"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.

Wednesday, October 5, 2011

Monthly Roundup of SSRN Articles on Arbitration (September 2011)

American Review of International Arbitration, 2012
Pepperdine University School of Law

Abstract:
For the third time in the modern era, a triad of key Supreme Court decisions represents a milestone in American arbitration. In this highly controversial “Third Arbitration Trilogy,” the U.S. Supreme Court aggressively expands the “revealed” penumbra of substantive arbitration law under the Federal Arbitration Act and shores up the bulwarks of private, binding dispute resolution under standardized contracts of adhesion binding employees and consumers.

In Stolt-Nielsen S.A. v. AnimalFeeds International, 130 S. Ct. 1758 (2010), the Court, against the backdrop of an international commercial contract scheme and a unique procedural scenario, draws upon the wellspring of divined “federal substantive law” under the FAA to pronounce limits on the ability of arbitrators - or courts - to promote public policies supporting class actions. Many understood Stolt-Nielsen, correctly, as a portent of the Court’s eventual curtailment of state-law-based policies against enforcement of contractual waivers of the ability to participate in a class action when coupled with an agreement to arbitrate.

In Rent-A-Center, West v. Jackson, 130 S. Ct. 2772 (2010), the Court declares that public policies promoting enforcement of arbitration agreements effectively trump the authority of courts to deny or limit the enforcement of arbitration agreements “upon such grounds as exist at law or in equity for the revocation of any contract” - or, more precisely, to police arbitration agreements for unconscionability. Once again, the Court majority “discerns” new Federal substantive law surrounding the FAA. It employs a unique variation on the principle that arbitration agreements are separable from the contracts of which they are a part, aggressively interprets Court precedents transferring from courts to arbitrators authority to resolve enforceability issues, and segregates the determination a contract has been “made” in a formalistic sense from consideration of defenses to its enforceability and validity.

In AT&T Mobility LLC v. Concepcion, 131 S. Ct. 1740 (2011), the Court once again addresses the interface between pro-arbitration policies under the FAA and the countervailing, limiting force of unconscionability doctrine. Yet again, a majority finds pro-arbitration federal policy circumscribes judicial authority to police arbitration agreements under state law. In this case, the result is to enforce a term in the arbitration agreement waiving the consumer’s right to bring a contractual claim as part of a class action.

Its staunchest adherents may insist that the Court’s actions are necessary to effectively promote pro-arbitration policies under the FAA (announced and repeatedly reinforced by the Court since the mid-1980s) while ensuring that lower courts be measured and precise in the handling of countervailing defenses. In its zeal to further its evolving vision of the FAA, however, the Court has eliminated key safeguards aimed at ensuring fundamental fairness to consumers and employees in arbitration. The Court’s most recent decisions have placed dramatic new limits on judicial oversight of arbitration agreements, making the U.S. a relative “outlier” among global sovereigns.

The Court’s extreme and inflexible posture adds momentum to Congressional efforts to dramatically restrict the use of predispute arbitration agreements. Unfortunately, these legislative responses, like the Court’s decisions, lack a solid empirical foundation. As with the Court’s jurisprudence, there is no guarantee that they will produce the best possible solution for employees and consumers.

Good decisions about the public or private resolution of employment and consumer disputes depend upon a commitment to obtain and act upon better information about the operation of specific forms of arbitration in specific transactional settings, along with comparative data respecting court processes. Recent empirical scholarship has moved us closer to this goal, but much remains to be done.

In assessing process options, policy-makers should consider the potential future role of statutory due process standards for arbitration, regulated arbitration, and arbitration that gives individuals the option of proceeding to court. To the extent public tribunals are necessary, it should not be assumed that the court system as presently structured is the most effective way of addressing consumer or employment disputes. It may be appropriate to develop public consumer tribunals or administrative employment tribunals such as those that exist in some other countries.

In assaying public and private process choices, special attention should be given to the opportunities afforded by online dispute resolution (ODR). Finally, effective policy-making in these arenas cannot ignore the primary hot-button issue, the role of class or collective action.

Yale Law School
Accepted Paper Series

Abstract:
This article explores the international right of development, as expressed in the design of new trade-based international investment agreements (IIAs). I show that, hitherto, development has figured mostly in investment arbitration primarily through the question of jurisdictional gate keeping – and how to reconcile the meaning of investment within Article 25 of the ICSID Convention with the effect of pro-development language in the Preamble to the ICSID Convention. While the Salini test will remain a much-debated approach in international investment interpretation, the main subjective difficulty in elevating development into a condition or criterion for investment treaty coverage is that the international right of development is itself a dynamic concept, with equally divergent methods for assessing “contributions to economic development”. The inherent fluidity of the concept of development, coupled with the absence of any language within Article 25 of the ICSID on the international right to development, further supports the view that the Convention did not intend to impose development contributions as a strict condition or mandatory criterion before gaining access to ICSID jurisdiction. Rather than focus on the problematic uses of the international right of development in jurisdictional gate keeping, I draw attention to the actual nature of the international right to development and its implementation, which has less to do with justiciability (or adjudicated remedies), than the direct implementation and supervision of States. The practicable development-oriented innovations in new trade-based IIAs (such as the COMESA Common Investment Agreement, the ASEAN Comprehensive Investment Agreement, and the ASEAN-China Investment Agreement) appears to align more closely with the actual nature of the right to development. These particular types of IIAs, which often form part of a complete trade cooperation package, operationalize the international right of development through: 1) permissible differentiation or graduated implementation of host State obligations, taking the host State’s stage of economic development into account; 2) transparency obligations and information exchanges between treaty partners; 3) joint investment promotion activities by treaty partners; and 4) coordinated institutional mechanisms that enable host State participation and access in monitoring treaty interpretation and any investment-related rule making. These phenomena demonstrate a marked paradigm shift towards more effective deployment of the international right of development in international investment rule-making.

Graduate Institute of International and Development Studies Graduate Institute of International and Development Studies (HEI)
Accepted Paper Series

Abstract:
Understanding the nature and contours of transnational legality is an important challenge, as it may bear on the place that transnational law should be given within the existing frameworks of public and private international law. This article discusses three questions, which have emerged in the field of international arbitration and are primarily of a philosophical nature, that help us understand certain aspects of transnational legality: (1) What is the role of social conventions among international adjudicators for the development of transnational regimes? (2) What are the ethical considerations connected to the recognition as law of one or several transnational arbitral regimes? (3) What are the legal consequences of the recognition as law of one or several transnational arbitral regimes? These three questions shed light on the nature and role of secondary rules of recognition in transnational regimes and on the distinction between relative legality (what a legal system considers to be law, its own or that of other systems) and absolute legality (what a neutral observer considers to be law).

