Private rights and public international law: Why competition among international economic law tribunals is not working

Hastings Law Journal

Volumn 59, Issue 2, 2007, Pages 241-307

  Bjorklund, Andrea K ^a  

^a UNIVERSITY OF CALIFORNIA

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EID: 40949149158     PISSN: 00178322     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (404)

1. See Oscar Schachter, Philip Jessup's Life and Ideas, 80 AM. J. INT'L L. 878, 893 (1986) (noting Judge Jessup's view that gunboat diplomacy led to abuses by powerful states);
2. Burns H. Weston, The Charter of Economic Rights and Duties of States and the Deprivation of Foreign-Owned Wealth, 75 AM. J. INT'L L. 437, 438-39 (1981) (discussing the substitution of international law for the restrictions previously imposed by colonialism and gunboat diplomacy in the context of nationalizations).
3. See DAVID RICARDO, ON THE PRINCIPLES OF POLITICAL ECONOMY AND TAXATION ch. 7, para. 16; ch. 19, para. 1 (R.D. Irwin 1963) (1817).
4. States compete for the right to regulate cross-border transactions. Competition can be both adversarial and cooperative; properly managed, it can lead to a "race to the top." Paul B. Stephan, Regulatory Cooperation and Competition: The Search for Virtue, in T RANSATLANTIC REGULATORY CO-OPERATION 167,170-75, 201-02 (George Bermann et al. eds., 2000).
5. The Oxford English Dictionary defines competition as "[r]ivalry in the market, striving for custom between those who have the same commodities to dispose of." OXFORD ENGLISH DICTIONARY 604 (2d ed. 1989).
6. See YUVAL SHANY, THE COMPETING JURISDICTIONS OF INTERNATIONAL COURTS AND TRIBUNALS 21 (2003) ("[J]urisdictions are deemed truly to compete with one another for business only if the involved parties can hope to achieve comparable results from the rival procedures.").
7. MARY BOTTARI & LORI WALLACH, CITIZEN PUBLIC, NAFTA'S THREAT TO SOVEREIGNTY AND DEMOCRACY: THE RECORD OF NAFTA CHAPTER II INVESTOR-STATE CASES 1994-2005: LESSONS FOR THE CENTRAL AMERICAN FREE TRADE AGREEMENT xiv (2005), available at http://www.citizen.org/documents/Chapter%2011%20Report%20Final.pdf (stating that foreign investors are given more opportunities to seek justice than other parties);
8. Laurence Shore, Book Review, 22 ARB. INT'L 627, 627 (2006) (reviewing JAN PAULSSON, DENIAL OF JUSTICE IN INTERNATIONAL LAW (2005)).
9. The Atlantic Star, [1974] A.C. 436,471 (H.L.) (appeal taken from Eng.) (U.K.).
10. Richard H. Kreindler, "Arbitral Forum Shopping": Some Observations on Recent Developments in International Commercial and Investment Arbitration, 16 AM. REV. INT'L ARB. 157, 157 (2005).
11. The principle of non-responsibility holds that states are not responsible under international law for injuries to their own nationals. (Human rights law is a notable exception to this practice.) Thus, only a foreign investor may bring a claim for a violation of the law of state responsibility. Corporations can manipulate the structure of their investments to ensure that there is a cross-border relationship that places their investment under the protection of a BIT. See Barton Legum, Defining Investment and Investor: Who is Entitled to Claim?, 22 ARB. INT'L 521, 526 (2006). For example, many oil companies own their Venezuelan investments through Dutch subsidiaries, and The Netherlands and Venezuela have a BIT providing protections to Dutch-owned investments. See e.g., Oliver L. Campbell, Op-Ed. Commentary, PETROLEUMWORLD NEWS, Aug. 17, 2007, Arbitration Under a Bilateral Investment Treaty, http://www.petroleumworld.com/ Edo7071701.htm.
12. For an excellent and comprehensive description of the "hybrid" nature of investor-state arbitration, see Zachary Douglas, The Hybrid Foundations of Investment Treaty Arbitration, 74 BRIT. Y.B. INT'L L. 151 (2004).
13. Some publicists have started to broach these problems. See, e.g., Yuval Shany, Contract Claims vs. Treaty Claims: Mapping Conflicts Between ICSID Decisions on Multisourced Investment Claims, 99 AM. J. INT'L L. 835, 844-45 (2005) (discussing "integrationist" and "disintegrationist" methodologies in approaching multifaceted disputes).
14. See, e.g.,JOSE E. ALVAREZ, I NTERNATIONAL ORGANIZATIONS AS LAW-MAKERS 401-520 (2005) [hereinafter ALVAREZ, INTERNATIONAL ORGANIZATIONS];
15. SHANY, supra note 5;
16. Roger P. Alford, The Proliferation of International Courts and Tribunals: International Adjudication in Ascendance, 94 AM. SOC'Y INT'L L.PROC. 160, 160 (2000);
17. José E. Alvarez, The New Dispute Settlers: (Half) Truths and Consequences, 38 TEX. INT'L L.J. 405 (2003);
18. Jonathan I. Charney, Is International Law Threatened by Multiple International Tribunals?, 271 RECUEIL DES COURS IOI (1998) (Neth.) [hereinafter Charney, Is International Law Threatened?];
19. Jonathan I. Charney, The Impact on the International Legal System of the Growth of International Courts and Tribunals, 31 N.Y.U. J. INT'L L. & POL. 697 (1999) [hereinafter Charney, Impact]; Benedict Kingsbury, Foreword: Is the Proliferation of International Courts and Tribunals a Systemic Problem?, 31 N.Y.U. J. INT'L L. & POL. 679 (1999);
20. Jenny S. Martinez, Towards an International Judicial System, 56 STAN. L. REV. 429 (2003); Cesare P.R. Romano, The Proliferation of International Judicial Bodies: The Pieces of the Puzzle, 31 N.Y.U. J. INT'L L. & POL. 709 (1999);
21. Ernest Young, Institutional Settlement in a Globalizing Judicial System, 54 DUKE L.J. 1143 (2005).
22. The predilection of defendant states to challenge the jurisdiction of tribunals is marked. See generally MEG KINNEAR ET AL., INVESTMENT DISPUTES UNDER NAFTA: AN ANNOTATED GUIDE TO NAFTACHAPTER II, IIOI-I to -50 (2006);
23. John Yukio Gotanda, An Efficient Method for Determining Jurisdiction in International Arbitrations, 40COLUM. J.TRANSNAT'L L.II, 12-14 (2001).
24. See Thomas Buergenthal, The Proliferation of Disputes, Dispute Settlement Procedures and Respect for the Rule of Law, 22 ARB. INT'L 495, 496-97 (2006) (noting two reasons tor proliferation of dispute settlement mechanisms: as more tribunals exist to hear more cases the predictability of outcomes increases; as tribunals are perceived to be successful, international organizations are inclined to emulate that success by imitation);
25. Rosalyn Higgins, International Law in a Changing International System, 58 CAMBRIDGE L.J. 78, 84 (1999). "The more our world is globalised, the more we all have to depend upon each other for our common welfare, the less the State retains its monopoly as an international actor and the more systems of dispute settlement we are likely to find." Id.
26. "The parties to any dispute, the continuance of which is likely to endanger the maintenance of international peace and security, shall, first of all, seek a solution by negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice." U.N. Charter art. 33, para. 1.
27. See Douglas, supra note 10, at 152-60 (discussing the departure of investment treaty tribunals from the traditions of both private and public international law).
28. Detlev F. Vagts, Centennial Essay: International Economic Law and the American Journal of International Law, 100 AM. J. INT'L L. 769,769 (2006). Professor Vagts noted that there are even more expansive definitions: '"the total range of norms (directly or indirectly based on treaties) of public international law with regard to transnational economic relations.'" Id. (quoting PIETER VERLOREN VAN THEMAAT, THE CHANGING STRUCTURE OF INTERNATIONAL ECONOMIC LAW 9 (1981)).
29. For a lucid and insightful analysis of these differences, see Alan O. Sykes, Public Versus Private Enforcement of International Economic Law: Standing and Remedy, 34 J. LEGAL STUD. 631 (2005).
30. It is therefore not a comprehensive listing of international tribunals. Cesare Romano, writing in 1999, compiled a list of over forty permanent international tribunals. Romano, supra note 12, at 718-19. Roger Alford, writing in 2000, counted more than fifty. Alford, supra note 12, at 160. Neither list included ad hoc tribunals that could be constituted under various existing treaties.
31. Two notable examples are Elettronica Sicula S.p.A. (ELSI) (U.S. v. Italy), 1989 I.C.J. 15 (July 20), and Barcelona Traction, Light & Power Co., Ltd. (Belg. v. Spain) 1970 I.C.J. 4 (Feb. 5).
32. Statute of the International Court of Justice arts. 34(1), 36(1), June 26, 1945, 59 Stat. 1031, T.S. No. 993 [hereinafter ICJ Statute]. As of February 2006, sixty-five states had subscribed to the compulsory jurisdiction of the court. Int'l Court of Justice, Declarations Recognizing the Jurisdiction of the Court as Compulsory, http://www.icj-cij.org/jurisdiction/index.php?pi=5&p2= i&p3=3 (last visited Nov. 22, 2007). A state that has not subscribed to the compulsory jurisdiction of the court can consent to individual cases being brought before the court either by means of a compromissary clause in a treaty or other agreement. ROSENNE'S THE WORLD COURT: WHAT IT IS AND HOW IT WORKS 70 (Terry D. Gill ed., 6th rev. ed. 2003).
33. For example, in Breard, the Republic of Paraguay sought provisional measures from the International Court of Justice that would stay the execution of Angel Breard pending the Court's decision on the proper interpretation of the United States' alleged breach of the Vienna Convention on Consular Relations. Vienna Convention on Consular Relations (Para. v. U.S.) 1998 I.C.J. 248, 258 (Apr. 9). The Court unanimously indicated provisional measures six days after Paraguay's request. CONSTANZE SCHULTE, COMPLIANCE WITH DECISIONS OF THE I NTERNATIONAL COURT OF JUSTICE 365-67 (2004).
34. ICJ Statute, supra note 21, at art. 38, para. 1. The ICJ may also decide a case ex aequo et bono, if the parties agree. Id. art. 38, para. 2.
