UNCITRAL Digest on the Model Law on International Commercial Arbitration

UNCITRAL usually comes up with extremely good work on International Commercial Arbitration. Its contribution to the subject has been astounding, to say the least. It has added another feather to its cap by publishing the Digest of Cases on the Model Law on International Commercial Arbitration. The 242 page Digest lists out almost all the major cases of prominent Model Law jurisdictions and also includes several Indian cases such as Bhatia International, Venture Global, Patel Engineering, Bohgara Polyfab, SAW Pipes, Phulchand Exports, Centrotrade Minerals, etc. The digest is a must-have for all enthusiasts of international commercial arbitration and can be accessed from here.

It has been our constant complaint in this blog that advocates in India do not cite relevant foreign decisions. We hope this Digest will aid advocates cite relevant decisions in the courts and explain the rationale for a particular legal position prevailing in another Model Law jurisdiction.

UNCITRAL's Monthly Bibliography: An Excellent Research Tool

Readers of this blog may be aware that we have been giving links to the monthly Bibliography published by the UNCITRAL on the recent writings related to UNCITRAL's work. In this post, we discuss the importance of the Bibliography for researchers. The UNCITRAL bibliography is a must-use tool for research on any UNCITRAL related instrument. For some time UNCITRAL has been publishing it monthly. All those interested in Commercial/ Trade Laws might want to check it out on a monthly basis. To the extent possible, we will be providing links in this blog to the latest bibliography on a monthly basis. Check out the Bibliography Page of the UNCITRAL from this link. This page also gives links to the bibliography published since 1968. The latest bibliography (January 2012) can be accessed from here (pdf). LLM/PhD/Research candidates- Please don't miss this. Happy researching!

SSRN: Weekly Round up of Articles on Constitutional Law

1. Curtailment of Revisional Jurisdiction of High Courts in India: A Critique

Brajesh Ranjan , Bombay High court

Abstract

The jurisdiction exercised by the High Courts in India under Section 115 of the Code of Civil Procedure, 1908 is called the revisional jurisdiction of the High Courts. It has been conferred on the High Courts for effective exercise of the High Court’s superintending and visitorial powers over the subordinate courts. The revisional jurisdiction of the High Courts has undergone a radical metamorphosis since its inception. Today the powers and functions of the High Courts in India stands altered to suit the roles they are expected to don amidst the changing socio-judicial scenario. This article makes an attempt to review the amendments which have come to circumscribe the scope of revisional jurisdiction of the High Courts in India and to examine as to whether the objectives underlying these amendments have been achieved. The article further attempts to identify the loop-hole required to be plugged so as at to render effective, the objectives behind the amendments.

2. The Declining Influence of the United States Constitution

David S. Law , Washington University in Saint Louis - School of Law; Washington University in Saint Louis - Department of Political Science

Mila Versteeg, University of Virginia - School of Law

Abstract

It has been suggested, with growing frequency, that the United States may be losing its influence over constitutionalism in other countries because it is increasingly out of sync with an evolving global consensus on issues of human rights. Little is known in an empirical and systematic way, however, about the extent to which the U.S. Constitution influences the revision and adoption of formal constitutions in other countries.

In this Article, we show empirically that other countries have, in recent decades, become increasingly unlikely to model either the rights-related provisions or the basic structural provisions of their own constitutions upon those found in the U.S. Constitution. Analysis of sixty years of comprehensive data on the content of the world’s constitutions reveals that there is a significant and growing generic component to global constitutionalism, in the form of a set of rights provisions that appear in nearly all formal constitutions. Our analysis also confirms, however, that the U.S. Constitution is becoming increasingly out of sync with these global practices.

3. The Democratic Coup d’État

Ozan O. Varol , Chicago-Kent College of Law

Abstract

This Article identifies and examines the typical characteristics and constitutional consequences of a largely neglected phenomenon that I call the “democratic coup d’état.” To date, the academic legal literature has analyzed all military coups d’état under a single framework. That conventional framework considers all military coups to be entirely anti-democratic and assumes that all coups are perpetrated by power-hungry military officers seeking to depose an existing regime to rule the nation indefinitely. Under the prevailing view, all military coups therefore constitute an affront to stability, legitimacy, and democracy. Federal law in the United States reflects the same disdain for military coups by prohibiting any financial assistance “to the government of any country whose duly elected head of government is deposed by military coup or decree.”

