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Abstract:
With the blossoming of empirical legal scholarship, there is an increased appreciation for the insights it offers issues of international importance. One area that can benefit from such inquiry is the resolution of disputes from investment treaties, which affects international relations, implicates international legality of domestic government conduct, and puts millions of taxpayer dollars at risk. While suggesting there has been a "litigation explosion", commentators make untested assertions about investment treaty disputes. Little empirical work transparently explores this area, however. As the first research that explains its methodology and results, this article is a modest attempt to evaluate claims about investment treaty arbitration. The article explores: (1) who is involved in arbitration and what is arbitrated, (2) increases in awards, (3) win/loss rates, (4) amounts claimed and awarded, (5) arbitration costs, (6) use of other dispute resolution processes, and (7) nationality and gender of arbitrators. Subjecting these areas to empirical scrutiny provides information that sets the stage for future research to provide insights to government officials responsible for negotiating investment treaties and parties planning their dispute resolution strategies. Ultimately, it offers factual information - grounded in a valid and reliable process - that stakeholders and commentators can use to promote dialogue about and evaluate the legitimacy of a dispute resolution process with profound public implications.

Empirical Legal Studies, Law and Society, Investment Treaties, BIT, IIA, Investment Treaty Arbitration, Dispute Resolution, Dispute Systems Design, ICSID, Litigation Explosion, Litigotiation, Women and Law, OECD, Legitimacy

Abstract:
In the last decade, there has been a surge in the number of multi-lateral and bilateral investment treaties governments have signed; meanwhile there have been dramatic increases in the amount of foreign direct investment (FDI); and, more recently, the number of claims brought under investment treaties has spiked. This Article examines the relationship amongst these factors and is the first to review the emerging empirical economic literature investigating whether investment treaties achieve their goal of promoting FDI. The Article then specifically evaluates the impact that the procedural right to arbitrate investment claims plays in the process of promoting FDI and facilitating investment decisions. It considers this issue directly by evaluating models with non-traditional treaty dispute resolution mechanisms and considering the impact on FDI levels. The article then looks at the indirect role that investment treaty arbitration can play in facilitating investment and promoting the rule of law. The Article concludes that investment treaty arbitration's precise impact on FDI is unclear; nevertheless, as it has important implications for investment and the rule of law, it is a factor worthy of ongoing consideration.

Foreign Investment, FDI, Investment Treaty, BIT, NAFTA, AUSFTA, ICSID, treaty arbitration, China, Brazil, Ireland, Australia, Rule of Law

Abstract:
Bilateral and multilateral investment treaties, such as NAFTA, give foreign investors substantive rights - such as freedom from expropriation - as well as the right to sue host governments for violations of the substantive rights enumerated in the investment treaties. In the last five years, the number of arbitrations arising under investment treaties has skyrocketed; billions of taxpayer dollars are at stake and government conduct, which would otherwise past domestic muster, is subject to enhanced international scrutiny. The proliferation of these bilateral and multi-lateral investment treaties has led to an unprecedented increase in the number of arbitration tribunals convened to resolve investor-state disputes. Arbitral tribunals are now testing and evaluating a variety of international law rights for the first time. These private tribunals consider legal issues that impact the international economy, public policy and international relations, but they do so in a vacuum largely because of gaps in the academic literature and confidentiality obligations that prevent public decision-making. Substantive obligations in investment treaties are remarkably similar; notwithstanding these similarities, in the absence of valuable guidance from scholars or appellate bodies, arbitral tribunals have come to inconsistent decisions on the meaning of fundamental international law rights. This Article recommends a framework for analysis as well as a series of reforms designed to prevent inconsistent decisions from occurring and to correct inconsistencies when they occur. In terms of preventative measures, the article is a call to arms for academics to contribute to the literature in this emerging discipline to provide authoritative guidance for tribunals to use during the decision making process; it also recommends changes to institutional rules and treaties to enhance transparency and promote public scrutiny. In terms of corrective measures, this article rejects the treaty-by-treaty approach previously suggested within the literature. Instead, it proposes the creation of one independent and permanent appellate body with the authority to review awards rendered under the entire investment treaty network. These measures will promote the integrity and legitimacy of a private dispute resolution system with wide-ranging public implications.

Bilateral investment treaty, inconsistent decisions, foreign direct investment, dispute resolution, arbitration, investment treaty arbitration

Abstract:
With the debate on the renewal of the Trade Promotion Authority Act, the proper terms of investment treaties - including dispute resolution provisions - have become an issue of public scrutiny. In a so-called litigation explosion, investors resolve disputes against host governments through international arbitration mechanisms in investment treaties; and there is little evidence of reliance on other processes like mediation. This escalation has lead to a teething period where parties and non-parties have expressed divergent views as to the efficacy, efficiency and fairness of the dispute resolution process. With billions of dollars and sovereignty at stake, the dispute resolution system is at a critical historical juncture. In an effort to examine the system's integrity, this article describes unexplored synergies between investment treaties and Dispute Systems Design. It considers how designing dispute resolution systems systematically can create more effective conflict management; it also assesses the costs and benefits of such an approach. The article suggests a new area of scholarship integrating Dispute Systems Design and investment treaties is necessary to determine how stakeholders can create dispute resolution mechanisms that maximize the satisfaction with and legitimacy of the process of resolving investment treaty conflict.