35. See generally SHABTAI ROSENNE, THE LAW AND PRACTICE OF THE INTERNATIONAL COURT, 1920-2005 (4th ed. 2006).
36. Higgins, supra note 14, at 84-85.
37. General Agreement on Tariffs and Trade, Oct. 30, 1947, 61 Stat. A-n, 55 U.N.T.S. 194 [hereinafter GATT];
38. Final Act Embodying the Results of the Uruguay Round of Multilateral Trade Negotiations, Apr. 15, 1994, 33 I.L.M. 1125 (1994) [hereinafter WTO Agreements];
39. United Nations Convention on the Law of the Sea, Dec. 10,1982,1833 U.N.T.S. 397 [hereinafter UNCLOS].
40. See MOHAMED SHAHABUDDEEN, PRECEDENT IN THE WORLD COURT 107-10 (1996) (noting that the exclusion of stare decisis does not exclude decisions of the ICI from having precedential force). The same is true of decisions made by other bodies, although their reach is often limited by context. See, e.g., Andrea K. Bjorklund, Investment Treaty Arbitral Decisions as Jurisprudence Constante, in INTERNATIONAL ECONOMIC LAW: THE STATE AND FUTURE OF THE DISCIPLINE (Colin Picker et al. eds., Hart Publishing, forthcoming 2008);
41. Raj Bhala, The Myth About Stare Decisis and International Trade Law (Part One of a Trilogy), 14 AM. U. INT'L L. REV. 845, 849-932 (1999) (discussing the de facto precedential value accorded to GATT panels and WTO panel and appellate body decisions).
42. THE STATUTE OF THE INTERNATIONAL COURT OF JUSTICE: A COMMENTARY 1244-45 (Andreas Zimmermann et al. eds., 2006).
43. JOHN H. JACKSON, THE WORLD TRADING SYSTEM: LAW AND POLICY OF INTERNATIONAL ECONOMIC RELATIONS 112-17 (2d ed. 1997).
44. Donald McRae, What is the Future of WTO Dispute Settlement?, 7 J. INT'L ECON. L. 3, 7-8 (2004).
45. GREGORY C. SHAFFER, DEFENDING INTERESTS: PUBLIC-PRIVATE PARTNERSHIPS IN WTO LITIGATION 19-64 (2003).
46. Christopher F. Corr, Trade Protection in the New Millennium: The Ascendancy of Antidumping Measures, 18 NW. J. INT'L. L. & Bus. 49, 71 (1997) (describing compensation as prospective relief in the WTO); Carlos M. Vasquez &
47. John H. Jackson, Some Reflections on Compliance with WTO Dispute Settlement Decisions, 33 LAW & POL'Y INT'L Bus. 555, 560 (2002).
48. JAGDISH BHAGWATI & ANNE O. KRUEGER, THE DANGEROUS DRIFT TO PREFERENTIAL TRADE AGREEMENTS 2-3 (1995).
49. Joost Pauwelyn, Going Global, Regional, or Both? Dispute Settlement in the Southern African Development Community (SADC) and Overlaps with the WTO and Other Jurisdictions, 13 MINN. J. GLOBAL TRADE 231,302 (2004).
50. North American Free Trade Agreement, U.S.-Can.-Mex., art. 1904, Dec. 17, 1992, 32 I.L.M. 605 (2003) [hereinafter NAFTA].
51. KINNEAR ET AL., supra note 13, General Section-37.
52. For example, the European Court of Justice ordered Greece to pay a fine for its continued failure to comply with a prior court decision. Case C-387/97, Comm'n v. Greece, 2000 E.C.R. I-5047.
53. First Protocol to the European Convention on Human Rights, art. 1, Mar. 20, 1952, 262 U.N.T.S. 221.
54. One interesting example is a case concerning the land rights of the indigenous community of Nicaragua and its demand for formal incorporation into the national land title system. The Mayagna (Sumo) Awas Tingni Community v. Nicaragua, 2001 Inter-Am. Ct. H.R. (ser. C) No. 79, at 987 (Aug. 31, 2001).
55. See, e.g., Sporrong & Lonnroth v. Sweden, 52 Eur. Ct. H.R. 4 (1983) (finding Swedish government's issuance of long-term expropriation permits and prohibitions on construction deprived the owners of their use of property in violation of the Convention because the owners bore an individual and excessive burden when compared to the general interests of the community).
56. Eleventh Protocol for the Protection of Human Rights and Fundamental Freedoms art. 34, May II, 1994, Europ. T.S. No. 155.
57. Convention on Recognition and Enforcement of Foreign Arbitral Awards, June 10, 1958, 21 U.S.T. 2517, 330 U.N.T.S. 3 [hereinafter New York Convention]. As of 2007, there were 142 signatories to the New York Convention. U.N. Comm'n Int'l Trade Law, Status 1958 Convention on the Recognition and Enforcement of Foreign Arbitral Awards, http://www.uncitral.org/uncitral/ en/uncitral_texts/ arbitration/NYConvention_status.html (last visited Nov. 22,2007).
58. The ICSID was established by convention under the auspices of the World Bank. Convention on the Settlement of Investment Disputes between States and Nationals of Other States, March 18, 1965, 17 U.S.T. 1270, 575 U.N.T.S. 159 [hereinafter ICSID Convention]. The purpose of the ICSID Convention was to establish a "mechanism for the orderly settlement of disputes" that would "improve a country's investment climate" and "have a moderating influence on the parties' conduct." CHRISTOPH SCHREUER, THE ICSID CONVENTION: A COMMENTARY xvii (2001). ICSID Convention arbitration is available for the resolution of investment disputes when both the state hosting the investment and the home state of the investor are party to the Convention. Id. at 6.
59. U.N. CONFERENCE ON TRADE & DEV., DEVELOPMENTS IN INTERNATIONAL INVESTMENT AGREEMENTS IN 2005, at 2, U.N. Doc. UNCTAD/WEB/TTE/IIA/2006/7 (2006), available at http://www.unctad.org/en/docs/webiteiia20067_en.pdf.
60. The number of treaty-based disputes has risen substantially over the past several years; claims brought before the World Bank's ICSID rose from 3 as of the end of 1994, to 132 as of November 2005. U.N. CONFERENCE ON TRADE & DEV., INVESTOR STATE DISPUTES ARISING FROM INVESTMENT TREATIES: A REVIEW, at 4, Pub. No. UNCTAD/ITE/IIT/2005/4. The U.N. Conference on Trade and Development (UNCTAD) also notes at least eighty-seven cases outside the auspices of the ICSID. Id. at 4-5. Thus, the total number of cases is about 219, over half of which have been filed within the past four years. Id.
61. See, e.g., Hein Kotz, The Common Core of European Private Law: Presented at the Third General Meeting of the Trento Project, 21 HASTINGS INT'L & COMP. L. REV. 803, 806 ('"The English Commercial Court itself... must, I imagine, be by far the most important court in the world for the resolution of international commercial disputes. Certainly there is nothing like it anywhere else in Europe. You can judge its international character by the fact that, in one year during which I had the honor to preside over the court, in every single case tried in the court either one or both parties came from overseas.'" (quoting Lord Goff)).
62. See, e.g., Federal Tort Claims Act, 28 U.S.C. § 2674 (2006).
63. Gyula Eorsi, Private and Governmental Liability for the Torts of Employees and Organs, in II INT'L ENCYCLOPEDIA COMP. L. ch. 4, paras. 172-73 (André Tunc ed., 1975).
64. These concerns are not new; they led to the negotiation of the International Convention on Settlement of Investment Disputes. ICSID Convention, supra note 43.
65. A recent study of foreign corporate defendants in U.S. courts suggests that they are more likely to lose cases than are U.S. corporate defendants. Utpal Bhattacharya et al., The Homecourt Advantage in International Corporate Litigation, J.L. & ECON. (forthcoming Nov. 2007), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=509oo8. The authors noted that bias is not the only reason for the disparate results, although they suggest that structural reasons, such as foreign firms having less familiarity with and less skill in dealing with the U.S. justice system, were unlikely to be important explanations. Id. (manuscript at 29). This study does not address situations where the plaintiffs are corporations, nor does it look at cases in which government, whether local or national, is the opposing party. The history of state responsibility for injuries to aliens, however, is replete with examples of bias in the courts. See JAN PAULSSON, DENIAL OF JUSTICE IN INTERNATIONAL LAW (2005);
66. Andrea K. Bjorklund, Reconciling State Sovereignty and Investor Protection in Denial of Justice Claims, 45 VA. J. INT'L L. 809, 838-47 (2005). For a cogent and convincing analysis of U.S. constitutional issues implicated by Congress's authorization of international tribunal jurisdiction, see Henry P. Monaghan, Article III and Supranational Judicial Review, 107 COLUM. L. REV. 833 (2007).
67. See Ian Sinclair, The Law of Sovereign Immunity. Recent Developments, 167 RECUEIL DES COURS 113, 121-46 (1980) (Neth.);
68. Jean-Flavien Lalive, L'immunite de Jurisdiction des Etats et des Organisations Internationales, 84 RECUEIL DES COURS 209, 215 (1953) (Neth.).
69. United States Foreign Sovereign Immunities Act of 1976, 28 U.S.C. §§ 1602, 1605 (2006);
70. see also A.F.M. Maniruzzaman, State Enterprise Arbitration and Sovereign Immunity Issues: A Look at Recent Trends, DISP. RES. J., Aug.-Oct. 2005, at 76 (discussing immunity of state-owned enterprises, as well as states themselves).
71. See, e.g., infra Part III.C & III.D (discussing Lauder cases).
72. Matteo M. Winkler, Arbitration Without Privity and Russian Oil: The Yukos Case Before the Houston Court, 27 U. PA. J. INT'L ECON. L. 115, 115-17 (2006).
73. Id. at 116-17.
74. In re Yukos Oil Co., 321 B.R. 396,399 (Bankr. S.D. Tex. 2005).
75. Yukos Oil Co. v. Russian Federation, 320 B.R. 130,132 (Bankr. S.D. Tex. 2004).
76. Winkler, supra note 54, at 120.
77. In re Yukos Oil Co., 321 B.R. at 410-11.
78. See Deutsche Bank AG's Motion to Dismiss Chapter II Bankruptcy Case at 9-19, In re Yukos Oil Co., 321 B.R. 396 (Bankr. S.D. Tex. 2005) (No. 04-47742). The Yukos dispute did not end there; Yukos also sought to compel arbitration with the Russian Government under Russia's foreign investment laws. Winkler, supra note 54, at 121-26. Other investors in Yukos whose home states have investment treaties with Russia suggest they will initiate arbitration under those treaties. See W. Ben Hamida, L'Arbitrage Transnational Face a Un Desordre Procedural: La Concurrence Des Procedures Et Les Conflits De Juridictions, 3 TRANSNAT'L DISPUTE MGMT. paras. 60-61 (Mar. 2006).
