BG Group and “Conditions” to Arbitral Jurisdiction

Although the Supreme Court has over the last decade generated a robust body of arbitration caselaw, its first decision in the area of investment arbitration under a Bilateral Investment Treaty was only handed down in 2014. BG Group v. Argentina was widely anticipated and has attracted much notice, and general approval, on the part of the arbitration community. In this paper we assess the Court’s decision from two different perspectives—the first attempts to situate it in the discourse of the American law of commercial arbitration; the second considers it in light of the expectations of the international community surrounding the proper construction of Conventions between states. Our initial goal had been to write jointly, with the hope that we could bridge our differences to find, if not common, at least neighboring, ground. On some points we did so, but ultimately our divergent appreciations of the proper way to interpret the condition precedent in the investment treaty in BG Group overcame the idealism with which we commenced the project. Nonetheless we have decided to present the two papers together to emphasize the dichotomous approaches to treaty interpretation that two moderately sensible people, who inhabit overlapping but non-congruent interpretive communities, can have.The Kay Bailey Hutchison Center for Energy, Law, and Busines

Arbitral Power and the Limits of Contract: The New Trilogy

An excerpt from the introductory paragraphs of the article: “The American law of arbitration has for some reason been replete with what we have become accustomed to call ‘trilogies’—and the last two terms of the U.S. Supreme Court have curiously continued that pattern. Once again the Court has handed us three leading cases on closely related themes—and these decisions have turned out in fact to be in many ways the most interesting of the lot [referring to Stolt-Nielsen, Rent-A-Center, and Conception]. All three amount to extended riffs on the Question of Questions, the scope of arbitral power: And so the Court has continued to dip its finger into this rich mixture—compounded of notions of judicial review, ‘arbitrability,’ ‘separability,’ competence/compétence, and the preemption of state law—all of our hard-earned lore and learning is there. Undoubtedly for the moment the greatest salience will be with respect to arbitration clauses in contracts of adhesion entered into by consumers and employees—and yet this recent jurisprudence has the potential of sweeping far more broadly. It seems reasonably clear that these cases will continue to generate endless discussion. Things now seem curiously muddled: If our law of arbitration now no longer seems to have any clear unifying theme, any fil conducteur, this suggests that private adjudication—rather than presenting us as it once did with a coherent and self-contained body of doctrine—has become a hostage to a game played out on a larger stage, a pawn of wider, systemic “political” concerns. And so—yet another untoward result — these cases will require the reevaluation of what seemed, for a while, to constitute comfortably settled certainties. Here is at least one step in that direction.”The Kay Bailey Hutchison Center for Energy, Law, and Busines

LSST Science Book, Version 2.0

A survey that can cover the sky in optical bands over wide fields to faint magnitudes with a fast cadence will enable many of the exciting science opportunities of the next decade. The Large Synoptic Survey Telescope (LSST) will have an effective aperture of 6.7 meters and an imaging camera with field of view of 9.6 deg^2, and will be devoted to a ten-year imaging survey over 20,000 deg^2 south of +15 deg. Each pointing will be imaged 2000 times with fifteen second exposures in six broad bands from 0.35 to 1.1 microns, to a total point-source depth of r~27.5. The LSST Science Book describes the basic parameters of the LSST hardware, software, and observing plans. The book discusses educational and outreach opportunities, then goes on to describe a broad range of science that LSST will revolutionize: mapping the inner and outer Solar System, stellar populations in the Milky Way and nearby galaxies, the structure of the Milky Way disk and halo and other objects in the Local Volume, transient and variable objects both at low and high redshift, and the properties of normal and active galaxies at low and high redshift. It then turns to far-field cosmological topics, exploring properties of supernovae to z~1, strong and weak lensing, the large-scale distribution of galaxies and baryon oscillations, and how these different probes may be combined to constrain cosmological models and the physics of dark energy.Comment: 596 pages. Also available at full resolution at http://www.lsst.org/lsst/sciboo

Antiinflammatory Therapy with Canakinumab for Atherosclerotic Disease

Background: Experimental and clinical data suggest that reducing inflammation without affecting lipid levels may reduce the risk of cardiovascular disease. Yet, the inflammatory hypothesis of atherothrombosis has remained unproved. Methods: We conducted a randomized, double-blind trial of canakinumab, a therapeutic monoclonal antibody targeting interleukin-1β, involving 10,061 patients with previous myocardial infarction and a high-sensitivity C-reactive protein level of 2 mg or more per liter. The trial compared three doses of canakinumab (50 mg, 150 mg, and 300 mg, administered subcutaneously every 3 months) with placebo. The primary efficacy end point was nonfatal myocardial infarction, nonfatal stroke, or cardiovascular death. RESULTS: At 48 months, the median reduction from baseline in the high-sensitivity C-reactive protein level was 26 percentage points greater in the group that received the 50-mg dose of canakinumab, 37 percentage points greater in the 150-mg group, and 41 percentage points greater in the 300-mg group than in the placebo group. Canakinumab did not reduce lipid levels from baseline. At a median follow-up of 3.7 years, the incidence rate for the primary end point was 4.50 events per 100 person-years in the placebo group, 4.11 events per 100 person-years in the 50-mg group, 3.86 events per 100 person-years in the 150-mg group, and 3.90 events per 100 person-years in the 300-mg group. The hazard ratios as compared with placebo were as follows: in the 50-mg group, 0.93 (95% confidence interval [CI], 0.80 to 1.07; P = 0.30); in the 150-mg group, 0.85 (95% CI, 0.74 to 0.98; P = 0.021); and in the 300-mg group, 0.86 (95% CI, 0.75 to 0.99; P = 0.031). The 150-mg dose, but not the other doses, met the prespecified multiplicity-adjusted threshold for statistical significance for the primary end point and the secondary end point that additionally included hospitalization for unstable angina that led to urgent revascularization (hazard ratio vs. placebo, 0.83; 95% CI, 0.73 to 0.95; P = 0.005). Canakinumab was associated with a higher incidence of fatal infection than was placebo. There was no significant difference in all-cause mortality (hazard ratio for all canakinumab doses vs. placebo, 0.94; 95% CI, 0.83 to 1.06; P = 0.31). Conclusions: Antiinflammatory therapy targeting the interleukin-1β innate immunity pathway with canakinumab at a dose of 150 mg every 3 months led to a significantly lower rate of recurrent cardiovascular events than placebo, independent of lipid-level lowering. (Funded by Novartis; CANTOS ClinicalTrials.gov number, NCT01327846.