Investment treaty arbitration, ICSID, BIT, foreign investment, mediation, ombuds, dispute resolution, conflict theory, dispute systems design, legitimacy, litigation explosion, investment treaty, IIA, investor-State

Abstract:
The number of bilateral and multilateral investment treaties has surged in the past decade. Investors are actively using these treaties to bring claims against sovereign states, and many of these tribunals have come to conflicting - if not diametrically opposed - results on the meaning of substantive treaty rights. This article evaluates the positive and negative attributes of such inconsistencies and the impact upon the rule of law. The article recommends building safeguards into the current dispute resolution process to minimize the negative impact of inconsistency and maximize its positive attributes.

Bilateral investment treaty, ICSID, foreign investment, dispute resolution, arbitration

Abstract:
With the advent of the global economy, arbitration has become the preferred mechanism for resolving international disputes. Today international arbitrators resolve billions of dollars worth of disputes. Arbitration has historically been extolled as a confidential, quick and cost-efficient method for resolving disputes, which creates an internationally enforceable award. Those virtues, however, have eroded with the expansion in the number of parties using arbitration, the increasingly adjudicative nature of the process and the shift in the group serving as arbitrators, which has grown beyond the "grand old men" to a younger generation of arbitration technocrats. Instead, arbitration may now take just as long and be just as costly as litigation before national courts and confidentiality is being eroded. Given these shifts in arbitration's paradigm, a remaining central virtue of arbitration is it's neutrality in the sense of not providing an undue "home court" advantage and the neutrality of the adjudicative process. This article explores the later aspect of neutrality and considers the appropriate role of arbitrators in the context of international arbitration. This article suggests that subject to the parties' clear agreement to opt for commercial determinations or partisan decision-making, international arbitrators must provide independent, adjudicative services in order to both honor the parties' expectations and contribute to the legitimacy of international arbitration. The article first considers the expectations of the parties and describes how these contribute to a conception of the proper role of international arbitrators. It then describes the adjudicatory functions of international arbitrators and discusses the importance of impartiality. Next it considers potential mechanisms for regulating arbitrator conduct. Finally, it speculates on the future opportunities to promote the integrity of arbitrations and enhance the legitimacy of international arbitration.

international arbitration, arbitrators, confidentiality, duty, contract, tort, expert determination, neutrality, independence, impartiality, dispute resolution

Abstract:
The legitimacy of investment treaty arbitration is a matter of heated debate. Asserting that arbitration is unfairly tilted toward the developed world, some countries have withdrawn from World Bank dispute resolution bodies or are taking steps to eliminate arbitration. In order to assess whether investment arbitration is the equivalent of tossing a two-headed coin to resolve investment disputes, this article explores the role of development status in arbitration outcome. It first presents descriptive, quantitative research about the developmental background of the presiding arbitrators who exert particular control over the arbitration process. The article then assesses how (1) the development status of the respondent state, (2) the development status of the presiding arbitrator, and (3) the interaction of these variables affect the outcome of investment arbitration. The results demonstrate that, at the macro level, development status does not have a statistically significant relationship with outcome. This suggests that the investment treaty arbitration system, as a whole, functions fairly and that the eradication or radical overhaul of the arbitration process is unnecessary. The existence of two statistically significant simple effects – namely that tribunals with presiding arbitrators from the developing world made smaller awards against developed states in particular circumstances – suggests that particularized reform could enhance the procedural integrity of arbitration. Irrespective of whether future research replicates the results, reforms targeted to redress possible imbalance in the system have the potential to enhance procedural justice and the perceived legitimacy of arbitration in an area with profound political and economic implications.

Empirical Legal Studies, Law and Society, Investment Treaties, BIT, IIA, OECD, World Bank, Investment Treaty Arbitration, Dispute Resolution, Dispute Systems Design, ICSID, Legitimacy, Development

Abstract:
International arbitration has become the preferred way of resolving international commercial disputes. Although the parties have an opportunity to play a role in the selection of arbitrators, there may nevertheless be concerns about the integrity of the dispute resolution process. This article examines the nature of the relationship between the parties and the arbitrators. It then explores how a variety of countries address the issues of arbitrator liability or immunity from the common law, civil law and Islamic law perspectives. The article ultimately recommends the adoption of a qualified immunity standard, which balances the needs for arbitrators to function independently and render just decisions that apply the law to the facts without concern for personal repraisal against the need to avoid bad-faith conduct by arbitrators who do not wish to follow the rule of law. Such a balance will appropriately instill confidence in the decision-making process, render arbitrators accountable in appropriate circustances and promote arbitration's justice promoting objectives.