79. Most civil law countries follow a monistic theory of international law, which makes international law, and international treaties, an integral part of their legal system. Mexico, for example, had to provide especially for this possibility in the NAFTA by requiring investors to assert NAFTA claims either in Mexican courts or before international arbitral tribunals, but not both. NAFTA, supra note 35, Annex 1120.1. Most common law countries subscribe to the dualist view, which holds international law to be separate from domestic law until expressly incorporated into the domestic legal order.
80. See Int'l Law Comm'n, Report of the Study Group on Fragmentation of International Law: Difficulties Arising From the Diversification and Expansion of International Law, U.N. Doc. A/CN.4/L.682 (Apr. 4, 2006) (prepared by Martti Koskenniemi) (noting both positive and negative sides) [hereinafter ILC Fragmentation Report];
81. Buergenthal, supra note 14, at 497 ("[T]he proliferation of international courts is, on the whole, good for international law.");
82. Charney, Impact, supra note 12, at 698-99 (noting features that make disparate tribunals attractive, such as the special qualities of panel members). Other potential benefits include procedures that may vary from those established by the ICJ, or by other tribunals, such as secrecy, rules about intervention, and official language. Charney, Is International Law Threatened?, supra note 12, at 133.
83. Charney, Is International Law Threatened?, supra note 12, at 135;
84. see also SHANY, supra note 5, at 78 (noting potential for encouragement of international law). Judge Higgins has noted approvingly the growing strength and number of tribunals, and suggests that judicial bodies be fashioned to reflect the purpose they serve, and that regional bodies are a good way to minimize intrusions into sovereignty so long as the political and cultural ethos of the region encourage their formation. Roslyn Higgins, The ICJ, the Ed, and the Integrity of International Law, 52 INT'L & COMP. L.Q. 1, 12-15 (2003). The strong networks that grow around a particular treaty may also have the effect of strengthening the tribunal that adjudicates claims brought under that treaty. See Laurence R. Heifer & Anne-Marie Slaughter, Towards a Theory of Effective Supranational Adjudication, 107 YALE L.J. 273, 367-68 (1997) (noting the community of law that grows around a particular tribunal and contributes to its effectiveness).
85. See, e.g., Hamida, supra note 60, para. 20 (discussing the fact that different French tribunals are entrusted with deciding issues concerning the civil code and the commercial code).
86. I am grateful to Lucy Reed for suggesting that people often have greater expectations of international tribunals that they do of municipal tribunals.
87. See, e.g., Higgins, supra note 63, at 12 (noting a "largely horizontal legal order" in which the ECJ is a "partial exception").
88. David W. Rivkin, The Impact of Parallel and Successive Proceedings on the Enforcement of Arbitral Awards, in DOSSIERS: PARALLEL STATE AND ARBITRAL PROCEDURES IN I NTERNATIONAL ARBITRATION 269, 269 (Bernardo M. Cremades & Julian D.M. Lew eds., 2005).
89. Charney, Impact, supra note 12, at 699.
90. ILC Fragmentation Report, supra note 62, at 14. Jenny Martinez has suggested ways to combat fragmentation, including a recommendation that international tribunals adopt system-conforming, prodialogic rules to ensure better cooperation among them. See Martinez, supra note 12, at 477-82.
91. The first two criteria are the ones usually necessary to establish res judicata in a subsequent proceeding. See The Pious Fund of the Californias (U.S. v. Mex.) Hague Ct. Rep. (Scott) i, 5 (Perm. Ct. Arb. 1902), reprinted in 2 AM. J. INT'L L. 893 (1908). For a discussion of lis pendens, see Douglas D. Reichert, Problems with Parallel and Duplicate Proceedings: The Litispendence Principle and International Arbitration, 8 ARB. INT'L 237 (1992).
92. See, e.g., Debra Lyn Bassett, The Forum Game, 84 N.C. L. REV. 333, 337 (2005) ("Critics of forum shopping charge manipulation, wrongdoing, and abuse by lawyers (invariably plaintiffs' lawyers) to obtain a forum and substantive law to which they are not entitled.");
93. Kimberly Jade Norwood, Shopping for a Venue: The Need for More Limits on Choice, 50 U. MIAMI L. REV. 267, 307 (1996) (suggesting the need for measures to deter lawyers from engaging in forum shopping). These concerns also exist in transnational cases. See N. Jansen Calamita, Rethinking Comity: Towards a Coherent Treatment of International Parallel Proceedings, 27 U. PA. J. INT'L ECON. L. 601, 608-09 (2006) ("[T]he battle for where litigation is to take place may often be the most important and bitterly fought issue in a transnational case.");
94. Douglas, supra note 10, at 236 ("Forum shoppers of the future will be less concerned with the remedial possibilities in proceedings before the domestic courts of different states, but will instead seek advantage from the absence of hierarchy and coordination among the various types of international tribunals").
95. SHANY, supra note 5, at 73.
96. Lauder v. The Czech Republic, UNOTRAL, Final Award (Sept. 3, 2001), available at http://ita.law.uvic.ca/documents/LauderAward.pdf.
97. CME Czech Republic B.V. v. The Czech Republic, UNCITRAL, Final Award (Mar. 14, 2003), available at http://ita.law.uvic.ca/documents/ CME_Schreuer_quantum.pdf.
98. See Charles N. Brower & Jeremy K. Sharpe, Multiple and Conflicting International Arbitral Awards, 4 J. WORLD INVESTMENT 211, 215-16 (2003) (quoting counsel for the Czech Republic as describing the situation as "absolutely ludicrous, and highly regrettable for the fact that it makes the law look so stupid");
99. Susan D. Franck, The Legitimacy Crisis in Investment Treaty Arbitration: Privatizing Public International Law Through Inconsistent Decisions, 73 FORDHAM L. REV. 1521, 1559-68 (2005);
100. Charles N. Brower, A Crisis of Legitimacy, NAT'L L.J., Oct. 7, 2002, at B1;
101. Michael Goldhaber, Czechmate, AM. LAW., Mar. 2002, at 82.
102. See August Reinisch, The Use and Limits of Res Judicata and Lis Pendens as Procedural Tools to Avoid Conflicting Dispute Settlement Outcomes, 3 L. & PRAC. INT'L CTS. & TRIBUNALS 37, 39 (2004) ("While divergent interpretations of international law by different dispute settlement institutions may be an unfortunate development, the matter even deteriorates where different tribunals reach not only divergent but even contradictory conclusions and where such incompatible judgements [sic] concern the same factual background.");
103. Christoph Schreuer, Diversity and Harmonization of Treaty Interpretation in Investment Arbitration, TRANSNAT'L DISP. MGMT., Apr. 2006, at 1, 18 ("[Tjhe problem of conflicting awards is a reality and has led to a discussion on how to address the problem.").
104. See generally ILC Fragmentation Report, supra note 62;
105. Charney, Is International Law Threatened?, supra note 12.
106. See generally ILC Fragmentation Report, supra note 62;
107. Charney, /s International Law Threatened?, supra note 12.
108. See C. Wilfred Jenks, 77re Conflict of Law-Making Treaties, 30 BRIT. Y.B. INT'L L. 401, 403 (1953) ("[L]aw-making treaties are tending to develop in a number of historical, functional and regional groups which are separate from each other and whose mutual relationships are in some respect analogous to those of separate systems of municipal law.").
109. Thus, for example, the WTO dispute settlement system is charged to "preserve the rights and obligation of Members under the covered agreements, and to clarify the existing provisions of those agreements in accordance with customary rules of interpretation of public international law." General Agreement on Tariffs and Trade-Multilateral Trade Negotiations (The Uruguay Round): Understanding on Rules and Procedures Governing the Settlement of Disputes, art. 3.2, Dec. 15,1993, 33 I.L.M. 112,115 (1994) [hereinafter DSU].
110. Charney, Is International Law Threatened?, supra note 12, at 130 (noting specialized tribunals' tendency to cite to Permanent Court of International Justice and ICJ awards but less to the awards of other tribunals).
111. The 1648 Treaty of Westphalia is usually credited with ushering in an international legal order deriving its authority from the nation state; it also established that nation states had absolute sovereignty over their territory and were to be treated as equals in the international order. See IAN BROWNLIE, PRINCIPLES OF PUBLIC INTERNATIONAL LAW 57-58 (6th ed. 2003). For an historical and contextual account of the Peace of Westphalia, see PHILIP BOBBITT, THE SHIELD OF ACHILLES: WAR, PEACE AND THE COURSE OF HISTORY 501-19 (2002).
112. See BROWNLIE, supra note 82, at 57-61.
113. DICEY AND MORRIS ON THE CONFLICT OF LAWS 1, 32 (Lawrence Collins et al. eds., 13th ed. 2000) (discussing nature and scope of conflict of laws).
114. GEORGE GRAFTON WILSON, INTERNATIONAL LAW 4 (9th ed. 1935) ("Private international law ... treats of the rules and principles which are observed in cases of conflict of jurisdiction in regard to private rights. These cases are not strictly international, and a better term for this branch of knowledge is that given by Judge Story, 'The Conflict of Laws.'"). This distinction was always in some sense overdrawn: private actors were affected by public international law even at the height of the Westphalian order.
115. The oft-misleading taxonomy "public" law and "private" law exists in municipal law as well. For discussions of the public/private distinction generally, see Peter Cane, The Anatomy of Private Law Theory: A 25th Anniversary Essay, 25 OXFORD J. LEGAL STUD. 203, 212-14 (2005) (discussing the philosophical bases for distinguishing public and private law), and Randy E. Barnett, Foreword: Four Senses of the Public Law-Private Law Distinction, 9 HARV. J.L. & PUB. POL'Y 267, 267-72 (1986) (discussing the relationship between the public/private law distinction and legal regulation). See also James A.R. Nafziger, Transnational Dispute Resolution: Bringing It All Together-An Introduction, 8 WILLAMETTE J. INT'L & DISP. RESOL. 1, 2-3 (2000) (noting a blurring of authority between the "private" and "public," and between the "domestic" and "international").
116. "[I]t is now well established that the individual is a subject of international law, though not in all the same respects as states and international organizations." M. Cherif Bassiouni, The Perennial Conflict Between International Criminal Justice and Realpolitik, 22 GA. ST. U. L. REV. 541, 548 (2006). See generally ALVAREZ, INTERNATIONAL ORGANIZATIONS, supra note 12 (discussing role of international organizations in the formation and application of international law).
117. See PHILIP C. JESSUP, TRANSNATIONAL LAW 2 (1956). Jessup uses the term "transnational law" to include "all law which regulates actions or events that transcend national frontiers. Both public and private international law are included as are other rules which do not wholly fit into such standard categories." Id.
