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.
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.
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.
Washington and Lee law professor Susan Franck will participate in the Academic Council Works-In-Progress Workshop at the Institute for Transnational Arbitration Academic Winter Forum this week. Professor Franck will present a paper, The Diversity Challenge: Exploring the “Invisible College” of International Arbitration, which is forthcoming in the Columbia Journal of Transnational Law in 2015. Todd Weiler, http://toddweiler.com, will be commenting on the paper.
Professor Franck is the Vice Chair of the ITA Academic Council. The Academic Council is made up of top academics in the field of international arbitration and is a key constituent group of the ITA.
Washington and Lee Law Professor Susan Franck will be a featured speaker at the 2nd Annual ITA-IEL Joint Conference on International Energy Arbitration on January 15-16 at Omni Houston Hotel in Houston. Professor Franck will be speaking on the topic of international economic dispute settlement and empirical data on investment treaty arbitration outcomes and the unique implications for energy-related disputes.
The conference is co-chaired by Tomasz J. Sikora, Counsel, International Disputes, Exxon Mobil Corporation, Houston, Texas, and Jennifer M. Smith, Baker Botts L.L.P., Houston, Texas.
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.