Washington and Lee law professor Susan Franck published a new article in the University of Illinois Law Review. The article, written with Erin O’Hara O’Connor of Vanderbilt Law School, is titled “Foreign Investments and the Market for Law”.
From the abstract:
In this Article, Professors O’Hara O’Connor and Franck adapt and extend Larry Ribstein’s positive framework for analyzing the role of jurisdictional competition in the law market. Specifically, the authors provide an institutional framework focused on interest group representation that can be used to balance the tensions underlying foreign investment law, including the desire to compete to attract investments and countervailing preferences to retain domestic policymaking discretion. The framework has implications for the respective roles of BITs and investment contracts as well as the inclusion and interpretation of various foreign investment provisions.
Washington and Lee law professors Susan Franck and Kish Parella will present this week at the American Society of International Law 2014 Biennial Research Conference. The conference will be held Thursday, November 13, 2014 through Saturday, November 15, 2014. It is sponsored by the American Society of International Law’s International Economic Law Interest Group in partnership with the University of Denver Sturm College of Law. The theme is “Reassessing International Economic Law and Development: New Challenges for Law and Policy.”
Professor Franck will moderate a panel discussion on investment with panelists Thomas Innes (Stepoe & Johnson LLP), Amokura Kawharu (U. Auckland), Jarrod Wong (U. Pacific) and Gabriele Gagliani (U. Palermo). Professor Franck will also participate as a panelist in a session, “Empirical & Social Scientific Approaches to IEL” with Jason Yackee (U. Wisconsin) and Jide Nzelibe (Northwestern U.). Her talk is entitled “Conflating Politics & Development? Examining Investment Treaty Arbitration Outcomes”
Professor Parella will present her work in progress, Transcommercial Institutional Legitimacy, as part of a panel on voluntary standards and regulating business for development with Sarah Dadush (Rutgers U.), Andrew Woods (U. Kentucky) and Ofer Eldar (Yale U.). Her presentation focuses on the legitimacy of private governance of international production. She examines dispute resolution between different actors in global value chains and suggests ways to improve stakeholder engagement regarding the design of these dispute resolution mechanisms. This research is part of her broader examination of global governance performed by the transnational business sector.
On Friday November 8, 2014 Washington and Lee law professor Susan Franck, presented at the American Society of International Law’s Midyear Meeting and Research Forum. Professor Franck presented her work in a session titled International Economic Law-Private International Law: Dynamics of Investment Law. Her paper is “Unveiling the ‘Invisible College’ of International Arbitration.”
“Unveiling the ‘Invisible College’ of International Arbitration is forthcoming in the Columbia Journal of Transnational Law in 2015.
From the abstract:
Speculation about the members of the “invisible college” of international arbitration abounds, as there is a lack of accurate, complete, and publicly available data about the community of international arbitrators and practitioners. Using data from a survey of attendees at the prestigious biennial Congress of the International Council for Commercial Arbitration permitted one glimpse into the membership of the international arbitration community. Although defining the international arbitration community is challenging, rather than leave the “invisible college” unexamined, this Article offers a systematic glimpse into the global elites of international arbitration using data from 413 subjects who served as counsel and 262 who acted as arbitrators (including 67 investment treaty arbitrators).
Washington and Lee law professor Susan Franck delivered a keynote address at the Center for Strategic and International Studies on Friday, October 31, 2014. The event was entitled “Investor-State Dispute Settlement: Reality Check”.
Professor Franck’s keynote address was delivered to a live audience of 12o participants, including over forty representatives from foreign embassies, as well as an internet audience as the event was streamed live from the CSIS website.
The event addresses the current state of investor-state dispute settlement, bilateral investment treaties and agreements, topics much debated in the media in recent weeks and months. Professor Franck’s keynote address presented her acclaimed empirical research on the subject.
From the abstract of Professor Franck’s forthcoming work in the Virginia Journal of International Law:
International dispute settlement is an area of ongoing evaluation and tension within the international political economy. As states continue their negotiations for the Transpacific Partnership (TPP) and the Transatlantic Trade and Investment Partnership (TTIP), the efficacy of international arbitration as a method of dispute settlement remains controversial. Whereas some sing its praises as a method of protecting private property interests against improper government interference, others decry investment treaty arbitration (ITA) as biased against states. The literature has thus far not disentangled how politics and development contribute to investment dispute outcomes. In an effort to control for the effect of internal state politics, this Article offers the first analysis of ITA outcomes, focusing on respondent states’ development status while simultaneously controlling for states’ democracy levels. Using a dataset of 159 final ITA awards from prior to January 2012, the Article conducts quantitative analyses of outcomes as a function of raw wins and losses, amounts awarded, and relative investor success. After controlling for the effect of a state’s internal democracy levels, twelve analyses were unable to identify a reliable link with ITA outcomes and development status irrespective of how development status was defined. While the Article cannot conclusively exclude the possibility of systemic bias in ITA against the developing world, it provides additional evidence suggesting the potential absence of such bias.
Audio and video of Professor Franck’s keynote is available here.
Today W&L Law Professor Susan Frank gave a seminar presentation at the World Trade Institute at Universität Bern. The title of her talk was “Thinking, Fast and Slow: Behavioral Economics Meets International Law.” Building off of the successes of cognitive psychology and its derivative insights for behavioral economic, this talk explored the insights from cognitive psychology for international investment law. By taking a closer look at the literature related to biases, heuristics and judicial decisionmaking, this seminar identified the potential insights for decisions involving international investment law both in the form of treaty making and treaty adjudication.
Congratulations to Professors Christopher Seaman, Susan Franck and Doug Rendleman for their recognition in SSRN’s list of top downloaded papers.
In the Judgments & Liens eJournal Professor Seaman’s article, Willful Patent Infringement and Enhanced Damages After In re Seagate: An Empirical Study, ranks third. Professor Franck’s article, Rationalizing Costs in Investment Treaty Arbitration, appears fifth. Professor Rendleman’s brief Scholars’ Supreme Court Amicus Brief in Support of Neither Party: Petrella v. Metro-Goldwyn-Mayer (with D. Laycock and M. Gergen) ranks seventh among recently posted papers.
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.