118. Harold Hongju Koh, Transnational Legal Process, 75 NEB. L. REV. 181,184 (1996).
119. ANNE-MARIE SLAUGHTER, A NEW WORLD ORDER 2-4 (2004).
120. Ten years ago Dean Slaughter noted the disaggregation of the State, and the corresponding rise in state functions being performed by private parties acting together through a web of international networks. See, e.g., Anne-Marie Slaughter, The Real New World Order, FOREIGN AFF., Sept.-Oct. 1997, at 183.
121. For an interesting historical perspective on the role of individuals in the pre-Westphalian order, see David. J. Bederman, World Law Transcendent, 54 EMORY L.J. 53, 67-69 (2005) (noting corporatist features of medieval canon law and drawing parallels between the role of NGOs and international organizations to the role of the Catholic church prior to Westphalia).
122. The International Law Commission's State Responsibility Articles leave open the possibility that individuals may play a role in international disputes, but do not address the matter directly. Article 33 provides: "This Part [on the scope of international obligations] is without prejudice to any right, arising from the international responsibility of a State, which may accrue directly to any person or entity other than a state." U.N. Int'l Law Comm'n, Report on the Work of its Fifty-Third Session, art. 33, U.N. Doc. A/56/10 (2001);
123. accord Douglas, supra note 10, at 188.
124. Bjorklund, supra note 50, at 821-25.
125. The WTO Appellate Body has held that it had the authority to consider amicus curiae-type submissions from non-governmental organizations in
126. These rights are conferred usually by investment treaties, whether multilateral or bilateral. U.N. CONFERENCE ON TRADE & DEV., INTERNATIONAL INVESTMENT AGREEMENTS: KEY ISSUES: VOLUME II, at 17-20, U.N. Doc. UNCTAD/ITE/IIT/2004/10 (2004).
127. See, e.g., Vaughan Lowe, Overlapping Jurisdiction in International Tribunals, 20 AUSTRALIAN Y.B. INT'L L. 191, 191 (1999);
128. Joost Pauwelyn, Editorial Comment: Adding Sweeteners to Softwood Lumber: the WTO-NAFTA 'Spaghetti Bowl' is Cooking, 9 J. INT'L ECON. L. 197, 200-02 (2006);
129. Reinisch, supra note 76, at 37-38 (2004);
130. Christer SOderlund, Lis Pendens, Res Judicata and the Issue of Parallel Judicial Proceedings, 22 J. INT'L ARB. 301, 304-05 (2005);
131. Katia Yannaca-Small, Parallel Proceedings, in OXFORD HANDBOOK OF FOREIGN INVESTMENT LAW (Peter Muchlinski et al. eds., Oxford U. Press, forthcoming 2008).
132. When private entities enter into state contracts that contain arbitration clauses with the host government, they do so without the intermediary action of their home government, and are then direct beneficiaries of those agreements. To the extent that the contract refers to arbitration under the ICSID Convention, however, some of the rights may more properly be viewed as conferred on the individuals by the state.
133. Robert Anderson, IV, "Ascertained in a Different Way": The Treaty Power at the Crossroads of Contract, Compact, and Constitution, 69 GEO. WASH. L. REV. 189, 243 (2001).
134. See Douglas, supra note 10, at 162-67;
135. The Loewen Group Inc. v. United States, ICSID (W. Bank), Case No. ARB(AF)/98/3, f 233 (2003) (noting that "claimants are permitted for convenience to enforce what are in origin the rights of Party states").
136. This was the argument always made against the "Calvo" clauses that many Latin American countries insisted be included in contracts between foreign investors and the State. The Argentine jurist Carlos Calvo argued that aliens should be given no better treatment than nationals of a host state; thus, aliens signing a contract with a host government should waive their right to seek diplomatic protection from their home states, as the home state's espousal of its national's claim conferred an extra advantage. DONALD R. SHEA, THE CALVO CLAUSE 3-8 (1955). Aliens signed contracts containing such waivers, but they were held invalid by mixed claims commissions entrusted with resolving later disputes on the grounds that the ability to espouse a claim belonged to the government and could not be waived by an individual. Id.
137. Diplomatic protection is often precluded by the terms of the treaty in the event that an individual commences investor-State dispute settlement on its own behalf. In the event the respondent state refuses to cooperate in good faith with the privatized dispute settlement mechanisms, however, an individual may request diplomatic protection.
138. Vienna Convention on the Law of Treaties, arts. 54-64, May 23, 1969, 1155 U.N.T.S. 331 (entered into force Jan. 27,1980).
139. See Douglas, supra note 10, at 164. The English Court of Appeal took this approach in reviewing an arbitral award against Ecuador: '"The fundamental assumption underlying the investment treaty regime is clearly that the investor is bringing a cause of action based upon the vindication of its own rights rather than those of its national State.'" Occidental Exploration and Production Co. v. Republic of Ecuador, [2005] EWCA (Civ) 1116, para. 20; [2005] 2 Q.B. 432, 450 (C.A.) (quoting Douglas, supra note 10, at 182).
140. Professor Douglas suggests that there are two alternative direct models: one in which rights are conferred on individuals directly, to the exclusion of the home state; and one in which substantive obligations are owed to the home state, but the right of vindicating those obligations belongs to the investor. Douglas, supra note 10, at 181-84. The third-party beneficiary approach I suggest is more consistent with the latter. Douglas did idenitfy his preferred approach. Id. at 184.
141. Anderson, supra note 99, at 244 (quoting RESTATEMENT (SECOND) OF CONTRACTS § 302 (1981)) (alteration in original).
142. See Lea Brilmayer, International Law in American Courts: A Modest Proposal, 100 YALE L.J. 2277, 2304 (1991).
143. RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES § 324 (1987) (stating that an international agreement creates neither rights nor obligations for a third state without its consent; rights or obligations are created only if the parties to the agreement intend to confer the right or establish the obligation and the third state accepts the right or obligation);
144. Anderson, supra note 99, at 244;
145. M. Cherif Bassiouni, supra note 87;
146. Brilmayer, supra note 107, at 2304;
147. George D. Haimbaugh, Jr., Impact of the Reagan Administration on the Law of the Sea, 46 WASH. & LEE L. REV. 151, 188 (1989);
148. Carlos M. Vazquez, Treaty-Based Rights and Remedies of Individuals, 92 COLUM. L. REV. 1082, 1136 (1992);
149. Rachel Anderson, Note, Redressing Colonial Genocide Under International Law: The Hereros' Cause of Action Against Germany, 93 CAL. L. REV. 1155, 1177-79 (2005) (viewing rights of Herero gained under treaty as possibly conferring on them third-party beneficiary rights).
150. William W. Park, Income Tax Treaty Arbitration, 10 GEO. MASON L. REV. 803, 831 (2002). Professor Park also notes that third-party beneficiaries have been recognized in the context of life insurance policies and forum selection clauses. Id. at n.64.
151. A Vienna Convention analysis of treaty language leads to the conclusion that individuals have direct rights under the treaty. Douglas, supra note 10, at 167-68.
152. Some arbitral tribunals have recognized that groups of related companies may possess a "single economic reality" tying them together for certain purposes, such as the attribution of an agreement to arbitrate to all of the related companies, even when only one has actually signed the agreement. See Bernard Hanotiau, Problems Raised by Complex Arbitrations Involving Multiple Contracts-Parties-Issues, 18 J. INT'L ARB. 251, 282-83 (2001);
153. see also infra notes 289-291 and accompanying text.
154. See, e.g., NAFTA, supra note 35, art. 1116.
155. Most investment treaties permit minority shareholders to bring claims to protect their interests. See generally KJNNEAR ET AL., supra note 13, at 1116-11 to -15.
156. Under domestic contract law, third-party beneficiaries' rights vest in the beneficiary and may not be changed or withdrawn without the party's consent. See generally RESTATEMENT (SECOND) OF CONTRACTS § 311 (1981). This determination raises the question of when those rights vest; they may do so when the beneficiary manifests assent to the benefit, when she sues on the right, or when she changes her position in justifiable reliance on it. Id. In addition, the promisor has a continuing duty of performance towards the original promisee, as well as to the beneficiary. Id. § 305(1).
157. See the discussion of treaty directives in part IV.A, infra, for a discussion of tribunal approaches to alleged pre-dispute waivers of investment treaty protection.
158. Press Release, ICSID, Bolivia Submits a Notice under Article 71 of the ICSID Convention, (May 16, 2007) (available at http://www.worldbank.org/ icsidThighlights/05-16-07.htm).
159. ICSID Convention, supra note 43, at art. 71.
160. Id. at art. 72.
161. See Emmanuel Gaillard, International Arbitration Law, N.Y.L.J., June 26, 2007, at 8.
162. See Alejandro Escobar, Bolivia Exposes 'Critical Date' Ambiguity, 3 GLOBAL ARB. REV., July, 2007, at 17,18.
163. CHRISOPH SCHREUER, THE ICSID CONVENTION: A COMMENTARY 1286 (2001).
164. Id.
165. Gaillard, supra note 119. Some BITs have "survival clauses," which extend the protections under the treaty for fifteen to twenty years after the treaty is terminated.
166. General Agreement on Tarrifs and Trade-Multilateral Trade Negotiations (The Uruguay Round): Understanding on Rules and Procedures Governing the Settlement of Disputes, art. 1-2, Dec. 15,1993,33 I.L.M. 112 [hereinafter Dispute Settlement Understanding].
167. George A. Bermann et al., Cases and Materials on European Law 58-59 (2d ed. 2002);
168. see also James E. Pfander, Member State Liability and Constitutional Change in the United States and Europe, 51 AM. J. COMP. L. 237, 264 (2003) (describing he evolution of European Court of Justice jurisprudence.
169. Dispute Settlement Understanding, supra note 124, at art. 3.
170. See Jon Johnson, The Effect of the Softwood Lumber Agreement 2006 on the NAFTA Chapter Nineteen Binational Panel Process, GOODMAN'S UPDATE, Nov. 24, 2006, 1, 3 available at http://www.goodmans.ca/ index.cfm?fuseaction=PubUcationDetail&primaryKey=684 (noting a distinction between WTO and NAFTA binational process and Canada's two-track strategy to gain relief).
171. See generally KINNEAR ET AL., supra note 13, 1105-6 to -15;
172. U.N. CONFERENCE ON TRADE AND DEV., FAIR AND EQUITABLE TREATMENT, at 12, U.N. Doc. UNCTAD/ITE/IIT/II (VOL. III), U.N. Sales No. E.99.II.D.15 (1999).
