Earlier this month, Washington and Lee law professor Susan Franck went straight from teaching her International Commercial Arbitration course to fly to South Korea. But this time her students were government officials and other representatives from members of APEC–the Asia-Pacific Economic Cooperation.
In connection with the Free Trade Agreement Asia Pacific (FTAAP), APEC countries came together in Seoul to participate in a workshop designed to build capacity and foster policy debates related to dispute resolution under international trade and investment treaties. Professor Franck presented her research to representatives from Brunei Darussalam, Chile, China, Hong Kong, Indonesia, Japan, Korea, Malaysia, The Philippines, Singapore, Chinese Taipei, and Viet Nam who were in Seoul to learn more about how to prevent, manage and resolve international economic disputes. She primarily focused upon the empirical analysis of investment treaty arbitration and paid particular attention to reality-testing conventional wisdom on investment treaty arbitration with a unique focus on the experience of APEC to help government officials consider how best to manage their disputes and negotiate their treaties.
Highlights of the presentation related to a detailed assessment of the identity of foreign investors making claims and whether and how those investors were reliably linked to outcomes. The presentation also provided specific assessment of APEC-related risk for investment treaty arbitration. While the data demonstrated that APEC states are relatively standard respondent states — particularly in terms of types of investors bringing claims and the ultimate outcomes — there were a few variations related to industrial sectors involved and the location of claims that suggested that APEC states should take a careful and strategic approach to treaty negotiations.
Her designated commentators were Professor Joung-Wook Hwang of the Hankuk University of Foreign Studies in Korea and Mr. Jaywang Huang, from the office of Trade Negotiations for the Ministry of Economic Affairs in Chinese Taipei.
Last month, Washington and Lee law professor Susan Franck presented her research on treaty-based investment arbitration at the Fifth International Conference on Law and Economics of International Arbitration at St. Gallen, Switzerland.
Professor Franck’s presentation was focused specifically on the law and economics of investment treaty arbitration, with a focus upon systematically considering the risks and costs of dispute resolution. The conference involved a series of other presentations related to arbitration in emerging markets, competition law, financial services arbitration, and sports by international arbitration scholars and practitioners. The conference also involved a special address by Richard A. Posner on the topic of “What do Arbitrators Maximize?” During that presentation, Professor Franck had an opportunity to discuss her research with Judge Posner and explore the perennial question about whether arbitrators’ award are a proverbial “splitting of the baby”.
Last week, Washington and Lee professor of law Susan Franck held several presentations in Washington D.C. on a chapter of her forthcoming book Investment Treaty Arbitration: Myths, Realities and Costs. Franck’s presentation, titled “The Legal Profession and Investment Treaty Arbitration,” focused on the role of lawyers and legal services in international investment dispute settlement.
Prof. Franck says lawyers generally play a critical role in the management and resolution of disputes. The question, however, is what role lawyers play in the context of international investment dispute settlement. Thus far, there has been no holistic analysis of who investors use to resolve their claims and how respondents defend cases, let alone consideration of how lawyers – and repeat players in investment treaty arbitration – impact case outcomes. Prof. Franck’s research is the first to address this gap by exploring the functions of counsel in ITA and empirically analyzing the role of lawyers and their impact on outcomes.
Prof. Franck presented at firms including Crowell & Moring LLP, Weil Gotschal & Manges, Dechert LLP, and Freshfields Bruckhaus Derringer. These firms video-linked her presentations to offices in New York, London, Paris, Rome, and Almaty.
She will be travelling to the United Kingdom and Switzerland next week to present on a different chapter of Investment Treaty Arbitration: Myths, Realities and Costs.
This summer, Washington and Lee law professor Susan Franck lectured at the Arbitration Academy in Paris, teaching a special course titled “Empirical Assessments of Investment Arbitration.”
Prof. Franck’s students in the course were pioneers in that no other group of law students in the world has ever embarked upon a systematic study of empirical methods as applied to investment treaty dispute resolution. In addition to teaching things like the fundamental building blocks of social science methodology, including the difference between external, internal and construct validity, Prof. Franck instructed the students in the subtle details of null hypothesis significance testing and effect sizes and how it specifically applies to international investment law and arbitration.