North Carolina Law Review, Vol. 90, 2012, Loyola-LA Legal Studies Paper No. 2011-29
University of California, Berkeley - School of Law Loyola Law School Los Angeles
Accepted Paper Series

Abstract:
The U.S. Supreme Court’s expansion of the Federal Arbitration Act (FAA) has made arbitration clauses ubiquitous in consumer and employment contracts, and provoked heated debate. Recently, though, arbitration clauses have become common in a different context: wills and trusts. Courts have reached wildly different conclusions about whether these provisions are enforceable under state arbitration law. However, no judge, scholar, or litigant has considered the more important question of whether the FAA governs these terms. In this Article, I fill that gap. I first examine the statute’s text and legislative history, and conclude that Congress intended the FAA only to govern “contracts.” Nevertheless, I show that the Court has stretched the definition of “contract” for the purposes of the FAA. Indeed, the Court has predicated arbitration on the mere fact that the parties have entered into a consensual relationship, even if it does not meet the test for contractual validity. I then argue that estate plans, which arise from mutual assent and feature elements of exchange, are “contracts” under the FAA. Finally, I analyze how some of the most challenging features of the Court’s interpretation of the FAA - including the non-arbitrability doctrine, the separability rule, and the statute’s preemptive ambit - would play out in the field of wills and trusts. By doing so, I seek not only to provide guidance for courts and policymakers, but to illustrate that testamentary arbitration may not suffer from some of the flaws that make contractual arbitration so polarizing.

Law of Ukraine/Pravo Ukrajiny, No. 2, pp. 18-31, 2011
Accepted Paper Series

Abstract:
In the course of time, several approaches to the nature and the legal basis of arbitration have evolved. These include the jurisdiction theory and then the contract, mixed and the autonomous theory. While the contract theory claims that arbitration is based exclusively on the agreement between the parties, the jurisdiction theory argues that arbitration is based on the delegation of the decision making power from the courts to the arbitrators based on the law and the legal system of the state where the arbitration takes place. Although the author does not deny the significance of agreement in arbitration, he considers the arbitration agreement to be only a condition for initiation of the arbitrators’ jurisdiction, but always only on the basis of the legal framework of the state in which the dispute takes place. Arbitration cannot be held in any abstract environment. Such a regime would seriously endanger the legal certainty of the parties who must always know under what conditions the arbitration proceedings will take place and under what conditions they can exercise their rights. This regime is determined exclusively by law as the manifestation of state sovereignty. Theories about the so-called denationalization of arbitration are, according to the author, very dangerous and reveal the lack of arguments on the part of certain authors as concerns the significance of the prescribed legal framework regulating arbitration in a particular country.

Arbitration has been undergoing a massive expansion in the countries of Eastern and Central Europe. The underlying cause is the fact that arbitration proceedings are often much more flexible, less formal and most of all cheaper than litigation in court. The development of arbitration in, for instance, the countries of Western Europe, or the so-called Western legal cultures, must be viewed rather critically. In these countries, on the contrary, arbitration is becoming extremely formal and, especially, very expensive. It is essential that the countries of Eastern and Central Europe maintain this standard of the so-called traditional advantages of arbitration. It is indeed a very interesting alternative to the finding of the law and the resolving of disputes through the mediation of courts [of law, state courts] as public authorities.

Trade, Law and Development, 2011
London School of Economics - Law Department affiliation not provided to SSRN York University - Osgoode Hall Law School
Accepted Paper Series

Abstract:
The article draws on the theoretical perspective of Third World Approaches to International Law (TWAIL) to review a case study in international investment arbitration. The case study is an International Chamber of Commerce arbitration arising from controversies over Bechtel, Enron, and the Dabhol project in India. Following a detailed discussion of this case study, it is suggested that the TWAIL perspective provides a useful reference for organizing critique but is less relevant to the identification of specific options for reform in international arbitration or strategies to encourage, manage, or regulate investment for social ends.

Bocconi University
Working Paper Series

Abstract:
The issue of precedent in international law attracts currently special interest in view of the proliferation of international courts and the lack of institutional relations between them. Notwithstanding the absence of "stare decisis" l an international court looking at previous decisions relevant for a case, even originating from a different court, contributes however to predictability, and coherence of international law through adjudication. The paper first reviews the common law and civil law sytems. I then analyses the practice of the ICJ and of other international courts such as the ECHR, the ECJ and international criminal courts. The paper thereafter concentrates on the reliance on precedents within the WTO dispute settlement system which features an orginal appeal system wherein panels are expected to follow Appellate Body precedents. The role of previous decisions in commercial and investment arbitration is thereafter reviewed, highlighting the diffeences between the two models in respect to ICSID arbitration. The paper concludes highlighting the desirability of "jurisprudence constante" by ICSID Annulment Commitees.

Tulsa Law Review, Forthcoming
Navajo Nation Department of Justice
Working Paper Series

Abstract:
The paper discusses the attempts by the Navajo Nation and the States of Arizona and New Mexico to create standard contract clauses for agreements between the Nation and those states. The Nation and the States have numerous contractual relationships, primarily concerning funding for Nation programs, but also concerning law enforcement, rights-of-way grants, and other issues. Sovereignty issues on both sides have complicated the contracting process, as the Nation and the states have legislatively-mandated contract clauses that each must include in their agreements. Further, dispute resolution issues have caused friction, as each side possesses sovereign immunity but allows arbitration if enforcement of an award is brought in its own court system.

In an attempt to resolve these issues, the Nation and the states recently have established standard contract clauses that apply generally to agreements between the sovereigns. The standard clauses allow for arbitration of disputes, with enforcement against the states in state court, and against the Nation in Navajo Nation court. In the case of Arizona, the standard clauses also cover discrimination, citizenship verification, and other issues. Though all issues have not been resolved by these clauses, and it remains to be seen how such clauses will be implemented, the standard contract clause model can be useful to other tribes and states who seek efficient and consistent methods of contracting without sacrificing core principles of tribal and state sovereignty.