173. Labeling this competition intra-systemic would nicely parallel the inter-systemic label. Yet caution is in order as it is far from clear that the network of over 2,400 investment treaties forms any kind of coherent system. See U.N. CONFERENCE ON TRADE AND DEV., BILATERAL INVESTMENT TREATIES 1995-2006: TRENDS IN INVESTMENT RULEMAKING, at 141, U.N. Doc. UNCTAD/ITE/IIT/2006/5, U.N. Sales No. E.06.11.D.16 (2007) ("[T]he fact that most BITs address basically the same issues does not mean that they have the same underlying rationale, nor does it mean that all agreements provide the same degree of investment protection or have evolved homogeneously over the last decade. Rather, the enormous increase in BITs during the review period has resulted in a greater variety of approaches with regard to individual aspects of their content").
174. Dispute Settlement Understanding, supra note 124, at art. 19.1.
175. NAFTA, supra note 35, at art. 19.3 & Annex 1911.
176. See Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837,865 (1984).
177. A Chapter 19 tribunal also cannot order the disbursement and repayment of duties already collected, although, if the Commerce Department revokes an order pursuant to a panel remand, the same disbursement and payment proceedings that apply to domestic procedures should apply in the aftermath of a Chapter 19 tribunal decision. NAFTA, supra note 35, at art. 1904.15. The United States has argued that NAFTA panel decisions have prospective effect only, but has lost that argument at the Court of International Trade. Tembec Inc. v. United States, 461 F. Supp. 2d. 1355,1360 (2006).
178. See CAMPBELL MCLACHLIN ET AL., INTERNATIONAL INVESTMENT ARBITRATION: SUBSTANTIVE PRINCIPALS 341-43 (2007) (noting theoretical possibility of non-monetary relief but practical recourse of nearly all tribunals to ordering monetary payments).
179. NAFTA, supra note 35, at art. 1134. Should other provisional measures in aid of arbitration be necessary, claimants can seek them from a municipal court. See KINNEAR ET AL., supra note 13, at 1134-12 to -14;
180. JULIAN D.M. LEW ET AL., COMPARATIVE INTERNATIONAL COMMERCIAL ARBITRATION 610-25 (2003).
181. These are only two of many examples. For an excellent summary of significant parallel proceedings, see Yannaca-Small, supra note 97.
182. The start of the dispute is usually dated to the first countervailing duty case filed against Canada in 1982, Lumber I. The United States Coalition for Fair Lumber Imports filed a claim on October 7, 1982, but the case ended in 1983 when the Department of Commerce issued a final determination that Canada had not subsidized the softwood lumber industry. 48 Fed. Reg. 24159 (Dep't of Commerce May 5, 1983). See generally WILLIAM J. DAVEY, PINE & SWINE 172-79, 232-50 (1996).
183. Lumber II was terminated by a Memorandum of Understanding ("MOU") whereby Canada agreed to impose a tariff of 15% on all lumber exports to the United States. Agreement concerning trade in certain softwood lumber products, with memorandum of understanding, agreed minute, and related letters. Effected by exchange of notes at Washington, Dec. 30, 1986, 26 I.L.M. 875 (1987). The Canada-U.S. Free Trade Agreement was signed while the MOU was still in force, and included provisions recognizing and upholding the MOU. Canada-U.S. Free Trade Agreement, U.S.-Can., Jan. 2,1988,27 I.L.M. 281 (entered into force Jan. 1, 1989).
184. See Softwood Lumber Agreement, U.S.-Can., May 29,1996,35 I.L.M. 1195.
185. Because so much of the Canadian market consists of government sales of lumber, the Commerce Department has struggled to define and measure "true market value" in its determinations. In Lumber I, for example, it measured Canadian government costs against revenues it received from its stumpage sales, and found a fair market price wherever the revenues exceeded the costs. Certain Softwood Lumber Products from Canada, 48 Fed. Reg. 24,159, 24,168 (May 31, 1983) (final negative countervailing duty determination). Later, Commerce created methodologies by which it tried to construct a theoretical fair market price in Canada and compare it to prices the producers in the U.S. paid for their domestic logs. Certain Softwood Lumber from Canada, 57 Fed. Reg. 22,570, 22,574 (May 28, 1992) (final affirmative determination). This was one of the issues before the binational panel in Lumber IV. See infra notes 161-164 and accompanying text.
186. Softwood Lumber Agreement, U.S.-Can., May 29,1996,35 I.L.M. 1195.
187. Certain Softwood Lumber Products from Canada, 66 Fed. Reg. 21,332, 21,332 (Apr. 30, 2001) (notice of initiation of countervailing duty investigation);
188. Certain Softwood Lumber Products from Canada, 66 Fed. Reg. 21,328, at 21,328-29 (Apr. 30, 2001) (notice of initiation of antidumping duty investigation).
189. Softwood Lumber Agreement, U.S.-Can., Sept. 12, 2006, as amended Oct. 12, 2006 [hereinafter SLA 2006], available at http://www.dfait-maeci.gc.ca/ trade/eicb/softwood/SLA-main-en.asp. Political settlement of the dispute seems to be the most satisfactory solution for both parties, as often neither prevails to the extent it wishes, or faces a reluctance to implement the decisions. See MICHAEL J. TREBILCOCK & ROBERT HOWSE, THE REGULATION OF INTERNATIONAL TRADE 153-54 (3d ecl-2005) ("[T]he Softwood Lumber dispute has displayed the fragility of the Chapter 19 review process in cases where genuine normative conflict underlies the dispute and represents a legitimacy crisis for that process of considerable proportions; despite repeated rulings finding defects in the reasoning of the US Comerce Department and the ITC over a considerable number of years, FTA and NAFTA panels in this dispute have failed to produce a resolution of the dispute ....").
190. U.S. INT'L TRADE COMM'N, ANTIDUMPING AND COUNTERVAILING DUTY HANDBOOK, I-9,1-12 to -13 (1998).
191. A provisional imposition of duty will be applied to all imports for which the Commerce Department and the International Trade Commission (ITC) have made preliminary affirmative determinations. Id. at II-13 to -14. It is the final determination that determines whether the order remains in place. Id.
192. Before Lumber IV commenced, Canada also sought declaratory relief from the WTO that the Statement of Administrative Action accompanying the Uruguay Round Agreements Act ("URAA"), and the Preamble to U.S. countervailing duty regulations directed the Commerce Department to treat log export restraints as countervailable subsidies in violation of the WTO Agreement on Subsidies and Countervailing Measures ("SCM Agreement")- The WTO panel found that log export restraints could not be treated as countervailable subsidies, but determined that neither the Statement of Administrative Action nor the Preamble was mandatory, so the Commerce Department had the discretion to implement the law in a manner consistent with the United States' WTO obligations. Panel Report, United States-Measures Treating Export Restraints as Subsidies, WT/DS194/R (June 29, 2001).
193. Panel Report, United States-Preliminary Determinations with Respect to Certain Softwood Lumber Products from Canada, para. 7.59, WT/DS236/R (Sept. 9, 2002).
194. Id. paras. 7.84, 7.115
195. Certain Softwood Lumber Products from Canada, 67 Fed. Reg. 15,545, app. I § V(C) (Apr. 2, 2002) (final affirmative countervailing duty determination).
196. Panel Report, United States-Final Countervailing Duty Determination with Respect to Certain Softwood Lumber from Canada, WT/DS257/R (Aug. 29, 2003).
197. Id. para. 7.64.
198. Id. para. 8.1. The United States and Canada each appealed portions of the panel's ruling. The appellate body upheld the panel's finding that stumpage programs could constitute a countervailable benefit, but reversed the panel's finding as to the appropriate benchmark to use when measuring the amount of a subsidy. It did not endorse the Commerce Department's approach, but determined that the investigating authority ought to have established that the private prices were distorted because of the government's role in the market before it could use another benchmark, and remanded on other issues as well. Appellate Body Report, United States-Final Countervailing Duty Determination with Respect to Certain Softwood Lumber from Canada, para. 167, WT/DS257/AB/R (Jan. 19, 2004).
199. In determining whether or not there has been dumping, Commerce determines the weighted average export price in comparison to the weighted average normal value. Commerce aggregates the different values determined for different product types to compute the overall margin of dumping. Zeroing is the process whereby Commerce attributed a value of zero to those instances in which the weighted average export price was greater than the weighted average normal value, rather than attributing the full price charged to the goods in question. Product types priced above the approximate average normal value did not therefore offsent those priced below and the overall effect of any dumping was magnified. See Panel Report, United Slates-Final Dumping Determination with Respect to Certain Softwood Lumber from Canada, paras. 7.185-7.186, WT/DS264/R (Apr. 13, 2004).
200. Panel Report, United States-Final Dumping Determination with Respect to Certain Softwood Lumber from Canada, para. 8.1, WT/DS264/R (Apr. 13, 2004).
201. Appellate Body Report, United States-Final Dumping Determination with Respect to Certain Softwood Lumber from Canada, para. 181, WT/DS264/AB/R (Aug. 11, 2004). There were also further proceedings under Articles 21.3(c) and 21.5 of the DSU. Panel Report, United States-Final Dumping Determination on Softwood Lumber from Canada, WT/DS264/13 (Dec. 13, 2004);
202. Panel Report, United States-Final Dumping Determination on Softwood Lumber from Canada-Recourse to Article 21.5 of the DSU by Canada, WT/DS264/RW (Apr. 3, 2006);
203. Appellate Body Report, United States-Final Dumping Determination on Softwood Lumber from Canada-Recourse to Article 21.5 of the DSU by Canada, WT/DS264/AB/RW (Aug. 15, 2006).
204. Panel Report, United States-Investigation of the International Trade Commission in Softwood Lumber from Canada, WT/DS277/R (Mar. 22, 2004). Canada subsequently challenged the implementation of recommendation of the Dispute Settlement Body under Article 21.5 of the Dispute Settlement Understanding.
205. Id. paras. 2.5, 8.2.
206. Softwood Lumber from Canada, U.S. ITC Pub. No. 3740, Inv. Nos. 701-TA-414, 701-TA-928, Section 129 Determination (Nov. 24, 2004). Canada had previously challenged section 129(c)(1) of the URAA as violative of the United States's WTO obligations, but did not prevail on that argument. Panel Report, United States-Section 129(c)(1) of the Uruguay Round Agreements Act, paras. 6.126, 6.129, WT/DS221/R (July 15, 2002). The panel found that a member's obligation under the Dispute Settlement Understanding extended only to providing prospective relief. Id. Thus, the fact that section 129(c)(1) did not require the United States to refund previously collected duties was not contrary to the United States' WTO obligations.
207. Appellate Body Report, United States-Investigation of the International Trade Commission in Softwood Lumber from Canada-Recourse to Article 27.5 of the DSU by Canada, WT/DS277/AB/RW (Apr. 13, 2006).
