22 November 2016 - International Arbitration: Between Myth and Reality
Professor Susan D. Franck, of the Washington College of Law, delivered the 2016 Brierley Memorial Lecture at McGill University. The lecture exposed the common but flawed accounts of international arbitration based on anecdotes and myths, and challenged the audience to face reality by paying more attention to facts.
Emphasizing the importance of empirical research and evidence-based policy, she chastised all of those responsible for the “post-truth” accounts of investment arbitration that have dominated the media. Professor Franck also discussed some of the cognitive decisional impairment factors that can affect outcomes and valuations in international arbitration. The event was followed by a cocktail reception generously sponsored by Woods LLP.
16 November 2016 - "Frontloading in Civil Proceedings"
The Private Justice and the Rule of Law Research Group welcomed Prof. Simona Grossi (pictured above with Prof. Frédéric Bachand and Fabien Gélinas), Loyola Law School (bio), on Wednesday, November 16 at 11:30 am in NCDH 203 as part of Prof. Gélinas' Resolution of International Disputes course. Her scholarship focuses on civil procedure and federal courts. Professor Grossi is currently Chair of the Association of American Law Schools Executive Committee for the Section on Civil Procedure.
Team members Fabien Gélinas and Andrea Bjorklund edit a special issue on CETA
We are happy to announce the publication of Comprehensive Economic and Trade Agreement between the European Union and Canada (CETA), a special issue for Transnational Dispute Management.
Edited by Professor Andrea K. Bjorklund (McGill), J.P. Gaffney (Al Tamimi & Co.), Professor Fabien Gélinas (McGill), and H. Wöss, (Wöss & Partners) and opening with prefaces by Professor Pieter Jan Kuijper (UvA) and the Hon. L. Yves Fortier, the special edition features 15 articles by noted scholars and practionners.
From the introduction:
"...This Special Issue undertakes a broad-ranging study of CETA, viewing it as an indicator of the evolution of EU trade and investment policy, and of the kinds of tensions and innovations that can be expected to arise as a new generation of twenty-first century trade and investment agreements emerges. The Special Issue aims to provide an overview of CETA's key characteristics and of the controversy that has surrounded certain of its key features, placing these provisions within the context of the agreement as a whole and emphasizing a recurring tension between nationalism and internationalism, in particular regarding international arbitration of investment disputes, that runs through the individual papers' analyses of discrete provisions in the agreement..."
Fabien Gélinas edits new collection: Trade Usages and Implied Terms in the Age of Arbitration
If a dispute between commercial parties reaches the stage of arbitration, the cause is usually ambiguous contract terms. The arbitrator often resolves the dispute by applying trade usages, either to interpret the ambiguous terms or to determine what the given contract's terms really are. This recourse to trade usages does not create many problems on the domestic level. However, international arbitrations are far more complex and confusing.
- Contains clearly organized chapters providing in-depth information about the treatment of usages in cases and doctrine in different countries
- Explores possible conceptual frameworks to help shape the emerging transnational law of trade usage
- Outlines what the conceptual grounding of trade usages could be in the transnational law of commercial contracts
- Offers a clear overview of interpretive tools for approaching and comparing CISG and UNIDROIT principles as they relate to usages
- Provides a comprehensive summary of relevant legislation on international treatment of trade usages for reference and comparison at a glance
- Clearly organized chapters providing in-depth information about the treatment of usages in cases and doctrine in different countries
- Offers a chapter on cataloging and analyzing all ICC arbitral awards referring to trade usages
Essay Contest: 2016 Nappert Prize in International Arbitration
Thanks to the generosity of Sophie Nappert (BCL’86, LLB’86), the Nappert Prize in International Arbitration will be awarded for the second time in 2016 after an enormously sucessful inaugurual competition in 2014.
The Nappert Competition is open to all students, junior scholars and junior practitioners from around the world. Find out more about this prestigious contest: consult the call for applications. Deadline: April 30, 2016.
Armand de Mestral leads investor state arbitration project at CIGI
On June 9, 2015, the Centre for International Governance Innovation (CIGI), through its International Law Research Program, has launched a new project aimed at studying an emerging policy issue in the world of contemporary international investment protection law: should a corporation from one developed democracy have the legal right to sue the government of another developed democracy? In other words, is investor state arbitration (ISA) suitable between developed democratic countries?
“There is a growing unease with the established investor state arbitration model as it applies between developed democracies, but there is as yet no consensus on whether a solution exists,” says Armand de Mestral, CIGI senior fellow and lead on CIGI’s investor state arbitration project. “This study will examine the controversy as it is currently manifesting itself in developed democracies, with a view to determining what courses of action might be available to concerned countries.”
In September 2015, De Mestral presided a conference with CIGI titled "Investor State Arbitration Between Developed Democracies: A Policy under Challenge." (see the program [.docx] or visit the website), where he presented the first paper in the new CIGI Investor-State Arbitration Series, "Investor-State Arbitration Between Developed Democratic Countries" [.pdf].
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Arbitration and beyond
As a form of private justice supported by the power of the state, arbitration is subject to the control of a court of law. Of its own motion, the court ensures that the matter is arbitrable and that public policy has been respected. At the request of a party, the court is also responsible for ensuring compliance with the agreement between the parties, including issues related to the competence of the arbitrator.
Arbitrability, public policy, arbitration agreements and competence lie at the heart of the dynamic between private justice and public justice, as they determine for the latter what remains an area reserved to the state, free from competition. This area has become the focus of attention because of the increasing recognition of the right of the parties to determine their own law, which can entail the application of rules taken outside the parameters set by recognized legal systems. For example, these rules can refer the arbitrator to religious law or to rules of transnational commercial law.
At McGill, our research team is currently asking the hard questions about the relation between private justice and the rule of law.