"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.

Friday, November 4, 2011

Monthly Roundup of SSRN Articles on Arbitration (October 2011)

Fairness in Numbers: A Comment on AT&T v. Concepcion, Wal-Mart v. Dukes, and Turner v. Rogers
Harvard Law Review, Vol. 125, p. 78, 2011
Judith Resnik
Yale University - Law School

Can eighteenth-century constitutional commitments that “courts shall be open” for private rights enforcement be coupled with twentieth-century aspirations that democratic orders provide “equal justice under law”? That question sits at the intersection of three cases, AT&T v. Concepcion, Wal-Mart v. Dukes, and Turner v. Rogers, decided in the 2010 Supreme Court Term. In each decision, Justices evaluated the fairness of particular procedures (class arbitrations, class actions, or civil contempt processes) when making choices about the meaning of governing legal regimes — the Federal Arbitration Act (FAA) and state unconscionability doctrine in AT&T; Rule 23 and Title VII in Wal-Mart; and the Due Process Clause and child support obligations in Turner.

AT&T and Wal-Mart presented related questions about how the form of dispute resolution (individual or aggregate) and the place of dispute resolution (public or private, state or federal) affect the level of public regulation of consumer and employment transactions predicated on boilerplate, rather than negotiated, terms. The issue in Turner was whether state-funded lawyers were required before a person could, at the behest of the child’s custodian, be incarcerated for contempt for failure to pay child support. The specific case involved two individuals, but their circumstances illustrated the challenges faced by millions of other lawyer-less litigants in state and federal courts.

Each case exemplifies the challenges that new rights, produced by twentieth-century social movements, pose for courts. When claimants such as consumers, employees, and household members presented themselves as entitled to equal treatment, jurists responded by interrogating their own procedural parameters. Relying on the Due Process Clause, courts developed distinct lines of analyses that — depending on the context — imposed criteria on decisionmaking procedures, mandated subsidies to address resource asymmetries between adversaries, shaped processes to reduce intra-litigant disparities, and facilitated access to courts. Requisite to those efforts was a practice that is intertwined with fairness — the public quality of adjudication that endows an audience with the authority to watch, critique, and respond through democratic channels to the legal norms announced. A “fair and public hearing” became a touchstone of what democratic orders required their courts to provide.

But, as this trio of cases demonstrates, whether seeking to implement those egalitarian aspirations or simply to function, courts have to grapple with economically disparate claimants and a vast volume of eligible rights holders. If eighteenth-century constitutional entitlements to open courts are to remain relevant to ordinary litigants, the question is not whether to aggregate, subsidize, and reconfigure process but how to do so “fairly,” in terms of what groups, which claims, by means of which procedures, and offering what remedies. But without public disclosures and oversight of dispute resolution — in and out of court, single file and aggregated — one has no way to know whether fairness is either a goal or a result.

Arbitral Power and the Limits of Contract: The New Trilogy
American Review of International Arbitration, Forthcoming
Alan Scott Rau
University of Texas at Austin School of Law

The American law of arbitration has for some reason been replete with what we have become accustomed to call “trilogies” – and the last two terms of the U.S. Supreme Court have curiously continued that pattern. Once again the Court has handed us three leading cases on closely-related themes – and these decisions have turned out in fact to be in many ways the most interesting of the lot. (I am referring of course to Stolt-Nielsen, Rent-A-Center, and Concepcion.)

All three amount to extended riffs on the Question of Questions – the scope of arbitral power: And so the Court has continued to dip its finger into this rich mixture – compounded of notions of judicial review, “arbitrability,” “separability,” compétence/compétence, and the preemption of state law – all of our hard-earned lore and learning is there. Apparently it is now well beyond the power of arbitrators to hold that “classwide proceedings are permitted,” at least without some pretty special authorization (Stolt-Nielsen) – while it is well beyond the power of courts to hold that they must be – certainly not when the parties have agreed to an arbitral determination (Rent-A-Center), and even when they haven’t (Concepcion).

It seems reasonably clear that these cases will continue to generate endless discussion. Undoubtedly for the moment the greatest salience will be with respect to arbitration clauses in contracts of adhesion entered into by consumers and employees – although this recent jurisprudence has the potential of sweeping far more broadly. Things now seem curiously muddled: If our law of arbitration no longer seems to have any clear unifying theme, this suggests that private adjudication – rather than presenting us as it once did us with a coherent and self-contained body of doctrine – has become a hostage to a game played out on a larger stage, a pawn of wider, systemic “political” concerns. Throughout the “trilogy” we have seen much familiar learning yoked to the service of a market-driven political agenda, in the process inevitably becoming warped and almost unrecognizable. And so – yet another untoward result – these cases will require the reevaluation of what seemed, for a while, to constitute comfortably settled certainties. Here is at least one step in that direction.

Investment Treaties and Investor Corruption: An Emergent Defense for Host States?
Virginia Journal of International Law, Forthcoming, Univ. of Wisconsin Legal Studies Research
Jason W. Yackee
University of Wisconsin Law School

Bilateral investment treaties (BITs) are famously asymmetric. They grant investors rights but not obligations, while imposing upon states obligations unaccompanied by rights. Recent cases suggest, however, that BIT tribunals are poised to recognize a defense to state BIT liability that, in effect, imposes upon investors the obligation to avoid involvement in public corruption in the course of making a treaty-­protected investment. In this short article I sketch out the contours of this emergent defense, focusing on the recent investment treaty arbitration between Siemens, A.G. and Argentina. Siemens was awarded $200 million for Argentina’s expropriation of its investment, but Siemens voluntarily abandoned the award in response to post-­award revelations that Siemens had procured the investment through the systematic bribery of Argentine officials. While the Siemens tribunal never had the chance to rule on the legal consequences of the bribery allegations, jurisprudential trends suggest that it would likely have used the fact of corruption to either decline jurisdiction or to otherwise refuse to recognize Siemens’ substantive treaty-­based rights. I nonetheless argue that the specific contours of this emerging corruption defense are uncertain, and I suggest model investment treaty text for states that wish to secure their reliable access to it.