208. Certain Softwood Lumber Products from Canada, USA-CDA-2002-1904-03, Review of DOC Final Affirmative CVD Determination (Aug. 13, 2003) [hereinafter First NAFTA Chapter 19 CVD Decision], available at http://www. worldtradelaw.net/nafta19/lumber-cvd-nafta19.pdf. The provincial government claimants were Alberta, British Columbia, Manitoba, the Northwest Territories, Ontario, Quebec, Saskatchewan, and the Yukon Territory. The private associations were the British Columbia Lumber Trade Council, the Ontario Forest Industries' Association, the Ontario Lumber Manufacturers' Association, and the Quebec Lumber Manufacturers' Association.
209. The NAFTA panel also remanded on excluding certain products from the class or kind of product under review. Id. at 91.
210. Id. at 10. Although the panel affirmed the Department of Commerce's other determinations, it made clear it was doing so because of the deferential standard of review, rather than because the panel agreed with the Department's determinations. Id. The panel recognized that the limited scope of judicial review of expert agency decisions prevented the panel from second-guessing the Department's expert judgment in such matters of degree, and therefore it had to affirm the Department's determinations. Id. at 47.
211. The regulation in question was 19 C.F.R. Part 351-511(a)(2)(ii).
212. Ultimately there were six Chapter 19 Panel decisions on the Commerce Department's findings. Certain Softwood Lumber Products from Canada, NAFTA Chapter 19, Final Affirmative Countervailing Duty Determination, USA-CDA-2002-1904-03, Decision of the Panel (Aug. 13, 2003), available at http://www.worldtradelaw.net/nafta19/lumber-cvd-nafta19.pdf;
213. Certain Softwood Lumber Products from Canada, NAFTA Chapter 19, Final Affirmative Countervailing Duty Determination, USA-CDA-2002-1904-03, Decision of the Panel on First Remand (June 7, 2004), available at http://www.worldtradelaw.net/nafta19/lumber-cvd-remand-nafta19.pdf;
214. Certain Softwood Lumber Products from Canada, NAFTA Chapter 19, Final Affirmative Countervailing Duty Determination, USA-CDA-2002-1904-03, Decision of the Panel on Second Remand (Dec. 1, 2004), available at http://www.worldtradelaw.net/nafta19/lumber-cvd-remandII-nafta19.pdf;
215. Certain Softwood Lumber Products from Canada, NAFTA Chapter 19, Final Affirmative Countervailing Duty Determination, USA-CDA-2002-1904-03, Decision of the Panel on Third Remand (May 23, 2005), available at http://www.worldtradelaw.net/nafta19/lumber-cvd-remandIII-nafta19.pdf;
216. Certain Softwood Lumber Products from Canada, NAFTA Chapter 19, Final Affirmative Countervailing Duty Determination, USA-CDA-2002-1904-03, Decision of the Panel on Fourth Remand (Oct. 5, 2005), available at http://www.worldtradelaw.net/nafta19/lumber-cvd-remandIV-nafta19.pdf;
217. Certain Softwood Lumber Products from Canada, NAFTA Chapter 19, Final Affirmative Countervailing Duty Determination, USA-CDA-2002-1904-03, Decision of the Panel on Fifth Remand (Mar. 17, 2006), available at http://www.worldtradelaw.net/nafta19/lumber-cvd-remandV-nafta19.pdf.
218. NAFTA Chapter 19 ITC Determination, USA-CDA-2002-1904-07 (Dec. 14, 2003), available at http://canada.usembassy.gov/content/can_usa/ trade_softwoodlumber_report 121603.pdf.
219. Id. at 66.
220. NAFTA Chapter 19 ITC Determination After Second Remand, USA-CDA-2002-1904-07 (June 10, 2004), available at http://hotdocs.usitc. gov/docs/pubs/701_731/pub3715.pdf.
221. Softwood Lumber from Canada, USITC Pub. 3815, Inv. Nos. 701-TA-414,731-TA-928, Views on Remand (Sept. 10, 2004), available at http://hotdocs.usitc.gov/docs/pubs/701_731/pub38i5.pdf.
222. Canfor Corp. v. United States, UNCITRAL, Notice of Arbitration and Statement of Claim (May 23, 2002) [hereinafter Canfor Notice of Arbitration], available at http://www.state.gov/ documents/organization/ i3203.pdf.
223. Terminal Forest Prods. Inc. v. United States, UNCITRAL, Notice of Arbitration (Mar. 30, 2004) [hereinafter Terminal Notice of Arbitration], available at http://www.state.gov/documents/ organization/3i36o.pdf.
224. Tembec Inc. v. United States, UNCITRAL, Notice of Arbitration and Statement of Claim (Dec. 3, 2004) [hereinafter Tembec Notice of Arbitration], available at http://www.state.gov/ documents/organization/ 27805.pdf.
225. Canfor Notice of Arbitration, supra note 169, para. 19;
226. Terminal Notice of Arbitration, supra note 170, paras. 21-23;
227. Tembec Notice of Arbitration, supra note 171, paras. 100-08.
228. Canfor Notice of Arbitration, supra note 169, para. 109;
229. Terminal Notice of Arbitration, supra note 170, para. 39;
230. Tembec Notice of Arbitration, supra note 171, paras. 109-10.
231. U.S. Int'l Trade Comm'n, Trade Remedy Investigations, "Byrd Amendment," http://www.usitc.gov/trade-remedy/731_ad_701_cvd/byrd.htm (last visited Nov. 22, 2007).
232. A group of countries, including Canada, challenged the Byrd Amendment before the WTO and prevailed in their argument that the Byrd Amendment violated U.S. WTO obligations. Appellate Body Report, United States-Continued Dumping and Subsidy Offset Act of 2000, 1318, WT/DS217/AB/R, WT/DS234/AB/R (Jan. 16, 2003). For several years the United States declined to implement the WTO decision, but Congress voted to repeal the legislation in early 2006, with the repeal to be effective October 1, 2007. Deficit Reduction Act, S. 1932,109th Cong. § 7601 (2006).
233. Canfor Notice of Arbitration, supra note 169, at 50.
234. Terminal Notice of Arbitration, supra note 170, at 17.
235. Tembec Notice of Arbitration, supra note 171, at 45.
236. Canfor Corp. & Terminal Forest Prods, v. United States, UNCITRAL, Decision on Preliminary Question, paras. 347-49 (June 6, 2006), available at http://ita.law.uvic.ca/documents/ CanforTerminalDecision6June2006.pdf.
237. Id. para. 349.
238. Canadian Lumber Trade Alliance v. United States, 425 F. Supp. 2d 1321 (Ct. Int'l Trade 2006).
239. Id. at 1350-51. This was an interesting holding given that the basis for the CIT claim was specific language in NAFTA relating to the implementation of trade measures in the three state parties to that agreement, while Canada's claim before the WTO hinged on the proper interpretation of the WTO Agreements. In that respect the claim arose from a different cause of action. The recovery sought in each tribunal was slightly different as well, though with respect to Canada it was arguably the same. Whereas the WTO tribunal ordered prospective relief only, the CIT ordered the repayment of duties assessed on the merchandise. Canada had not paid any duties, however, so its injury was arguably redressed by the WTO order to remove the offending provision, regardless of the legal basis for so doing.
240. Id. at 1373.
241. See Tembec, Inc. v. United States, 441 F. Supp. 2d 1302,1307 (Ct. Int'l Trade 2006).
242. Id. at 1308.
243. Id. at 1309.
244. See id. at 1310.
245. Id. at 1311.
246. Id. at 1343.
247. Tembec, Inc. v. United States, 461 F. Supp. 2d 1355, 1367 (Ct. Int'l Trade 2006).
248. Ontario Forest Indus. Assoc, v. United States, 444 F. Supp. 2d 1309,1317 (2006).
249. Id. at 1322, 1328-29. At the time of the decision, proceedings regarding the case before an Extraordinary Challenge Committee were suspended because Canada and the United States had entered into settlement negotiations and had reached a tentative settlement agreement.
250. Id. at 1327.
251. Id.
252. Id. at 1328.
253. Sandra Cordon, Rushed Softwood Deal Will Hurt Trade: Industry, THE GLOBE AND MAIL, May 30, 2006, at B20 (discussing pact reached on April 27 to end the softwood lumber trade war).
254. SLA 2006, supra note 143.
255. Id. at Annex 2A, at 45-47. It also provided for dismissal of the pending challenge to the constitutionality of the Chapter 19 binational panel process.
256. Id. at Annex 2A, at 45-46.
257. Canfor Corp. & Terminal Forest Prods, v. United States, UNCITRAL, Decision on Preliminary Question, para. 242 (June 6, 2006), available at http://www.state.gov/documents/0rganization/67753.pdf.
258. Id. para. 246.
259. Czech Republic v. CME Czech Republic B.V., 42 I.L.M. 919, 920-21 (Svea Ct. App. 2003) (Swed.).
260. Id.
261. Id. at 921.
262. Id.
263. Id. For a detailed explanation of these arrangements, see CME Czech Republic B.V. v. Czech Republic, UNCITRAL, Partial Award, paras. 75-102 (Sept. 13, 2001) [hereinafter CME Partial Award], available at http://ita.law.uvic.ca/documents/CME-2001PartialAward.pdf.
264. Czech Republic v. CME Czech Republic B.V., 42 I.L.M. 919, 921 (Svea Ct. App. 2003) (Swed.).
265. Id.
266. Id.
267. Id.;
268. see also CME Partial Award, supra note 206, paras. 107-18 (containing a more detailed description of the negotiations in 1996).
269. CME Partial Award, supra note 206, para. 104.
270. See id. at paras. 122-29.
271. Id.
272. Id. para. 129.
273. See id. paras. 119-36 (describing Dr. Železný's actions regarding CET 21 and CNTS).
274. Ronald S. Lauder v. Czech Republic, UNCITRAL, Award, paras, 11, 14 (Sept. 3, 2001), available at http://ita.law.uvic.ca/documents/LauderAward.pdf.
275. Id. para. 42.
276. Id. paras. 230-32, 235.
277. Id. para. 235.
278. CME Partial Award, supra note 206, paras. 2-3, 33.
279. Id. paras. 149-62.
280. Id. paras. 586-614, 624. One of the arbitrators, criticizing the reasoning processes of the two arbitrators in the majority and complaining of their treatment of him during the deliberations, dissented from that decision. CME Czech Republic B.V. v. The Czech Republic, UNCITRAL, Dissenting Opinion of the Arbitrator JUDr Jaroslav Hándl against the Partial Arbitration Award (Sept. 22, 2001), available at http://ita.law.uvic.ca/documents/CME- 2001Dissent.pdf. He subsequently resigned, and was replaced by Professor Ian Brownlie. CME Czech Republic B.V. v. The Czech Republic, UNCITRAL, Final Award, para. 34 (Mar. 14, 2003) [hereinafter CME Final Award] available at http://ita.law.uvic.ca/documents/CME-2003-Final_001.pdf.
