Ali: Transnational Dispute Settlement Norms: Soft Law and the Role of UNCITRAL's Regional Centre for Asia and the Pacific

Shahla F. Ali (Univ. of Hong Kong - Law) has published Forming Transnational Dispute Settlement Norms: Soft Law and the Role of UNCITRAL's Regional Centre for Asia and the Pacific (Edward Elgar Publishing 2021). Here's the abstract:

This thought-provoking book examines whether regional centres associated with global legal institutions facilitate expanded citizen engagement in global soft law making. Through an analysis of empirical research into the role of decentralized soft law making in the East Asian region, it investigates the influence of such regional centres in overcoming representational deficits in the design of cross-border dispute settlement norms.

Shahla F. Ali analyses survey data, in-depth case studies and UNCITRAL participation records to provide a comprehensive view of the contributions of Asia Pacific states in the development and refinement of UNCITRAL dispute settlement instruments. She argues that this has corresponded with the emergence of a new form of decentralized transnational legal ordering, advancing representation and legal innovation at both regional and global levels. The book concludes that these findings support the expansion of regional centres in areas with historically limited representation in global law making.

Rothwell: Polar Dispute Settlement: Frameworks, Function and Future

Donald R. Rothwell (Australian National Univ. - Law) has posted Polar Dispute Settlement: Frameworks, Function and Future. Here's the abstract:

Arctic and Antarctic law and governance is under the international spotlight with respect to the ability to respond to a range of issues including territorial tensions, maritime claims, environmental impact, and resource development. This raises for consideration contemporary international dispute settlement mechanisms. Whilst the Arctic and Antarctic have not been the scene of significant international discord there are examples of dispute settlement mechanisms having been utilised ranging from diplomatic initiatives to judicial settlement before the International Court of Justice. This paper assesses the practice associated with polar dispute settlement, considering overarching frameworks under the Charter of the United Nations and the law of the sea, before turning to review the function and future of the distinctive regional practices that have been adopted in the Arctic and Antarctica.

Shan, Zhang, & Su: China and International Dispute Resolution in the Context of the 'Belt and Road Initiative'

Wenhua Shan (Xian Jiaotong Univ. - Law), Sheng Zhang (Xian Jiaotong Univ. - Law), & Jinyuan Su (Wuhan Univ. - Law) have published China and International Dispute Resolution in the Context of the 'Belt and Road Initiative' (Cambridge Univ. Press 2021). The table of contents is here. Here's the abstract:

Written by eminent international judges, scholars and practitioners, this book offers a timely study of China's role in international dispute resolution in the context of the construction of the 'Belt and Road Initiative' (BRI). It provides in-depth analysis of the law and practice in the fields of international trade, commerce, investment and international law of the sea, as they relate to the BRI construction. It is the first comprehensive assessment of China's policy and practice in international dispute resolution, in general and in individual fields, in the context of the BRI construction. This book will be an indispensable reading for scholars and practitioners with interest in China and international dispute resolution. It also constitutes an invaluable reference for anyone interested in the changing international law and order, in which China is playing an increasingly significant role, particularly through the BRI construction.

Conference: The Peaceful Settlement of Cyber Disputes

On March 4-5, 2021, the Sheffield Centre for International and European Law at the University of Sheffield will host an online conference on "The Peaceful Settlement of Cyber Disputes." Registration is free but prior registration is required. The program and registration details can be found here.

