Functions of Freedom: Privacy, Autonomy, Dignity, and the Transnational Legal Process

What is the function of freedom for the transnational legal process? This Article answers this question through the lens of the ongoing Ukrainian crisis and the deeply inconsistent international legal arguments presented by each side of the conflict. These inconsistencies suggest that criticism of international law as purely political pretense has merits. The Article shows that transnational legal process theory can account for and incorporate these facial inconsistencies and thus address the criticism leveled at international law. The Article proceeds to develop a theory of freedom as a value that is internal to, and necessary for, transnational legal process. This theory of freedom relies not upon the classical liberal understanding of freedom as positive or negative freedom. Instead, it reconstructs freedom around the value of human dignity. The Article concludes that freedom as dignity is a central value of the transnational legal process and that the transnational legal process would cease to function in its absence

State-controlled entities as claimants in international investment arbitration:an early assessment

State-controlled entities, including state-owned enterprises and sovereign wealth funds, are increasingly important participants in international investment flows and international trade. As claimants in contractual arbitrations, they may face some unique issues, since it is not always clear whether such disputes may be considered "commercial." Until the status of such claims has been resolved, each case has to be examined on its merits

国有企业在国际投资仲裁中的申诉者地位：一个初步评估

包括国有企业和主权财富基金在内的国有实体，在国际资本流动和国际贸易中参与者的地位日益重要。作为在合同仲裁中的申诉人，国有企业可能会面临一些特有的问题，因为这类纠纷是否可能被视为“商业”行为还有待于确定。在上述问题得到明确解决之前，每个案件还要按照各自的情况进行处理

Reason and Reasonableness - The Necessary Diversity of the Common Law

This Article addresses the central concept of “reasonableness” in the common law and constitutional jurisprudence. On the basis of three examples, the common law of torts, the common law of contracts, and Fourth Amendment jurisprudence, the Article notes that different areas of the law follow fundamentally inconsistent utilitarian, pragmatic and formalist reasonableness paradigms. The significance of this diversity of reasonableness paradigms remains largely under-theorized. This Article submits that the diversity of reasonableness paradigms is a necessary feature of the common law. It theorizes that the utilitarian, pragmatic and formalist paradigms are structural elements driving the common law norm-generation process. This theory permits a new, more precise definition of hard cases as cases in which these paradigms lead to different results in a specific legal dispute. It further provides a legal criterion to determine whether hard cases have been correctly resolved as a legal matter rather than as a matter of policy. On the basis of this new understanding of hard cases, it is possible to explain a question left unresolved by Frederick Schauer’s article The Limited Domain of the Law namely how the common law develops as a limited domain while remaining responsive to changes in community standards and policy preferences. By means of this theory, the article analyzes an important, and potentially dispositive, conceptual confusion underlying the recent Supreme Court affirmative action decision Fisher v. University of Texas and its treatment of good faith, and explains how that confusion can be overcome by future courts applying the decisio

Reason and Reasonableness: The Necessary Diversity of the Common law

This Article addresses the central concept of “reasonableness” in the common law and constitutional jurisprudence. On the basis of three examples, the common law of torts, the common law of contracts, and Fourth Amendment jurisprudence, the Article notes that different areas of the law follow fundamentally inconsistent utilitarian, pragmatic, and formalist reasonableness paradigms. The significance of this diversity of reasonableness paradigms remains largely under-theorized. This Article submits that the diversity of reasonableness paradigms is a necessary feature of the common law. It theorizes that the utilitarian, pragmatic and formalistic paradigms are structural elements driving the common law norm-generation process. This theory permits a new, more precise definition of hard cases as cases in which these paradigms lead to different results in a specific legal dispute. It further provides a legal criterion to determine whether hard cases have been correctly resolved as a legal matter rather than as a matter of policy. On the basis of this new understanding of hard cases, it is possible to explain a question left unresolved by Frederick Schauer’s article The Limited Domain of the Law namely how common law develops as a limited domain while remaining responsive to changes in community standards and policy preferences. By means of this theory, this article analyzes an important, and potentially dispositive, conceptual confusion underlying the recent Supreme Court affirmative action decision Fisher v. University of Texas as its treatment of good faith, and explains how that confusion can be overcome by future courts applying the decision

Functions of Freedom -- Privacy, Autonomy, Dignity, and the Transnational Legal Process

