The Right to Regulate in Investor- State Arbitration: Slicing and Dicing Regulatory Carve-Outs

This Article examines the “right to regulate” as the power of a sovereign state to adopt and maintain government measures for public welfare objectives. It explores how claims by foreign investors in investor–state dispute settlement (ISDS) may interfere with the state’s ability to regulate, and how the state can protect its right in international investment agreements. The Article first explains the structure of modern international investment law and dispute resolution. It next turns to the right to regulate and explores why regulatory disputes represent a major challenge for ISDS. It continues by analyzing how exceptions, exclusions, and other safeguard provisions can be used in investment treaties to protect the right to regulate. It then critically examines the tobacco carve-out and other safeguard provisions of the Trans-Pacific Partnership (TPP) Agreement as to their ability to protect the right to regulate. Finally, the Article explores alternative solutions to the challenges of ISDS. It concludes by arguing that regulatory disputes are best resolved through a hybrid system of dispute resolution that is amenable to both private interests and public policy considerations

Enforcing Soft Law in International Investment Arbitration

Drawing examples from international environmental law, sustainable development, and corporate social responsibility, this Article examines the evolving role of international investment arbitration in the enforcement of non-binding soft law rules of international law. In doing so, the Article explains how investment tribunals can, and have been called upon to, interpret and, paradoxically, enforce soft law instruments. The Article calls for reevaluation of the nature of soft law and the role of investor-state dispute settlement in international rulemaking and enforcement. It also argues that for international environmental law and law on sustainable development, where the lack of an enforcement mechanism has long been identified as the single major weakness of the system, investor-state dispute settlement might be a viable option for increasing compliance with and enforcement of international law obligations of the sovereign states

Arbitrating Antitrust Claims: From Suspicion to Trust

This article examines the evolving role of international commercial arbitration in the enforcement of domestic antitrust laws. It first explores how antitrust claims and issues arise in international arbitrations. It then describes three phases in the evolution of domestic courts’ attitude toward the adjudication of antitrust claims by international arbitral tribunals. Initially, national courts—like courts of the United States prior to the U.S. Supreme Court’s pathmarking 1985 decision in Mitsubishi v. Soler—were suspicious of private adjudication of antitrust claims, cognizant of the public values implicated by antitrust law. A remarkable but unnoticed transformation has since ensued. Now, the national courts of most developed economies accept (and even mandate) adjudication of antitrust claims by private international arbitral tribunals. This transformation may be predictive of future acceptance of international arbitral tribunals as trustworthy forums for dispute resolution of other “public” subject matters. This Article concludes by suggesting how international arbitrators should discharge their new role and how domestic courts might police it

An Empirical Survey of International Commercial Arbitration Cases in the US District Court for the Southern District of New York, 1970-2014

This Article identifies and organizes the circumstances in which national courts play a role in international commercial arbitrations— border crossings. It then records and analyzes empirical data of these border crossings in cases filed in a key national court for international arbitration-related litigation: the US District Court for the Southern District of New York. Data were collected from the date of entry into force for the United States of the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the “New York Convention”) on December 29, 1970 to September 15, 2014. Based on interpretation of these data, the Article suggests how to regulate the border crossings to best balance the policy goals of international commercial arbitration with reasonable allowances for national sovereignty and fidelity to the New York Convention