Predicting Outcomes in Investment Treaty Arbitration

Crafting appropriate dispute settlement processes is challenging for any conflict-management system, particularly for politically sensitive international economic law disputes. As the United States negotiates investment treaties with Asian and European countries, the terms of dispute settlement have become contentious. There is a vigorous debate about whether investment treaty arbitration (ITA) is an appropriate dispute settlement mechanism. While some sing the praises of ITA, others offer a spirited critique. Some critics claim that ITA is biased against states, while others suggest ITA is predictable but unfair due to factors like arbitrator identity or venue. Using data from 159 final cases derived from 272 publicly available ITA awards, this Article examines outcomes of ITA cases to explore those concerns. Key descriptive findings demonstrate that states reliably won a greater proportion of cases than investors; and for the subset of cases investors won, the mean award was US$45.6 million with mean investor success rate of 35%. State success rates were roughly similar to respondent-favorable or state-favorable results in whistleblowing, qui tam, and medical-malpractice litigation in U.S. courts. The Article then explores whether ITA outcomes varied depending upon investor identity, state identity, the presence of repeat-player counsel, arbitrator-related, or venue variables. Models using case-based variables always predicted outcomes whereas arbitrator-venue models did not. The results provide initial evidence that the most critical variables for predicting outcomes involved some form of investor identity and the experience of parties’ lawyers. For investor identity, the most robust predictor was whether investors were human beings, with cases brought by people exhibiting greater success than corporations; and when at least one named investor or corporate parent was ranked in the Financial Times 500, investors sometimes secured more favorable outcomes. Following Marc Galanter’s scholarship demonstrating that repeat-player lawyers are critical to litigation outcomes, attorney experience also affected ITA outcomes. Investors with experienced counsel were more likely to obtain a damage award against a state, whereas states retaining experienced counsel were only reliably associated with decreased levels of relative investor success. Although there was variation in outcomes, ultimately, the data did not support a conclusion that ITA was completely unpredictable; rather, the results called into question some critiques of ITA and did not prove that ITA is a wholly unacceptable form of dispute settlement. Instead, the results suggest the vital debate about ITA’s future would be well served by focusing on evidence-based insights and reliance on data rather than nonreplicable intuition

Elephants, compassion, and the largesse of literature

[From the text] Why is it that we do not raise a monument, a mausoleum, nor even a humble gravestone, to mark the death of every elephant? We habitually, even compulsively, do this for other humans, occasionally for treasured pets. Yet we do not do it for the most charismatic, gigantic, culturally resonant land animal we will ever encounter. Why not? Some possible answers. One: too much work. Another: we regard other animals as less conscious than ourselves; we are the only creatures who deserve to have our deaths so commemorated. A third: wild animals are part of wild ecosystems; it is ‘natural’ for them to die and to be reabsorbed namelessly back into those ecosystems. We humans, on the other hand, consider ourselves somehow separate from those ecosystems: we shield ourselves from ‘Nature’ with bricks and literatures while we live, with marble and epitaphs after we die

Unconscious nobility: the animal poetry of Harold Farmer

I want to suggest that Harold Farmer's poetry works repeatedly in this area of ambiguity, a zone of tension triangulated, as it were, between three impulses. First : a notion (or even the fact) that a sense of community depends on 'knowing' what the 'other' is thinking or feeling, and on being able to articulate that knowledge. Second : suspecting, or even knowing, that certain reaches of the mind of the 'other' are fundamentally, and fascinatingly, unknowable - of the realm of the unconscious. And third : knowing (or just fearing or hoping) that any secure distinction between ourselves-as-humans and ourselves-as-sharing-animal-traits is artificial, or at least permeable. Hence, while Farmer's wild animals are perpetually on the brink of disappearing from sight and understanding, it is precisely that mysteriousness which attracts us, can sometimes envelop us, and even speak to us. In having spoken and been spoken to, we are somehow ennobled

Acoustic suppression of the coffee-ring effect

We study the influence of acoustic fields on the evaporative self-assembly of solute particles suspended inside sessile droplets of complex fluids. The self-assembly process often results in an undesirable ring-like heterogeneous residue, a phenomenon known as the coffee-ring effect. Here we show that this ring-like self-assembly can be controlled acoustically to form homogeneous disc-like or concentrated spot-like residues. The principle of our method lies in the formation of dynamic patterns of particles in acoustically excited droplets, which inhibits the evaporation-driven convective transport of particles towards the contact line. We elucidate the mechanisms of this pattern formation and also obtain conditions for the suppression of the coffee-ring effect. Our results provide a more general solution to suppress the coffee-ring effect without any physiochemical modification of the fluids, the particles or the surface, thus potentially useful in a broad range of industrial and analytical applications that require homogenous solute depositions

An Investigation of the Nature, Sources and Properties of Pyrogenic Substances

1 . The test for the detection of pyrogen by the thermometer method was examined and found to be unreliable although the results obtained were within the limits of the test as described in the United States Pharmacopoeia, thirteenth revision, and the British Pharmacopoeia, 1948. 2. A thermocouple circuit was constructed which could accommodate ten rabbits and a test for detection using this apparatus devised. The sensitivity of the test was such that an average maximum rise in rectal temperature of 0.3

Overcoming the underdetermination of specimens

Philosophers of science are well aware that theories are underdetermined by data. But what about the data? Scientific data are selected and processed representations or pieces of nature. What is useless context and what is valuable specimen, as well as how specimens are processed for study, are not obvious or predetermined givens. Instead, they are decisions made by scientists and other research workers, such as technicians, that produce different outcomes for the data. Vertebrate fossils provide a revealing case of this data-processing, because they are embedded in rock that often matches the fossils’ color and texture, requiring an expert eye to judge where the fossil/context interface is. Fossil preparators then permanently define this interface by chiseling away the material they identify as rock. As a result, fossil specimens can emerge in multiple possible forms depending on the preparator’s judgment, skill, and chosen tools. A prepared fossil then is not yet data but potential data, following Leonelli’s (2015) relational framework in which data are defined as evidence that scientists have used to support a proposed theory. This paper draws on ethnographic evidence to assess how scientists overcome this underdetermination of specimens, as potential data, in addition to the underdetermination of theories and of data, to successfully construct specimen-based knowledge. Among other strategies, paleontology maintains a division of labor between data-makers and theory-makers. This distinction serves to justify the omission of preparators’ nonstandard, individualized techniques from scientific publications. This separation has benefits for both scientists and technicians; however, it restricts knowledge production by preventing scientists from understanding how the pieces of nature they study were processed into researchable specimens

"Muscled Presence": Douglas Livingstone's poem "Thirteen Ways of Looking at a Black Snake"

Douglas Livingstone's poem "Thirteen Ways of Looking at a Black Snake" is an artwork which addresses precisely these questions, seeking a manner of portraying the snake which is neither grossly appropriative nor wholly detached, neither ethically empty nor preachy. In its multi-angled structure, Livingstone attempts aesthetically "to establish and embellish ... a contact zone with the nonhuman animals who share our world with us, but accepting also that there exist considerable venues on either side of this contact zone that are, on the one hand, only human, and on the other hand, only nonhuman". Even in his more formally scientific work, Livingstone argues for the inevitability of such limits to knowledge, and for the value of the imagination in addressing them