The End of Arbitration as We Know It? Arbitration under Attack
Yearbook on Arbitration and Mediation (Penn State), Vol. 3, p. 93, 2011
David Allen Larson
Hamline University - School of Law

During the past few years arbitration has been under attack. Recent judicial decisions, newly enacted and proposed legislation, and populist sentiments are important and obviously can result in significant changes. But many of the criticisms leveled at arbitration can be addressed and, most significantly, there are practical and inescapable realities that will ensure arbitration’s survival. Arbitration’s viability as a popular and effective dispute resolution process will continue as a result of powerful economic, cultural, and social developments. The increasing and worrisome inability of state governments to adequately fund the judiciary, combined with the fact that, as a society, we continue to integrate technology into every aspect of our lives, guarantees that arbitration will remain the dispute resolution process of choice in many circumstances. But we must keep in mind that as we move forward, practices and procedures that we take for granted today may no longer be available. This article will explain how state governments’ budget challenges and society’s increasing migration to technology will strengthen arbitration’s status as a convenient and effective dispute resolution process. The article will identify and discuss the most noteworthy attacks on arbitration and explain why these attacks will not be fatal. Finally, recent United States Supreme Court cases Rent-A-Center, West, Inc. v. Jackson; Stolt-Nielsen S.A. v. AnimalFeeds International Corp.; and AT&T Mobility v. Concepcion will be summarized and the impact of those cases on the future of arbitration will be discussed.

What Constitutes an 'Agreement in Writing' in International Commercial Arbitration? Conflicts between the New York Convention and the Federal Arbitration Act
Stanford Journal of International Law, Vol. 48, 2012, University of Missouri School of Law Legal Studies Research Paper No. 2011-22
S.I. Strong
University of Missouri School of Law

This Article investigates whether and to what extent a party must produce an “agreement in writing” when seeking to enforce an international arbitration agreement or award in a U.S. federal court. This issue has recently given rise to both a circuit split and a petition for certiorari to the U.S. Supreme Court, and involves matters of formal validity as well as federal subject matter jurisdiction. The problem arises out of subtle differences in the way an “agreement in writing” is defined in the Federal Arbitration Act (FAA) and the 1958 United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York Convention).

This is not just a U.S. problem, however. Questions relating to form requirements under the New York Convention have also been much discussed at the international level, with UNCITRAL recently issuing a formal recommendation on how to deal with the problem.

This Article describes the scope of the current problems associated with form requirements, including how inconsistencies in domestic practice affect international commercial arbitration and global trade. After discussing the difficulties in both the U.S. and the international sphere, the Article makes a number of suggestions for legislative and judicial reform. This is the first article to discuss the circuit split and associated issues in the context of the FAA and to take a serious comparative look at the implementation of the UNCITRAL recommendation at the international level.

Resolution of Investor-State Controversies in Developing Countries
Arizona Legal Studies Discussion Paper No. 11-29
David A. Gantz
University of Arizona - James E. Rogers College of Law

The large volume of literature and commentary on resolution of investor-state disputes tends to focus primarily on the rights of the foreign investor and the process through which the investor may protect her interest through investor-state arbitration, either at the World Bank’s ICSID or in some other forum. Where issues relating to governments-as-respondents have been addressed, the emphasis has often been on nations such as the three NAFTA Parties and other relatively large and affluent nations such as Argentina. Until relatively recently, much less attention has been paid to challenges facing small developing respondents, such as the member nations of CAFTA-DR, Chile, Colombia or Ecuador. How, for example, should such governments respond to and manage claims, some of which in magnitude may represent a significant portion of the annual budget of the respondent government, when there is relatively limited in-house legal expertise and experience in such dispute resolution? Fortunately, UNCTAD and others have begun to take such challenges into account and to provide training for respondent government officials. However, further actions are needed, including educating policy makers and the public as to the risks that arise in the investor-state dispute context and how best to address them. Changes in BITs and FTA investment provisions are also warranted. This article identifies the nature of the challenges presented to such governments and suggests practical means of dealing with them more effectively. It addresses, inter alia, coordination issues for the national administering authority; means of identifying and resolving such disputes before they reach the arbitration stage; effective use of outside legal advisers at various stages of the process; factors relating to the selection of arbitrators; administration of the arbitral process; and making current and future bilateral investment treaties more responsive to the procedural needs of respondent government. The article also draws on the experience of a number of nations with experience in responding to and/or litigating investor state disputes.

Confidentiality and Publicity in Investment Arbitration, Public Interest and Scope of Powers Vested in Arbitral Tribunals
Alexander J. Belohlavek
affiliation not provided to SSRN

The fact that a state is a party to arbitration does not give the arbitrators the status of public officers or subjects of public law, let alone [public] international law. Arbitration is, above all, a universal procedural mechanism. The principal specifics of investment arbitration become especially apparent in connection with the application of substantive standards.

Confidentiality and publicity/privacy are predominantly procedural issues. Opinions that argue that there exists any global, internationally recognized principle of confidentiality as an intrinsic feature to arbitration are illusory. Standards of confidentiality are subject to important territorial differences that depend on the seat of arbitration. The only universally accepted principle is probably the principle of confidentiality of hearings and the obligation of confidentiality binding on the arbitrators. This applies not only to international commercial arbitration, but also to investment disputes. Even in investment disputes, the parties enjoy a high standard of autonomy when it comes to confidentiality and the disclosure of information. Although we cannot deny the existence of a qualified public interest in investment disputes, this aspect should not influence confidentiality, publicity or the disclosure of information, because the ultimate interest in the disclosure of information in investment protection cases principally benefits the nationals of the host state. The author is of the opinion that these nationals could demand the disclosure of information regarding a particular dispute directly upon the host state and according to the mechanisms that the particular state employs for the purpose of the disclosure of information by the state (legislation regulating access to information, etc.). The author has serious doubts as to the power and the entitlement or authorization of arbitrators to make broad decisions on the disclosure of information concerning the particular proceedings by one of the parties. They cannot assess the interests of a third party (a person who is not a party to the proceedings). This does not apply in exceptional cases where the arbitrators restrict the right of the parties to disclose a specific piece of information in procedural situations that could jeopardize the course and the purpose of the proceedings. This is the only aspect within the power of arbitrators as concerns publicity. Nonetheless, such measures ought to be exceptional and adopted only in cases of specific and imminent danger.