American Business Law Journal, Vol. 48, No. 4, 2011, UNSW Law Research Paper No. 32
University of New South Wales (UNSW) - Faculty of Law
Accepted Paper Series

Abstract:
This article examines the multifarious conceptions of the Law Merchant, focusing on its attributes as a spontaneously ordered and plurally autonomous framework of law. Part I considers the economic rationale that the Law Merchant has evolved spontaneously. Part II investigates the autonomy values that are associated with a Law Merchant system, the degree to which those values are commensurable with one another, and the prospects of mediating among them. Part III considers whether the Law Merchant is truly an independent merchant system, whether it is uniform in nature, and whether it has resisted fragmentation through its localization within domestic legal systems. Parts IV and V, evaluate the extent to which a liberalized Law Merchant has evolved into the twenty-first century, the influence of micro-economic interests such as the autonomy rights of merchants upon it, and the practices of nation-states in “nationalizing” or “trans-nationalizing” it structurally, substantively, and procedurally. Part VI examines the extent to which these features can be applied to the example of transnational arbitration. The article concludes that abstract notions of a cohesive Law Merchant, entailing romantic conceptions of its origins and current subsistence, are to be discouraged. Instead, greater attention should be given to particular facets of the Law Merchant as it exists in the transnational commercial world today, especially the ways in which a universalized Law Merchant interacts with regulation at domestic and multistate levels.

European Parliament, September 2011, Sydney Law School Research Paper No. 11/58
University of Sydney - Faculty of Law
Accepted Paper Series

Abstract:
This note considers several aspects of the reforms proposed by the Commission (COM (2010) 748 final, 14 December 2010) to the current EU legal framework regulating the jurisdiction of Member State courts, and the recognition and enforcement of judgments, in civil and commercial matters, as contained in Regulation (EC) No. 44/2001 (the “Brussels I” Regulation). It suggests possible amendments to the Commission’s Proposal, as set out in the Annex. This paper was presented by the author at a hearing on the review of the Brussels I Regulation held at the European Parliament on 20 September 2011. It is a publication of the European Parliament.

Oregon Law Review, Forthcoming
University of Nevada, Las Vegas, William S. Boyd School of Law
Accepted Paper Series

Abstract:
This essay explores the policy implications of the Supreme Court’s recent 5-4 decision in AT&T Mobility v. Concepcion. Concepcion held that lower courts’ use of California’s Discover Bank rule to hold unconscionable a class action waiver contained in an arbitration clause was preempted by the Federal Arbitration Act. Following the decision, commentators observed that the impact of the decision would depend on how narrowly or broadly the holding would be interpreted by lower courts. After examining post-Concepcion lower court decisions focused on the validity of arbitral class action waivers this essay finds that that most courts are interpreting Concepcion broadly, thereby dooming most unconscionability attacks on arbitral class action waivers. The essay then explores the policy implications of this trend. It suggests that if not legislatively or administratively limited Concepcion will substantially harm consumers, employees, and perhaps others by permitting companies to use arbitration clauses to exempt themselves from class actions, thereby giving them free rein to engage in fraud, torts, discrimination, and other harmful acts.

University of Chicago Law Review, Vol. 79, 2012, Cardozo Legal Studies Research Paper No. 345
Benjamin N. Cardozo School of Law and Friedman Law Group
Accepted Paper Series

Abstract:
Class actions are on the ropes. Courts in recent years have ramped up the standards governing the certification of damages classes and created new standing requirements for consumer class actions. Most recently, in Wal-Mart v. Dukes, the Supreme Court articulated a new and highly restrictive interpretation of the commonality requirement of Rule 23(a). But all of this pales in comparison to the Court’s April 2011 decision in AT&T Mobility v. Concepcion, broadly validating arbitration provisions containing class action waivers. The precise reach of AT&T warrants close scrutiny. Our analysis suggests that following AT&T, some plaintiffs will be able to successfully challenge class waivers under certain circumstances. Also, the new Consumer Financial Protection Bureau - if it is not still-born at the hands of hostile congressional midwives - is likely to eliminate some class action waivers in the financial services field. But most class cases will not survive the impending tsunami of class action waivers. And as this great mass of consumer protection, antitrust, employment and other cases is swept out to sea, the question arises: what or who can fill the resulting enforcement gap?

And here, we believe the “private attorney general” role assumed by class action lawyers over the past several decades will inevitably give way to a world in which state attorneys general make unprecedented use of their parents repatriate authority. Insulated from the threats posed by class action waivers and restrictive class action standing doctrine, AGs are now uniquely positioned to represent the interests of their citizens in the very consumer, antitrust, wage-and-hour and other cases that have long provided the staple of private class action practice. And to tackle complex cases, underfunded AG offices will make use of the private class action lawyers who have acquired expertise in originating, investigating and prosecuting class cases. Of course, there are political risks here - given the model’s dependency on contingent fee arrangements - but there are also substantial political benefits, as AGs around the country begin to take leadership positions in the sort of complex, big-ticket cases that are likely to contribute meaningfully to state coffers - and redress the injuries of consumers and employees who would otherwise have no recourse in a post-AT&T world.

Allen & Overy LLP
Working Paper Series

Abstract:
According to U.S. courts, Chapters One and Two of the Federal Arbitration Act provide “overlapping coverage” over arbitral awards that were rendered in the U.S. and also fall under the New York Convention. The meaning of “overlapping coverage” in international arbitration remains unclear, but affects parties’ rights and obligations, and their decision to seat arbitrations in the U.S., because of the rights of the defeated party to challenge the reduction of these awards to court judgments. If a U.S.-rendered award is purely domestic, it is subject to summary, defense-free confirmation if it is not vacated within 90 days of its rendering — at that point, the defeated party is deemed to have found the award acceptable. If instead the U.S.-rendered award is non-domestic, the question is whether the award’s non-domestic nature deprives the prevailing party of its right to defense-free confirmation once the award is deemed acceptable. By one reading of the Convention, it does not.

In the context of confirming non-domestic awards rendered in the U.S., there are at least two possible interpretations of “overlapping coverage.” Under one interpretation, Chapter Two, which implements the Convention, applies in proceedings to confirm these awards even if the motion to confirm is expressly brought pursuant to Chapter One. Confirmation of the award remains subject to challenge based on the grounds provided in the Convention at any time in opposition to a motion to confirm, even if Chapter One sets out a different regime for opposing confirmation. But, this outcome may run counter to the Convention’s goal to promote enforcement of awards and the pro-enforcement policy underlying the Federal Arbitration Act.

According to the Convention’s Article VII(1), the often-called “more-favorable-regime” provision, the Convention does not deprive an interested party of any right to confirmation it would normally enjoy under the law of the country in which enforcement is sought, here, the U.S. This gives rise to a second interpretation of “overlapping coverage” whereby confirmation of a non-domestic award rendered in the U.S. may be available under the regimes of Chapters One and Two as parallel entitlements. The regime chosen by the prevailing party depends on which one it finds most advantageous. And by this second interpretation, grazed by courts and commentators and developed herein, the prevailing party should enjoy summary, defense-free confirmation of an award that was rendered in the U.S. and has not been vacated even if that award falls under the Convention.