Prodromou: The Public Order Exception in International Trade, Investment, Human Rights and Commercial Disputes

Zena Prodromou (Quinn Emanuel Urquhart & Sullivan LLP ) has published The Public Order Exception in International Trade, Investment, Human Rights and Commercial Disputes (Wolters Kluwer 2020). Here's the abstract:

The Public Order Exception in International Trade, Investment, Human Rights and Commercial Disputes is a trailblazer book that analyses on a stand-alone as well as on a comparative basis – from a substantive and also from a procedural perspective – the public order exception’s application in international dispute resolution. Parties to international disputes increasingly invoke the need to protect the domestic public order in order to justify actions otherwise in breach of their obligations under international law. The term ‘public order’ nevertheless remains unclear as do the criteria and factors against which different international dispute bodies assess the parties’ respective claims. This unique book presents, systematizes and synthesizes all relevant jurisprudence in this field of law, identifies points of controversy and provides practical insights on the factors and grounds that are determinate in both upholding and dismissing the exception’s application.

Kassoti: Between a Rock and a Hard Place: The Court of Justice’s Judgment in Case Slovenia v. Croatia

Eva Kassoti (T.M.C. Asser Instituut) has posted Between a Rock and a Hard Place: The Court of Justice’s Judgment in Case Slovenia v. Croatia. Here's the abstract:

The Slovenia v. Croatia case (Court of Justice, judgment of 31 January 2020, case C-457/18) is a complex and politically charged one. Here, the Court of Justice was indirectly called upon to pronounce on the legal effects of an international arbitral award delimiting the territorial and maritime boundary between two Member States – the validity of which remains fiercely contested by one of the parties. This Insight analyses the Court of Justice’s reasoning in the case at hand and argues that, although the Court was arguably caught between a rock and a hard place, its misconstruction of the subject matter of the action and its failure to engage with the res judicata effects of the arbitral award within the EU legal order weaken the persuasive force of its line of argumentation.

4th SIEL Conversation: International Dispute Settlement in the Pandemic

The 4th SIEL Conversation, on the topic "International Dispute Settlement in the Pandemic," will take place next Thursday, October 29, 2020. Registration and other details are available here.

Tomuschat & Kohen: Flexibility in International Dispute Settlement: Conciliation Revisited

Christian Tomuschat & Marcelo Kohen have published Flexibility in International Dispute Settlement: Conciliation Revisited (Brill | Nijhoff 2020). The table of contents is here. Here's the abstract:

In recent years, the tendency has been to settle international disputes by informal methods. Among those methods conciliation has seen a successful revival, after many years of decline, in the case of Timor Leste v. Australia while inter-State complaint proceedings under the UN-sponsored human rights treaties have unexpectedly reached their merits stage of conciliation. The present book takes stock of these developments by portraying, at the same time, the potential of the OSCE Court of Conciliation and Arbitration which still remains to be fully activated. Additionally, the contributions reach out to geographical areas in Africa and Asia. An analysis of the relevant procedural mechanisms completes the study to which 14 authors from nine different countries have contributed.

Arato, Brown, & Ortino: Parsing and Managing Inconsistency in Investor-State Dispute Settlement

Julian Arato (Brooklyn Law School), Chester W. Brown (Univ. of Sydney - Law), & Federico Ortino (King's College London – Law) have posted Parsing and Managing Inconsistency in Investor-State Dispute Settlement (Journal of World Investment and Trade, forthcoming). Here's the abstract:

Inconsistency in legal interpretation is among the most salient problems in investor-state dispute settlement (ISDS) and it is one of the key issues being addressed by the reform efforts in the United Nations Commission on International Trade Law (UNCITRAL) Working Group III. While some degree of interpretive inconsistency is endemic to any legal order, systemic inconsistency tends to undermine the basic purposes of the investment treaty regime – namely protecting and promoting foreign direct investment through predictable international legal rules and institutions. This article seeks to parse the problem of inconsistency at a more granular level, in order to distinguish between types of norms where a degree of inconsistency is (relatively) manageable and (potentially) tolerable, and those where inconsistency is unacceptable. We argue that it is with regard to structural “rules of the game” where inconsistency is most destructive.