A Pro-Congress Approach to Arbitration and Unconscionability
Northwestern University Law Review Colloquy, Vol. 106, p. 53, 2011, Widener Law School Legal Studies Research Paper No. 11-37
Stephen E. Friedman
Widener University - School of Law

This Essay endeavors to resolve a current controversy involving the application of the unconscionability doctrine to arbitration agreements. The pro-arbitration policies of the Federal Arbitration Act (FAA) and the anti-arbitration instincts of the unconscionability doctrine are difficult to reconcile. Instead of clarity in this area of law, we have a series of hints and clues, often contradictory, from the Supreme Court. Although Professor David Horton and I share a desire to clarify this area of the law, we have nearly opposite views about how this should be accomplished. This Essay sets forth my position and also responds to Unconscionability Wars, Professor Horton's latest thoughtful effort on the subject.

Novel Treaty-Based Approaches to Resolving International Investment and Tax Disputes in the Asia-Pacific Region
Sydney Law School Research Paper No. 11/66
Micah Burch and Luke R. Nottage
University of Sydney - Faculty of Law and University of Sydney - Faculty of Law

Trade and investment treaties have proliferated throughout the Asia-Pacific region. Their dispute resolution mechanisms are important in entrenching market access commitments, especially when providing for direct claims by firms against states. But the Global Financial Crisis has also heightened calls to balance liberalisation with harmonised regulatory safeguards. The way investment treaties sometimes deal with certain claims over taxes imposed by host states, limiting the scope for investors to proceed with direct arbitration claims, suggests one innovative mechanism for resolving claims about other types of investment disputes. A second possibility is to redesign investment treaties covering such claims like some contemporary double tax treaties, which have also burgeoned through the Asia-Pacific region based on the OECD Model Treaty. Just as a taxpayer can be given rights under tax treaties to force treaty partner tax authorities to initiate an inter-state arbitration, an investor could be entitled to trigger an inter-state arbitration of other sensitive issues under an investment treaty. Both dispute resolution mechanisms address state sovereignty and public interest access, yet preserve a role for private interests. They represent only some of various possibilities for improving the treaty-based investor-state arbitration system, instead of abandoning it for Australia’s future treaties as proposed by the Gillard Government Trade Policy Statement of April 2011.

A Power Struggle or the Assertion of Rights: Application of the Lex Mercatoria in International Commercial Arbitration
Antonius Rickson Hippolyte
University of Hull
Date Posted: October 1, 2011

A prominent attribute of international commercial dispute in contemporary times is the notably increasing occurrence of the usage, particularly by arbitral tribunals, of ‘anational’ systems of law to the settlement of such disputes, instead of municipal law(s) of one or more countries. The literature reveals that, this is because an arbitrator has a responsibility to apply the rule or choose the solution, which appears to him to be the most appropriate and equitable. Since arbitral tribunals are not constricted in the choice of law for the settlement of disputes, a tribunal is far more likely to adopt an ‘anational’ system of law in the course of international commercial dispute settlement. One such usage has been the application of the lex mercatoria, as the law applicable to the merits of a dispute.

WTO Disputes Settlement – An Evolving Jurisprudence
INTERNATIONAL COMMERCIAL LAW, LITIGATION AND ARBITRATION, pp. 243-260, K.E. Lindgren, N. Perram, eds., 2011, Sydney Law School Research Paper No. 11/73
Gillian Triggs
University of Sydney - Faculty of Law

An examination of some of the recent decisions of the panels and Appellate Body demonstrates the continuing evolution of WTO trade rules through traditional processes of treaty interpretation, reference to earlier jurisprudence and judicial reasoning. The quasi-judicial development of the law in these ways has facilitated finding that reflect contemporary concerns for the environment and human health, even for political concerns about public morals. The WTO trade rules can be flexible in the face of efforts to protect endangered species or to protect against the spread of disease. Recent disputes suggest that threats to orderly international trade do not lie in inflexible or out-dated rules, but rather in the failure by Members themselves to conduct proper risk assessments and by their imposition of measures that are little more than ill-disguised restrictions on international trade.

Introduction to International Commercial Arbitration
PRINCIPLES AND PRACTICES OF INTERNATIONAL ARBITRATION, 2ND ED., Cambridge University Press, 2012, Loyola University Chicago School of Law Research Paper No. 2011-027
Margaret L. Moses
Loyola University of Chicago - School of Law Loyola University Chicago School of Law

This is the introduction to the second edition of the book, Principles and Practices of International Arbitration, published by Cambridge University Press. The introduction provides an overview of international commercial arbitration and discusses its defining characteristics, its advantages and disadvantages, and its regulatory framework. It explains the differences between institutional arbitration and ad hoc arbitration, and discusses various international arbitral institutions. In addition, arbitrations outside of commercial arbitration, such as investment arbitration and arbitrations between nation states are considered. Finally, the introduction includes a brief discussion of other dispute resolution methods, such as mediation, conciliation, mini-trials, expert determination and neutral evaluation.

