Planning for International Disputes (and What Makes Them Distinctive)

Interactive speech given at the Conflict Management Culture seminar, hosted by Pepperdine\u27s Straus Institute for Dispute Resolution

Pre-Hearing Techniques to Promote Speed and Cost-Effectiveness--Some Thoughts Concerning Arbitral Process Design

This essay considers factors and pre-hearing techniques that bear on international arbitration hearings by attempting to answer this question: What can be done to promote speed and efficiency in the hearing process? First, it offers general observations, including the goals and by-products of efficiency, issues related to defining terms and frames of reference, the flexibility of arbitration practice techniques, and the role of technology in arbitration proceedings. Then, it discusses specific factors that influence the expeditiousness of arbitration, especially the arbitration clause and its use to define critical elements of the proceedings, such as situs, number of arbitrators, and time restrictions. The article then discusses the effect of oral vs. written submissions (simultaneous or otherwise) and the issuance of post-hearing briefs on the efficiency of the proceedings. This is followed by discussions of the benefits of pre-hearing conferences, issues related to stipulations and presumptions that narrow the scope of the controversy, and the handling of documents, including core collections, agreed bundles, and other documentary consolidations. Next, the article discusses the advantages of adjudicative and collaborative narrowing of the controversy, including bifurcation and summary judgment. The final section briefly discusses the advocate\u27s mantra-hope for the best and prepare for the worst. The article concludes with a bibliography of related sources

Taking Stock of NAFTA Chapter 11 in Its Tenth Year

The North American Free Trade Agreement (NAFTA) came into force on January 1, 1994. Its Eleventh Chapter establishes substantive guarantees and an arbitral mechanism by which qualifying investors may seek damages for breach of those guarantees. The much-discussed investor-state arbitration apparatus was first invoked in September 1996, and since then has been resorted to several times against each NAFTA state. Many cases have concluded, while others are nearing completion. Though a mature jurisprudence has by no means emerged, substantive trends have been established and several of Chapter l\u27s distinctive features, strengths, and weaknesses have been illuminated. NAFTA\u27s investor-state docket has generated predictably high levels of interest among international law scholars and practitioners. It has also sustained a remarkable collection of observers beyond specialist circles. Numerous critiques have issued from both groups, and reactions to NAFTA have prefigured much of the debate that will ensue in relation to its more ambitious proposed successor, the Free Trade Area of the Americas (FTAA). In assessing Chapter 1\u27s dispute regime, it is difficult to fully divorce substance from procedure. Accordingly, while the following interim appraisal of Chapter 11 is concerned primarily with the investor-state arbitration regime, that framework\u27s impact on the substantive jurisprudence of NAFTA will also be treated, albeit not comprehensively. Part II surveys elements of architecture and develops certain themes. Part III identifies emerging docket patterns. Part IV considers processes and sources that influence the formation of Chapter 11 jurisprudence. Part V discusses selected conceptions and misgivings that have recurred concerning Chapter 11. Part VI considers the mechanisms intended to exert control on Chapter 11 awards and introduces proposals for refining the associated framework. In general, this essay concludes that the existing arrangement is neither fundamentally flawed nor entirely free of troubling features

Introduction: International Arbitration and the Courts

What role do national courts play in international arbitration? Is international arbitration an “autonomous dispute resolution process, governed primarily by non-national rules and accepted international commercial rules and practices” where the influence of national courts is merely secondary? Or, in light of the fact that “international arbitration always operates in the shadow of national courts,” is it not more accurate to say that national courts and international arbitration act in partnership? On April 17, 2015, the Pepperdine Law Review convened a group of distinguished authorities from international practice and academia to discuss these and other related issues for a symposium on International Arbitration and the Courts

Suggestions for updating the Product Environmental Footprint (PEF) method

The Product Environmental Footprint (PEF) is a life cycle assessment (LCA) based method to quantify the environmental impacts of products (goods or services). It builds on existing approaches and international standards. The overarching purpose of PEF information is to enable to reduce the environmental impacts of goods and services taking into account supply chain activities (from extraction of raw materials, through production and use and to final waste management). This purpose is achieved through the provision of detailed requirements for modelling the environmental impacts of the flows of material/energy and the emissions and waste streams associated with a product throughout its life cycle. The rules provided in the PEF method enable to conduct PEF studies that are more reproducible, comparable and verifiable, compared to existing alternative approaches. However, comparability is only possible if the results are based on the same Product Environmental Footprint Category Rules (PEFCR). The development of PEFCRs complements and further specifies the requirements for PEF studies.JRC.D.1-Bio-econom