281. CME Final Award, supra note 222, § IX, para. I.
282. Czech Republic v. CME Czech Republic B.V., 42 I.L.M. 919, 920 (Svea Ct. App. 2003) (Swed.).
283. Czech TV License Dispute Produces 2 Awards with Opposite Findings, MEALEY'S INT'L ARB. REP., at 2 (2001).
284. PPF's Purchase of CNTS Likely to End CME vs. Nova Dispute, CZECH NEWS AGENCY (Prague), Oct. 8, 2003 (on file with the Hastings Law Journal). CET 21 representatives claimed the Vienna arbitration was brought in an attempt to influence the Czech Court decision. See CET 21's Arbitrator in Dispute with CME is Martin Hunter, CZECH NEWS AGENCY (Prague), Sept. 7, 2003 (on file with the Hastings Law Journal).
285. A change in ownership resulted in the settlement of the remaining disputes. PPF Controls 66 Percent of Private TV Nova, SMEJC Has the Rest, CZECH NEWS AGENCY (Prague), Dec. 19, 2003 (on file with the Hastings Law Journal).
286. CME Media Enterprises B.V. v. Vladimir Železný, International Court of Commerce Case No. 10435/AER/ACS, Final Award (Feb. 9, 2001) [hereinafter CME ICC Award]. The facts in the following paragraph are taken from the CME ICC Award.
287. Id. at 76, para. 1. CME ran into difficulties when it attempted to enforce the award in the United States. CME applied to a federal district court in New York in an attempt to attach Dr. Železný's account at Citibank in New York, and also sought an order for discovery to locate other assets in the jurisdiction. However, Dr. 2elezny's account contained only $69.65 (which amount was reduced to $0.05 when Citibank deducted certain fees). With respect to the discovery issue, the court determined that Dr. 2elezny's nearly empty bank account did not establish minimum contacts constitutionally necessary for the court to exercise personal jurisdiction. CME Media Enterprises v. Zelezny's, 2001 WL 1035138, at *3-4 (S.D.N.Y. 2001). However, it appears that Dr. Železný paid the award after the Amsterdam District Court denied Dr. Železný's request to set it aside. Thomas Wǎlde, Introductory Note to Svea Court of Appeals: Czech Republic v. CME Czech Republic B.V., 42 I.L.M. 915,917 (2003).
288. See, e.g., Andrea K. Bjorklund, The Continuing Appeal of Annulment: Lessons from Amco Asia and CME, in INTERNATIONAL INVESTMENT LAW AND ARBITRATION: LEADING CASES FROM THE ICSID, NAFTA, BILATERAL TREATIES AND CUSTOMARY INTERNATIONAL LAW (Todd Weiler ed., 2005);
289. Brower & Sharpe, supra note 75;
290. Franck, supra note 75;
291. Noah D. Rubins, Observations, 2003 STOCKHOLM ARB. REP. 295 (2003) (discussing outcomes of various tribunals and possibility of duplicate relief)Goldhaber, supra note 75.
292. CME Final Award, supra note 222, paras. 432-33.
293. Id. para. 436.
294. Czech Republic v. CME Czech Republic B.V., 42 I.L.M. 919, 967 (Svea Ct. App. 2003) (Swed.).
295. The potentially preclusive effect of these cases was raised before the Svea Court of Appeal, but the court did not directly address the effect of those proceedings. Id. Given its decision about identity of parties with respect to CME and Mr. Lauder, it presumably would have found that the requirement of identity of parties was not met in those cases either.
296. "The Czech Republic does not consider it appropriate that claims brought by different claimants under separate Treaties (which give rise to obligations of the Czech Republic to two different sovereign States... under international law) should be effectively consolidated and the Czech Republic asserts the right that each action be determined independently and promptly." CME Final Award, supra note 231, para. 428 (quoting letter from Respondent to the Tribunal (Nov. 15, 2000)).
297. For an analysis of the procedural hurdles to overcome in complex arbitrations, see Bernard Hanotiau, Complex-Multicontract-Multiparty- Arbitrations, 14 ARB. INT'L 369 (1998).
298. Paul Berman and Ralf Michaels are two scholars who have indicated that conflict-of-laws approaches could provide useful approaches to the challenges posed by global legal pluralism. See Paul Schiff Berman, Towards a Cosmopolitan Vision of Conflict of Laws: Redefining Governmental Interests in a Global Era, 153 U. PA. L. REV. 1819, 1821 (2005);
299. Ralf Michaels, The Re-State-ment of Non-State Law: The State, Choice of Law, and the Challenge from Global Legal Pluralism, 51 WAYNE L. REV. 1209,1212-13 (2006) (noting the potential role that conflict of laws could play in debates about global legal pluralism).
300. The same problems exist in federal states-the United States, for example, has no federal law of conflicts. The members of the European Union and the European Free Trade Area have to a large degree harmonized the exercise of jurisdiction and the recognition and enforcement of judgments. Convention on Jurisdiction and Enforcement of Judgments in Civil and Commercial Matters, Sept. 16, 1988, 28 I.L.M. 620 (1989);
301. Convention on Jurisdiction and Enforcement of Judgments in Civil and Commercial Matters, Sept. 27, 1968, 8 I.L.M. 229 (1969). The Brussels Convention has been superseded by the EU Regulation on Jurisdiction and Judgments, which provides rules to allocate jurisdiction as between the member countries. Council Regulation (EC) No. 44/2001 of 22 December 2000 on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters, 2001 O.J. (L 12) r. These arrangements are overseen by the European Court of Justice.
302. Yuval Shany suggests that the difficulty in finding a coherent approach reflects "an ideological divide between international judges and arbitrators over how best to address problems created by the multiplicity of legal sources and procedures implicated in contemporary investment disputes." Shany, supra note 11, at 844.
303. Treaty Establishing the European Community, art. 292, Nov. 10, 1997, 1997 OJ. (C 340) 3 (1997). The EC Treaty established a Court of First Instance and the European Court of Justice. Id. arts. 220, 225.
304. ICSID Convention, supra note 49, at art. 26.
305. DSU, supra note 80, at art. 23.
306. For a catalog of such provisions, see Pauwelyn, supra note 34, at 281-85;
307. Kyung Kwak & Gabrielle Marceau, Overlaps and Conflicts of Jurisdiction Between the TWO and RTAs, presented at WTO Conference on Regional Trade Agreements (Apr. 26, 2002) (unpublished manuscript, available at http://www.wto.org/english/tratop_e/region_e/sem_aprilo2_e/marceau.pdf).
308. Id. at 287-88 (citing WTO Dispute Panel Report, Argentina-Definitive Anti-Dumping Duties on Poultry from Brazil, ¶ 7.38, WT/DS241/R (Apr. 22, 2003)).
309. Convention for the Protection of the Marine Environment of the North-East Atlantic, Sept. 22, 1992, 321.L.M. 1069 (1993).
310. UNCLOS, supra note 26.
311. A cogent and insightful discussion of MOX Plant cases may be found in Shany, supra note 11, at 846-47. His article was published before the European Court of Justice issued its final determination.
312. Case C-459/03, Comm'n v. Ireland, 2006 E.C.R. I-4635, paras. 168-83.
313. Id. paras. 176-77.
314. Id.
315. MOX Plant Case, Order No. 5 Suspension of Periodic Reports by the Parties (Ir. v. U.K.), (Jan. 22, 2007), available at http://www.pca-cpa.org/ upload/files/MOX%20Order%20N05.pdf.
316. Emmanuel Gaillard, Introduction to IAI SERIES ON INTERNATIONAL ARBITRATION NO. 2, ANTI-SUIT INIUNCTIONS IN INTERNATIONAL ARBITRATION I (Emmanuel Gaillard ed., 2005) [hereinafter IAI SERIES];
317. see also George A. Bermann, The Use of Anti-Suit Injunctions in International Litigation, 28 COLUM. J. TRANSNAT'L L. 589, 620-23 (1990) (noting the use of anti-suit injunctions to enforce obligations previously undertaken by the parties, such as agreements to arbitrate).
318. Stephen M. Schwebel, Antisuit Injunctions in International Arbitration: An Overview, in IAI SERIES, supra note 252, at 5, 5-8.
319. Laurent Lévy, Anti-Suit Injunctions Issued by Arbitrators, in IAI SERIES, supra note 252, at 115, 115-29.
320. See Lowe, supra note 97, at 193-95.
321. Convention for the Conservation of Southern Bluefin Tuna, Austl.-Japan-N.Z. May 10, 1993, 1994 Austl. T.S. No. 16.
322. Southern Bluefin Tuna (Aust. & N.Z. v. Jap.), 39 I.L.M. 1359, Award on Jurisdiction and Admissibility (Aug. 4, 2000).
323. Id.
324. Id. at 1388.
325. See Pauwelyn, supra note 34, at 304.
326. See, e.g., Companía de Aguas del Aconquija, S.A. & Vivendi Universal v. Argentine Republic, ICSID (W. Bank) (Decision on Annulment), 6 ICSID Rep. 340 (July 3, 2002);
327. Hamida, supra note 60;
328. Christoph Schreuer, Investment Treaty Arbitration and Jurisdiction over Contract Claims-The Vivendi I Case Considered, in INTERNATIONAL INVESTMENT LAW AND ARBITRATION: LEADING CASES FROM THE ICSID, NAFTA, BILATERAL TREATIES AND CUSTOMARY INTERNATIONAL LAW 281, 289-95 (Todd Weiler ed., 2005) [hereinafter INTERNATIONAL INVESTMENT LAW];
329. Emmanuel Gaillard, Investment Treaty Arbitration and Jurisdiction over Contract Claims-the SGS Cases Considered, in INTERNATIONAL INVESTMENT LAW, supra, at 325, 330-36.
330. See Hamida, supra note 60, at para. 16;
331. Yuval Shany, Jurisdictional Competition Between National and International Courts: Should International Jurisdiction-Regulating Rules Apply? (May 2006) (unpublished manuscript, available at http://papers.ssrn. com/sol3/papers.crm?abstract_id= 902928).
332. Schreuer, supra note 261, at 295.
333. Hamida, supra note 60, at para. 20.
334. NAFTA, supra note 35, art. 1121.
335. Id.
336. If the treaty contains an umbrella clause, even the contractual claim may be heard by an international tribunal. See infra Section C.