Current Socio-Legal Perspectives on Dispute Resolution
Oñati Socio-Legal Series, Vol. 1, No. 6, 2011,
Msayuki Murayama and Luigi Cominelli
Meiji University - School of Law and Università degli Studi di Milano

In recent years, there were increasing interests in quantitative survey research on experiences of legal problems and access to justice in an unprecedented number of countries. Such survey research was initially conducted in the U.K. and the U.S. and later in Canada, New Zealand and Australia, countries with the Anglo-American legal tradition. However, a similar survey was recently carried out in the Netherlands, Japan and Hong Kong, countries of the Civil Law tradition, some of them with Asian social background. Now we have fantastic opportunities for comparative studies of civil disputes and dispute handling behavior among countries with different socio-legal backgrounds. Drawing upon these survey data, we discussed on how experiences of legal problems and occurrences of disputes differ among countries, how legal machineries are used or not used to resolve disputes, how levels of satisfaction with outcomes differ, and research designs and quantitative analytical methods for future surveys.

Facilitating Settlement at the Arbitration Table: Comparing Views on Settlement Practice Among Arbitration Practitioners in East Asia and the West
Oñati Socio-Legal Series, Vol. 1, No. 6, 2011,
Shahla F. Ali
University of Hong Kong - Faculty of Law

This article presents a cross cultural examination of how international arbitrators in East Asian and Western countries view the goal of settlement in international arbitration. The result of a 115 person survey and 64 follow up interviews shed light on the underlying cultural attitudes and approaches to settlement in international arbitration as practiced in diverse regions. The findings indicate that arbitration practitioner’s perceptions of the frequency of compromise decision in international arbitration demonstrate a high degree of convergence across regions. At the same time, cultural and socio-economic distinctions are reflected in varying arbitrator perceptions regarding the arbitrators’ role in settlement, whether settlement is regarded as a goal in arbitration and the types of efforts made pre-arbitration to settle disputes. In particular, arbitrators working in the East Asian region regard the goal of facilitating voluntary settlement in the context of international arbitration with greater importance and generally make greater efforts pre-arbitration to settle disputes as compared with counterparts in the West.

(In)Appropriate Compromise: Article16(3) of the Model Law and its Progeny
Vladimir Pavic
University of Belgrade - Faculty of Law

This paper analyzes the mechanism established in the Article 16(3) of the UNCITRAL Model Law under which the courts can immediately review jurisdictional decisions made during the course of the arbitration. Most of the countries adopting the Model Law have opted to enact the equivalent of the Article 16(3) without changing its original wording, although its ambit and real meaning is far from being clear. Starting from the legislative history of the Model Law, the paper examines numerous ambiguities in the operation of Article 16(3), especially those which involve the extent of the court review, its timing, the interaction between the review proceedings and the ongoing arbitration, and the potential ramifications of various outcomes of the jurisdictional challenge.

Rollen Und Rollenverständnisse Im Transnationalen Privatrecht (Roles and Role Perceptions in Transnational Private Law)
Berichte der Deutschen Vereinigung für internationales Recht, Vol. 45, 2011 ,
Ralf Michaels
Duke University - School of Law

1. The private lawyer’s role is inseparably connected with the paradigms and doctrines of private law. This is so because the role played by private lawyers constitutes a large part of their understanding of the discipline. At the same time, the shared understanding of the discipline has necessary consequences for the roles played by lawyers in it.

2. Roles and role perceptions in private law are contingent upon space and time. The most important factor affecting private lawyers today is the growing detachment of private law from the state, through globalization, Europeanization, and privatization of law.

3. International commercial arbitration creates a transnational epistemic community. Within this community, the same individuals perform different functional roles: party representatives, arbitrators, scholars, advertisers.

4. The international arbitrator is a cosmopolitan; his or her national origin is considered largely irrelevant and is marginalized. This cosmopolitan role is both a consequence and a prerequisite of the autonomy of international commercial arbitration.

5. The state’s courts, by contrast, are only slowly becoming trans-nationalized. They favor convergence but shy away from unilateral regulation where such convergence does not exist or cannot be brought about.

6. The arbitrator’s role has evolved in the 20th century, from that of a legal notable whose authority rests in experience and wisdom, to that of a professional and entrepreneur. However, both types, as well as intermediate types, still exist.

7. In arbitration, the scholar’s role is regularly inseparable from that of a stakeholder. Most scholarship is produced by practitioners; university professors who write on arbitration frequently also practice. Arbitration scholarship is used as advertisement for ist author practitioner’s name and for international arbitration in general. The resulting scholarship is therefore of mixed quality; it tends to present arbitration in a favorable light.

8. Whereas domestic law rests in and finds ist legitimacy in the state, such a foundation is lacking for international arbitration. Instead of an alternative theory, scholars and practitioners frequently resort to faith and visions instead of rationality.

9. Two theories of international arbitration compete: a private theory of the arbitrator as a service provider whose only obligations are to the parties, and a public understand of the arbitrator as a quasi-judge with obligations towards the world at large. Attempts to combine both theories usually fail in their attempt to transcend the public/private tension inherent in both theories. A new theory will be necessary.

10. Other than legal practice, which is already trans-nationalized, private law scholarship is still in a process towards such trans-nationalization. The process largely leads to a role perception detached from both the state and politics.

11. Effectively, legal practice takes part in the creation of law beyond the state, in particular in so-called formulating agencies. Officially, however, such a lawmaking role is regularly rejected.

12. Private codifications like the Lando and UNIDROIT Principles are justified with a view to the needs of practice. Their authors, however, view themselves as disinteresed scholars, neither as practitioners nor as lawmakers. This is true even for the authors of the European Common Frame of Reference. The ensuing unclear relation between restatement and prestatement of law is not a peculiarity of transnational private law, it is commensurate with the experience from state codifications.

13. Private codifciations, other than state laws, need to be recognized by their users in order to claim any validity. As a consequence, private codifiers frequently act as advertisors for their products.

