Unity and Diversity in International Law

The primordial Greek sea-god Proteus could alter his shape at will, notwithstanding that his divine substance remained the same. Reinventing himself by adapting to new circumstances, Proteus still stayed unchanged in essence. Unlike the sea-god’s protean nature, the substance of international law may well undergo alterations when examined through the telescope of legal culture, or with predispositions of divergent educational backgrounds. For the thoughtful reader, scholarly speculation on such variations will be triggered by reading Is International Law International?. In that book, Professor Anthea Roberts explores a variety of elements in the teaching and practice of international law, viewed through the lenses of scholars and judges from different parts of the world

Arbitration and the Fisc: NAFTA\u27s Tax Veto

Taxes, said Franklin Roosevelt, are the dues that we pay for the privileges of membership in an organized society. Harsher tongues describe tax as a form of property seizure. Somewhere between these competing characterizations of revenue raising-club dues and forced takings-lies a clue to why the North American Free Trade Agreement ( NAFTA ) reserves special treatment for investment disputes implicating fiscal matters. NAFTA gives foreign investors a right to settle investment disputes by arbitration, a process more politically and procedurally neutral than either host state courts or foreign gunboats. Without the option to arbitrate, the specter of unfair expropriation might chill cross-border economic cooperation and capital flow. The dispute resolution process does not apply to all investment controversies, however. If an expropriation claim implicates taxation measures, the competent fiscal authorities of host and investor countries may block arbitration. Thus this tax veto supplies an initial screening process to determine when taxation constitutes a form of what has been called creeping expropriation. This power to block arbitration serves as a springboard to consider the politically sensitive interaction of revenue raising and national sovereignty

International Products Liability Litigation: Choosing the Applicable Law

Growth in transnational commerce and travel has substantially increased the cases in which injury-causing products have significant contacts with more than one state. A defective automobile is manufactured in Italy, by an Italian company, and exported to France; it is purchased by a French student who drives it to Oxford, where a defect in the steering causes an accident and injury. Or, an Englishman on a business trip to Italy buys a box of Swiss chocolate, eats the candy during a stopover in Paris, and falls ill on arrival back in London; as a result of the illness, he is unable to go to New York to conclude a profitable business deal. The special problems of multivictim accidents have also assumed larger importance. Airplane accidents, such as the 1974 crash in Paris of the Douglas DC-10 owned by the Turkish Air Line, have been a particularly prolific source of product liability litigation

Politics of Class Action Arbitration: Jurisdictional Legitimacy and Vindication of Contract Rights

Exactly one year apart, the U.S. Supreme Court decided two cases on “class arbitration” proceedings, one about international shipping and the other on consumer purchases of mobile telephones. Each decision inflicted damage on a claimant’s right to invoke collective action in arbitrations. Read together, the opinions serve as a prism through which to refract key elements in an increasingly politicized debate on the legal framework for arbitration, particularly within the United States

The Specificity of International Arbitration: The Case for FAA Reform

Arbitration by its nature is polycentric: one might more accurately speak of arbitrations in the plural. A wide variety of disputes are included in one category, implicating differences related to the sophistication of the parties, the character of the disputes, and the public interests at stake. The current legal framework for arbitration conducted in the United States attempts to squeeze all types of arbitration into the Procrustean bed of a single set of standards for judicial review. The United States should seriously consider eliminating judicial discretion to review the substantive merits of awards in international cases. The domestically nourished doctrine of manifest disregard of the law risks misapplication in cross-border contests. The FAA should be cantonized into separate regimes for domestic and international arbitration, thus permitting the latter to evolve independent of whatever protective legislative and judicial initiatives might be appropriate to address concerns developed in a domestic context

Arbitrator Integrity: The Transient and the Permanent

The constant movement in arbitrators\u27 lives and activities requires regular adjustment in both formulation and application of contours for acceptable and unacceptable arbitrator behavior. Legal claims should be decided on their merits, rather than according to a predisposition or interest in the outcome. A reasonable measure of arbitrator integrity remains both desirable and attainable. However, in a world of stubbornly heterogeneous legal cultures, each with its own divergent view of proper conduct, elaborating one common ethical plumb line for international arbitration poses special challenges. Fair-mindedness and intelligence remain the most sought after qualities in arbitrators. To reduce the risk of having cases decided by either pernicious or precarious arbitrators, those who establish and apply ethical guidelines walk a tightrope between the rival poles of (i) keeping arbitrators free from taint, and (ii) avoiding maneuvers that interrupt proceedings unduly. If arbitrators must be completely sanitized from all possible external influences on their decisions, only the most naive or incompetent would be available. Consequently, notions such as proximity and intensity will be invoked to evaluate allegedly disqualifying links or prejudgment. The search for balance in ethical standards compels a constant reevaluation of the type of relationships and predispositions likely to trouble international arbitration. Arbitrator conflicts of interest usually fall into one of two categories: lack of independence and lack of impartiality. The common assumption is that an arbitrator in international disputes must be both impartial and independent. Neutrality generally encompasses both independence and impartiality. One intriguing question relates to the extent that either independence or impartiality may be waived by fully informed litigants. The right to a fair hearing could be waived, or at least objections must be raised in a timely fashion. Although some behavior patterns provide per se evidence of impropriety, other types of conduct take on radically different ethical overtones depending on the circumstances. To promote confidence in the international arbitral process, party input into the selection of arbitrators has long been common practice. To some extent, concerns over issue conflict and role confusion intersect with what is sometimes called institutional bias. A particular arbitral institution might be perceived as tending to appoint arbitrators likely to favor one category of litigants over others. In most instances, public and private goals will coincide, with each having a very real interest in the systemic integrity of the arbitral process

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Peer Reviewedhttp://deepblue.lib.umich.edu/bitstream/2027.42/117045/1/cpt196673379.pd