This Article challenges that conventional view and its underlying assumptions. I argue that although all military coups have anti-democratic features, not all coups are equally anti-democratic. Rather, some military coups are distinctly more democratic than others because they respond to a popular opposition against an authoritarian or totalitarian regime and overthrow that regime for the limited purpose of transitioning the state to a democracy and facilitating the fair and free elections of civilian leaders. Drawing on fieldwork that I conducted in Egypt and Turkey in 2011, this Article sets forth a theory for a democratic coup d’état and examines its constitutional consequences using three comparative case studies: (1) the 1960 military coup in Turkey; (2) the 1974 military coup in Portugal; and (3) the 2011 military coup in Egypt.

4. Why No Parliaments in the United States?

Jonathan Zasloff , University of California, Los Angeles (UCLA) - School of Law

Abstract

Throughout American history, individual states have engaged in what scholars have aptly referred to as an “orgy of constitution-making.” States’ basic charters, however, have diverged profoundly from the federal Constitution in virtually every possible way but one: no state has ever created a parliamentary system. This Article asks why this is so, and finds that the answer reveals a basic American political pathology: a hatred of parties and legislative process, grounded in the electorate’s mythic belief that the only thing preventing political consensus are special interests or venal politicians. The current political paralysis in Washington and state capitals also derives from this myth, demonstrating that inquiring into the absence of American parliaments reveals basic flaws in our current political culture.

5. Making Constitutions Matter: The Dangers of Constitutional Politics in Current Post-Authoritarian Constitution Making

William Partlett , Stanford Law School

Abstract

This paper will explore a critical normative question at the intersection of constitutional and democratic theory: Is the process of constitutional drafting and ratification important in determining whether a constitution will serve as a constraint on future government activity? Many constitutional theorists maintain that constitution-making process is critical in making a constitution “matter.” They argue that the best constitution-making process is one where the people divorce constitutional drafting and ratification as much as possible from pre-existing, ordinary rules and institutions by encouraging the “people” to directly act through irregular mechanisms such as referendums and constitutional conventions. This irregular expression of popular sovereignty – called “constitutional politics” – ensures that the constitution will transcend ordinary politics and therefore limit future legislative and executive action.

The massive wave of constitution making in post-communist Europe and Asia in the late 1980s and early 1990s – a valuable laboratory for testing constitutional theory – suggests serious problems with this approach. First, the most successful and legitimate post-communist constitutional orders were established without engaging in constitutional politics. Instead, these countries made wide use of ordinary political mechanisms - including parliaments - in the construction of robust constitutional orders. Second, post-communist nations that have sidelined ordinary political institutions and rules in favor of the mechanisms of higher lawmaking in creating constitutional orders have actually been far less successful in building constitutions that constrain government activity.

6. Revolution as a Constitutional Concept

Guyora Binder , University of Buffalo School of Law

Abstract

Although the concept of revolution was associated with a predictable cycling among static constitutional orders in seventeenth and eighteenth century republican thought, this article explores the idea of a dynamic or revolutionary constitution. It traces this idea back to a customary constitutionalism articulated in the French and American revolutions, and examines its fuller expression in the synthesis of Whig and antislavery constitutionalism developed by Abraham Lincoln.

7. The Scope of U.S. Senate Control Over the Conclusion and Operation of Treaties

Stefan A. Riesenfeld , University of California, Berkeley - School of Law

Frederick M. Abbott , Florida State University College of Law

Abstract

This article will briefly describe the basic allocation of the treaty power in the United States and the status of treaty law in the municipal legal system. These matters are the subject of a number of excellent studies by American and foreign scholars. Our main concern, however, is with a particular feature of the constitutional landscape-the role which the Senate plays in the treaty-making process through the attachment of qualifications to resolutions of ratification; namely amendments, reservations, understandings, declarations, and provisos. We are concerned with the effect these conditions are accorded by the President, United States courts, and the international community. We are concerned with whether a minority of the Senate will be enabled to effect an influence on the international and domestic legal process greatly in excess of the constituency it represents. We believe that the phenomenon of Senate conditions must be carefully examined in the light of developments in the international legal system, and particularly the growing acceptance of individuals and individual rights as proper subjects of international law.

8. Law is Everywhere

Owen M. Fiss , Yale University - Law School

Abstract

War places great stress on society. It calls for major readjustments in government and in ordinary life. Often people are called on to make enormous sacrifices. In order to respond to these needs, codified law is often changed. The Executive promulgates new regulations and Congress enacts statutes to meet the exigencies of the war. The governing assumption of American society is that these war measures will be undertaken within the terms of the Constitution - that the allocation of powers among the branches set forth in the Constitution will be respected and basic liberties will be honored. Ours is a Constitution for times of war as well as times of peace.