14. In transnational private law, ultimate foundations are often sought with reference to faith and vision, not rationality. Letztbegründungsproblem mit Hinweis auf Glauben, Vision, und Traum, letztlich also irrational, überwunden.

15. The private codifier legitimizes herself as a service provider vis-à-vis lawmakers and parties; he rejects a governance role. His code is supposed to gain ist validity from reason rather than state power, a doubtful juxtaposition. The reference to private autonomy is meant to substitute for other legitimacy, based on substantive quality or democratic process.

16. Private codifiers regulary refer to the state for questions of public interests. The consequence is a division of responsibilities.

Note: The Downloadable Document is in German.

Arbitration Ambush in a Policy Polemic
Penn State Yearbook on Arbitration and Mediation, Vol. 3, p. 52, 2011, U of Colorado Law Legal Studies Research Paper No. 11-15
Amy Schmitz
University of Colorado Law School

Arbitration has been demonized in the media and consumer protection debates, often without empirical support or consideration of its attributes. This has led to renewed efforts to pass the Arbitration Fairness Action, which would bar enforcement of pre-dispute arbitration clauses in consumer, employment, and civil rights contexts. It also inspired Dodd-Frank’s preclusion of arbitration clauses in mortgage contracts, along with the Consumer Financial Protection Bureau’s charge to prohibit or limit enforcement of pre-dispute arbitration agreements in consumer financial products and services contracts. Some of this negativity toward arbitration is warranted, especially in the wake of the United Supreme Court’s recent holdings highlighting a pro-business stance enforcement of arbitration agreements. Nonetheless, this does not necessarily justify abolishment of consumer arbitration. Accordingly, this Article suggest a more reasoned approach, and offers suggestions for carefully considered reforms that protect consumers without overly impeding beneficial use of arbitration. Litigation is not always the answer. Instead, it is time to rescue and revive arbitration from ambush.

The Restatement as 'New Rules'
CONTEMPORARY ISSUES IN INTERNATIONAL ARBITRATION AND MEDIATION: THE FORDHAM PAPERS, Martius Nihoff Publishers, 2011 , The Pennsylvania State University Legal Studies Research Paper No. 24-2011
Catherine A. Rogers
The Pennsylvania State University

Despite its primary task of "restating" the law, the Restatement (Third) of the U.S. Law of International Commercial Arbitration is, inevitably, ushering in “new rules.” The international arbitration system may be uniquely prone to the introduction of new rules because it is only loosely tethered to national legal systems and the slow-moving political apparatus that governs them. Instead, the international arbitration system has evolved into its current form by systematizing the most successful innovations in procedure and doctrine that were originally introduced on an ad hoc basis. These processes and doctrines, meanwhile, are introduced in a remarkably competitive market.

Because a restatement synthesizes the often muddled common law, it has some degree of flexibility. In this Restatement project, the challenge is not simply to replicate established doctrine, but to engage in a meaningful synthesis of often confused caselaw. This effort might be dubbed "new rules," but its primary purpose is to enable U.S. courts to make more systematic and consistent decisions regarding issues involving international arbitration agreements and awards. As a result, the Restatement will (hopefully) ensure greater predictability and allow for more careful planning by both foreign and domestic parties involved in international aribtration.

Contracting (Out) Rights
Fordham Urban Law Journal, Vol. 36, No. 4, 2009, UNC Legal Studies Research Paper No. 1939918
Kathryn A. Sabbeth and David Vladeck
University of North Carolina at Chapel Hill and Georgetown University Law Center

With the blessing of the Supreme Court, pre-dispute, mandatory arbitration provisions have become ubiquitous in contracts for em-ployment and consumer goods. What is the significance of this trend for the enforcement of federal laws and the vindication of the rights conferred by those laws? A number of scholars have devoted empirical research to this question, with many arguing that arbitration is not as bad as it seems if one looks at outcomes. This Article highlights two significant problems with these analyses. First, putting aside any methodological flaws in the individual studies, everyone agrees that the data available is extraordinarily limited, and even the degree of the limitation is unknown. This is because arbitration is a private, often confidential process, the initiation, outcome, and rea-soning of which are generally invisible to the public and unavailable to social scientists. Drawing conclusions from the small fraction of available data is meaningless and misleading. A second curious as-pect of the empirical literature, which has received less criticism, is its narrow focus on a single question: courts are expensive, so does arbitration provide the litigants with more bang for their buck? Even among those who question the wisdom of mandatory arbitration, many concede that arbitration costs less overall. Theorists who direct their inquiries towards fairness also evaluate it by comparing the interests of plaintiffs and defendants, but they neglect the benefits of statutory enforcement beyond those accrued by individual parties. The trouble with this approach is that what is at issue is not simply private interests, but public rights. To the extent that we consider acceptance of arbitration as substitute for litigation, we must come to terms with the fact that we are sacrificing the public interpretation of public laws. The aggregate social costs of that sacrifice deserve at-tention. In our view, the Supreme Court’s embrace of mandatory arbitration reflects a return to a Lochner-like veneration for the free-dom to contract unrestrained by public laws, and the studies measuring individual interests fail to grapple with this reality.

Dueling Nationalities: Dual Citizenship, Dominant & Effective Nationality, and the Case of Anwar Al-Aulaqi
Emory International Law Review, Vol. 25, No. 2, p. 101, 2012
Abraham U. Kannof
Emory University School of Law

The U.S. government ended a two-year manhunt in September 2011 when armed drones operated by the Central Intelligence Agency “crossed into northern Yemen and unleashed a barrage of Hellfire missiles” at a car carrying, among others, Anwar al-Aulaqi (also spelled “al-Awlaki”) – a dual U.S.-Yemeni citizen. Formerly a moderately religious Muslim, al-Aulaqi had become a leader for radical Muslims abroad over the past decade, inspiring jihadist attacks against the West and playing an increasing role in the operations and planning of attacks by al Qaeda’s affiliate organization based in Yemen. Al-Aulaqi’s death made waves among news media, politicians, and law professors, sparking national debate over the legality of killing an individual with American citizenship. For its part, the Obama Administration defended the strike, claiming that an internal review – involving senior lawyers from across the administration – determined that the killing of al-Aulaqi was legal.