Teaching at the Arbitration Academy is a high honor as the Academy is a selective group which – much like the Hague Lectures at The Hague Academy of International Law – only invites people of the highest caliber. In fact, Prof. Franck is among the youngest scholars ever to be invited to present in the history of the Academy. This teaching stint was a highlight of an already busy summer, which also saw Prof. Franck give presentations at two global law firms in Paris on the role of the international legal profession in investment treaty arbitration. In addition, Franck was invited to serve as an an external reviewer for the American Political Science Review, the flagship publication of political science in the US, and to join the Editorial Board of a new series on International Investment Law from Martinus Nijhoff Publishers.
Washington and Lee law professor Susan Franck gave two internal presentations recently to global law firms in Paris. The title of Prof. Franck’s talk at both firms was “The Role of the International Legal Profession in Investment Treaty Arbitration.”
She first spoke at Freshfields Paris, which has one of the most sophisticated public international law litigation and international arbitration practices in the world. She has been invited to give this talk to their Washington, D.C. based arbitration team as well.
Next, she spoke at Shearman Sterling Paris and via video link to their London office. Shearman Sterling also has an incredibly sophisticated practice that is among the best in the world in international arbitration. Prof. Franck says that this practice for the firm has been especially interesting recently because they are suing Russia in connection with the Yukos Oil debacle, where the Russian Federation illegally expropriated investments in the oil company. In the case, the claimants are seeking $100 Billion in compensation, the largest award in the history of international arbitration.
Washington and Lee law professor Susan Franck has recently been invited to provide oversight for two academic publications. First, she will serve as an an external reviewer for the American Political Science Review, the flagship publication of political science in the US. The APSR provides peer-reviewed articles and review essays from subfields throughout the discipline. Areas covered include political theory, American politics, public policy, public administration, comparative politics, and international relations. APSR has published continuously since 1906.
Second, Prof. Franck will join the Editorial Board of a new series on International Investment Law from Martinus Nijhoff Publishers. According to an announcement from the publisher, “the Nijhoff International Investment Law Series groups important, high-quality and original research in the field of international investment law. Although formally a part of international law generally, international investment law has become an independent field of research, crossing the boundaries between public international law, international commercial law, and domestic public law. The Series therefore covers international investment law in a relatively broad sense, including research on the substantive aspects of international investment law and the dispute settlement aspects, i.e., international investment arbitration.
The Series also covers research on interactions between international investment law and other areas of international law and domestic law, both private and public, including international economic and trade law, general public international law, international commercial law and arbitration, international environmental law, human rights, or domestic constitutional and administrative law. It is open to doctrinal analysis as well as theoretical, conceptual, and interdisciplinary approaches to international investment law, including law and economics analysis, empirical analysis, historical analysis, political science analysis, or normative analysis.”
W&L Law Professor Susan Franck‘s essay Empiricism And International Law: Insights For Investment Treaty Dispute Resolution was recently listed on SSRN’s Top Ten download list for: Political Methods: Qualitative & Multiple Methods eJournal. Here is the abstract:
While scholars in the United States increasingly focus on the empirical dimension of legal scholarship, there have been challenges in using empiricism to explore international legal issues. Rather than relying on logic or instinct alone, empirical methodologies can provide scholars with tools to gain new facts, see existing ideas through a different lens, and engage in a more nuanced analysis of international law phenomena. There appears to be a natural synergy between empiricism and international investment treaty dispute resolution. With calls for trade time outs by U.S. presidential candidates, there is interest in how investment treaties function, whether they achieve their goals, and at what cost. Given the implications for public policy, international relations, and allocation of domestic financial resources, empirical assessment of international investment law is not misplaced. This Essay considers the efficacy of using empirical methodologies to gain insights about the resolution of investment treaty disputes and international investment law. Part I considers the historical tensions between international law and empiricism and moves towards reintegration. Part II explores what form empiricism might take and argues for a broad understanding of empiricism. Part III analyzes how to develop an empirical approach in light of the costs and benefits and proposes five steps to facilitate the creation of an empirical research agenda for international investment treaty dispute resolution. While recognizing that empiricism is not a panacea, the Essay suggests that the benefits of making empiricism part of the methodological landscape of investment treaty dispute resolution scholarship are worth the costs. Empiricism offers a chance to obtain accurate information about investment disputes, correct misperceptions about existing dispute resolution processes, permits considered analysis of legal issues affecting the public, and facilitates informed decisions about the negotiation and revision of investment treaties.
You may download the article at: http://ssrn.com/abstract=1127052. To view a discussion of the essay by Prof. Franck and Prof. David Zaring on Opinion Juris, visit http://opiniojuris.org/tag/vjil-symposium-vol-48-4/.