The last five years have confounded this assumption and rendered the example of Justice Aharon Barak especially compelling. He has honored the special security needs of Israel while being adamant in protecting Israel’s democratic character. The contrast with the American experience is stark, even when a principle as sacrosanct as the prohibition against torture is at stake. The war against terrorism seems to have absolved the current Administration from any sense of limits.

9. The Constitutionality of State Prohibitions on Sharia Law

Ellery Richardson , Vermont Law Review

Abstract

A representative in the Tennessee legislature has recently proposed a bill banning the practice of sharia law, which is the Islamic law and code of conduct. Oklahoma amended its constitution to forbid judges from citing sharia law, or any foreign law, in their opinions and decisions of first impression. Other states are also considering passing similar legislation. This note will review these bills and laws, delve into their motives, and ask why the use of sharia law has become such a controversy on the state level. This note will attempt to concisely explain what sharia law is and why some consider banning it from our courts, or even making its practice a crime, a necessity. Then it will look at the bills in light of the first amendment and analyze their constitutionality.

10. The Example of America

Owen M. Fiss , Yale University - Law School

Abstract

In this essay, I focus on one of the most egregious of all abuses - the policies and practices of the Bush years that put into doubt the American commitment to prohibiting torture. This prohibition is embodied in a number of international instruments, most notably the 1984 Convention Against Torture and the criminal statute that we enacted to implement that treaty. Yet it is important to understand, so that we can be clear about the magnitude of the wrong, that the rule against torture did not await the arrival of the 1984 Convention and its implementing statute; it is rooted in the Constitution itself.

11. The Perils of Minimalism

Owen M. Fiss , Yale University - Law School

Abstract

The basic constitutional question posed by Guantánamo is whether the prisoners held there have any constitutional rights that might be protected by the courts. This may not seem much of a question in many democracies throughout the world, including Israel, because they view their constitutions in universalistic terms. The guarantee of human dignity, for example, controls the actions of Israeli officers wherever they act and against whomever they act. The American Supreme Court moved toward such a cosmopolitan conception of the United States Constitution during the Warren Court era, but starting in 1990 it headed in a different direction.

12. Right to Adequate Housing in India: Human Rights Perspective

Dr. Pradeep Kumar Pandey , The ICFAI University Tripura, INDIA

Abstract

In the era of so-called developed and progressive societies, where we declare to achieve a lot of things for our sustenance and survival, the basic requirements to live a life like a human being is far from reality. Among others, the basic needs like roti, kapda, makan are not available to all human beings. This situation is not in any one or two countries rather it has been spreaded all over the world. Right to adequate housing is a recognized human rights at the international level in various instruments like UDHR, ICESCR, CEDAW, CRC, CERD etc. which are very crucial for India. In India a lot of rights are guaranteed under Constitution of India as well as in other laws but no where right to adequate housing is mentioned specifically, though India has signed and ratified many international instruments which talk about this right. In this respect, what the achievement is, that is only due to Judiciary but the role of Judiciary in this respect is always changing. Even for some time Indian Judiciary ruled that right to adequate housing is essential part of Fundamental Rights guaranteed under Part-III Article 21 and 19(1)(e) but in some case the Judiciary has also disappointed to people who need housing right. In the light of abovementioned facts, the paper proposes to discuss the existing norms and parameters available at the national, regional and international level in respect of right to adequate housing. Further, it gives some sensible suggestions to strengthen this right.

Weekly Round up of (select) Articles on Constitutional Law from SSRN

1. German Constitutional Law and Doctrine on State of Emergency - Paradigms and Dilemmas of a Traditional (Continental) Discourse

András Jakab , Pazmany Peter Catholic University

Abstract

The article examines the current German constitutional provisions and the different (historical and current) paradigms of German constitutional scholarship dealing with state of emergency. It shows the different advantages and disadvantages of (not) presupposing a pre-legal state and of (not) sticking to the text of the constitution. Although the author argues for an approach which does not recognize any pre-legal state and which sticks in legal reasoning to the text of the constitution, he concedes that the actual institutional practice depends much on the legal tradition of the respective country.