337. Schreuer, supra note 261, at 294.
338. Several pieces have been written on umbrella clauses within the last few years. See David Foster, Umbrella Clauses-A Retreat from the Philippines?, 9 INT'L ARB. L. REV. 100 (2006);
339. Shany, supra note 11;
340. Christoph Schreuer, Travelling the BIT Route: Of Waiting Periods, Umbrella Clauses and Forks in the Road, 5 J. WORLD INV. & TRADE 231 (2004);
341. Anthony C. Sinclair, The Origins of the Umbrella Clause in the International Law of Investment Protection, 20 ARB. INT'L 411 (2004);
342. Thomas Walde, The "Umbrella" Clause in Investment Arbitration: A Comment on Original Intentions and Recent Cases, 6 J. WORLD INV. & TRADE 183 (2005);
343. Katia Yannaca-Small, Interpretation of the Umbrella Clause in Investment Agreements, (OECD Working Papers on Int'l Investment No. 2006/3), available at http://www.oecd.0rg/dataoecd/3/20/37579220.pdf.
344. SGS Société Générale de Surveillance S.A. v. Republic of the Philippines, ICSID (W. Bank) Case No. ARB/02/6, Decision of the Tribunal on Objections to Jurisdiction, para. 115 (Jan. 29, 2004) [hereinafter SGS v. Philippines], available at http://www.worldbank.org/icsid/cases/ SGSvPhil-final.pdf.
345. See, e.g., Fedax NV v. Republic of Venezuela, ICSID (W. Bank) Case No. ARB/96/3, Award, reprinted in 37 I.L.M. 1391, 1395-97 (Mar. 9, 1998) (applying the "plain meaning" of the umbrella clause provision to find Venezuela was obligated to honor the terms of its agreement under the BIT);
346. CMS v. Republic of Argentina. ICSID (W. Bank) Case No. ARB/01/8, Award, reprinted in 44 I.L.M. 1205, 1237-38 (May 12, 2005) (recognizing that umbrella clauses may protect commercial aspects of a contract in cases where there is "significant interference" by the sovereign with the rights of the investor).
347. Wälde, supra note 269, at 235. This interpretation is appealing in that it is consistent with the rationale behind offering foreign investors protection from host governments-governments by virtue of their inherent powers have the ability to change the political or business landscape. It also potentially alleviates the indefinite expansion concern raised by those tribunals that have refused to give umbrella clauses substantive meaning.
348. See, e.g., SGS Société Générale de Surveillance S.A. v. Islamic Republic of Pakistan, ICSID (W. Bank) Case No. ARB/01/13, Decision of the Tribunal on Objections to Jurisdiction, reprinted in 42 I.L.M. 1290, 1318-21 (Aug. 6, 2003) [hereinafter SGS v. Pakistan] (rejecting the notion that an umbrella clause operates to raise a breach of contract into a treaty violation);
349. El Paso Energy Int'l Co. Ltd. v. Argentine Republic, ICSID Case No. ARB/03/15, Decision on Jurisdiction, para. 73 (Apr. 27, 2006), available at http://www.worldbank.org/icsid/cases/ARB0315DOJ-E.pdf (interpreting umbrella clauses to elevate any breach of contract to a treaty violation would render the substantive provisions of the treaty useless).
350. SGS v. Pakistan, supra note 273, at 1318-19;
351. see also Schreuer, supra note 269, at 253-55;
352. Walde, supra note 269 at 215-16.
353. So long as the failure to observe a commitment stemmed from a contract, determining whether a state had abided by its contractual obligations would mean construing the contract under its governing municipal law.
354. SGS Société Générate de Surveillance SA v. Republic of the Phillippines, ICSID Case No. ARB/02/6, Decision of the Tribunal on Objections to Jurisdiction, para. 28 (January 29, 2004) [hereinafter SGS v. Phillippines].
355. Fedax NV v. Republic of Venezuela, ICSID Case No. ARB/96/3, Award, para. 27 (Mar. 9, 1998).
356. United Mine Workers of Am. v. Gibbs, 383 U.S. 715,725 (1966).
357. SGS v. Phillipines, supra note 276, at para. 22. The clause also provided for the Agreement to be governed by and construed in accordance with the law of the Philippines. Id.
358. Id. at para. 154.
359. Id.
360. Id.
361. The Tribunal was not specific in the division of labor, nor did it clearly state what would happen after the Philippines court reached its decision. Id. at paras. 175-77.
362. Parallel proceedings have sparked renewed interest in these doctrines. See, e.g., William S. Dodge, National Courts and International Arbitration: Exhaustion of Remedies and Res Judicata Under Chapter Eleven of NAFTA, 23 HASTINGS INT'L & COMP. L. Rev. 357 (2000);
363. Hamida, supra note 60;
364. Christian Oetiker, The Principle of Lis Pendens in International Arbitration: The Swiss Decision in Fomento v. Colon, 18 ARB. INT'L 137 (2002);
365. Reinisch, supra note 76;
366. Söderlund, supra note 97;
367. Yannaca-Small, supra note 97;
368. Int'l Commercial Arbitration Comm., Int'l Law Ass'n Berlin Conference, Interim Report: "Res Judicata" and Arbitration (2004), http://www.ilahq.org/ htmMayout_committee.htm [hereinafter Int'l Law Assoc. Report] (follow "STUDY GROUPS" hyperlink, then follow "International Commerical Arbitration" hyperlink). For an excellent overview of preclusion doctrines and the objectives they serve, see Tobias Barrington Wolff, Preclusion in Class Action Litigation, 105 COLUM. L. REV. 717, 790-95 (2005) (discussing philosophies animating various jurisdictions as they formed their preclusion doctrines).
369. There is some disagreement whether they are customary international law or general principles of law, but there is general consensus that they are one or the other. Reinisch, supra note 76, at 44-45, 48;
370. Pious Fund of the Californias (Mex. v. U.S.), Hague Ct. Rep. (Scott) 1, 5 (Perm. Ct. Arb. 1902);
371. Dodge, supra note 284, at 365;
372. Hanotiau, supra note 111, at 356-60;
373. Int'l Law Assoc. Report, supra note 284.
374. Reinisch, supra note 76, at 50-51. Identity of facts plays an important role as well. Id. at 70-71.
375. See IAN BROWNLIE, PRINCIPLES OF PUBLIC INTERNATIONAL LAW 52 (5th ed. 1998);
376. Dodge, supra note 284,367-70 (2000) (listing five reasons for this practice).
377. Reinisch, supra note 76, at 52.
378. See, e.g., Case 6/73, Europemballage v. Comm'n, 1973 E.C.R. 215, 242;
379. Case 48/69, Imperial Chem. Indus, v. Comm'n (Dyestuffs Case), 1972 E.C.R. 619, 662.
380. Legal Opinion Addressed to the Tribunal in CME Czech Republic BV v. The Czech Republic, TRANSNAT'L DISP. MGMT. (June 20, 2002).
381. SeeHamida, supra note 60, at 30-31.
382. See Reinisch, supra note 76, at 61.
383. See Dodge, supra note 284, at 366.
384. See Reinisch, supra note 76, at 62-64.
385. Determining the applicable law is a difficult issue in any case involving issues of that cross borders or that cross other boundaries of sovereignty. In the United States, choice of law issues usually involve what might be termed "horizontal choices"-a court will be choosing between or among the laws of states of equal status. But United States choice of law can involve "vertical" issues, too-the competition between federal and state law to control any one issue. Choice of law in investment arbitration is even more complicated, as tribunals are faced with the potential applicability of the laws of various municipal states, international procedural rules governing the conduct of the proceedings, and both conventional and customary international law. For a discussion of the complexities in the applicable law governing investor-state arbitration, see Meg Kinnear, Treaties as Agreements to Arbitrate: International Law as the Governing Law, in INTERNATIONAL ARBITRATION 2006: BACK TO BASICS? (A.J. van den Berg ed., ICCA Cong. Series No. 13, 2007).
386. For example, in Bluefin Tuna the ITLOS determined that it would be "artificial" to conclude that the disputes under the CCBFT and the UNCLOS were distinct. See supra note 257 and accompanying text.
387. See Reinisch, supra note 76, at 68.
388. Id. at 70-72.
389. See Reichert, supra note 70.
390. Id. at 255.
391. Id. at 250-52.
392. W. MICHAEL REISMAN, SYSTEMS OF CONTROL IN INTERNATIONAL ADJUDICATION AND ARBITRATION: BREAKDOWN AND REPAIR 97-102 (1992).
393. See Hanotiau, supra note 111, at 359-60 (noting that in the Pyramid case, or SPP v. Egypt, the ICSID Tribunal suggested that such deference would be an abdication of the Tribunal's responsibility to make its own findings of fact).
394. Civil law courts have usually adhered to the principle that a tribunal having jurisdiction is obliged to exercise it.
395. Hilton v. Guyot, 159 U.S. 113,163-64 (1895).
396. Karl Meessen suggests that "mutual adjustment," or comity, involves "pursuing one's enlightened self-interest, which regularly involves partial or even total deference to another state's enlightened pursuit of its self-interest and vice versa." KARL MEESSEN, ECONOMIC LAW IN GLOBALIZING MARKETS 95 (2004).
397. See Lowe, supra note 97, at 197. This reluctance must be distinguished from a tribunal's conclusion that the jurisdictional grant in one treaty has been modified and narrowed by a subsequent jurisdictional grant in another treaty. Id.
398. The MOX Plant Case (Ireland v. U.K.), 42 I.L.M. 1187, 1191 (Perm. Ct. Art. 2003). The tribunal added "[m]oreover, a procedure that might result in two conflicting decisions on the same issue would not be helpful to the resolution of the dispute between the Parties." Id.;
399. see also Hamida, supra note 60, paras. 100-01 (noting two other cases in which tribunals exercised comity in suspending proceedings).
400. Legality of the Use of Force, Decision on Preliminary Objections (Serbia & Montenegro v. Belg.), 2004 I.C.J. 426, para. 33 (Dec. 8).
401. DICEY & MORRIS, supra note 84, at 395-400 (discussing Rule 31(2)).
402. Professor Vaughan Lowe doubts its suitability for application in the context of inter-state dispute settlement. Lowe, supra note 97, at 200-01.
403. Id.
404. Professor Ernie Young has suggested that assessing competence of the different institutions should guide interjurisdictional disputes between national and supranational courts. Young, supra note 12, at 1143 ("[D]ecisions should be allocated to particular institutions on the basis of institutional competence and . . . decisions by the primary institution, once made, should generally be respected absent a sufficiently good reason for overruling them.").