On June 6, Washington and Lee law professor Susan Franck will present “The Use of Economics for Empirical Studies in Investment Arbitration” at the DISSETTLE Research Workshop in Milan, Italy. Professor Franck’s presentation will explore the use of empirical methodologies–whether quantitative or qualitative–for the exploration of international investment law. In providing a framework for thinking about how to use quantitative tools, such as those used by economists, political scientists and psychologists, Professor Franck offers a “Seven Step Approach for an Evidence Based Approach” to international economic law. In applying that framework to her own research as one possible application, she will explore basic demographics and test descriptive hypotheses related to investment treaty dispute resolution before moving to test more complicated associative hypotheses about what variables are reliably linked to dispute options.
DISSETTLE is funded by the European Union’s Framework Programme and involves a consortium of high level European universities including the Graduate Institute in Geneva, the University of St. Gallen, the Université Libre de Bruxelles, the University of Warsaw and Bocconi University. These institutions have pioneered interdisciplinary work on economics and law and are dedicated to advancing the understanding of jurisprudence emerging from the dispute settlement body of the WTO and bilateral and regional trade agreement regimes.
Washington and Lee law professor Susan Franck will present research related to her book at the European Society of International Law’s 5th Annual Research Forum. The topic this year is International Law as a Profession. Franck’s panel is on the specific topic of the Dynamics of International Judicial Law Making, but her particular topic will focus on the role of counsel in investment treaty arbitration (ITA).
Using a dataset of 272 public ITA awards in 202 different cases rendered before January 2012, Franck’s research is the first of its kind internationally to explore the role of counsel through both descriptive and associative hypothesis testing. It first offers basic descriptive information about the number of entities involved in representing clients in ITA, the relative roles of in-house and external counsel, and the patterns of representation exhibited by investors and states that retain counsel. It next considers whether counsel involved in ITA solely represent investors, states or perhaps switch sides to represent different types of parties in different disputes. The paper then identifies the most prevalent players and constructs the “Top 21” list of legal entities involved in ITA.
On the basis of this information, the paper constructs two different measures to both identify the impact of repeat players in the legal representation involved in ITA. It constructs one variable—a binary measure—to simply identify whether counsel have ever been involved in multiple claims; and it constructs a second variable—a weighted variable—to provide a weighted assessment of the relative expertise of the individual legal entities involved in the arbitration process. These variables are then coded to assemble data about the total experience of both the investors’ and respondent’s legal teams. The research then explores the role of lawyers and the impact of the expertise of parties’ legal representation on critical variables.
The next section identifies whether the expertise of each party’s legal team is reliably linked to fundamental aspects of ITA, particularly variables such as amounts claimed, ultimate outcomes and amounts awarded. It also explores whether expertise is linked in some way to either: (a) the amounts charged by lawyers; or (b) the amount of lawyer fees shifted by tribunal’s during the cost phase. Finally, it considers the link between each side’s relative expertise, thereby offering the possibility of exploring whether the “lawyering up” by investors that retain more sophisticated counsel is linked to the expertise of respondent’s counsel and vice versa.
Ultimately, by exploring the role of lawyers in ITA and assessing whether they do (or do not) make meaningful contributions to the arbitration process, Franck argues we will have a better sense of the value of international lawyers in an area of law with critical implications for the international political economy. This, in turn, permits considered evolution of how lawyers potentially impact the generation of international law through their capacity as advisors and advocates.
Washington and Lee University law professors Mark Drumbl and Susan Franck recently participated in the annual meeting of the American Society of International Law. The meeting was held April 3-6 in Washington, DC.
Prof. Drumbl moderated a panel titled “Multipolar Governance Across Environmental Treaty Regimes.” The program explored why some environmental treaties have attracted sustained interest and involvement from a range of non-state actors and others have perpetuated a state-centric structure. Are some environmental issues more conducive to state-based solutions? This round-table discussion sought to investigate and explain the unevenness of multipolar governance across environmental treaty regimes.
Prof. Franck moderated a panel titled “Advancing Mediation in International Investment Disputes.” While mediation is often used in commercial disputes between private parties, it remains uncommon in investor-State disputes. Could mediation become an effective dispute resolution method in international investment disputes? The program featured a mock mediation in which the panelists showed how mediation under the IBA Rules on State Mediation could be used to settle such disputes. You can read more about the mock mediation here.