in investment treaty arbitration. This critique does not suggest that there is evidence of actual bias in investment treaty arbitration. Rather, it is argued that (1) the study by Franck contained findings and conclusions that were unsupported by the results of the study, (2) there is far too little available information upon which to base reliable conclusions about possible bias using quantitative research methods, and (3) the more pressing concern is perceived bias arising from institutional factors.

The Backlash Against Investment Arbitration: Perceptions and Reality
Michael Waibel , Asha Kaushal , Kwo-Hwa Chung and Claire Balchin
Abstract:
Commentators increasingly question whether a backlash against the foreign investment regime is underway. This book, the outgrowth of a conference organized by the editors at Harvard Law School on April 19, 2008, aims to uncover the drivers behind the backlash against the current international investment regime. A diverse set of contributors reflect on the current state and the future direction of the international investment regime, and offer some tentative solutions for improvement: academics, practitioners, government officials and civil society.

Contributors assess whether the current regime of investment arbitration is in crisis. They take a step back to look at the long-term prospects of investment arbitration, including reforms that could bring substantial improvements to the investment arbitration process. These questions can no longer be ignored or be dismissed as esoteric criticisms by fringe groups or outsiders with no stake in the system. Without appropriate remedial action, the rising discontent over the perceived and actual problems of the international investment regime risks undermining the tremendous gains in the rule of law on cross-border investment flows achieved over the last decades. Unless acknowledged and addressed, these concerns could throw the baby out with the bathwater.

Freedom of Association in a Free Enterprise System: Wal-Mart in Jonquière
Michael MacNeil
Abstract:
After a union was certified to represent employees at a Wal-Mart store in Jonquiere, Quebec, in 2004, the union and Wal-Mart bargained to impasse. When the union obtained an order requiring that the dispute be submitted to arbitration, Wal-Mart announced that it would close the store and subsequently did so. The union and the dismissed employees initiated a range of unfair labour practice complaints challenging the closing and the dismissals. Two of these complaints were eventually reviewed by the Supreme Court of Canada in 2009, and in the leading decision in Plourde v. Wal-Mart, the Court concluded that no remedy was available to the dismissed employees under certain sections of the Quebec Labour Code which provided for reinstatement where workers have been dismissed for exercising rights under the Code. This paper first examines Wal-Mart’s well-documented pattern of resistance to unionization. It then considers whether the majority’s position is defensible in the light of the wording of the Quebec statute, the Court’s previous commitment to the purposive interpretation of statutory unfair labour practice provisions, and its recent commitment to protecting collective bargaining as an important derivative of the guarantee of freedom of association in the Canadian Charter of Rights and Freedoms. Particular attention is paid to the origins of the idea, especially in the United States, that an employer has the right to close a business even in order to avoid a union, and to how that idea has been addressed by labour boards across Canada.

International Arbitration's Public Realm
Catherine A. Rogers
Abstract:
Domestic arbitration is under attack as permitting repeat players to evade mandatory statutory law, retarding legal developments, undermining democratic lawmaking, and ultimately imposing substantively biased outcomes on less sophisticated parties through contracts of adhesion. Collectively, these critiques of domestic arbitration could be interpreted as suggesting that domestic arbitration seeks to obviate or even subvert public interests and the public realm. The thesis of this chapter is that, in contrast to criticisms of domestic arbitration, international arbitration has a vibrant public realm. International arbitration has the potential to produce public goods and to go beyond simply resolving disputes, but to also promote international cooperation, transnational governance and the development of the international rule of law.

Consent of the Holder of the Bill of Lading to the Arbitration Clause by Reference
Nader M. Ibrahim
Abstract:
According to the author, the coming into force of the 1978 Hamburg Rules (November 1, 1992) in its contracting countries (the same will apply to the 2008 Rotterdam Rules) requires from the courts of these countries to revisit its case-law on the matter of incorporation of arbitration clauses into bills of lading, this particularly applies to Egypt. Two aspects should be changed; first, courts will no longer need to use conflict of laws to determine applicable law to the issue of the consent of the holder of the bill of lading with regard incorporation, since the Rules establishes an international rule directly applicable (i.e., international material rule); and second, the courts should check consent of the holder of the bill of lading, and not that of the consignor who made the original contractual relationship (usually a charterparty). Though there is no unified interpretation of the 1978 Hamburg Rules (and 2008 Rotterdam Rules) with regard the criterion of consent for the incorporation of arbitration into the bill of lading (Article 22(2) of the HgR; Article 76(2)(b) of the RR), the author interprets the Rules in favour of arbitration. According to him, it suffices that the holder of the bill of lading accepts the incorporation expressly or tacitly; however the author does not extend support to arbitration by denying jurisdiction to the courts to examine the consent in application of the ‘compétence de la compétence’ principle (opposite to the French Pella Lindos case-law, 2005-2006). Substantively, he supports the application of the English case-law and which distinguishes between specific and general references in determining such const (to the contrary to French case-law, namely the 1994 Osprey Stolt case). For the author, his lenient interpretation is supported by the procedural and substantive constrains invented by the 1978 Hamburg Rules (and later adopted by the 2008 Rotterdam Rules) and which protect the cargo interests’ shifting the arbitration clause from their risky foe to their best friend.

