The United States as an International Litigant

Litigating International Law Disputes (N. Klein, ed.) (Cambridge) (2014)

Posted: 7 Jun 2014  

Mark Feldman

Peking University School of Transnational Law

Date Written: June 30, 2014

Abstract

This chapter addresses U.S. participation in international dispute resolution from the Jay Treaty through investor-State arbitration. The chapter analyzes two sharp turns in U.S. sentiment toward a permanent international court: first, in 1935, when the U.S. Senate declined to approve the Permanent Court of International Justice protocol, and second, in 1946, when the U.S. Senate overwhelmingly approved U.S. acceptance of compulsory International Court of Justice jurisdiction. The chapter highlights the 1979 Hostages case before the ICJ as a "bridge to 1946," reflecting a moment of exceptionally strong support for U.S. participation in a permanent international court. The chapter then discusses the retreat from the ICJ by the United States, which has not initiated ICJ proceedings in more than 25 years.

The chapter contrasts the U.S. retreat from the ICJ with the ongoing U.S. support for supranational, independent dispute resolution in the context of the WTO, specifically the WTO Appellate Body. The chapter then contrasts WTO dispute resolution with investor-State arbitration, where government "victories" are limited to obtaining the dismissal of claims brought by individual investors. Given the structurally limited nature of U.S. Government "victories" in investor-State disputes, maintaining U.S. support for investor-State arbitration will require vigilance, in particular through active monitoring by the United States of all investor-State claims submitted to arbitration under U.S. investment treaties.

Keywords: international dispute resolution, investment arbitration, investor-State arbitration, ICJ, WTO

JEL Classification: K33

Suggested Citation

Feldman, Mark, The United States as an International Litigant (June 30, 2014). Litigating International Law Disputes (N. Klein, ed.) (Cambridge) (2014). Available at SSRN: https://ssrn.com/abstract=2446327

Mark Feldman (Contact Author)

Peking University School of Transnational Law ( email )

China

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