Transnational Litigation As A Prisoner’s Dilemma

67 Pages Posted: 29 Jul 2016

Date Written: August 5, 2014

Abstract

In this Article we use game theory to argue that perceptions of widespread corruption in the judicial processes in developing countries create ex ante incentives to act corruptly. It is rational (though not moral) to preemptively act corruptly when litigating in the courts of many developing nations. The upshot of this analysis is to highlight that, contrary to judicial narratives in individual cases — such as the (in)famous Chevron–Ecuador dispute used herein as an illustration — the problem of corruption in transnational litigation is structural and as such calls for structural solutions. The article offers one such solution: the establishment of an international court of civil justice.

Note: Full draft forthcoming to SSRN in Dec. 2014.

Keywords: transnational litigation, Chevron, Ecuador, corruption, judgment enforcement, corporate social responsibility, Alien Tort Claims Act, ATCA, Kiobel, prisoner's dilemma

Suggested Citation

Steinitz, Maya and Gowder, Paul A., Transnational Litigation As A Prisoner’s Dilemma (August 5, 2014). N.C. L. Rev. 751 (2016), U Iowa Legal Studies Research Paper No. 14-19, Available at SSRN: https://ssrn.com/abstract=2476386 or http://dx.doi.org/10.2139/ssrn.2476386

Maya Steinitz (Contact Author)

Boston University - School of Law ( email )

765 Commonwealth Avenue
Boston, MA 02215
United States

Paul A. Gowder

Northwestern University - Pritzker School of Law ( email )

375 E. Chicago Ave
Chicago, IL 60611
United States

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