2. The Constitution of China: What Purpose Does it (Not) Serve?

Surya Deva, City University of Hong Kong

Abstract

It is widely accepted that constitutions serve several important purposes in the Western as well as non-Western traditions. In this article, I propose that constitutions ought to serve at least the following six ‘core’ purposes: signify a break from the past, organize political power, provide legitimacy to the legal system, empower people, limit the power of government organs, and work as a unifying force for diverse interests and groups. Against this background, this article seeks to ask and answer the following question: does the Constitution of the People’s Republic of China (PRC) serve these core purposes? Although the PRC Constitution resembles – at least in appearance – Western liberal constitutions in many respects, it is really doubtful if it serves many of these core purposes. This is not to suggest, however, that the PRC Constitution is devoid of any real value. It does serve some other ‘secondary’ purposes within the current Chinese legal framework. This article will try to shed some light on what those purposes are and whether they mean anything to people outside China interested in the study of constitutionalism.

3. Judicial Review and Racial Minorities: The U.S. Case

Leslie Friedman Goldstein , University of Delaware - Political Science & International Relations

Abstract

This essay examines U.S. policy toward African-Americans, Asian residents of the U.S. and Native Americans in the first four decades after the equal protection clause was added to the U.S.Constitution in an attempt to answer the question, “Did the institution of judicial review at the national level in fact render the U.S. Supreme Court more protective than were the electorally responsive branches of the national government toward the rights of racial minorities mistreated by local majorities (specifically, blacks, Asians, and Native Americans)? It concludes that it is not correct to say, as many scholars do, that the U.S. Supreme Court buried Reconstruction.

4. Making Constitutions in Deeply Divided Societies

Hanna Lerner , Tel Aviv University - Department of Political Science

Abstract

How can societies still grappling over the common values and shared vision of their state draft a democratic constitution? This is the central puzzle of Making Constitutions in Deeply Divided Societies, of which the introduction chapter is presented. While most theories discuss constitution-making in the context of a moment of revolutionary change, the book argues that an incrementalist approach to constitution-making can enable societies riven by deep internal disagreements to either enact a written constitution or function with an unwritten one. It illustrates the process of constitution-writing in three deeply divided societies – Israel, India and Ireland – and explores the various incrementalist strategies deployed by their drafters. These include the avoidance of clear decisions, the use of ambivalent legal language and the inclusion of contrasting provisions in the constitution. Such techniques allow the deferral of controversial choices regarding the foundational aspects of the polity to future political institutions, thus enabling the constitution to reflect a reality of divided identity.

5. James Madison, Law Student and Demi-Lawyer

Mary Sarah Bilder , Boston College - Law School

Abstract

We think of James Madison as a political theorist, legislative drafter, and constitutional interpreter. Recent scholarship has fought fiercely over the nature of his political thought. Unlike other important early national leaders - John Adams, Alexander Hamilton, Thomas Jefferson, John Marshall, Edmund Randolph, James Wilson - law has been seen as largely irrelevant to Madison’s intellectual biography. Madison, however, studied law and, at least in one extant manuscript, took careful notes. These notes have been missing for over a century, and their loss contributed to the sense that Madison must not have been that interested in law. Now located, these notes reveal Madison’s significant grasp of law and his striking curiosity about the problem of language. Madison’s interest in interpretation is certainly not news to scholars. These notes, however, help to establish that this interest predated the Constitution and that his interest in constitutional interpretation was an application of a larger interest in language. Moreover, Madison thought about the problem of legal interpretation as a student of law, never from the secure status of lawyer. Over his lifetime, he advocated a variety of institutional approaches to constitutional interpretation, and this comfort with nonjudicial interpreters, along with a peculiar ambivalence about the proper location of constitutional interpretation, may owe a great deal to his self-perception as a law student but never a lawyer.

6. The Unconstitutionality of Supreme Court Recusal Standards

Louis J. Virelli III , Stetson University College of Law

Abstract

Supreme Court recusal is one of the most timely and hotly contested issues in American law. Recent debate over when justices should be precluded from deciding certain cases has included public calls for the exclusion of Justices Thomas and Kagan from any future cases addressing the constitutionality of the controversial Affordable Care Act, the congressional testimony of two sitting justices, a letter from over 130 law professors successfully prodding Congress to introduce a new Supreme Court recusal reform bill, and numerous editorials in national print and electronic media outlets. Among the wide variety of voices in the discussion, a singular theme has emerged - more rigorous congressional regulation of Supreme Court recusal practice is needed to protect the integrity and legitimacy of the Court.