Sovereign Wealth Fund Liability - Private Investors Left Out in the Cold
Daniel E. Etlinger
Abstract:
Sovereign wealth funds have exploded in numbers, assets and clout in recent years. This accession has sparked a debate as to the political and economic status of these funds. However, this attention has not focused on sovereign wealth funds' liabilities. Specifically, there exist a myriad of issues surrounding recovery.

In the United States hedge funds, corporations, and other major players have contractually agreed on liability issues. Individuals, however, do not have the same protections and face hurdles damaging recovery chances. Both public and international safeguards seem adequate and point towards arbitration.

This paper argues, therefore, that the United States should adopt an approach to protect investors' rights and confidence in the market. Specifically, the United States should amend the Foreign Sovereign Immunities Act to address recovery problems.

Report to the Ministry of Labour and the Ministry for the Attorney General on Workplace Dispute Resolution
British Columbia Law Institute
Abstract:
In 2010, at the request of the provincial Ministry of Labour, the British Columbia Law Institute (BCLI) undertook a brief study of the merits of establishing a Workplace Tribunal for British Columbia. The Ministry provided the BCLI with a specific model for consideration. This proposed model left elements of the existing BC framework, such as the grievance arbitration system, unchanged, and required the creation of a new Workplace Services Branch with responsibilities including investigation, alternative dispute resolution and first line decision-making powers over employment standards complaints and human rights complaints originating in non-unionized workplaces. The model was centered around a new tribunal with jurisdiction over all employment-related disputes now adjudicated by the Labour Relations Board and the Employment Standards Tribunal, appeals from determinations by the Workplace Services Branch with respect to employment standards and human rights matters, as well as limited power to reconsider its own decisions on specified grounds. In effect, the new model would eliminate the Human Rights Tribunal’s jurisdiction over workplace-related complaints – about 60% of its current caseload.

The BCLI research project involved international comparative research into existing workplace dispute resolution systems, and a targeted consultation of BC stakeholders selected jointly by the Ministry and the BCLI. The 59-page final report of the BCLI contains: (1) an outline of the proposed model; (2) a brief overview of the existing workplace dispute resolution framework in BC; (3) a summary of comparative research (UK, Australia, New Zealand); (4) a summary of the consultation session feedback; and (5) a discussion of findings and conclusions including an assessment of the strengths and weaknesses of the proposed model.

Egyptian Court of Cassation, No. 595/63, February 28, 2006: Annulment of Arbitration Clause in a Bill of Lading Carrier-Consignee Relationship in application of the Constrains adopted by the Egyptian Maritime Trade Act 8 of 1990 after the 1978 Hamburg Rules: A Commentary (Arabic)
Nader M. Ibrahim
Abstract:
The Egyptian court of cassation is known for its pro-arbitration and elaborate case-law in matters of sea carriage of goods arbitration developed since the middle of last century, however the commentator criticizes its first application of the new constrains under the Egyptian Maritime Trade Act 8 of 1990 (Articles 246 and 247) adopted after the 1978 Hamburg Rules (Article 22) with regard validity of choice of place of arbitration. According to the commentator, the court should have directly applied the constrains of the 1978 Hamburg Rules with no need to refer to the Egyptian Maritime Act in application of the Egyptian Constitution (Article 151), and it should have validated the clause, giving the claimant the option to resort to arbitration in Alexandria, in addition to the option of London, mentioned in the clause. Annulment of the arbitration clause altogether is at least an adoption of a hard-line interpretation of the constrains that can be found to the contrary of other Hamburg Rules jurisdictions, a recent Jordanian case-law was used in comparison. The original commentary is in Arabic, an English translation is reproduced in the International Journal of Arab Arbitration.

