Reform of Investor-State Dispute Settlement: Lessons from International Uniform Law
This article argues that significant improvements in the quality and consistency of decision-making in investor-state arbitration can be achieved without taking such drastic (and possibly unachievable) steps as creating a global appellate body or standing international investment court, or enacting a new treaty that codifies the substantive obligations of international investment law for all signatory states. The article draws on the experience of the international uniform law movement to suggest realistic and achievable steps that could nevertheless be effective.Although investor-state arbitration and uniform law are not entirely analogous, they do share some important similarities. In particular, they share the same basic goal (to create a fair, even, and predictable playing field for private relationships that cross borders) and the same basic challenge (how to deliver that degree of consistency without the factors that normally stabilize adjudication in national court systems, such as court hierarchies and a shared domestic legal culture).This article is organized around three “questions asked” with respect to investor-state dispute settlement. For each, it describes the “answers” yielded by the experience of the international uniform law movement, and proposes how the insights gained might be put into practice in investor-state arbitration. The first two questions are doctrinal in character: what degree of consistency between investment tribunals should be the goal? and what should be the role of precedent in a decentralized, non-hierarchical interpretive community? On both of these issues, the international uniform law literature provides doctrines that are normatively attractive and that can feasibly be adapted to the international investment law context. The third question is more practical: which non-binding aids to interpretation are most effective in promoting quality and consistency? A wide range of interpretive aids exist for various international uniform law instruments, providing an opportunity to identify best practices. In general, the international uniform law experience shows that substantial improvements in consistency and quality of decision-making can be realized even without the establishment of centralized administrative or appellate bodies or the enactment of new treaty regimes.
Protecting the autonomy of states to enact tobacco control measures under trade and investment agreements
Since the adoption of the WHO's WHO Framework Convention on Tobacco Control, governments have been pursuing progressively stronger and more wide-reaching tobacco control measures. In response, tobacco companies are frequently using international trade and investment agreements as tools to challenge domestic tobacco control measures. Several significant new trade and investment agreements that some fear may provide new legal avenues to the tobacco industry to challenge health measures are currently under negotiation, including the Trans-Pacific Partnership (a 12 party agreement of Asia-Pacific regional countries) and the Transatlantic Trade and Investment Partnership (an agreement between the USA and the European Union). This commentary examines different options for treaty provisions that the parties could employ in these agreements to minimise legal risks relating to tobacco control measures. It recommends that parties take a comprehensive approach, combining provisions that minimise the potential costs of litigation with provisions that increase the likelihood of a state successfully defending tobacco control measures in such litigation.
Computational fluid dynamics as a development tool for rotary blood pumps.
Computational fluid dynamics (CFD) is beginning to significantly impact the development of biomedical devices, in particular rotary cardiac assist devices. The University of Pittsburgh's McGowan Center for Artificial Organ Development has extensively used CFD as the primary tool to analyze and design a novel axial flow blood pump having a magnetically suspended rotor. The blood-contacting surfaces of the pump were developed using a design strategy based on CFD that involved closely coupling a Navier-Stokes solver to a parameterized geometry modeler and advanced mesh movement techniques. CFD-based blood damage models for shear-induced hemolysis as well as surrogate functions describing thrombosis potential were employed to help guide design improvements. This CFD-based design approach resulted in the timely development of a pump subjected to multiple geometric refinements without building expensive physical prototypes for each design iteration. A physical prototype of the final improved pump was fabricated and experimentally analyzed using particle imaging flow visualization. The CFD predicted results correlated well with the experimental data including pressure-flow (H-Q) performance and specific flow field features. It is estimated that the present CFD-based design approach shortened the overall design time frame from an order of years to months.