Customary international law has long recognized the anomaly of dual citizenship. In doing so, however, international tribunals have been faced with problems that arise when an individual’s dual set of rights or dual set of duties conflict. To deal with these legal difficulties, customary international law precedent dictates that when hearing a case in which an individual’s citizenship has bearing either on jurisdiction to hear the case or on the merits of the claim itself, a tribunal must first determine, as a threshold matter, the individual’s “dominant and effective” nationality.

Building on a long line of precedent from international arbitration claims tribunals, this Paper argues that when hearing a case involving a suspected terrorist who holds dual citizenship (as was the case with al-Aulaqi, would-be Times Square bomber Faisal Shahzad, and others), a domestic court should first determine, as a threshold matter, the dominant and effective nationality of the accused. This determination is significant because a dominant foreign national can essentially be treated as a non-citizen, for the purposes of adjudication, and may not be entitled to the full rights and protections of domestic citizenship. This Paper looks at the al-Aulaqi affair as an illustrative case study, applying the doctrine to determine al-Aulaqi’s dominant and effective nationality.

Further, this Paper argues that even beyond al-Aulaqi’s case, the doctrine of dominant and effective nationality could prove valuable to the United States in its continued fight against terrorism. This Paper also includes a brief discussion on the legality of targeted killing under international law, more generally.

Selected International Arbitration Rules – 2011 Edition
Alternatives to the High Cost of Litigation, Vol. 29, No. 9, p. 163, October 2011
Steven A. Certilman
Steven A. Certilman, PC

A detailed comparison in spreadsheet format of the arbitration rules of the International Institute for Conflict Prevention and Resolution (CPR), the International Chamber of Commerce (ICC), the International Centre for Dispute Resolution (ICDR), the London Court of International Arbitration (LCIA) and the United Nations Commission on International Trade Law (UNCITRAL).

The New Private International Law of Turkey
Netherlands International Law Review, Vol. 37, No. 2, pp. 139-161, 1990, University of Baltimore School of Law Legal Studies Research Paper
Eric C. Schneider
University of Baltimore - School of Law

Turkish private international law is regulated by the Statute Regarding International Private Law and Procedure which was enacted on 20 May 1982 and became effective on 22 November 1982. This law repealed the former Temporary Law on Rights and Duties of Foreigners in Ottoman Lands of 23 February 1330 (1915) (hereinafter ''Temporary Law'), which, although intended as a temporary law when enacted during the Ottoman period, was effective until 1982.

As the title indicates, the new statute regulates the substantive and procedural aspects of Turkish private international law. It has 48 Articles and is divided into two parts. Part 1, Section 1 of the Statute contains general provisions in Articles 1 to 7, and, in Section 2. Articles 8 to 26. conflict of law rules. Part 2, in Articles 27 to 45, is devoted to matters of international procedural law such as the jurisdiction of Turkish courts, and the recognition and enforcement of foreign judgments and arbitration awards. Articles 46 to 48 deal with the repeal of the ''Temporary Law', as well as with the new Statute's effective date and enforcement.

The Statute does not claim complete coverage of international private law matters. When compared to the previous ''Temporary Law' it is rather long and inclusive; but it is not as detailed as, for example, the new Swiss Statute on private international law and it does not cover all the main issues likely to arise, as under the 'Temporary Law' one must look to other provisions of Turkish law for rules relating to some problems. For example, the choice of law rules for negotiable instruments are found in the Commercial Code. Other problems are simply not regulated by the Statute and the Turkish Codes. Solutions to such matters will be developed by court decisions and doctrinal writings.

The provisions of international agreements to which the Turkish Republic is a party are not affected by the new Statute. Turkey is a signatory to a considerable number of international agreements dealing with problems of private international law. Most of these international agreements are of European origin and are already in force in Turkey. Some provisions of these agreements are also applicable to nationals of non-signatory countries. As a result some provisions of the Statute are not applicable at all; others are in effect only against the nationals of those countries which are not signatories of international agreements.

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

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.

Excerpt from Mediation in England and Wales
Noel Rhys Clift, MEDIATION IN ENGLAND AND WALES, Hill Dickinson, 2010
Noel Rhys Clift
affiliation not provided to SSRN

In November 2010 I published "Mediation in England and Wales." We have since published translations into French and Italian. We have now completed a translation into Japanese. The attached is an excerpt of the book which contains both the original English text and the Japanese translation.

A Union of Equal Rights: 14 Penn Plaza- Placing Employees on Equal Footing with Union Laborers
Steven Mark Rogers
affiliation not provided to SSRN

This Note examines the majority and dissenting opinions’ reasoning in the Supreme Court Decision in 14 Penn Plaza and concludes that union members in the modern era of labor in the United States are at risk of offering their own personal rights on the union’s altar of bargaining for the collective good. The decision of how to pursue resolution of workplace discrimination, including the where, when, and in what forum, is now considered to be in the hands of union leaders, not individual employees.

Socio-Legal Perspectives on the Adjudication of Cultural Diversity Disputes in International Economic Law
Oñati Socio-Legal Series, Vol. 1, No. 4, pp. 1-24, 2011 ,
Valentina Sara Vadi
Maastricht University

This article explores and critically assesses the recent case law adjudicated by WTO panels and investment arbitral tribunals on cultural diversity related disputes. Adopting a socio-legal approach, this study focuses on the role that adjudicators have played in mapping the interactions between international economic law and the international cultural law i.e. international law protecting cultural diversity. While arbitrators have started to accommodate cultural values in argumentation patterns, WTO panels and even the WTO Appellate Body have adopted a more cautious approach. This paper identifies the socio-legal reasons that may contribute to these different approaches.