The 2006 Procedural and Transparency-Related Amendments to the ICSID Arbitration Rules: Model Intentions, Moderate Proposals, and Modest Returns
Jason W. Yackee and Jarrod Wong
Abstract:
Investment Disputes (ICSID) amended a number of the ICSID’s Regulations and Rules. Because amendment of the ICSID Convention itself requires unanimous ratification by the state parties to the Convention, formal changes in the ICSID regime have historically taken place through amendments to the ICSID’s Regulations and Rules. This is because changes to the Regulations and Rules require only a vote either of a simple majority or two-thirds of the Council. Such Council action is thus the primary – and indeed, historically speaking, the exclusive – mechanism through which ICSID practice, as reflected in its Regulations and Rules, might be occasionally updated and modernized to reflect new realties on the ground (such as ICSID’s exploding caseload) and the changing sensibilities of ICSID’s end users – the state Parties to the Convention and the foreign investors who jointly elect to consent to ICSID arbitration rather than to arbitration before other institutions, such as the International Chamber of Commerce (ICC), or under other rules, such as the UNCITRAL Arbitration Rules.

In this chapter we review and critically evaluate those 2006 amendments to the ICSID Arbitration Rules that most directly impact the parties as opposed to the arbitrators (2006 Amendments). In Section A we analyze two procedural amendments. In particular, we look at changes to rule 41, which now allows for a "preliminary objection" to claims that "are manifestly without legal merit," and at changes to rule 39 that deal with "provisional measures." In Section B we analyze three amendments aimed at increasing the transparency of ICSID proceedings and at providing non-parties opportunities to influence tribunal decisions. We focus there on rule 32, governing the opening of hearings to the public; rule 37, which now provides for the possibility of submissions by "non-disputing parties" – for example, by "friends of the court," or "amici"; and rule 48, which governs publication of awards.

Our essential theme is that the 2006 Amendments are, at their core, modest, incremental and conservative. Our formal analysis and our examination of how the amended rules have been applied in practice suggest that the amendments are unlikely to greatly change ICSID practice. This is not necessarily a bad thing. An underlying current in ICSID commentary is the supposed need to make ICSID proceedings more like domestic litigation, with a correspondingly greater emphasis on using procedure to arrive at the better (or perhaps a more "correct") law-based resolution of competing claims from an adversarial perspective rather than on the mutually acceptable settlement of disputes. While any individual amendment, or at least its intended consequence, may be attractive in theory, the reflexive modeling of ICSID procedure after domestic litigation may yet impair the institution. As we note in the concluding section of the chapter, ICSID is not the only mechanism by which investor-state disputes might be settled or resolved, and if its process becomes too much like domestic litigation – overburdened by undesirable procedural hoops and hurdles, or perhaps even procedurally tilted in favor of state-respondents – there is a risk that investors will exercise more frequently their various outside options, electing to sue host countries not before ICSID, but before alternative institutions, like the ICC, or through ad hoc proceedings.

Foreign Investment Contracts: Unexplored Mechanisms of Environmental Governance
Kyla Tienhaara
Abstract:
What constitutes a rational decision? Much of our thinking about rational decision-making depends on traditional economic theories of maximized expected value. While these theories have demonstrated normative and even prescriptive value in general microeconomic contexts, they have spectacularly failed descriptively; they do a poor job of explaining how we make everyday decisions. Relatively new multidisciplinary efforts at the intersection of biology, behavioral economics, and evolutionary psychology have suggested predictable deviations from the standards of rational expectations based on decision rules that may have been adaptive, in the sense of conferring fitness advantages, in the environmental context in which our cognitive capacities evolved. While this predictability may offer hope of a descriptively accurate and prescriptively useful framework for examining human decision making, we argue that the human brain, rather than being a single decision making device, is a collection of such devices, each with different operating characteristics, and each highly domain specific, in the sense that their influence depends on adaptively relevant features of the current environment. Specifically, as regards decision making about agreements to arbitration, it is easy to imagine many such domain specific devices that may influence expected value and related preferences. Here, we concentrate on loss aversion and risk aversion, providing evidence that these mechanisms have separate biological substrates, and demonstrating that in plausible contexts of arbitration agreement decision-making, they may operate counter to one another. Divergent influence, along with domain specificity, produces an arbitration agreement decision-making system so complex as to challenge the prescriptive utility of behavioral theories, at least at current levels of scientific rigor.

