international investment and adr: preventing and managing investment treaty conflict
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International Investment and ADR: Preventing and Managing Investment Treaty Conflict. Andrea K. Schneider Professor of Law Marquette University Law School [email protected]. International Systems. Investment Arbitration. Negotiation Regime. Supranational Court. - PowerPoint PPT PresentationTRANSCRIPT
International Investment and ADR: Preventing and Managing Investment Treaty Conflict
Andrea K. SchneiderProfessor of Law
Marquette University Law [email protected]
Regimes/Factors
Direct Effect
Standing for Private Actors
Supremacy Transparency Enforcement
Negotiation No No None Optional Negotiation
Investment Arbitration
Yes Yes Only as to that award
Generally Likely
International Adjudication
No No Supreme,but not integrated into domestic law
Yes Varying—None (NAFTA) to Retaliation (WTO)
Supranational Court
Yes Yes, Directly and indirectly
Supreme and Integrated
Yes Fines & Damages; Domestic Remedies Also
International Systems
Investment Arbitration
Supranational Court
Negotiation Regime
International Adjudication
Continuum of Constitutionalization
Weakest Strongest
International Systems
--Schneider, 1999
Dispute Resolution Process Spectrum
DirectNegotiation
Trial
CompleteOutcomeControl
MaximumProcessControl
NoOutcomeControl
MinimumProcessControl
FacilitativeMediation
EvaluativeMediation
Early NeutralEvaluation (ENE)
Mini-Trial
Med-Arb
BracketedArbitration
Final OfferArbitration
Arbitration
Private Judging
Mediative (Non-Binding)ADR Processes
Adjudicative (Binding)ADR Processes
Bordone, 2008
Procedural Justice
• Explains why international system moved toward courts
• Explains why domestic alternative dispute resolution took hold
Dispute System Design Contexts
Bordone, 2008
Organizational
International institutionsNation-StatesCompaniesUniversitiesGovernment AgenciesNGOsNon-profits
“Transactional”
Mass TortsClass ActionsComplex disputesNatural disastersTerrorismRepatriationOthers?
Process Design Principles
• Participation• Suitability• Process Accountability• Results Accountability• Fluidity• Sustainability• Permeability
Process Design—Participation• Key stakeholders around the table• Stakeholders help design and
troubleshoot• Funding and support• Technical & legal training
Process Design—Suitability• Is mediation the correct process?• Use of legal defenses• Political/domestic constraints• Cultural understanding
Process Design—Process Accountability
• Need education & representation• Need group of skilled mediators• Transparency of process• Follow-up to see how operates
Process Design—Results Accountability
• Outcomes—transparency issues• Repeat players—countries &
municipalities• Repeat sectors
Process Design—Fluidity• Timing—settlement opportunities
throughout• Adjust process and administration
as needed
Process Design—Sustainability
• Embedded into treaty?• New kinds of training and assumptions
needed• New delegation of settlement
responsibilities needed
Process Design—Permeability• Part of dispute prevention and
management system (Ombuds offices?)• Facilitate information exchange• Facilitate administrative review
Where Do We Go From Here?
• Need—and want—shadow of investment arbitration
• Better structure time between problem arising and arbitration result
• Can offer process choices between binding arbitration & negotiation
• DSD is up to the challenge
International Investment and ADR: Preventing and Managing Investment Treaty Conflict
Andrea K. SchneiderProfessor of Law
Marquette University Law [email protected]