Kulick: Let’s (Not) (Dis)Agree to Disagree!? Some Thoughts on the ‘Dispute’ Requirement in International Adjudication

Andreas Kulick (Universität Tübingen - Law) has posted Let’s (Not) (Dis)Agree to Disagree!? Some Thoughts on the ‘Dispute’ Requirement in International Adjudication. Here's the abstract:

International courts and tribunals only enjoy jurisdiction to settle a ‘dispute’. ‘Dispute’ requires disagreement. However, what if the parties disagree over whether there actually exists such disagreement? What if, before the International Court of Justice, the respondent argues that there is no ‘dispute’ because it declined to react to the applicant’s contentions? In other words, can a disputing party avoid a dispute by playing dead? On the other hand, where to draw the line in order to prevent the applicant from seizing an international court or tribunal where there is in fact no real disagreement among the parties? This article critically assesses the Court’s case law on the ‘dispute’ requirement and argues for a fragmented approach to ‘dispute’ in international adjudication that carefully defines this jurisdictional requirement along the lines of the judicial function of the respective international judicial dispute settlement forum.

Schill & Vidigal: Designing Investment Dispute Settlement À La Carte: Insights from Comparative Institutional Design Analysis

Stephan W. Schill (Univ. of Amsterdam - Law) & Geraldo Vidigal (Univ. of Amsterdam - Law) have posted Designing Investment Dispute Settlement À La Carte: Insights from Comparative Institutional Design Analysis (Law and Practice of International Courts and Tribunals, forthcoming). Here's the abstract:

The multilateral expression of the desire to reform investor-state dispute settlement (ISDS) at the United Nations Commission on International Trade Law (UNCITRAL) obscures the diverging preferences states have in respect of which future dispute settlement model to adopt. In order to garner broad acceptability, this article proposes that the reformed system could be designed as ‘dispute settlement à la carte’, with a Multilateral Investment Court coexisting with other forms of dispute resolution under the umbrella of one multilateral institution. With a view to showing that such a system is feasible, this article draws on comparative institutional design analysis, that is, a comparative assessment of dispute settlement design features across different international dispute settlement systems. This approach helps to explore what institutional design features are a useful source of inspiration for a future investment dispute settlement system that preserves flexibility for states in the choice of their preferred means of adjudication, while safeguarding legal certainty and promoting coherence in investment dispute settlement.

Gray & Potter: Diplomacy and the Settlement of International Trade Disputes

Julia Gray (Univ. of Pennsylvania - Political Science) & Philip B.K. Potter (Univ of Virginia - Politics) have posted Diplomacy and the Settlement of International Trade Disputes (Journal of Conflict Resolution, forthcoming). Here's the abstract:

How do countries settle disputes in the shadow of the law? Even in the presence of legalized dispute settlement, countries still rely on diplomatic channels to resolve conflicts. But it can be difficult to assess diplomacy's impact on dispute resolution, because those channels tend to be opaque. We present both an original theory of the impact of diplomacy on dispute resolution as well as a novel measure of diplomacy. If countries with close or, conversely, distant relationships use legal channels for dispute resolution, diplomacy will have little impact on dispute settlement; resorting to legal recourse among friends or adversaries likely means that the dispute is intractable. However, diplomacy can increase the chances of settlement between countries with moderate levels of affinity. We test this argument using a protocol-based proxy for diplomatic interactions -- gifts given at the occasion of meetings between diplomatic counterparts -- that would otherwise be difficult to observe. Using the case of the United States and its disputes in the World Trade Organization, we find support for our argument. This suggests that even when countries resort to legalized methods of dispute settlement, bilateral dealmaking still plays an important role.

Conference: The Changing Character of International Dispute Settlement

On December 6, 2019, the Sheffield Centre for International and European Law will host a conference on "The Changing Character of International Dispute Settlement: John G. Merrills Memorial Conference." The program is here.

Conference: Comparative Law and International Dispute Resolution Processes

The 2019 Annual Meeting of the American Society of Comparative Law will be held October 17-19, at the University of Missouri School of Law’s Center for the Study of Dispute Resolution. The theme is: "Comparative Law and International Dispute Resolution Processes." The program is here.