Duke Journal of Comparative & International Law, Forthcoming, University of Missouri School of Law Legal Studies Research Paper No. 2011-18
University of Missouri School of Law
Accepted Paper Series

Abstract:
Although the Republic of Colombia is one of Latin America' economic powerhouses, with a free trade agreement with the United States on the brink of ratification by Congress, U.S. corporate actors know extremely little about Colombia' approach to international commercial arbitration, even though arbitration is commonly agreed to be the preferred method of resolving cross-border business disputes. The scarcity of information on this issue puts U.S. companies at a distinct disadvantage when negotiating with Colombian parties and places the entire dispute resolution process - and thus the economic benefit of the transaction - at risk.

This Article undertakes the first comparative analysis of Colombian arbitration law in English, setting Colombian statutory and case law side by side with international and U.S. law to provide U.S. parties with the information they need to (1) evaluate the risks and benefits associated with entering into an arbitration agreement with a Colombian party and (2) establish the kinds of procedures needed to provide optimal protection of the arbitral process and any resulting award. Not only does this research discuss important comparative and commercial matters, it also considers how a unique type of constitutional challenge - the acción de tutela - affects arbitration law in Colombia

Yearbook of Private International Law, Vol. 12, pp. 43-65, 2010
Tel Aviv University - Faculty of Management
Last Revised: September 15, 2011
Accepted Paper Series

Abstract:
The question of the recognition and enforcement of foreign judgments on arbitral awards, as distinct from the recognition and enforcement of the arbitral awards themselves, finds diverging answers in different jurisdictions and in legal doctrine. With respect to judgments on judgments, the general rule is that a judgment rendered in State B, enforcing or recognizing in State B a judgment rendered in State A, cannot as such be enforced or recognized in State C. It is rather the original judgment rendered in State A that has to be relied upon in recognition and enforcement proceedings in all other states.

Judgments on arbitral awards may be treated differently. In the European Union, the recognition and enforcement of such judgments is regulated by the legal system of each Member State. Council Regulation (EC) 44/2001 of 22 December 2000 on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters (“Brussels I”), and formerly the Brussels Convention (1968), as well as the Lugano Convention (1988), excluded “arbitration” from their scope. The Schlosser Report, as well as the decisions of the European Court of Justice in this matter, made it clear that the exclusion covers not only the recognition and enforcement of arbitral awards, covered already by the New York Convention, but extends also to all court proceedings related to arbitration, including proceedings to set aside an arbitral award and proceedings concerning the recognition and enforcement of a foreign arbitral award. The practice in different states (England, France, Germany, , Israel, the American Law Institute [ALI] first draft proposal of a Federal Statute on Recognition and Enforcement of Foreign Judgments) is diverse.

This paper submits that only the arbitral award should be the subject of recognition and enforcement proceedings. Foreign judgments on arbitral awards should not be recognized or enforced. For policy reasons, an exception should be made with respect to a court decision at the arbitral seat to set aside (or vacate) the award. With a view to coordinating results, weight may also be given, depending upon the circumstances, to issues decided by other foreign court judgments on arbitral judgments, as those may indicate that the award-debtor had waived a certain defense, or that he is precluded from raising one.

The paper is confined to judgments in proceedings undertaken under the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 1958 (NYC). As of January 2011, 145 UN Member States have become NYC Contracting Parties. The numerous cases decided by national courts under the Convention and the vast literature devoted to its interpretation provide a rather comprehensive database.

Accordingly, this paper addresses the rules concerning recognition and enforcement of foreign arbitral awards under the NYC, noting the differences in practice among the NYC Contracting States (2.); an inquiry whether foreign judgments on arbitral awards should be recognized and enforced which first studies the analogous case of judgments on judgments (3.1), and then considers the differences between enforcing judgments on arbitral awards and enforcing the arbitral awards themselves (3.2); an analysis of the special case of judgments setting aside arbitral awards (4.); the possible coordination of results via waiver and preclusion (5.); and final conclusions (6.)

FROM CLINICAL ISOLATION TO SYSTEMIC INTEGRATION, pp. 29-52, Hofmann, Rainer, Tams, C. Christian, eds., Baden-Baden, 2011
Accepted Paper Series

Abstract:
Investment tribunals often profess fidelity to the rules on treaty interpretation contained in the Vienna Convention on the Law of Treaties (VCLT). At first sight, they mention Article 31 and 32 VCLT with reassuring regularity. But first impressions may lead astray. My hypothesis is that many investment awards demonstrate a cavalier attitude to treaty interpretation. The contrast with the interpretative practice of a highly developed and institutionalized adjudicatory body like the WTO dispute settlement body is particularly striking.

Ubiquitous references to the VCLT in investment awards may serve to reassure readers of the award that the tribunal intends to follow well-trodden paths in treaty interpretation. These declarations of fidelity to the foundational principles of treaty interpretation, however, lack practical substance if tribunals soon thereafter pour cold water on their stated intentions. In surveying the interpretative practice of international investment tribunals, I contend that careful application of the principles of treaty interpretation to the facts is often wanting. Superficial treaty interpretation risks distorting the parties’ intentions and unravelling their treaty bargain.

DISPUTE PREVENTION AND DISPUTE SETTLEMENT IN THE TRANSATLANTIC PARTNERSHIP - CASE STUDIES, ANALYSES AND POLICY RECOMMENDATIONS, pp. 429-447, E.U. Petersmann and M. Pollack, eds., Oxford University Press, 2003, FSU College of Law, Public Law Research Paper , FSU College of Law, Law, Business & Economics Paper
Florida State University College of Law and University of Berne - Institute of European and International Economic Law
Accepted Paper Series

Abstract:
As a general conclusion this case-study suggests that the dispute between Pernod Ricard, a France-based multinational distiller and distributor, and Bacardi-Martini, a US-based multinational distiller and distributor, should have been resolved as a private commercial dispute and not as a systemic test of world trade system rules. In this regard, third party arbitration or mediation under the auspices of an alternative dispute settlement forum may have proven quite helpful.

Each private actor in the case entered into a commercial venture fully cognizant of ownership risks inherent in claims to intangible property that had been taken by the government of Cuba in the early 1960s. Both private parties sought the protection of their home government external commercial apparatus to ameliorate the consequences of the risks knowingly undertaken. Both the European Commission and the US Trade Representative (USTR) co-operated in converting the private commercial dispute into an international political dispute. By politicizing the dispute, both the EU and US found themselves arguing legal positions that are most likely contrary to their longer term commercial interests.