What is the function of freedom for the transnational legal process? This Article answers this question through the lens of the ongoing Ukrainian crisis and the deeply inconsistent international legal arguments presented by each side of the conflict. These inconsistencies suggest that criticism of international law as purely political pretense has merits. The Article shows that transnational legal process theory can account for and incorporate these facial inconsistencies and thus address the criticism leveled at international law. The Article proceeds to develop a theory of freedom as a value that is internal to, and necessary for, transnational legal process. This theory of freedom relies not upon the classical liberal understanding of freedom as positive or negative freedom. Instead, it reconstructs freedom around the value of human dignity. The Article concludes that freedom as dignity is a central value of the transnational legal process and that the transnational legal process would cease to function in its absence

Chapter 25. International investment arbitration: winning, losing and why

Succinct yet insightful reports are most welcome – especially in our era, distracted as it is by a rising tide of shallow commentary. For those who care about foreign direct investment (FDI), the premier reports are Columbia FDI Perspectives, published every few weeks by the Vale Columbia Center on Sustainable International Investment. Since the first issue (here republished as chapter 2) appeared in November 2008, the Perspectives have adhered to a format of about two pages, authored by a leading expert, on an FDI question of immediate interest. Consequently, there is no better way to keep abreast of changing trends and emerging themes. Chapter 2 carries the prescient title, “The FDI recession has begun”; several issues (chapters 9-13) document the ascent and challenges of multinational enterprises based in emerging markets, particularly Brazil, India and China; chapter 6 explores farm deals in Africa with the provocative title, “Land grab or development opportunity?”; chapter 1 reveals that emerging markets would attract more than half of FDI in the midst of the Great Recession; chapters. 29 and 30 debate the arbitration featuring environmental claims between Pacific Rim LLC and El Salvador; chapter 22 surprisingly reports that general counsels often know little and care less about bilateral investment treaties. Fortunately for FDI watchers, these issues of the Perspectives and many more – in fact the complete collection through 2010 – are now available in a single eBook. Corporate executives, who always have too much to read, will find this eBook essential for a quick briefing. Scholars, who always want to read more, will find the eBook a great place to start their quest. And policy officials, who want to know how the wind is blowing on hot questions, can find the direction from these Perspectives. Much credit for this collection goes to the editor-in-chief, Karl P. Sauvant, the world’s pioneer in gathering reliable statistical information on foreign direct investment, a lifelong observer of FDI questions and a foremost scholar of multinational enterprises. Together with his team at the Vale Columbia Center, Sauvant has done a great service to those of us who care about FDI trends and emerging themes.https://digitalcommons.wcl.american.edu/facsch_bk_contributions/1390/thumbnail.jp

Chapter 25. International investment arbitration: winning, losing and why

Succinct yet insightful reports are most welcome – especially in our era, distracted as it is by a rising tide of shallow commentary. For those who care about foreign direct investment (FDI), the premier reports are Columbia FDI Perspectives, published every few weeks by the Vale Columbia Center on Sustainable International Investment. Since the first issue (here republished as chapter 2) appeared in November 2008, the Perspectives have adhered to a format of about two pages, authored by a leading expert, on an FDI question of immediate interest. Consequently, there is no better way to keep abreast of changing trends and emerging themes. Chapter 2 carries the prescient title, “The FDI recession has begun”; several issues (chapters 9-13) document the ascent and challenges of multinational enterprises based in emerging markets, particularly Brazil, India and China; chapter 6 explores farm deals in Africa with the provocative title, “Land grab or development opportunity?”; chapter 1 reveals that emerging markets would attract more than half of FDI in the midst of the Great Recession; chapters. 29 and 30 debate the arbitration featuring environmental claims between Pacific Rim LLC and El Salvador; chapter 22 surprisingly reports that general counsels often know little and care less about bilateral investment treaties. Fortunately for FDI watchers, these issues of the Perspectives and many more – in fact the complete collection through 2010 – are now available in a single eBook. Corporate executives, who always have too much to read, will find this eBook essential for a quick briefing. Scholars, who always want to read more, will find the eBook a great place to start their quest. And policy officials, who want to know how the wind is blowing on hot questions, can find the direction from these Perspectives. Much credit for this collection goes to the editor-in-chief, Karl P. Sauvant, the world’s pioneer in gathering reliable statistical information on foreign direct investment, a lifelong observer of FDI questions and a foremost scholar of multinational enterprises. Together with his team at the Vale Columbia Center, Sauvant has done a great service to those of us who care about FDI trends and emerging themes.https://digitalcommons.wcl.american.edu/facsch_bk_contributions/1390/thumbnail.jp