This discussion, however, misses the point. Lost in the impassioned debate about when justices should recuse themselves is a far more important and fundamental constitutional question: who should make that decision? This issue is at the core of our constitutional separation of powers and federalism principles, and should take center stage in the debate over Supreme Court recusal. This Article is the first to comprehensively apply separation of powers principles to the question of Supreme Court recusal, and argues that the Constitution requires that the Supreme Court be the sole arbiter of its own recusal standards. This argument shifts the focus of the debate from an ineffectual and unrealistic congressional command model, based primarily on notions of judicial ethics, to a more fundamental constitutional inquiry into the proper exercise of legislative and judicial authority. While this Article represents a significant break from current orthodoxy, it is imperative to situate the Court’s recusal decisions within the proper normative framework. Understanding the unconstitutionality of Supreme Court recusal standards should yield a more useful and transparent dialogue about the Court’s recusal practices going forward.

Somashekhara Commission Report

Find here (a link from the Hindu)the Report of Justice Somasekhara Commission on the attack on minority religious establishments in Karnataka.

Fortnightly Roundup of SSRN Articles on Arbitration (October 1 - 15)

Arbitration Clause as Unfair Contract Term: Some Observations on the ECJ's Claro Case

Zdenek Novy

Abstract:

This paper addresses the problem of the annulment of an arbitration award by national courts on the grounds that the arbitration proceedings were based on arbitration clause as an unfair contract term under the Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts.

The ECJ decided in the case Claro v Móvil that arbitration award may be annulled by national court if it is based on arbitration clause which turns out to be unfair contract term. Moreover, according to the ECJ, consumer has no duty to object unfairness of the arbitration clause in the course of arbitration proceedings. Therefore, the national court may find the term unfair thus void on its own motion. The reasoning behind this was that the arbitration award was at odds with mandatory provisions of the Directive on unfair terms in consumer contracts, which form part, in the view of the ECJ, of the so called European public policy.

Notwithstanding the different opinions on this case, the message from the ECJ is clear. The arbitration is a mean of settlement of disputes which is intended for the B2B disputes. On the contrary, the B2C disputes should be resolved in Alternative Disputes Resolution or before ordinary national courts.

Consequently, I would like to offer some ideas on the potential impact of the Claro decision upon Czech legal order. Thus, particularly the existing legal frame for consumer disputes created by the Czech Arbitration Act and Civil Code is analysed.

Arbitration in the Western Balkans: The Emerging Commercial Landscape
Matthew Parish

Abstract:
The rise of international arbitration was driven by the globalisation of commerce in the nineteenth and twentieth centuries, and the development of international law to regulate relations between the Great Powers. The history of the Western Balkans region in the same period insulated it from these influences, and thus arbitration remained unfamiliar. In the communist period, arbitration represented the antithesis of the political purposes assigned by the communist authorities to the domestic legal system. In the wars following disintegration of the former Yugoslavia, institutional capacity was further weakened by elite capture of judicial institutions. That legacy persists to the present day; but its effect is to exclude a significant proportion of the potential levels of foreign investment in the region. International arbitration remains a valuable tool for escaping partial domestic court systems and its use is likely to increase as the Western Balkans becomes increasingly open to foreign direct investment.

Brief of Arbitration Professors as Amicus Curiae in Support of Respondents
Hiro N. Aragaki

Abstract:
This brief is a natural extension of my research and writing over the past two years, which seeks to develop an antidiscrimination model of FAA section 2 preemption. The arguments in the brief originate, and are explored in greater depth in, my forthcoming piece, Equal Opportunity for Arbitration, 58 U.C.L.A. Law Review, Vol. 58 2011.

Petitioner (and Respondents) in this case have famed the FAA preemption issue in terms of antidiscrimination: That is, a state law is preempted if it "discriminates" against arbitration. Thus, the California Supreme Court's Discover Bank rule is preempted if it can be characterized as reviving the ancient judicial hostility toward arbitration.

This brief argues that the Petitioners' interpretation of this "antidiscrimination principle" is incorrect, and that the Discover Bank rule should not be preempted, for two reasons: 1) Although it has often been said that the FAA's purpose is to place arbitration agreements on the same footing as other agreements, the true purpose of doing so is to place arbtration on the same footing as litigation, so that it could emerge as a bona fide dispute resolution alternative. 2) Although lower courts frequently find statutes and judicial decisions preempted if they fail to apply literally to "all contracts," the all contracts standard is fundamentally incoherent and should be rejected.

A Brief History of Arbitration in the United States
Steven A. Certilman

Abstract:
A brief history of arbitration and ADR in the Unitede States from colonial times to the present.

How the Payday Predator Hides Among Us: The Predatory Nature of the Payday Loan Industry and its Use of Consumer Arbitration to Further Discriminatory Lending Practices
Michael Satz

Abstract:
This Article argues that Payday lending is a predatory lending practice that disproportionately targets minority customers, and that the Payday lending industry utilizes consumer arbitration agreements to further the industry’s discriminatory lending practices. The Article further argues that the protections afforded military members in the FY 2007 Defense Authorization Act should be applied globally in the form of federal legislation.

