China’s Sanctions and Rule of Law: How to Respond When China Targets Lawyers

The People’s Republic of China (PRC) has begun to use sanctions against people who speak out against its policies. Well-known are the sanctions that the PRC’s Foreign Ministry Spokesperson announced on January 20, 2021 against twenty-eight persons, both named and unnamed, who recently served or were then serving in the Trump administration, including the then-Secretary of State and National Security Adviser. On March 26, 2021, however, the PRC announced sanctions against a less conspicuous target: Essex Court Chambers, a set of barristers’ chambers in London known for commercial work and investment arbitration. What ostensibly provoked China’s unusual move was a hundred-odd-page legal opinion. Four barristers in Essex Court—Alison Macdonald QC, Jackie McArthur, Naomi Hart, and Lorraine Aboagye—had supplied the opinion to address whether China might have international criminal responsibility for crimes against humanity and genocide against the Uyghurs

PATENTS AND COMPETITION: COMMERCIALIZING INNOVATION IN THE GLOBAL ECOSYSTEM FOR 5G AND THE INTERNET OF THINGS

Times are changing as our global ecosystem for commercializing innovation helps bring new technologies to market, networks grow, interconnections and transactions become more complex around standards and otherwise, all to enable vast opportunities to improve the human condition, to further competition, and to improve broad access. The policies that governments use to structure their legal systems for intellectual property, especially patents, as well as for competition—or antitrust—continue to have myriad powerful impacts and raise intense debates over challenging questions. This Chapter explores a representative set of debates about policy approaches to patents, to elucidate particular ideas to bear in mind about how adopting a private law, property rights-based approach to patents enables them to better operate as tools for facilitating the commercialization of new technologies in ways that best promote the goals of increasing access while fostering competition and security for a diverse and inclusive society

Appointing Arbitrators: Tenure, Public Confidence, and a Middle Road for ISDS Reform

Many governments now join academics and activists in questioning whether ad hoc tribunals, which comprise private individuals holding no tenured role on a court, ought to be entrusted with deciding cases, where the resultant awards sometimes impose significant financial burdens on the respondent State, constrain the State’s regulatory choices, and affect the interests of third parties. Investor-State dispute settlement (ISDS), during the great expansion of its practice over the past quarter century, has relied on party-appointed arbitrators to constitute the ad hoc tribunals that hear and decide cases that investors bring. Moved by a turn of public sentiment in recent years against ISDS, the European Union (EU) leads an effort to replace ad hoc tribunals with a permanent, standing judicial mechanism. A recent behavioral economics study by Maria Laura Marceddu and Pietro Ortolani in the European Journal of International Law adduces empirical evidence that those investigators say supports the effort toward an ISDS court. According to Marceddu and Ortolani, people who look disfavorably on ISDS would place more confidence in dispute settlement outcomes if the decision-makers were tenured judges serving on a court rather than arbitrators constituting ad hoc tribunals. However, they reach that conclusion on the basis of experiments that compare survey respondents’ sentiment between courts and ad hoc tribunals without interrogating what, precisely, respondents think courts and ad hoc tribunals are and what they think about them. Behavioral economics method, as originally developed, entails a closer look at the “objective attributes” of phenomena, public response to which an experiment aims to measure. To speak confidently about comparisons between public response to courts and public response to ad hoc arbitral tribunals, the empirical agenda around ISDS reform therefore should go a step further than Marceddu and Ortolani’s pathbreaking, but as yet only introductory, effort. Further experiments, rather than just comparing two kinds of dispute settlement organs as objects, would aim to identify what about those organs leads people to have confidence in one or the other. In this article, we hypothesize, in particular, that the attributes of the people who constitute a court or a tribunal matter more than the label that the organ is given. Whom to appoint as decision-maker is a central question in the wider discussion today over ISDS reform. The EU is not alone in exploring the possibilities. The United Nations Commission on International Trade Law (UNCITRAL) has turned its attention to ISDS reform over the past several years. The selection and appointment of ISDS decision-makers is one of the main topics under the UNCITRAL mandate in that connection. States, nongovernmental organizations, and academics have joined the discourse, which continues as the EU now advances a new generation of investment agreements stipulating the creation of bilateral ISDS courts and the pursuit of a future multilateral court to address ISDS at global level. From our behavioral economics hypothesis about ISDS decision-making, we suggest that what influences public sentiment most meaningfully are signals of public confidence in the people who make decisions. Moving from hypothesis to policy, we suggest further that stakeholders who now are considering options for ISDS reform should seek to identify what those signals are. We tentatively advance that ethics, diversity, transparency, and demonstrated commitment through prior service in positions of public trust may be signals that influence public sentiment toward a decision-making apparatus. We close with some suggestions about how policy-makers might systematize such signals, so as to realign ISDS to address the concerns of the wider communities that institution affects

Appointing Arbitrators: Tenure, Public Confidence, and a Middle Road for ISDS Reform

When parties bring claims under investor-state dispute settlement (“ISDS”) procedures, who should serve as decision-maker? Relevant par- ties ask the question in different settings and with different criteria in mind. A party in a dispute, contemplating ISDS proceedings, whether by it or against it, likely will focus on the qualities of particular individuals available to serve as arbitrators. Party-appointed panelists charged under the applicable instrument with choosing a neutral or chair, and institutional appointing authorities charged with that task or with choosing arbitrators in default of party choice, will also turn their minds to candidate assessment. Different individuals or institutions might look for somewhat different qualities, but all who are called upon to make the choice will think about how best to assess the candidates

Great Powers and New Risks: What Businesses and Regulators Should Know about China’s Strategic Ambitions

China’s geopolitical ambitions give rise to risks that government agencies and the businesses they regulate need to address. In particular, Military-Civil Fusion (MCF), a whole-of-government legal and administrative machinery created by the Chinese Communist Party (CCP), aims to give China’s military, as well as China’s state championed companies, the technologies essential to strategic competitiveness in the decades ahead. In service of China’s effort to acquire technology, MCF breaks down barriers of professional responsibility and confidentiality that organizations and individuals in the West take for granted. Through both executive and legislative action, the United States has begun to address MCF. To continue benefitting from opportunities that China presents, those who do business in or with China therefore need both to heighten their situational awareness when they transact with Chinese partners and to increase their familiarity with the responses that United States regulators now are developing

Behavioural Economics and ISDS Reform: A Response to Marceddu and Ortolani

Academic investigators have used behavioural economics, a method developed originally to study consumers and their sentiments towards products, to study matters of public policy. A recent article in the European Journal of International Law – ‘What Is Wrong with Investment Arbitration? Evidence from a Set of Behavioural Experiments’ – gives a detailed summary of a series of experiments performed in order to study public sentiment towards investment arbitration. The investigators, Maria Laura Marceddu and Pietro Ortolani observe that public sentiment improves towards the outcome of a dispute settlement procedure when survey respondents are told that the procedure was a ‘court’ with tenured judges, and it worsens when they are told that it was ‘arbitration’ with temporary appointees. From their observations, Marceddu and Ortolani conclude that an international investment court, such as that which the European Union promotes, is a good idea. We suggest, however, that a further inquiry should investigate in greater detail public understanding of what qualities the individuals who serve as judges or arbitrators ought to display, as distinct from the institutional format in which dispute settlement takes place

China’s Sanctions and Rule of Law: How to Respond When China Targets Lawyers

The People’s Republic of China (PRC) has begun to use sanctions against people who speak out against its policies, including even lawyers in their ordinary work representing the interests of their clients. This paper explores the deleterious impact such sanctions can have on the entire legal profession, the broader community putatively served by the profession, and the rule of law