International, arbitration, dispute resolution, immunity, liability, professional code of conduct, comparative law

Abstract:
While scholars in the United States increasingly focus on the empirical dimension of legal scholarship, there have been challenges in using empiricism to explore international legal issues. Rather than relying on logic or instinct alone, empirical methodologies can provide scholars with tools to gain new facts, see existing ideas through a different lens, and engage in a more nuanced analysis of international law phenomena. There appears to be a natural synergy between empiricism and international investment treaty dispute resolution. With calls for trade time outs by U.S. presidential candidates, there is interest in how investment treaties function, whether they achieve their goals, and at what cost. Given the implications for public policy, international relations, and allocation of domestic financial resources, empirical assessment of international investment law is not misplaced. This Essay considers the efficacy of using empirical methodologies to gain insights about the resolution of investment treaty disputes and international investment law. Part I considers the historical tensions between international law and empiricism and moves towards reintegration. Part II explores what form empiricism might take and argues for a broad understanding of empiricism. Part III analyzes how to develop an empirical approach in light of the costs and benefits and proposes five steps to facilitate the creation of an empirical research agenda for international investment treaty dispute resolution. While recognizing that empiricism is not a panacea, the Essay suggests that the benefits of making empiricism part of the methodological landscape of investment treaty dispute resolution scholarship are worth the costs. Empiricism offers a chance to obtain accurate information about investment disputes, correct misperceptions about existing dispute resolution processes, permits considered analysis of legal issues affecting the public, and facilitates informed decisions about the negotiation and revision of investment treaties.

Empirical Legal Studies, Law and Society, Investment Treaties, BIT, IIA, NAFTA, Investment Treaty Arbitration, Dispute Resolution, ICSID, OECD, UNCTAD

Abstract:
Occidental v. Ecuador is the first claim under a bilateral investment treaty claim involving tax issues. This case comment analyzes the tribunal's award and offers a critique of both the analysis and the conclusion. This comment suggests that the tribunal may have gone further than necessary in its analysis of arbitrary measures impairing investment, failed to engage in a sector-by-sector analysis of national treatment, and compressed the analysis of separate rights into one broad test for evaluating fair and equitable treatment. The comment concludes that Occidental may best be understood as confined to its unique facts lest there be larger ramifications upon global investment and foreign relations.

Bilateral investment treaties, national treatment, fair and equitable treatment, value added tax

Abstract:
In the past decade, the number of small, entrepreneurial businesses participating in the global economy has tripled. With this increase comes a rise in the number of cross-border commercial disputes. The unwary small business, not familiar with international transactions, may commit errors that adversely affect their ability to do and stay in business. This article focuses on analyzing which methods small businesses should use in constructing their dispute resolution provisions and how to avoid errors in drafting and negotiation.

dispute resolution, arbitration, small business, entrepreneur

Abstract:
International investment and international investment agreements have experienced a particular level of growth in the past few decades. With that growth and the granting of affirmative dispute resolution rights to foreign investors, international investment conflict has become increasingly highlighted; and one particular methodology - namely investment treaty arbitration - has become particularly visible. Reliance on this single option for resolving conflict has a unique set of systemic implications. This chapter therefore takes a more systemic look at investment treaty conflict and, in an effort to provide an appropriate historical and doctrinal framework, approaches to dispute resolution broadly. It asks for a reconsideration of Appropriate Dispute Resolution (ADR) methods for resolving investment treaty conflict and highlights the costs and benefits of particularized dispute resolution methods, including preventative, negotiated, facilitated, fact-finding, advisory and imposed ADR mechanisms. The chapter ultimately argues that, while arbitration has utility, the challenge for the future will be to move beyond investment treaty arbitration to a more holistic approach to conflict management that considers other opportunities, particularly the collaborative design of sustainable dispute resolution systems.

International Investment Agreement, IIA, BIT, foreign investment, ADR, conflict management, conflict theory, dispute management, dispute systems design, investor-state dispute resolution, ICSID, mediation, negotiation, ombuds, fact-finding

Abstract:
In the past, religious debtors have used the Religious Freedom Restoration Act (RFRA) to tithe to their churches at a time when they were insolvent and questions have arisen whether these tithes are fraudulent transfers, which should be repatriated to the bankruptcy estate for the benefit of all creditors. This case comment analyzes the first circuit court opinion to evaluate the intersection of religious tithing, bankruptcy, fraudulent conveyance law and RFRA. In light of the doubts as to RFRA's constitutionality, this comment argues for a narrow interpretation of RFRA and, when determining the scope of free exercise protection, courts should use a functional balancing test to weigh the competing interests of religious liberty against the need for effective government administration in the context of personal bankruptcy.

RFRA, religion, bankruptcy, constitutional law