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Abstract:
Confidentiality is often cited as one of the main benefits of arbitration as opposed to litigation. Yet, scholars and practitioners often fail to examine exactly why confidentiality is important. We also do not carefully weigh the benefits and costs of making arbitration confidential, whether we are talking about public or private international arbitration.

While confidentiality is an important aspect of international commercial arbitration, this article challenges the idea that all aspects of international arbitration must always be confidential for arbitration to be valuable. It argues that a more nuanced approach to confidentiality in arbitration may preserve the values of arbitration while at the same time enhancing the competing values to be gained by greater transparency. In particular, the article advocates the adoption of a presumption that arbitral awards should be made publicly available, unless both parties object. As will be shown herein, this presumption is justified because the benefits of greater transparency in arbitration brought about by the publication of awards often outweigh concerns for confidentiality.

international arbitration, confidentiality, transparency

Abstract:
The United States is a party to hundreds of treaties that create a vast array of international obligations for the country. Many of these treaty obligations require some action by the government to become effective in the U.S. legal system. Domestic implementation of these international obligations has created structural tensions, both between the branches of the federal government and between the states and the federal government. This article uses President Bush's efforts to implement the recent judgment of the International Court of Justice (ICJ) in the Case Concerning Avena and Other Mexican Nationals (Avena) to illustrate some of the problems presented by this issue.

In Avena, the ICJ found that that the United States had breached its obligations under the Vienna Convention on Consular Relations to inform certain Mexican nationals who had been arrested in the United States of their consular notification rights. The ICJ further found that the appropriate reparation would consist of providing, by means of the United States' own choosing, review and reconsideration of the convictions and sentences of the Mexican nationals that were the subject of the case. In the domestic implementation stage of that decision, President Bush asserted the power to order state courts to provide review and reconsideration of the Mexican nationals' judgments in state criminal proceedings. The President's claim to such authority is troubling because it appears to violate structural principles of separation of powers and federalism.

The article begins by providing some background regarding the Avena judgment and post-Avena litigation, with a particular focus on Medellin v. Texas. Medellin was one of the Mexican nationals involved in Avena and his case was decided by the U.S. Supreme Court in March 2008. The article analyzes the strengths and weaknesses of arguments that have been made in that case regarding the proper method of implementation of the ICJ judgment by the United States. The article then places that litigation in the larger context of the debate regarding the proper role of each branch of the federal government with respect to the implementation of the United States' international obligations more generally. The article also examines the issue from a federalism perspective and the interplay between the state and federal governments with respect to implementation of the United States' international obligations. Finally, the article provides some suggestions as to how the United States can better handle implementation of these obligations in the future.

Avena, Medellin, treaties, international obligations, separation of powers, federalism

Abstract:
In the last few years, the U.S. Supreme Court has issued several high-profile opinions that refer to international and foreign law, reigniting a heated debate among the justices, legal scholars, and commentators regarding the proper use of international and foreign law in Supreme Court jurisprudence. Justice Scalia, usually joined by Justice Thomas and Chief Justice Rehnquist, has led the fight against the use of foreign and, to a lesser extent, international law as a basis for constitutional decision-making. The remaining six justices have taken the position that international and foreign law has relevance to their work and that is appropriate to refer to such sources in their decision-making.

The article seeks to analyze how, when, and why international and foreign law is and should be used by the U.S. Supreme Court in its decision-making. The article begins by distinguishing the two very different sources of law at issue in this debate -international law and foreign law. The article demonstrates that the use of international law is clearly required by the U.S. Constitution in some cases, whereas the use of foreign law has a weaker constitutional basis. There are also different sources of international law, treaty law and customary international law, which are not always as clearly distinguished as they should be in the context of this debate.

The article summarizes the arguments on both sides of the debate and seeks to clear away some of the confusion as to what international and foreign law is being used and how each is being used by the Supreme Court. The article then examines the influence of international and foreign law on the U.S. Constitution, both at its inception and throughout its history. This examination demonstrates that the use of international law by the U.S. Supreme Court in the area of individual rights is well grounded in history and political theory concepts of sovereignty and natural law, which recognize a responsibility of states to protect human rights. The article also shows how the use of international law sources can be reconciled with many classic theories of constitutional interpretation.

Through this examination, the article demonstrates that, not only is it entirely appropriate for the U.S. Supreme Court to take into account international law when interpreting the Constitution, in many cases, the Court has an obligation to do so. In fact, failing to take international law into account would be contrary to the framers' intentions, violate the social compact upon which the nation is formed, and undermine the Supreme Court's legitimacy. The article also suggests reasons why the Supreme Court should take international and, to a lesser extent, foreign law into account in the future. Finally, the article proposes some guidelines for when and how international and foreign law should or should not be used in U.S. Constitutional interpretation in the future.