While there is no bright line definition of what constitutes predatory lending, there are certain badges that tend to be present in a predatory lending transaction, which include high interest rates, limited or confusing disclosures, deceptive acts and practices utilized in drawing in would-be customers, and often the targeting of particularly vulnerable classes of persons. The Payday lending industry makes effective use of these predatory practices to target vulnerable classes of customers, particularly targeting African-American and Latino populations, and engages in lending practices that can lead to loans with interest rates in excess of 500%. Concurrent with the rise of the Payday lending industry in the United States, consumer arbitration agreements became popular. These arbitration agreements require consumers with a legal claim against a business to submit that claim to binding, final arbitration. Although arbitrators in such cases are ostensibly supposed to be neutral, recent evidence indicates that such arbitrators favor lenders in consumer disputes and, in addition, the arbitration of consumer disputes is replete with other problems including issues with fairness, financial costs, other transaction costs, and lack of knowledge on the consumer’s part. Payday lenders take advantage of the benefits that consumer arbitration offers to repeat business players to shield their predatory actions from the public eye, thereby lessening the chance that a state or federal regulatory authority will learn of these actions and consequently take regulatory action or steps in civil court to curb the questionable conduct. Likewise, when dealing with individual consumers, the arbitration agreements tend to dissuade consumers from pressing a claim, prevent consumers with similar claims from learning about previous cases, and prevent consumers from joining forces as members of a class in a class action law suit.

Because one of the predicates of the Payday lending industry is predatory lending that targets minority customers, the use of arbitration agreements to shield the industry from liability and accountability make these arbitration agreements effective tools that allow the Payday lending industry to further propagate its discriminatory lending practices.

This Article concludes with a call for a ban of the use of arbitration agreements in the Payday lending field, and further seeks more equitable and representative drafting and application of legislation to protect all constituencies from predatory lending practices.

Anti-Suit Injunctions in Support of Arbitration Agreements in Europe – The Final Curtain Has Fallen
Martin Illmer

Abstract:
Yet another blow for the English: the final curtain for anti-suit injunctions to enforce arbitration agreements within the European Union has fallen. As the augurs had predicted, the ECJ, following the AG’s opinion, held that anti-suit injunctions enforcing arbitration agreements are incompatible with Regulation 44/2001. Considering the previous judgments in Marc Rich, van Uden and Turner as well as the civil law approach of the Regulation, the West Tankers judgment does not come as a surprise. It accords with the system and structure of the Regulation. De lege lata the decision is correct. Moaning about the admittedly thin reasoning and an alleged lack of convincing arguments does not render the decision less correct. Instead, the focus must shift to the already initiated legislative reform of Regulation 44/2001. Meanwhile, one may look for alternatives within the existing system to hold the parties to the arbitration (or jurisdiction) agreement, foreclosing abusive tactics by parties filing actions in certain Member States notorious for protracted court proceedings.

International Arbitration: Selected Preliminary Topics
Giovanni Distefano

Abstract:
A. International arbitration as opposed to other means of dispute settlement
B. The Concept of International Arbitration: definition, composition and international public / private arbitration
C. The requirement of consent
D. Applicable Law
E. The pathology of arbitral awards

First Contract Arbitration: Effects on Bargaining and Work Stoppages
Susan J.T. Johnson

Abstract:
Newly certified unions often experience difficulty negotiating a first agreement. To remedy this, the Employee Free Choice Act (EFCA) proposes that the National Labor Relations Act (NLRA) provide for first contract arbitration. Using a panel of Canadian jurisdictions that have introduced FCA legislation at different times over several decades, the author addresses three questions: (1) How does First Contract Arbitration (FCA) legislation affect the incidence of first agreement work stoppages? (2) Does FCA encourage or discourage collective bargaining in the negotiation of first agreements? (3) Does FCA influence the duration of first agreement work stoppages? First, the author finds that the presence of FCA legislation reduces first agreement work stoppage incidence by at least 50 percent. Descriptive measures reveal that FCA is accessed infrequently; it is even rarer for a first contract (in whole or in part) to be imposed. Second, the fact that FCA is associated with a substantial reduction in work stoppage incidence, when combined with evidence that it is rarely used, suggests that FCA encourages collective bargaining. Finally, first contract arbitration has no statistically significant impact on the duration of first agreement work stoppages.