This study will proceed as follows. First, I will briefly define the multifaceted concept of cultural diversity and sketch out the relevant UNESCO instrument. Second, I shall analyze the available dispute settlement mechanisms. Third, the conflict areas between international economic law and cultural diversity law will be scrutinized through the analysis of some relevant case studies. Fourth, this contribution critically assesses the role that adjudicators play in adjudicating interdisciplinary disputes. Finally, some conclusions will be drawn.

Flights of Fancy & Fights of Fury: Arbitration and Adjudication of Commercial and Political Disputes in International Aviation
Georgia Journal of International and Comparative Law, Vol. 32, No. 2, 2004
Paul Stephen Dempsey
McGill University - Faculty of Law
Date Posted: October 14, 2011

By its very nature, aviation is inherently international in character, shrinking the planet and drawing together disparate peoples, cultures, and economies. As aircraft cross borders into foreign airspace and land at foreign airports, conflicts inevitably arise at both commercial and political levels. It is the resolution of these disputes that is the focus of this Article.

International dispute settlement mechanisms exist along a spectrum. Coercive means exist at one end, while legal means exist at the other. This Article focuses on the latter, and in particular, the ad hoc arbitrations that have resolved commercial aviation disputes, as well as the adjudication of aviation disputes before the International Civil Aviation Organization (ICAO), and the International Court of Justice.

Bilateral air transport agreements (bilaterals) define legal rights between nations in the realm of commercial aviation. Rights and responsibilities defined therein concerning airline traffic rights, rates, capacity, safety, security, and competition often lead to conflict between signatory states. Most bilaterals require consultation by governments over disputes before any retaliatory action is taken. Early bilaterals called an advisory report or adjudication by the ICAO. The Chicago Convention also provides for dispute resolution before the ICAO Council. Modem bilaterals have replaced the ICAO as a dispute resolution forum with ad hoc arbitration, usually with three arbitrators. Bilaterals typically call for termination only on twelve months' prior notice.

In the history of international aviation, relatively few disputes have resulted in ad hoc arbitration or ICAO or ICJ adjudication. At this writing, only six aviation disputes have been submitted to arbitration, only five have been submitted to the ICAO for adjudication, and only twelve have been filed with the ICJ. Most aviation disputes are resolved through negotiation, and, depending on the relative strength of the aviation trading partners, unilateral coercion.

This Article will review the six ad hoc arbitrations that have been sought to resolve issues of commercial aviation. It will also review the five aviation disputes that have been brought before the ICAO Council for quasi-judicial resolution. Finally, this Article will review the dozen aviation disputes that have been brought before the ICJ.

Critical Comparisons: The Role of Comparative Law in Investment Treaty Arbitration
Denver Journal of International Law and Policy, Vol. 39, No. 1, 2010
Valentina Sara Vadi
Maastricht University

Both comparativists and internationalists have mostly neglected the interaction between internationall aw and comparative law. While "internationalists seem comfortable with power and uncomfortable with culture...comparativists are eager for cultural understanding and wary of involvement with governance." However, this attitude is gradually changing, as comparativists and internationalists have increasingly acknowledged that they "share more than they realize." This article aims to scrutinize the interplay between international investment law and comparative law. This interaction has four different but related dimensions: comparative investment law, comparative arbitration law, legal doctrine, and treaty interpretation. While authors have extensively studied comparative investment law and comparative arbitration law, which study the different national legislations regulating foreign investment and the arbitral process, investment law scholarship and arbitral tribunals' use of comparative law has received scarce, if any, attention.

While the use of comparative legal reasoning in investment law jurisprudence and legal scholarship seems to offer concrete solutions to emerging conceptual dilemmas and reputed scholars have forcefully argued in favor of it, one may question whether a more critical approach to the use of comparative law should be adopted. It is often assumed that comparative law is a neutral process, but this is not always the case. Problems of perspective are a central element in the comparative law discourse. This study focuses on the interplay between international investment law and comparative law and proposes the adoption of a critical method. Not only would such awareness limit eventual abuses of the comparative method, but it would also favour the coherence of the international legal system as a whole.

Mapping Uncharted Waters: Intellectual Property Disputes with Public Health Elements in Investor-State Arbitration
Transnational Dispute Management, pp. 1-22, 2009
Valentina Sara Vadi
Maastricht University

This article offers a primer on recent investment disputes concerning intellectual property. The flourishing of investor-state arbitrations in recent years has transformed the landscape of investment protection since customary international law provided for state-to-state disputes only. The investor-state dispute settlement mechanism has increasingly been used in disputes relating to intellectual property, albeit this trend is still in its infancy. This article aims to shed light on the emerging case law and to critically assess the interplay between IP protection and public health in international investment law. Finally, it offers some interpretative tools to reconcile the possible antinomies between the intellectual property regime and other bodies of international law.

Modelling Arbitration: Evaluating Risks and Settlements of Disputes Using Regret Theory
International Proceedings of Economics Development and Research, Vol. 15, pp. 89-92
Abdulla Galadari

This paper presents a mathematical model to evaluate the risks of arbitration in contractual disputes to decide whether or not to raise an arbitration case for a claim. It adds the ingredient of a regret theory approach for taking that decision, if an amicable settlement amount is not agreed. Many other models that are based on decision trees, game theory, and neural networks lack a regret theory approach. The inclusion of regret theory in this model may be adaptable to any other models available making the decision more realistic through a stochastic approach of optimizing the maximum benefit for the minimum regret.

Optimisation of Intra-Group Financing
Patricia Lampreave
Universidad Complutense de Madrid (UCM) - Law School

The purpose of the article is to provide an overview of the principles of the International tax planning. The content has been simplified in order to give a basic introduction of a high complex subject related to cross border tax strategies to optimize the financing of multinational groups.

