Transnational Litigation As A Prisoner’s Dilemma

67 Pages Posted: 29 Jul 2016  

Maya Steinitz

University of Iowa - College of Law; University of California, Berkeley - Berkeley Comparative Equality & Anti-Discrimination Law Study Group

Paul A. Gowder

University of Iowa - College of Law

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)

University of Iowa - College of Law ( email )

Melrose and Byington
Iowa City, IA 52242
United States

University of California, Berkeley - Berkeley Comparative Equality & Anti-Discrimination Law Study Group

Boalt Hall
Berkeley, CA 94720-7200
United States

Paul A. Gowder

University of Iowa - College of Law ( email )

Melrose and Byington
Iowa City, IA 52242
United States

HOME PAGE: http://paul-gowder.com

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