The major problem, however, is that a victory for the EU in WTO dispute settlement, which as a practical matter it did not achieve, would have entitled it to withdraw trade concessions from the US to enforce compliance. The withdrawal of such concessions would not directly benefit Pernod Ricard, and would likely harm US private operators other than Bacardi-Martini. In sum, the acts of the two private operators in knowingly taking risks in entering into legally tainted commercial relationships would result in harm to private operators that had not been a party to the risk-taking.

On the positive side in regard to WTO dispute settlement, the European Commission may have viewed this as the only practical way to diffuse internal political pressure being exerted by Pernod Ricard under the guise of 'Cuba policy'. Either outcome at the WTO level would allow the Commission to take the position that the EU had exhausted avenues of recourse against the US in this matter, and thereby diffuse the dispute. Similarly, if the WTO dispute settlement decision had been adverse to the US, this would have provided a means by which the USTR could have resisted further pressures to act on behalf of its private constituent.

Because the decision of the Appellate Body requires only an insubstantial modification to US law, it is doubtful that it will have a significant impact on internal or external US policy. It is difficult at this stage to say whether an alternative dispute settlement forum might have accomplished a similar end, or for that matter whether an end has been accomplished. The case remains open in terms of compliance by the US with the ruling of the Appellate Body.

Bocconi University
Working Paper Series

Abstract:
Contrary to the contrary views expressed by Prof. Hans Smit, appointment of arbitrators by parties, rather than by an institution, is an integral part of an efficient and responsive arbitral process especially internationally. The problems of impartiality and independence and efficiency of the process that party-appointment may create can be dealt with by ethical rules and by the supervision of estabilished arbitral institutions.

John Marshall Law School in Chicago
Working Paper Series

Abstract:
The political philosopher John Rawls famously advocated that fair institutions are those that derive from the “original position,” an imaginary state where hypothetical rule makers have no knowledge of their vested interests and of how a chosen rule might affect them – what Rawls referred to as operating under a “veil of ignorance.” Traditionally, the vested interests of states concluding bilateral investment treaties (BITs) fell into two categories: on the side of capital-exporting states, an interest in adopting strong protections for foreign investors; on the side of capital-importing states, an interest in attracting foreign investment but also in attempting to preserve host country sovereignty and authority to promote the public interest.

Over the past decade or so, however, the line between capital-exporting and capital-importing state increasingly has blurred, and the calculus for states negotiating BITs has become less certain. To an extent, therefore, states are moving closer to the “original position.” The experience of the U.S. as a respondent to claims brought to arbitration by Canadian investors under Chapter 11 of NAFTA significantly affected the development of a new generation of U.S. BITs that better balance the interests of host states vis à vis those of foreign investors. Similarly, as emerging market economies such as India and China become significant exporters of capital, these countries increasingly have implemented BITs and investor-state arbitration to resolve disputes between foreign investors and host states. Although Brazil has not yet ratified a single BIT, its emergent status as a capital exporting country should lead to a greater acceptance of BITs and investment arbitration in Brazil over time.

This article examines the evolution of BIT practice from the perspective of Rawls’ original position, focusing on (i) the impact of NAFTA Chapter 11 on the development of the current generation of U.S. BITs and (ii) the changing dynamics of foreign direct investment and investment protection in emerging market economies. This perspective highlights the complexity of the political dynamics of BITs and investment treaty arbitration, and illustrates how these converging trends are having and should continue to have a moderating influence on the content of BITs.

Hamline Journal of Public Law & Policy, Vol. 27, p. 217, 2006
Hamline University School of Law
Accepted Paper Series

Abstract:
On October 28-29, 2005, the Dispute Resolution Institute at Hamline University School of Law hosted “Intentional Conversations about Globalization of ADR,” its fourth biennial Symposium on Advanced Issues in Dispute Resolution. The symposium series brings together scholars and professionals to engage in purposeful conversation around critical issues in the field of conflict studies and dispute resolution. To this end, the format of the Symposium gatherings is different from most academic conferences. No papers are presented and, although certain individuals are given responsibility as theme leaders to frame, open up, and promote the dialogue, the active participation of all attendees is encouraged by the use of intimate in-the-round seating. This introductory article in the 2005 symposium proceedings makes the case that as alternative dispute resolution goes global, its spread and movement carries the values, beliefs, and cultural assumptions of one social world to another. Arguable, the time is right for a symposium designed to examine both practical and theoretical issues that arise as mediation practices and programs spread across the globe, with a particular focus on the challenges of institutionalizing mediation in new social contexts.

CZECH (& CENTRAL EUROPEAN) YEARBOOK OF ARBITRATION, pp. 265-291, A. Belohlavek & N. Rozehnalova, eds., JurisNet, Inc., 2011
Accepted Paper Series

Abstract:
Arbitration is a very popular mechanism of dispute settlement in the Czech Republic. There are no statistics on the number of awards rendered in the country. The arbitral awards are enforseble after delivery to parties. Domestic awards are not subject of any recognition proceedings (similar rules as for example in Austria). The only exact figures may result for example from the number of executions (enforsements) applied on the arbitrla awards. It will be anticipated that around 150 Thousands awards will be rendered in a year. Substantial number of arbitrations are consumer disputes (B2C), for the most part when business collects receivables. A comment has to be made that significant legislative changes just regarding consumer arbitration is to be expected within the second half of 2011.

The large number of arbitrations conducted and arbitral awards rendered in the Czech Republic also means that the courts deal very often with arbitral issues, mostly in annulment proceedings. The paper summarises and analyses some significant decisions of the Czech courts rendered in course of past three years.

The Czech law on arbitration does not follow exactly the UNCITRAL Model Law, although it follows the main principles of the Model Law. No review in merits is allowed, as this principle has been confirmed for example in the Judgment of the Czech Supreme Court as from 2009. The court stated that the fact that the obligation to perform as imposed by an arbitral award is in conflict with good morals is not sufficient grounds to set aside the arbitral award, as reviewing this issue would be tantamount to a review “on the merits”, i.e., of the factual correctness of the arbitral award, which is inadmissible. The Supreme Court decided similarly in another case (decision as from 2010) again, when it stated that the Supreme Court is not authorized to assess the arbitration proceedings in terms of their substance [i.e., the content of the course of proceedings and of the arbitral award], but may only address the issue of whether the court of appeals properly assessed whether or not the grounds for setting aside the arbitral award were given in the particular case. At the same time, the court of appeals is bound by the reasons which were given for the appeal on questions of law [the latter being an extraordinary remedy] and by how these reasons were defi ned in terms of substance (Sec. 242 (3) First Sentence of act No. 99/1963 Coll., as amended, Code of Civil Procedure of the Czech Republic).

