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.
The Fundamental Importance of Foreign Direct Investment to Australia in the 21st Century: Reforming Treaty and Dispute Resolution Practice
This paper outlines our collaborative research project for 2014-16, aimed at evaluating the economic and legal risks associated with the Australian Government’s recent approach to investor-state dispute settlement (ISDS), and broader implications for Foreign Direct Investment (FDI) and international investment law particularly in the Asian region. The multidisciplinary research will include econometric modeling, empirical research through stakeholder surveys and interviews, as well as critical analysis of case law, treaties and regulatory approaches. The aim of this project is to identify optimal methods of investor-state dispute prevention, avoidance and resolution that efficiently cater to inbound and outbound investors as well as Australia as a whole. The goal is to promote a positive climate for investment inflows and outflows, while maintaining Australia's ability to take sovereign decisions on matters of public policy.
In-services and empty threats: The roles of organizational practices and workplace experiences in shaping U.S. educators' understandings of students' rights.
This paper applies theoretical frameworks from organizational sociology and sociolegal studies to examine factors associated with educators' conceptions of students' rights to due process in disciplinary actions. We analyze a unique representative data set of 402 teachers and 200 administrators in U.S. high schools to investigate how educators understand the rights to due process articulated in the Supreme Court case of Goss v. Lopez (1975). We then examine whether individual characteristics and participation in organizational processes are associated with educators' understandings of students' due process rights. Findings suggest that educators' understandings of students' entitlements to due process vary with educators' level of education, experience of school-related legal threats, and participation in district or diocese in-service training programs on students' rights. Results point to organizational climate as a key factor in shaping educators' rights conceptions and the role of law in American schools.