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.
Unidroit Principles as a Source for Global Sales Law
THE germination period for the United Nations Convention on Contracts for the International Sale of Goods (CISG) was forty-five years, and once it was completed it was slow to be adopted. It is now showing its age, and the question has been posed as to whether it is time to revise or expand its scope. Given its history, though, whether a revision or expansion of the CISG is a viable project that justifies the resources is subject to serious question. Among the problems this project might encounter is a lack of resources, a clear articulation of the need for the project, the inability to define its scope, and the likelihood of widespread ratification within a reasonable time. Recent attempts to revise domestic and regional laws are instructive about the possible problems this project may have. It may be that the barriers for a future convention on global contract law is not a realistic project, and the more recent path of soft law instruments, such as the UNIDROIT Principles of International Commercial Contracts (Principles), is a more viable method of providing global uniformity in contracts. Alternatively, another path is to replicate the creation of the CISG by relying on an initial product from UNIDROIT that provides for UNIDROIT’s distinct working methods, and then have that work as the basis for a convention on global contract law, through the United Nations Commission on International Trade Law (UNCITRAL). This would entail a close working relationship between UNIDROIT and UNCITRAL.
School Principals and Education Law: What do they know, what do they need to know?
Principals now work in complex and challenging environments where uncertainty and change are the hallmarks of their roles and responsibilities. As such, the knowledge and capability demands on principals have expanded, including those related to education law. While these matters attracted some research interest a number of years ago, there has been little recent work in the area of principals and education law. This article reports on an exploratory study into aspects of the legal knowledge held by Tasmanian government school principals, particularly concerning non-sexual physical contact between teachers and students. The research was undertaken using a small-scale, mixed-methods research design, which required principals to respond to various legal scenarios. Three key findings emerged from the study. First, principals used two different levels of working knowledge about education law  one related to legal problems, and the other to legally-related routine activities. Second, on the particular topic of physical contact, some knowledge held by principals was not legally accurate. Third, for major legal issues, participants indicated that they acquired access to information from legal experts. The situation for routine legal matters was less clear, although in-service training and practical experience were identified as potential sources of knowledge. Participants recognised the importance of a sound knowledge of education law, especially for dealing with security and safety issues and preferred to access further information through in-service training. Notably, the findings of the study are broadly consistent with those from earlier Australian and international research, suggesting that much remains to be done in the area of principals’ education law knowledge.