Prof. Susan Franck Featured on SSRN Top Ten Lists

March 19, 2015 Leave a comment
Prof. Susan Franck

Prof. Susan Franck

Washington and Lee law professor Susan Franck’s new paper, Conflating Politics and Development? Examining Investment Treaty Arbitration Outcomes, currently appears on SSRN top ten lists in five different subject areas: Dispute Resolution, Empirical Studies, International Arbitration, International Courts & Tribunals and Treaties.

The paper is forthcoming in volume 55 of the Virginia Journal of International Law.

From the abstract:

International dispute settlement is an area of ongoing evaluation and tension within the international political economy. As states continue their negotiations for the Trans-Pacific 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. Initially, when evaluating outcomes based on a respondent state’s membership in the Organisation for Economic Cooperation and Development (OECD) or a state’s score on the UN Development Programme (UNDP) Human Development Index, it was not possible to identify a reliable link to outcomes. Only defining a respondent’s development status using a World Bank classification generated reliable differences for Upper-Middle income states, and only for two measures of outcome — namely raw wins and amounts awarded. Using the World Bank measure, there was no statistically significant relationship with relative investor success. None of these analyses, however, controlled for the level of internal state democracy to identify how democracy levels, which can reflect good governance infrastructure, might contribute to outcomes. 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 or the importance of alternative explanatory variables. The results also suggest that focusing on development status alone may be unwarranted, and future research should explore internal levels of democracy or other indicators of good governance, which could be associated with the decreased risk of a state loss. The Article concludes that normative choices focused solely on respondent state development status miss an opportunity to craft normative solutions tailored to redress tangible problems. By focusing on variables that demonstrably contribute to variance in ITA outcomes, stakeholders could construct more appropriate international dispute settlement processes in a time of international economic transition.

Professor Shannon Publishes in Cardozo Law Review

March 18, 2015 Leave a comment
Prof. Victoria Shannon

Prof. Victoria Shannon

Washington and Lee law professor Victoria Shannon published a new article in the Cardozo Law Review.  The article, Harmonizing Third-Party Litigation Funding Regulation, appears in volume 36, issue 3.

Download the full article here.

From the abstract:

Third-party litigation funding is no longer a new phenomenon, but rather is a mainstay in global commerce and dispute resolution. Yet many observers still consider the third-party litigation funding industry as a “wild west” due to a lack of regulation in many countries. Some of the countries that have regulations suffer from a lack of uniformity and an array of conflicting laws at the sub-national level (i.e., the laws of states, provinces, territories, etc.). For example, the United States has a confusing patchwork of state laws on third-party litigation funding. This Article proposes harmonizing the regulatory framework for third-party litigation funding in the United States by identifying the three categories of interactions— transactional, procedural, and ethical—that make up third-party litigation funding, and suggesting avenues for regulation within those three categories. This approach will weave a regulatory “safety net” of minimum standards for the behaviors and interactions of the players in third-party litigation funding arrangements to ensure the integrity of the dispute resolution system in which they invest and participate.

 

Professor Susan Franck’s New Work Addresses Diversity in International Arbitration

March 10, 2015 Leave a comment
Prof. Franck

Prof. Franck

Washington and Lee law professor Susan Franck’s forthcoming publication, “The Diversity Challenge: Exploring the ‘Invisible College’ of International Arbitration” addresses issues of diversity in international arbitration.  The article will appear in the Columbia Journal of Transnational Law in 2015.

Professor Franck uses survey data from attendees at the Congress of the International Council for Commercial Arbitration to examine the “invisible college” of international arbitrators.  The article includes a discussion of the potential benefits of greater diversity in international arbitration and the challenges in implementing diversity initiatives such as those of the Minority Corporate Counsel Association to promote diversity in legal hiring.

Professor Franck has presented the article at the University of Delaware Center for the Study of Diversity and at the Institute for Transnational Arbitration Academic Winter Forum.

 

Professor Susan Franck speaks at Hogan Lovells

March 10, 2015 Leave a comment
Prof. Susan Franck

Prof. Susan Franck

On February 12, 2015, Washington and Lee law professor Susan Franck spoke at Hogan Lovells in Washington, DC.  The event featured a lecture by ICSID Secretary-General Meg Kinnear entitled the “Next Generation of Investment Treaties and Their Impact on Investor-Dispute Settlement” and commentary by a panel of experts including Professor Franck, Michael Tracton (U.S. State Department), Horacio Grigera Naon (American University), Jonathan Stoel (Hogal Lovells), and Roger Alford (Notre Dome).

The event was streamed live to an online audience including students in Professor Franck’s International Commercial Arbitration seminar.  Other students attended the event in person.

