Transnational Litigation As A Prisoner’s Dilemma
67 Pages Posted: 29 Jul 2016
Date Written: August 5, 2014
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
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