U.S. Supreme Court, international law, foreign law, constitutional interpretation

Abstract:
Many scholars have argued the merits of Congress creating statutory regimes that stipulate how a court should interpret statutes. Despite the voluminous legal scholarship relating to such regimes, there is a dearth of concrete examples. This article presents a concrete example found in the Uruguay Round Agreements Act (URAA), the federal statute that implemented the World Trade Organization (WTO) Agreements into U.S. law. The article argues that this statutory regime clearly violates the constitutional separation of powers doctrine.

The article begins with an explanation of how the URAA was created through fast track procedures. These fast track procedures required that at the Executive branch present Congress with a Statement of Administrative Action (SAA) which explained in detail how the Executive planned to implement the URAA once enacted. At the time of the URAA's enactment, Congress "approved" the SAA in the statute. In addition and most importantly, Congress took the extraordinary step of providing in the text of the URAA that the SAA should be regarded by U.S. courts as an authoritative expression by the United States of the interpretation and application of the URAA in any question arising under the law. In essence, Congress attempted to make the SAA controlling super-legislative history.

After describing the evolution of jurisprudence relating to separation of powers doctrine, the article analyzes the statutory regime of the URAA and SAA and finds that it clearly violates the Constitution. The principle reason for finding this regime unconstitutional is because the regime represents Congress's attempt to create a two-tier law, or a law that Congress creates using both the text of the statute as well as some extrinsic source or procedure that does not comply with bicameralism and presentment. The article then describes the very rare instances in which the courts have examined two-tier laws and why the courts have never resolved their constitutionality. Finally, the article explores whether, after ignoring the unconstitutional mandate from Congress to treat the SAA as super-legislative history, the courts should consider the SAA a useful kind of legislative history.

The article concludes that although a statement of administrative action prepared by the Executive and approved by Congress may appeal to a court as potentially useful legislative history, there are serious questions as to the reliability of such a document which should cause a court to use caution in relying on such a document in statutory interpretation.

separation of powers, judicial review

Abstract:
The United States maintains a wide variety of economic sanctions against several foreign countries in furtherance of foreign policy or national security objectives. In many cases, the United States has attempted to extend these sanctions extraterritorially to persons from third countries (i.e., nationals of neither the United States nor the target country). While this strategy may be effective from a sanctioning perspective because of its wide reach, it raises serious questions about its consistency with international legal principles and its fundamental fairness to third country nationals targeted by these programs. In many cases, persons having a relatively limited connection to the United States or the third country target are made "foot soldiers" in U.S. "wars" against perceived enemies.

This paper uses the U.S. embargo against Cuba as an example to illustrate some of these issues. The United States relies on the international business community to cooperate and comply with its economic sanctions programs. However, if these programs are not implemented in a way that is perceived by that international business community as fair and effective, such cooperation may be limited, undermining the effectiveness of the programs. This article examines issues relating to whether the legislation and regulations establishing the economic programs are sufficiently clear to enable compliance, whether the persons affected by these programs are proper targets, and whether such persons have an adequate means of challenging their status if they are improperly targeted.

economic sanctions, Cuban embargo, specially designated nationals

Abstract:
Several Incidents involving the arrest and detention of U.S. citizens by the U.S.S.R. during the 1960s led the administration of John F. Kennedy to become concerned about the need for better international agreements on consular access to detained foreign nationals. Both the multilateral Vienna Convention on Consular Relations and the bilateral U.S.- U.S.S.R. Consular Convention were negotiated during President John F. Kennedy’s time in office. As a result, the Kennedy Administration had a lasting impact on the development of the law of consular relations. This article provides background on the drafting of the VCCR and highlights some of the issues that presented the most difficulties during the negotiations. It also provides some comparisons between the VCCR and the bilateral U.S.- U.S.S.R. Consular Convention. It then discusses the continuing importance of consular treaties today, with a particular focus on the issue of consular notification. Finally, the article highlights areas of legal uncertainty with respect to consular notification that are currently being litigated in U.S. courts or which are likely to be resolved through litigation in the future.

Consular relations law, consular notification, Vienna Convention on Consular Relations, President John F. Kennedy

Abstract:
This article contributes to the debate regarding the extent to which parties ought to be free to choose the law applicable to their disputes by considering that debate in the context of commercial arbitration. While there are several articles discussing the pros and cons of allowing parties greater autonomy with respect to choice of law, few, if any, consider how the arguments may be different in the context of commercial arbitration. I argue that there is no valid reason for arbitrators to ignore the parties' choice of law in commercial arbitration. Arbitrators derive their authority from the arbitration agreement and are limited by it. Therefore, they do not have the power to disregard the parties' choice of law. Moreover, respect for the parties' choices encourages the use of arbitration. In making this argument, I analyze judicial choice of law rules and their implications for arbitration, including the new Uniform Commercial Code provision on choice of law, (about which very little has been written to date), and various state law rules. I also recognize that some scholars oppose giving parties so much autonomy because it may undermine a state's public policies and its attempts to protect its citizens. Finally, I consider the constitutional limitations on party autonomy. In response to these concerns, I suggest that arbitration is sufficiently different from litigation that these concerns are not as compelling in an arbitration context.

arbitration, choice of law, dispute resolution