Substantive review in respect to arbitration clause in a consumer contract (B2C) is, however, allowed pursuant to the relevant EU Law on consumer protection incorporated into the Czech Law. The Supreme Court of the Czech Republic therefore decided in the judgment of June 29, 2010 that if, in proceedings on the annulment of an arbitral award, a court finds that the relation between the parties constitutes a consumer contract, then the court must base its findings regarding the purported conflict with consumer protection laws (and the ensuing nullity of the arbitration clause) on an application of these very laws on the protection of consumers (i.e., in the present case, on Sec. 55 (1) and Sec. 56 (1) of the Civil Code of the Czech Republic), as opposed to the general requirements for arbitration agreements pursuant to Sec. 3 (2) of act No. 216/1994 Coll. [CZE] / [of the Czech Republic], on arbitration and on the enforcement of arbitral awards, as amended. In the same decision the court distinguished between formal and substantive requirements of arbitral agreements and the particular provisions of law applicable for those requirements.

In another decision from 2010 the Czech Supreme court defined rules, which are applicable to the interpretation of arbitration agreements. The main rule is to be found in the Sec. 35 (2) of the Czech Civil Code. Pursuant to the provision cited legal acts that are expressed verbally must be construed not only based on the verbal expression, but in particular pursuant to the will of the party who engaged in the legal act (unless the will were in conflict with the verbal expression). Sec. 35 (2) of the Civil Code anticipates that doubts may arise as to the contents of legal acts, and formulates rules of interpretation for this event which determine how the court must remove these doubts through interpretation. The verbal expression of legal acts as recorded in a contract must primarily be interpreted by means of grammatical, logical, and systematic interpretation. In addition, the court is to determine, based upon the evidence heard, the true will of the parties at the time at which they entered into the contract, whereas this will of the parties shall be taken into consideration only to the extent to which it is not in conflict with the verbal expression of the legal act. Pursuant to Sec. 35 (2) of the Civil Code, the interpretation of the substance of a legal act by the courts must not replace or change previously made declarations of will; the application of statutory rules of interpretation is solely to ensure that the contents of a verbally expressed legal act in which the parties concordantly engaged are construed in accordance with the state of affairs at the time of contracting. Where the contents of a legal act are recorded in writing, the determinateness of the expression of the parties’ will is inherent in the contents of the deed in which it is recorded.

The paper analyses the current case law, comparing this court practise with international practise as well as with the law on arbitration in another countries. Provisions of law applied in the particular decisions are also cited in the published paper.

Universidad Complutense de Madrid (UCM) - Law School
Working Paper Series

Abstract:
En el marco de la competencia fiscal entre los Estados, se ha observado en la última década una creciente competencia considerada desleal o lesiva, por la desproporción respecto a los beneficios ofrecidos por los citados, en un intento de maximizar la atracción de los factores de mayor movilidad a sus jurisdicciones, afectando con ello negativamente al resto de los Estados.

La OCDE ha tenido durante años como objetivo prioritario el erradicar la competencia lesiva y el abuso en el uso de paraísos fiscales en la planificación fiscal internacional. En el presente artículo, analizaremos las medidas adoptadas por la citada Organización y sus consecuencias en el mercado internacional. Trataremos además de abordar en particular el tema de los paraísos fiscales (noción, diferente regulación, listados..), con el objeto de poner de manifiesto, que la falta de un criterio unánime en la materia conlleva una cierta falta de seguridad jurídica.

Por último, no podemos obviar que la Unión Europea durante décadas ha promovido la eliminación de la competencia fiscal lesiva entre sus Estados miembros (y sus territorios dependientes/asociados), por la erosión que provoca en los ingresos de los Estados afectados y los continuas deslocalizaciones de las empresas hacia aquellos territorios con un sistema fiscal más atractivo o laxo. En aras a un mejor entendimiento sobre la materia, hemos creído conveniente analizar las semejanzas y diferencias de planteamiento, así como las medidas adoptadas para la erradicación de la citada competencia, tanto por parte de la Unión Europea como de la OCDE

Note: Downloadable document is in Spanish.

Universidad Complutense de Madrid (UCM) - Law School
Working Paper Series

Abstract:
The Netherlands, has been for decades one of the States which traditionally has exercised greater fiscal attraction on international operators, either by incorporating a conduit company or a headquarters in their territory. But the competitiveness of their system it has not only versed in purely tax matters, but in the flexibility shown by the tax authorities and their government. The Netherlands has always heeded that a mutual cooperation between the State and private sector revert to their budget, which does not exclude to control tax evasion.

Considering all possible tax benefits offered by the Netherlands, this article is focused on Dutch participation exemption regime, through an in-depth analysis on the evolution of the conditioning required to holding companies, from its incorporation in the Dutch Legislation until nowadays, in order to apply for the abovementioned tax regime.

Note: Downloadable document is in Spanish.

affiliation not provided to SSRN
Working Paper Series

Abstract:
Formal validity of an arbitration agreement is closely linked to the consent of the parties to arbitration. The requirement of arbitration agreement in written form is intended to ensure that the parties actually agreed on resolving the dispute through arbitration.

Therefore, matters related to the performance of formal requirements of arbitration agreement and the necessary approval for arbitration, expressed under the arbitration agreement, are often interrelated and jointly approached.

In accordance with the Convention of New-York (1958), the arbitration agreement enforcement, and of any other decision, requires an arbitration agreement concluded in writing. The formal requirements do not necessarily promote legal certainty, frequently being sources of circumstantial disputes. For these reasons, the requirement of arbitration agreement in written form, in most national laws and under the Convention in New York, was more liberally construed. In any case, the requirements of the arbitration agreement to be concluded in written form should be construed more dynamically, in the light of modern means of communication.

ICC International Court of Arbitration Bulletin, Vol. 19, No. 2, pp. 25-40, 2008
Chinese University of Hong Kong (CUHK) - Faculty of Law
Accepted Paper Series

Abstract:
Increasing cross-border commercial exchanges and foreign investments have caused arbitration to become more frequently selected as a dispute resolution option in China. In response to this growing demand, China has taken significant steps to improve its arbitration system. Nevertheless, arbitration practice in China still displays many inconsistencies with international norms, causing concern for foreign investors.

