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Private Justice and the Rule of Law

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.

On September 29, 2014, Dominique Hascher, Judge of the Supreme Judicial Court of France and Adjunct Professor of Law at University of Paris Panthéon-Sorbonne, delivered the John E.C. Brierley Memorial Lecture: PDF icon Les perspectives francaises
UPDATE: you can now listen to his presentation online (View Webcast) or download its as a file (MP3; WMV; MP4)

Lukas Vanhonnaeker, LLM'05, publishes first book

DCL Candidate Lukas Vanhonnaeker just published his first book, a part of which consists of his masters' thesis that he wrote under the supervision of Prof. Andrea K. Bjorklund.

Titled Intellectual Property Rights as Foreign Direct Investments - From Collision to Collaboration (Elgar, July 2015), Vanhonnaeker's book examines the interface between intellectual property and foreign direct investments to consider one key question: how does the international investment law framework and the international legal regime regulating intellectual property converge? His book is available at Elgar, as a part of the publishers' International Investment Law series.

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.”

Read CIGI's press release and the related media backgrounder.

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].

New book on arbitration by alumnus Julien Fouret

Julien Fouret (LLM'03), a partner at betto seraglini, a Paris firm exclusively dedicated to international arbitration, has just edited a new book on arbitration: Enforcement of Investment Treaty Arbitration Awards: A Global Guide (Globe Law and Business, 2015). Team member Professor Andrea Bjorklund has contributed a chapter to the work.

From the jacket: "The growth in cross-border investments in an increasingly globalised economy means that there are more international disputes between foreign investors and states than ever before. Investment treaty arbitration has thus become the preferred dispute resolution mechanism for resolving disputes with a state relating to foreign investment. However, securing a final arbitral award in this context is often only the beginning of a complicated process in enforcing arbitral awards against sovereigns and state entities." [Keep reading]

Symposium on Governance & Constitutionalisation in International Arbitration

12-13 March 2015, Faculty of Law, McGill University

The Private Justice and the Rule of Law Research Group and the McGill Arbitration Student Society held a two-day Symposium on March 12-13, 2015. The first day featured an arbitral moot opposing McGill and Queen's, and the second day, a panel with noted arbitration experts.

See the Symposium's Topic and Program [.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.