Video from the event is available here.

Professor Victoria Shannon’s Essay Featured on SSRN Top Ten Lists

March 6, 2015 Leave a comment
Prof. Victoria Shannon

Prof. Victoria Shannon

Washington and Lee law professor Victoria Shannon’s new essay, Third-Party Litigation Funding and the Dodd-Frank Act, has appeared on SSRN top ten lists in two subject areas: Conflict, Conflict Resolution, Alliances and Arbitration.

This article questions whether the Dodd-Frank Wall Street Reform and Consumer Protection Act (“Dodd-Frank Act”) should apply to the growing phenomenon of third-party litigation funding, in which outside entities invest in litigation or arbitration for profit. Currently, the United States, Australia, and the United Kingdom lightly regulate third-party litigation funding, but the majority of the day-to-day oversight comes through voluntary funder self-regulation. Most third-party funders of commercial disputes are private hedge funds that are subject to the securities regulations of the jurisdictions in which they operate. The Dodd-Frank Act is a relatively new statute in the United States that regulates derivatives, among other financial products. This article begins to explore whether a third-party litigation funding contract is a derivative by examining an Australian High Court decision. If so, then third-party litigation funders may fall within the purview of the Dodd-Frank Act in the future, if their litigation portfolios or assets under management grow large enough.

Professor Kish Parella’s New Manuscript Featured on SSRN Top Ten Lists

February 23, 2015 Leave a comment
Prof. Kish Vinayagamoorthy

Prof. Kish Parella

Professor Kish Parella’s new manuscript, Procedural Fairness by the Corporation, places in the Top Ten lists for new papers in ContractsInternational Economic LawInternational Trade , Dispute ResolutionPublic International Law: Organizations,  Corporate Governance, and CSR Enforcement, among other subject areas.

From the abstract:

Global governance has not yet caught up with the globalization of business. As a result, our headlines provide daily accounts of the extent and consequences of these “governance gaps.” The ability of corporations to evade state control has also contributed to an unusual development: corporations are governing like states. Some public governance functions traditionally delivered by state actors are now increasingly undertaken by transnational corporate actors. One area that is experiencing this substitution is dispute resolution of human rights. Corporations and other business enterprises, individually or collectively, are creating a variety of grievance mechanisms to address human rights and other conflicts associated – even caused – by their business activities.

 When these roles are fulfilled by state actors, we rely on procedural fairness to guide, even discipline, decision-makers. Procedural fairness improves our faith in decision-makers and their institutions even if we might disagree with the outcomes reached. What does procedural fairness mean when it is undertaken by a corporation performing quasi-public governance? What factors might improve its disciplining potential on corporations and increase the likelihood that the watching public, local and global, might accept the outcomes reached? This Article addresses this challenge by developing a framework for procedural fairness that is based upon human rights research and contract law. The result is a strategy for trust-building that can improve the quality of governance performed by the transnational business sector.

Professor Christopher Seaman speaks at Texas Intellectual Property Journal Symposium

February 20, 2015 Leave a comment
Prof. Christopher Seaman

Prof. Christopher Seaman

Washington and Lee law professor Christopher Seaman will speak at the 16th Annual IP Symposium: Patent Assertion Entities hosted by the Texas Intellectual Property Law Journal.   The symposium is held at the University of Texas at Austin on Friday, February 20, 2015.   Professor Seaman will present a new research projected titled  Ongoing Royalties as an Alternative to Injunctive Relief for PAEs After eBay: An Empirical and Theoretical Assessment. 

From the abstract:

Since the Supreme Court’s 2006 decision in eBay v. MercExchange, it has become increasingly difficult for patent assertion entities (PAEs)—firms that own, license, and assert patents in litigation, but do not practice the patented invention themselves—to obtain injunctive relief after a finding of infringement.  Recent studies have shown that evidence of competition in a product market between a patentee and an infringer is the single most important consideration in granting injunctive relief post-eBay, which few if any PAEs can satisfy. 

When a permanent injunction cannot be granted, the Federal Circuit has endorsed an alternative equitable remedy called an ongoing royalty, which is essentially a limited, post-judgment license to the infringer.  However, lower federal courts have not settled on a consistent methodology for determining an appropriate ongoing royalty, including the related issue of whether enhanced damages should be awarded for post-judgment infringement. This Article addresses the issue of ongoing royalty awards from both an empirical and theoretical perspective.  First, it reports the results of an original empirical study regarding ongoing royalty awards by district courts following eBay.  Second, applying insights from this empirical data, it proposes a new framework for computing an ongoing royalty that serves patent’s law objective of incentivizing innovation while also avoiding excessive damages.

 

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