This article looks at the practice, problems and prospects of arbitration in China through (i) an overview of the Chinese arbitration system, (ii) a description of the peculiarities of Chinese arbitration practice, (iii) an analysis of the legal obstacles that lie behind those peculiarities, and (iv) a review of past and future reforms.

Keywords: Arbitration in China, legal reforms, legal obstacles, transnational arbitration, CIETAC, domestic arbitration, foreign-related/international arbitration

Law Review, Vol. 1, No. 1, 2011
affiliation not provided to SSRN
Accepted Paper Series

Abstract:
In the following study, the author makes a relatively exhaustive analysis of the provisions of book IV in the new Romanian Civil Procedure Code (Law no. 134/2010, a Code already published (on 15 July 2010) in the Official Journal of Romania, but not yet in force.

In this context, the author examines the provisions of “About arbitration” (art. 533‑612) in the new Romanian Civil Procedure Code, (with a special focus on the institutionalized commercial arbitration) in relation both to the corresponding provisions in the current Romanian Civil Procedure Code, and to the provisions contained in the Rules of Arbitration of the Court of International Commercial Arbitration attached to the Chamber of Commerce and Industry of Romania.

CYARB-CZECH (& CENTRAL EUROPEAN) YEARBOOK OF ARBITRATION, pp. 247-263, A. Belohlavek & N. Rozehnalova, eds., JurisPublishing, Inc., 2011
affiliation not provided to SSRN
Accepted Paper Series

Abstract:
Current case law and arbitration practise in Bulgaria is very arbitration "friendly." The published paper is collection of annotated most interested judgments of the courts regarding arbitration issues, including notes and comments regarding the particular court decisions with summaries of the factual and legal bases of the particular cases citing the original provisions of laws applied in the decisions. Most of the annotated judgments are rendered in the annulment proceedings, another when recognition and enforcement of foreign awards has been applied in Bulgaria.

The Bulgarian practise grants parties of arbitration high degree of autonomy. Some of the particular decisions are very interesting.

For example the decision of the Supreme Cassation Court from 2009 states that only a final arbitral award is binding for the parties to arbitral proceedings. It means that only final arbitral awards may be recognized and enforced in Bulgaria, not partial or interim awards (incl. jurisdictional awards, awards on interim measures etc.). This is, unfortunately, not an exception in civil law countries.

Another decision (as from 2007) confirms the typical civil law approach on jurisdiction, e.g. that jurisdiction is not a contractual issue but it is a part of the material sovereignty. Therefore not only foras (courts) but arbitral tribunals as well are entitled and often obliged to check their jurisdiction ex officio (not only when party challenges the jurisdiction. At the same time any effects of arbitration agreements and arbitral awards to third parties has been excluded. In the particular decision as of 2007 the court stated that when a court has ascertained as part of enforcement proceedings that grounds exist for the enforcement of a judgment (arbitral award), the court must examine the party benefiting from the awarded right and the party against which such a right exists (right of action and suability). A writ of execution may only be issued in favour of a party that is found to possess a right against a party that must submit to the enforcement of a judgment. The enforcement of a judgment may be demanded by a person other than a party to arbitral proceedings, specifically, by a party that has been awarded a right under an arbitral award. Such a party, however, must demonstrate its legal succession regarding such a right, where the claimant is subject to the duty to submit evidence (burden of proof). A court examines such a legal succession in enforcement proceedings as part of the exercise of its official authority.

In another decision as from 2007 the Bulgarian Sofia Municipal [City] Court confirmed the almost internationally recognised view that the reasons for refusing recognition and enforcement according to Article V(1) of the New York Convention are examined by a court only based on an objection raised by a respondent (liable party). The reasons for refusing recognition and enforcement according to Article V(2) of the New York Convention are examined by a court based on its competence (ex officio). In recognition and enforcement proceedings, arguments or evidence on the merits are inadmissible if such arguments have not been used by the respondent in the relevant arbitral proceedings despite the fact that such arguments or evidence could have been used. Th is also applies to facts that may indicate that a criminal offence has been committed (for instance document forgery).

Bulgarian case law regarding arbitration is extensive and comprehensive. The Bulgarian decisions contain detailed description of the reasons reflected by the court when rendering a particular judgment and the reasonings are drafted in outstanding manner. The Bulgarian courts have taken a number of decisions regarding issues, which are often controversial in the international practise and which many of courts in another countries are trying to keep away from. The paper reflecting the most interesting case law since the past half a decade.

Free University of Berlin (FUB) - Faculty of Law
Date Posted: September 25, 2011
Working Paper Series

Abstract:
In 2008, the Government of Sudan (GoS) and the Sudan People's Liberation Movement/Army (SPLM/A) submitted an arbitration agreement with the Permanent Court of Arbitration (PCA) in The Hague. In a unique fast track procedure, an international arbitration tribunal had to determine in accordance with the Comprehensive Peace Agreement (CAP) of 2005, in particular the Abyei Protocol and Abyei Appendix, the Interim National Constitution (INC) and general principles of law, whether the Abyei Border Commission (ABC) exceeded its mandate, which was to define and demarcate the area of the nine Ngok Dinka chiefdoms transferred to Kordofan in 1905. In case of excess, the parties entrusted the tribunal with redefining the boundaries of the disputed territory based on the parties’ submissions. To guarantee the transparency of the procedure and to generate acceptance by all stakeholders on the ground, all hearings and documents were made publically available. The procedure and the more than 200-pages-long final Award from July 2009 constitute an illustrative example of an international dispute settlement procedure dealing with an intra-state (territorial) dispute between a state and a secessionist movement. The paper evaluates the still disputed status of the Abyei Region and the record of the parties’ (non-)compliance with the Abyei Award in the ongoing status-negotiations between Sudan and the newly independent South Sudan. By inter alia taking a comparative perspective with other international dispute settlement mechanisms the paper critically discusses the legal-political implications of the Abyei Arbitration and whether it could serve as a model or lesson learned when it comes to the effectiveness and success of international arbitration and its potential contribution to the settlement of intra-state (territorial) disputes.

Cliometrica, Vol. 5, No. 1, pp. 53-78, 2009
University of London, Royal Holloway College - Department of Economics and University of Melbourne - Department of Management and Marketing
Accepted Paper Series

Abstract:
Studies across a wide range of countries have shown that relatively few workers have received year-to-year wage cuts since the Second World War. However, there is very little micro-level evidence from earlier years, when lower inflation rates and a less regulated labor market may have led to stronger downwards pressure on wages. This paper examines wage adjustment at the Victorian Railways, Australia, between 1902 and 1921. It is shown that, despite strong downwards pressure on wages, nominal wages were rigid downwards and a high proportion of triennial wage changes were exactly zero. Even for workers with very long tenure and in years when the national price level declined, wage cuts were rare. We also show that the characteristics of workers whose wages were unchanged were very similar to those receiving wage cuts. Finally, we show that unlike the wages of incumbent staff, entry wages for new junior staff frequently declined from year to year.