THE NEEDLE in the 100 deg² HAYSTACK: UNCOVERING AFTERGLOWS of FERMI GRB<inf>s</inf> with the PALOMAR TRANSIENT FACTORY

The Fermi Gamma-ray Space Telescope has greatly expanded the number and energy window of observations of gamma-ray bursts (GRBs). However, the coarse localizations of tens to a hundred square degrees provided by the Fermi GRB Monitor instrument have posed a formidable obstacle to locating the bursts' host galaxies, measuring their redshifts, and tracking their panchromatic afterglows. We have built a target-of-opportunity mode for the intermediate Palomar Transient Factory in order to perform targeted searches for Fermi afterglows. Here, we present the results of one year of this program: 8 afterglow discoveries out of 35 searches. Two of the bursts with detected afterglows (GRBs 130702A and 140606B) were at low redshift (z = 0.145 and 0.384, respectively) and had spectroscopically confirmed broad-line Type Ic supernovae. We present our broadband follow-up including spectroscopy as well as X-ray, UV, optical, millimeter, and radio observations. We study possible selection effects in the context of the total Fermi and Swift GRB samples. We identify one new outlier on the Amati relation. We find that two bursts are consistent with a mildly relativistic shock breaking out from the progenitor star rather than the ultra-relativistic internal shock mechanism that powers standard cosmological bursts. Finally, in the context of the Zwicky Transient Facility, we discuss how we will continue to expand this effort to find optical counterparts of binary neutron star mergers that may soon be detected by Advanced LIGO and Virgo. © 2015. The American Astronomical Society. All rights reserved

DNA Glycosylases Involved in Base Excision Repair May Be Associated with Cancer Risk in BRCA1 and BRCA2 Mutation Carriers

Peer reviewe

The Errors of Comity: Forum Non-Conveniens Returns to the Second Circuit

What is a federal court expected to do when asked to enforce a foreign arbitral award; what constraints do Conventions impose on its normal course of adjudication? This article examines this question from a narrow standpoint which has been troublesome to the Second Circuit, that is what remains of the inherent power of a common-law court to defer or dismiss litigation of a Convention case on the grounds that it constitutes an “inconvenient” forum.The Kay Bailey Hutchison Center for Energy, Law, and Busines

Arbitrators Without Powers? Disqualifying Counsel in Arbitral Proceedings

An excerpt from the introductory paragraphs of the article: The succession of conferences and the proliferation of soft law instruments are always pretty reliable indicators that a particular problem has risen to the level of the consciousness of the international community. That is abundantly true here: They are testimony to a general recognition of the need to identify what limits—if any—there may be to the permissible conduct of counsel in international arbitration, and to identify—always the most interesting question—the appropriate fora in which such questions can be addressed and resolved. My focus here, though, will be on a relatively small piece of the overall puzzle: Rather than to approach globally—from a God’s eye view—the problem of sanctions for supposed “counsel misconduct,” I want instead to focus on one particular sanction—one that is growing, and promises to grow even more, in importance: the ability of the tribunal to “exclude,” or as we say in the States, “disqualify,” counsel from the proceedings.The Kay Bailey Hutchison Center for Energy, Law, and Busines

Comment: Mandatory Law and the Enforceability of Arbitration Agreements

This article is Rau’s commentary on Professor Kleinheisterkamp’s paper, “Mandatory Law and the Enforceability of Arbitration Agreements,” which focuses on the effect of “internationally mandatory rules.” Rau sets up a critique, analyzing the meaning of “mandatory rules” in this context, what is considered to be sufficiently central to the fundamental concepts of the local legal system, and general application of local versus international rules in arbitration in specific cases.The Kay Bailey Hutchison Center for Energy, Law, and Busines

The Agreement to Arbitrate and the “Applicable Law”

The present article is an expanded version of one lecture in a series of lectures given at the Hague Academy of International Law in August 2017; the general subject of the series is the “allocation of power between arbitral tribunals and national courts.” I have tried to minimize here any cross-references to any of the other lectures, but as these are intended to form an integrated whole, and as all will eventually be published together, this could not be avoided entirely.The Kay Bailey Hutchison Center for Energy, Law, and Busines