Foreign Investment Contracts: Unexplored Mechanisms of Environmental Governance
Kyla Tienhaara
Abstract:
Scholars have observed that non-state actors are increasingly taking on new and significant roles in the development, implementation, and enforcement of international rules. New forms of private and hybrid (public-private) governance are emerging in a multitude of issue areas. However, one important governance mechanism significantly predates novel developments such as reporting and certification schemes and yet remains relatively unexplored in the global governance literature. Foreign investment contracts (FICs), also referred to as host government agreements or state contracts, are agreements made between a foreign investor (often a multinational corporation) and a government or state-owned entity acting on behalf of its government. FICs govern the relationship


between a private actor and a state, imposing rights and obligations on both parties. In many cases they supplant national regulation. They also have complicated legal interactions with certain intergovernmental agreements (e.g. bilateral investment treaties) and may affect the implementation of others (e.g. human rights treaties, multilateral environmental agreements). Disputes that arise under FICs are often delegated to international arbitration. These issues are discussed with reference to several FICs governing large-scale investments in developing and transition economies. A particular focus is given to the implications of these agreements for environmental governance in these states.

Third-Party Participation in Investment-Environment Disputes: Recent Developments
Kyla Tienhaara
Abstract:
This article outlines recent developments in investor – State dispute settlement related to the participation of third parties in arbitration. A particular focus is given to third party participation in disputes with a clear public interest based on the relevance of the cases to the protection of the environment, or sustainable development more generally. The benefits and drawbacks of third party participation and the relationship of participation to broader issues of transparency are also briefly discussed.

What You Don't Know Can Hurt You: Investor-State Disputes and the Protection of the Environment in Developing Countries
Kyla Tienhaara
Abstract:
Foreign direct investment (FDI) is the most important source of external finance in developing countries because it is more stable than portfolio investments and bank lending, and far more available than Official Development Assistance. In order to attract FDI, countries have increasingly offered certain forms of legal protection to foreign investors, including recourse to international arbitration mechanisms in the event of a dispute. These protections can be found in national laws and bilateral investment treaties (BITs) (now numbered at over 2300), as well as in numerous regional treaties and many state contracts. Recent years have witnessed an explosion of investor-state arbitration. Concerns have been raised, particularly in the wake of several controversial investor-state disputes, that in some instances the protection offered to investors may limit the ability of governments to regulate investment for the protection of the environment, natural resources and other social goods, and to ensure that foreign investment contributes to overall national development goals. Some authors have also suggested that the threat of an investor-state dispute could have a chilling effect on government policy, though they note that there is little evidence to substantiate such a claim.

This article is structured in the following manner: first, the particular difficulties that developing countries face as respondents in investor-state disputes will be discussed; second, the relationship between investment protection and environmental protection will be explained, with a focus on the issues of expropriation, stabilization, and compensation; third, the potential chilling effect of investor-state disputes will be assessed; and finally a case study from Indonesia will be presented. The main argument is that the lack of transparency in arbitration, and the lack of consistency of tribunal decisions, creates uncertainty for regulators. This uncertainty, when combined with the financial risk involved in proceeding to arbitration, may create situations in which the threat of an investment dispute is sufficient to convince a developing country government to reverse, amend or fail to enforce an environmental regulation. The article concludes that in the absence of a complete overhaul of the investment arbitration system, efforts should be focused on procedural reform as well as targeted capacity building and financial assistance for developing countries.

Alexandria Center for International Arbitration 2009 Arbitral Decisions: A Commentary (Arabic)
Nader M. Ibrahim
Abstract:
Alexandria Center for International Arbitration (ACIA) is a branch of the Cairo Regional Center for International Commercial Arbitration (CRCICA). ACIA was established in 1991 and now it is well set to the best service of international business related to Alexandria in Egypt. The commentator tries through the analysis of the 2009 ACIA Arbitral Decisions to build up leading arbitral case-law, to help develop good practice of international commercial arbitration in Egypt and the Arab World. The arbitral decisions relate to ACIA cases numbers 23/2008; 25/2009 and 26/2009. The decisions include: final and interim awards; properly speaking awards and procedural arbitral decisions; awards made by the full authority of the arbitral tribunal and an award by consent of the parties. The commentary is written in Arabic.