Call for Submissions: The Changing Paradigm of Dispute Resolution and Investment Protection in Post-soviet and Greater Eurasian Space

Transnational Dispute Management has issued a call for submissions for a special issue on "The Changing Paradigm of Dispute Resolution and Investment Protection in Post-soviet and Greater Eurasian Space." The call is here.

Call for Papers: Comparative Law and International Dispute Resolution Processes

The American Society of Comparative Law has issued a call for proposals for concurrent panels the ASCL 2019 Annual Meeting and for a works in progress conference to be held in advance of the Annual Meeting. The theme is: "Comparative Law and International Dispute Resolution Processes." The conference will be held at the University of Missouri School of Law’s Center for the Study of Dispute Resolution between Thursday, October 17, and Saturday, October 19, 2019. The call can be found on the conference website.

Call for Papers: Challenges to the Governance of the Global Economy: Dispute Settlement in the WTO and in International Investment Law

The ESIL Interest Group on International Economic Law has issued a call for papers for a workshop on “Challenges to the Governance of the Global Economy: Dispute Settlement in the WTO and in International Investment Law,” which will take place on September 12, 2019, as a side-event to the ESIL Annual Conference in Athens. The call is here.

Olmos Giupponi: Trade Agreements, Investment Protection and Dispute Settlement in Latin America

Belén Olmos Giupponi has published Trade Agreements, Investment Protection and Dispute Settlement in Latin America (Wolters Kluwer 2019). Here's the abstract:

Trade Agreements, Investment Protection and Dispute Settlement in Latin America analyses the evolution and current landscape of dispute settlement in trade and investment agreements in the Americas. In recent years many Latin American countries have liberalized their trade and investment regimes, opening their markets to free international trade. At the same time, regional economic integration has boomed. This book is the first systematic analysis in any language of these globally significant developments, and the first comprehensive legal study of dispute settlement relating to foreign direct investment and trade in the region. The book looks beyond focusing on formalized dispute settlement mechanisms to underline other techniques such as alternative dispute resolution channels, including dispute prevention practices. In proposing solutions to the current challenges, the book taps into the precedents and practice, stressing the relevant domestic and international case law on dispute resolution applicable to these treaties.

Koopmans: Negotiating Peace: A Guide to the Practice, Politics, and Law of International Mediation

Sven M.G. Koopmans (Member of Parliament, The Netherlands) has published Negotiating Peace: A Guide to the Practice, Politics, and Law of International Mediation (Oxford Univ. Press 2018). Here's the abstract:

This book is the first and only practical guide to negotiating peace. In this ground-breaking book Sven Koopmans, who is both a peace negotiator and a scholar, discusses the practice, politics, and law of international mediation. With both depth and a light touch he explores successful as well as failed attempts to settle the wars of the world, building on decades of historical, political, and legal scholarship.

Who can mediate between warring parties? How to build confidence between enemies? Who should take part in negotiations? How can a single diplomat manage the major powers? What issues to discuss first, what last? When to set a deadline? How to maintain confidentiality? How to draft an agreement, and what should be in it? How to ensure implementation? The book discusses the practical difficulties and dilemmas of negotiating agreements, as well as existing solutions and possible future approaches. It uses examples from around the world, with an emphasis on the conflicts of the last twenty-five years, but also of the previous two-and-a-half-thousand. Rather than looking only at either legal, political or organizational issues, Negotiating Peace discusses these interrelated dimensions in the way they are confronted in practice: as an integral whole. With one leading question: what can be done?

Erie: The China International Commercial Court: Prospects for Dispute Resolution for the “Belt and Road Initiative”

Matthew S. Erie (Univ. of Oxford - Modern Chinese Studies) has posted an ASIL Insight on The China International Commercial Court: Prospects for Dispute Resolution for the “Belt and Road Initiative”.