The Energy Charter Treaty: A Step towards Consistency in International Investment Arbitration?
Oliver Jones and Justin D’Agostino

Abstract:
The potential for multiplicity of proceedings under international investment treaties has been the subject of concern and much recent debate. One of the most significant drawbacks identified is the possibility of inconsistent outcomes. Cases with materially identical facts and causes of action have resulted in divergent arbitral awards. This article (i) explores the background to and reasons for the contrary decisions in the Czech Republic and Ecuador disputes, (ii) critically appraises the solutions proposed by commentators in the field and (iii) examines whether the Energy Charter Treaty could help solve this problem for energy disputes.

At the Brink of Free Agency: Creating the Foundation for the Messersmith-McNally Decision - 1968-1975
Edmund P. Edmonds

Abstract:
One of the most dramatic periods in baseball’s long history of labor relations occurred from 1968 through 1975. The Major League Baseball Players Association negotiated baseball’s first Basic Agreement in 1968 without the benefit of any leverage that could alter most of Organized Baseball’s long practices that controlled the players’ mobility and wages. In 1975, however, the union won an arbitration panel hearing that determined that pitchers Dave McNally and Andy Messersmith were free agents after playing one full season under the renewed option year of their contracts and filing a grievance under the newly adopted arbitration process. This stunning result fundamentally altered Organized Baseball’s reserve system and launched free agency and the era of tremendous salary growth for major league baseball players.

This article highlights the stories of more than twenty players who refused to sign contracts before reporting to spring training between 1968 and 1975. Part I of the article provide a brief discussion of the creation of the reserve system during the nineteenth century. Part II offers a brief description of the three-year period from 1965 to 1968 that was a prelude to Al Downing’s decision in 1968 to report to spring training without signing his contract offer from the New York Yankees. Part III discusses Downing’s negotiations with the Yankees. Part IV covers events from 1969 to 1972 including the significance of Ted Simmons’ contractual dispute with the St. Louis Cardinals. Part V recounts the stories of the twenty players who began the 1973 through 1975 seasons without signing new contracts. Although all of these players, except Dave McNally and Andy Messersmith, ultimately reached an agreement or disappeared from the major league baseball scene, their collective efforts were an important contribution to the Players Association’s winning strategy over the owners.

The Hague Choice of Court Convention: Magnum Opus or Much Ado About Nothing?
Richard Garnett

Abstract:
It is a truism to note that in the past 50 years there has been an enormous expansion in international commerce and communications and that with such expansion there has been a proportionate increase in the volume and intensity of transnational disputes. The growth in such disputes has led to greater contact and conflict between legal systems. Rules of private international law which arose only rarely in the business of most national courts are now examined and applied regularly.

The problem of multi-jurisdictional adjudication where a single transaction spawns applications for relief in a number of countries pursuant to a number of different laws is becoming commonplace. Such a development has cast particular light on the rules for establishing jurisdiction in national courts and also the principles governing recognition and enforcement of judgments of foreign courts. Once greater attention and scrutiny was placed on the national rules of jurisdiction and enforcement of judgments it is not surprising that disparities and inconsistencies of approach were uncovered.

Typically, European defendants would complain of excessive exercise of jurisdiction by United States courts while US plaintiffs would bemoan the fact that European (and other national) courts were inconsistent and unreliable in recognising US judgments. While such a situation had been present for a long time it was the sheer volume of recent transnational disputes that made a solution more pressing.

The other development which had masked the problem of disparate national jurisdictional and judgment rules was the increased use and popularity of international commercial arbitration beginning in the 1980s. Once advisers realised that they could refer transnational business disputes to a private, neutral panel of their choice whose awards would be recognised by national courts in the vast majority of cases, the problems of transnational litigation could be often ignored.

Yet, international commercial arbitration has not been without its critics or its disadvantages, in particular cost in the large institutional arbitrations. This fact, combined with the problem that a number of transnational disputes could not be submitted to arbitration (eg. personal injury, consumer and employment cases) meant that the need for a globally uniform system of jurisdiction and judgment rules remained acute.

Paul Beaumont in his article in this colloquium traces the at times tortuous history of the Hague Conference negotiations and how the Hague Convention on Choice of Court Agreements (“the Convention”) emerged from what had originally been envisaged as a much larger project. Other contributors to this colloquium have made detailed considerations of particular provisions or subject matter in the Hague Convention. My task, by contrast, is to examine the Convention from a more holistic and forward-looking perspective. Specifically, the question I will address is whether the Convention will be regarded as a great achievement in the history of multilateral reform of private international law or instead will it be seen as a narrow document which allows too much scope for the intrusion of national interests at the expense of harmonisation?