After a reference to the notion of financial services and intra-group services, we also mention the notion of harmful tax competition vs. fair competition, and the position of the European Union Institutions with regard to the mentioned issue.

Furthermore, we analyze different regimes considered as harmful by the EU Code of Conduct and the amendments introduced to these regimes in a way that the States that offer these regimes could meet the EU regulation without losing their tax competitiveness. We made at the end a brief reference the hybrids financial instruments.

Reconciling Public Health and Investor Rights: The Case of Tobacco
HUMAN RIGHTS IN INTERNATIONAL INVESTMENT LAW AND ARBITRATION, pp. 452-486, Pierre Marie Dupuy, Francesco Francioni, Erst-Ulrich Petersmann, eds., Oxford University Press, 2009
Valentina Sara Vadi
Maastricht University

This study explores the linkage between international investment law and public health law, focusing on the specific issue of tobacco control. Since the recent inception of the WHO Framework Convention on Tobacco Control, which has established cognitive and normative consensus for promoting global public health through tobacco control, states have gradually adopted a series of measures to comply with such a convention. However, international economic governance risks undermining the goal of tobacco control. International trade liberalization has significantly reduced tariff and non-tariff trade barriers, taking down the prices of tobacco products and determining an increase in cigarette smoking, particularly in low income countries. Investment treaties which protect foreign assets, including trademarks and good will, have further facilitated foreign investment in the tobacco business, thus increasing competition and lowering tobacco prices. In addition, as investment treaties broadly define the notion of investment, a potential tension exists when a state adopts tobacco control measures interfering with foreign investments, as regulation may be considered as tantamount to expropriation under investment rules. As investment treaties provide foreign investors with direct access to investment arbitration, foreign investors with direct access to investment arbitration, foreign investors can directly challenge national measures aimed at protecting public health and can seek compensation for the impact on their business of such regulation.

Several questions arise in this connection. Are investment treaties compatible with states' obligations to protect public health? Is investor-state arbitration a suitable forum to protect public interests? The argument will proceed in four parts. First, the international law instruments concerning tobacco control will be sketched out. Second, an examination will be made of the regulatory framework disciplining international investment law. Third, this study will explore the conflict areas between investment governance and tobacco control, examining some recent case studies. [...] Fourth, this chapter offers a series of legal tools available to policy makers and adjudicators in order to reconcile the different interests at stake.

Tobacco Regulation, International Investment Arbitration and the Fragmentation of International Law – The Grand River Enterprises Case
European Journal of Risk Regulation, Vol. 2, pp. 267-273, 2011
Benedikt Pirker
UMich Center for International and Comparative Law

In the recent Grand River Enterprises case, United States public health regulations on protection from tobacco products successfully withstood a challenge by Canadian Native American investors under NAFTA chapter 11 arbitration. The arbitrators carefully weighed the investors’ rights and the regulatory freedom of the host state under the NAFTA rules. The treatment of other norms of international law on the protection of indigenous peoples, however, merits some criticism.

When Cultures Collide: Foreign Direct Investment, Natural Resources and Indigenous Heritage in International Investment Law
Columbia Human Rights Law Review, Vol. 42, No. 3, 2011
Valentina Sara Vadi
Maastricht University

The protection of cultural heritage has profound significance for human dignity and assumes particular importance with regard to indigenous peoples. Although the recognition of indigenous peoples' rights and cultural heritage has gained some momentum in international law since the adoption of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), states have interpreted the right to develop 'on their own terms' in order to prosper 'as they see fit'. Meanwhile an international economic culture has emerged that "cuts across traditional cultural divides"' and emphasizes productivity and economic development.

Because policymakers tend to favor growth, regardless of actual or potential infringement of cultural entitlements, 'existing laws frequently fail to strike a balance between economic development' and indigenous peoples' rights.' As a result, indigenous peoples suffer the consequences of a regime that favors, for example, mining over the environment and indigenous culture. While the clash between economic development and indigenous peoples' rights is by no means new, this Article approaches this well-known theme from a new perspective by focusing on international investment law and arbitration. This Article explores the way in which international investment treaties and arbitral tribunals have dealt with indigenous peoples' rights. This research is timely as in the past decade there has been a boom of investor-state arbitration which is contributing significantly to the development of international law. While the traditional focus of investment lawyers has been the analysis of the relevant investment law provisions, little, if any, research has focused on the substantive interplay between indigenous peoples' rights and investor's rights in international investment law and arbitration. Only recently have legal commentators begun to analyze and critically assess the substantive interplay between different international law regimes in investment treaty law and arbitration. Among these pioneering works, however, specific focus on indigenous peoples' rights is missing. This Article aims to fill this existing lacuna in contemporary legal studies. The key questions are whether international investment law has embraced a pure international economic culture or whether it is open to encapsulate non-economic or cultural concerns in its modus operandi.
Arbitration in Company Disputes - Main Features in Russia and Austria
Natalia Levanova and Gerhard Saria
Plekhanov Russian University of Economics - Department of Political Science and Law and affiliation not provided to SSRN
Date Posted: October 31, 2011
Working Paper Series

Arbitrage is an effective means for the settlement of disputes in many countries. This article gives a short survey of the most important features of arbitration provided by Russian and Austrian law with regards to company disputes, especially to the shareholders’ rights protection. In Russia the most effective way to solve such conflicts is appealing to the state courts, including arbitration ones. Moreover, the most kind of disputes with shareholders participation do not fall under the courts of private arbitration jurisdiction at all.

On the contrary, the Austrian system of arbitration is characterized by a liberal, simple and effective framework of provisions aiming at attracting international arbitration. Considering that the parties of company disputes usually will have to cooperate again after the final settlement of their claims, from an Austrian point of view using arbitration in company disputes is to be preferred to any settlement of such disputes by state courts.

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