Designing Arbitration: Biological Substrates and Asymmetry in Risk and Reward
Gregory Todd Jones and Doug Yarn
Abstract:
What constitutes a rational decision? Much of our thinking about rational decision-making depends on traditional economic theories of maximized expected value. While these theories have demonstrated normative and even prescriptive value in general microeconomic contexts, they have spectacularly failed descriptively; they do a poor job of explaining how we make everyday decisions. Relatively new multidisciplinary efforts at the intersection of biology, behavioral economics, and evolutionary psychology have suggested predictable deviations from the standards of rational expectations based on decision rules that may have been adaptive, in the sense of conferring fitness advantages, in the environmental context in which our cognitive capacities evolved. While this predictability may offer hope of a descriptively accurate and prescriptively useful framework for examining human decision making, we argue that the human brain, rather than being a single decision making device, is a collection of such devices, each with different operating characteristics, and each highly domain specific, in the sense that their influence depends on adaptively relevant features of the current environment. Specifically, as regards decision making about agreements to arbitration, it is easy to imagine many such domain specific devices that may influence expected value and related preferences. Here, we concentrate on loss aversion and risk aversion, providing evidence that these mechanisms have separate biological substrates, and demonstrating that in plausible contexts of arbitration agreement decision-making, they may operate counter to one another. Divergent influence, along with domain specificity, produces an arbitration agreement decision-making system so complex as to challenge the prescriptive utility of behavioral theories, at least at current levels of scientific rigor.

Restating the U.S. Law of International Commercial Arbitration
George Bermann , Jack J. Coe Jr. , Christopher R. Drahozal and Catherine A. Rogers
Abstract:
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.

Mineral Investment and the Regulation of the Environment in Developing Countries: Lessons from Ghana
Kyla Tienhaara
Abstract:
This article examines the relationship between foreign direct investment in the mineral sector and environmental regulation in developing countries. It argues that two major trends in global mineral investment have emerged in recent years: increased competition amongst developing countries to attract mineral investment, and the development and proliferation of a standard set of legal protections for mineral investors including access to international arbitration, prohibitions of expropriation without compensation, and commitments to stability of the regulatory regime. Both of these trends may have implications for environmental policy, which are examined in the paper both in general terms and in the context of a detailed case study concerning mineral exploitation in Ghana’s forest reserves.

East Asia’s Engagement with Cosmopolitan Ideals Under its Trade Treaty Dispute Provisions
C. L. Lim
Abstract:
An East Asian view about how trade dispute settlement systems should be designed is slowly emerging. This paper argues that democratically-inspired trade law scholarship and cultural explanations of the international law behaviour of the Southeast and Northeast Asian trading nations have failed to capture or prescribe the actual treaty behaviour of these nations. Instead, such behaviour has resulted in the emergence of two different treaty models for the peaceful settlement of trade disputes. This article traces the practices of the Association of Southeast Asian Nations (ASEAN), together with that of China, Korea, Japan, Australia, and New Zealand. We find two models of trade dispute settlement emerging. The first, which seems firmly established, may be found in ASEAN’s 2004 dispute settlement protocol and the regimes established under the China-ASEAN, Korea-ASEAN, Japan-ASEAN, and ASEAN-Australia-New Zealand FTAs. They all adopt a closed, sovereign-centric view of trade dispute settlement with no public access to the dispute proceedings, little or no disclosure of party submissions, and no consultation or access given to non-governmental organization (NGO) briefs. It is a model which may be criticized for its lack of transparency. However, a second model, based on the Trans-Pacific Strategic Economic Partnership Agreement, could in time become an alternative model for an Asia-Pacific-wide FTA (i.e. including the East Asian nations within it). It adopts a more open approach; one which better accommodates greater transparency in dispute proceedings. At least for now, the two models co-exist, obviating the need for East Asia’s legal policy-makers to choose a clear, dominant design for treaty-based trade dispute settlement in the region. But it also means that East Asia’s trading partners can influence East Asian nations, at least in those trade agreements which – like the Trans-Pacific Strategic Economic Partnership Agreement – involve negotiations with trans-continental partners.

Sovereign Defaults Before International Courts and Tribunals
Michael Waibel
Abstract:
As public debt soars, a new wave of sovereign defaults looms. International law on sovereign defaults is underdeveloped because States have largely refrained from adjudicating disputes arising out of public debt. The looming new wave of sovereign defaults is likely to shift dispute resolution away from national courts to international tribunals and transform the current regime for restructuring sovereign debt.

The history of adjudicating sovereign defaults internationally over the last 150 years shows how international tribunals balance creditor claims and sovereign capacity to pay across time. It offers a rich repository of experience for future cases: US state defaults, quasi-receiverships in the Dominican Republic and Ottoman Empire, the Venezuela Preferential Case, the Soviet repudiation in 1917, the League of Nations, the World War Foreign Debt Commission, Germany's 30-year restructuring after 1918 and ICSID arbitration on Argentina's default in 2001. The remarkable continuity in international practice and jurisprudence suggests avenues for building durable institutions capable of resolving future sovereign defaults.

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