In addressing this dichotomy, the Hague Convention will be examined from two main perspectives: firstly the likely impact of its principal provisions in Australian law and secondly the response to the Hague Convention among governments, practitioners and scholars in other potential Contracting States.


Reconciling Differences: The Theory and Law of Mediating Labor Grievances
Deborah A. Schmedemann

Abstract:
While grievance arbitration is the most common method of resolution of disputes arising under collective bargaining agreements, the author proposes that there is also a place for grievance mediation. The author compares mediation to arbitration and negotiation, and describes the strengths and weaknesses of mediation. She explains how mediation clauses in labor agreements could be enforced under section 301 of the LMRA, to protect rights created by those agreements, and proposes that mediation clauses be a basis for injunctions against strikes during the term of an agreement in certain situations. However, the author suggests that courts and the National Labor Relations Board should still have primary responsibility for enforcing non-waivable statutory rights. The author discusses the legal standards for review of arbitration and mediation in Title VII cases, in which the courts generally do not defer to prior findings. She then analyzes the Board's deferral doctrines in depth, and suggests that agreements to mediate should be given deference by the Board when the rights at issue are waivable. The author concludes that, under that standard, mediation could help maintain the relationships necessary for effective collective bargaining without sacrificing protections guaranteed by the law.

Drafting International Mediation Clauses
Rahim Moloo and Justin Jacinto

Abstract:
This chapter seeks to identify various topics that are important to consider in drafting a mediation clause, whether based on a model clause or not, in the context of an international transaction.

The Compliance with the Law Requirement in International Investment Law
Rahim Moloo and Alex Khachaturian

Investment treaties often require that an investment be made in accordance with the law of the host-State in order to receive protection under the treaty. As such, a tribunal hearing claims under such an investment treaty does not have jurisdiction over claims relating to illegally made investments. Even where no such requirement is present, there is an emerging trend, though inconsistently applied, that requires investments to comply with both host-State and international law in order for claims based on those investments to be admissible. Drawing on international case law and general principles of law this article discusses when an investment’s non-compliance with the law should act as a barrier to the investor’s ability to pursue its claims under an investment treaty.

Review of International Energy Investment Law: The Pursuit of Stability
Rafael Leal-Arcas

Abstract:
This book by Professor Peter Cameron examines the current multifaceted and multilayered system of legal stability for energy investments and how this system has been tested by unilateral state demands for contract renegotiation. Cameron’s contextual point of departure is the extraordinary increase in investor-state disputes in recent years and the growth of protection for investments in international law. In this sense, Cameron wonders how much of a difference it has really made to the energy investment scene.

Reestablishing Doctrinal Clarity and Correctness: Treaty Exceptions, Necessity, and the CMS, Sempra, and Enron Annulment Decisions
Andreas von Staden

Abstract:
Several arbitration awards rendered against Argentina have revealed fundamental problems in the interpretation and application of treaty-based non-precluded measures provisions and the customary law defense of necessity. The ICSID annulment decisions in the cases of CMS, Sempra, and Enron have provided much needed doctrinal clarification in this respect, and two of these have justifiably annulled the awards for failure to apply the proper law.

The International Centre for Settlement of Investment Disputes: Its Emerging Principles with Reference to Some Latest Cases
Sugandh Saksena

Abstract:
It’s an age of globalisation where trade and investment are no where concerned with international boundaries. Where there is trade, there is investment. Likewise, investments bring with them a room for disputes. International disputes are best resolved by Arbitration and Conciliation, i.e., Alternative Dispute Resolution system. In order to facilitate such a system of dispute resolution, the International Law provides for a Convention, known as the Convention for Settlement of Investment Disputes, much popularly as, the ‘Washington Convention’. The body established under this Convention, for the settlement of Investment Disputes, is the International Centre for Settlement of Investment Disputes (ICSID). The ICSID Convention is a multilateral treaty formulated by the Executive Directors of the International Bank for Reconstruction and Development (the World Bank). It was opened for signature on March 18, 1965 and entered into force on October 14, 1966.

To date 143 countries have signed and ratified the Convention to become Contracting State. As evidenced by its large membership, considerable caseload, and by the numerous references to its arbitration facilities in investment treaties and laws, ICSID plays an important role in the field of international investment and economic development.

This Paper aims at throwing light on the functioning of the Centre with the most recent principles laid down by the Centre in its awards, regarding Foreign Investments, and relations between the States and the Parties investing, along with a motive, as to why India should also be one of the signatories and ratifiers of the Convention.