Journal of International Arbitration, Vol. 28, No. 4, pp. 343-353, 2011
Chinese University of Hong Kong (CUHK) - Faculty of Law
Accepted Paper Series

Abstract:
There has been much concern recently on whether foreign arbitration institutions may administer arbitrations with the seat in mainland China. This article makes a legal analysis of the potential problems on this matter, demonstrates the judicial attitudes towards enforcing awards rendered in mainland China administered by foreign arbitration institutions, and further analyzes the legal obstacles in the enforcement of such awards.

PROPORTIONALITY AND POST-NATIONAL CONSTITUTIONALISM, Alexia Herwig, Christian Joerges, George Pavlakos, eds., Forthcoming
University of Fribourg - Faculty of Law
Accepted Paper Series

Abstract:
Proportionality analysis has been positioned in the academic debate as intrinsically linked to constitutional regimes and the specific structure of fundamental rights. The present contribution takes up the arguments developed in other fields of law and examines their validity in the context of investor-state arbitration. Rejecting the conceptualization of investment arbitration as a developing constitutional regime, the author suggests that the conceptual foundations for using proportionality analysis are shaky, both based on the nature of the rights typically enshrined in bilateral investment treaties and on the features of investment arbitration. A subsequent overview of the case law brings to light that arbitral tribunals to date have shied away from relying extensively on proportionality analysis and have only paid lip service to the concept on a rather limited number of occasions. Future case law, it is suggested, should thus rather focus on the development of appropriate criteria for each treaty provision instead of opting for balancing approaches.

Romanian Journal of Compulsory Execution, Vol. 7, No. 3, 2010
affiliation not provided to SSRN
Accepted Paper Series

Abstract:
Both during the period of the public discussion on the draft New Civil Procedure Code, and especially after its adoption and enactment by Law no. 134/2010, published in the Official Journalof Romania no. 485/15 July 2010, opinions regarding the conceptionof this code and controversies have been present in the area ofinterest of the specialists. Familiarization with its new regulations is an obvious challenge for the law theoreticians and practitioners.

The author intends to make a comparative analysis of the two civil procedure codes on a specific theme: the procedural institution of enforcement.

Sharing the already two-century experience of the old civil procedure code, which is more “equipped” by the doctrine and case law it has behind it, which offers a certain confidence given by its viability until present, it is definitely a moment changing classical perceptions and nobody knows where the audacity of a new procedural adventure will lead.

The rules of procedure regulate the enforcement of the material law and, in order for them to keep up with the social evolution, the regulations must contain elements of progress stimulating the legal circuit, but at the same time providing it safety in the area of the legal relationships that are so important for the modernity of the rule of law.

These matters are taken into consideration by the author when making a comparative analysis in an important and sensitive area – that of the enforcement as a last, but equally important stage of the civil trial.

While waiting for the coming into force, some retouching and corrections may still be necessary, which, contained in the law for implementation would give more strength to the new civil procedure code.

Stripping the Gears of National Government: Justice Stevens' Stand Against Judicial Subversion of Progressive Laws and Lawmaking
Northwestern University Law Review, Forthcoming
Simon Lazarus
National Senior Citizens Law Center
Accepted Paper Series

Abstract:
Since William Rehnquist became Chief Justice in 1986, the Supreme Court has been aggressively activist in narrowing, undermining, or effectively nullifying an array of statutes – in particular the vast edifice of regulatory, safety net, and civil rights laws enacted by both the federal and state governments since the early 20th century dawn of progressive government (collectively labeled “progressive statutes” in the article). The conservative bloc of justices have developed a formidable arsenal of largely non-constitutional techniques for limiting the reach and impact of progressive statutes, blunting or neutralizing the intent and purpose of the legislatures that enacted them, elevating the Court’s power vis-à-vis both Congress and state legislatures, and, even, impeding Congress’ practical capacity to carry out its legislative function.

For the past quarter century, Justice Stevens has been alert to this “continuing campaign,” spotlighting its excesses and countering its designs. He has done so more persistently than any of his colleagues, or for that matter, more than any observer in Congress, academia, or progressive advocacy circles. Over and over, Justice Stevens called out his conservative colleagues for “unabashed law-making,” and for “skewed interpretations” that impose “its own policy preferences,” “defeat the purpose for which a provision was enacted,” and “ignore the interest of unrepresented” constituencies whom statutes were enacted to protect. He recognized this “kind of judicial activism [as] such a radical departure from the proper role of this Court that it should be opposed whenever the opportunity arises.” And he never shrank from acting on that recognition, with eloquence but also the professional and strategic craft for which he was renowned on all sides.

Scholars have spotlighted, catalogued, debated, and brilliantly critiqued various of these doctrinal theories and initiatives. This Article considers them together, as elements of a campaign bent on constraining the impact of 20th and 21st century progressive legislation. The Article contributes to a Northwestern Law Review symposium on the Legacy of Justice Stevens. The symposium took place at Northwestern Law School on May 12, 2011. The symposium issue of the law review, in which this Article will be included, is scheduled for publication in the spring of 2012.

The 2011-2012 term will throw light on whether, going forward, the Roberts Court will start venting the intensely ideological activism detailed in this Article on broad questions of Congress’ constitutional authority, as well as on below-the-radar statutory interpretation issues. By the end of this term the Court will have ruled on pending challenges to the constitutionality of the Affordable Care Act (ACA). If, when contemplating the signature legislative accomplishment of President Barack Obama and the Democratic 111th Congress, the conservative justices feel inclined to sideline restraint and let ideology trump precedent, their statutory jurisprudence provides a roadmap of how they will go about that enterprise. Such a result will ratchet up pre-New Deal “Lochneresque” activism, with historic implications for the distribution of power to set 21st century domestic policy as well as its content.

The Hidden Duality of Summary Disposition of Claims in Investment Arbitration
Parvan P. Parvanov
affiliation not provided to SSRN
Date Posted: September 29, 2011
Working Paper Series

Abstract:
This article examines the summary disposition of claims under Rule 41(5) of the ICSID rules. The analysis focuses on the perceived duality of the use of the rule by ICSID tribunals and recommends a change in the ICSID rules.

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