Abstract This chapter argues that blockchain technologies structurally tend towards ‘judicialization’ and challenge the traditional, state-centric notions of jurisdiction and enforcement. After an introductory section, section II sets the scene by locating the emergence of blockchain technologies within the broader debate concerning the relationship between national and transnational law. Such a contextualization is crucial in order to develop a reliable understanding of the impact of this set of technologies on the state’s capacity to preserve its central role in the administration of justice through a system of courts. Against this background, section III investigates the effect of blockchains and smart contracts on the notion of jurisdiction, drawing lessons from the historical evolution of the concept and applying them to the current technological reality. Relying on empirical data, it is argued that the growth of blockchain technologies has given rise to a proliferation of private arbitral systems, generating a new division of labour between state courts and private adjudication. Finally, section IV of the chapter considers the emergence of self-enforcing smart contracts and its consequences for the traditional view whereby the state maintains a monopoly over the use of force.
This article discusses current developments in East Asia to more effectively use mediation with international commercial arbitration, supported by the 2019 United Nations Convention on International Settlement Agreements Resulting from Mediation (the “Singapore Convention”) and the UNCITRAL Model Law on International Commercial Mediation (the “UNCITRAL Model Mediation Law”), and by online dispute resolution using innovative technology (including artificial intelligence, machine learning, the internet of things, blockchain, distributed ledger technology and smart contracts). It discusses the background to the changing approach including the increasing pressure for arbitration to become a mechanism of last resort in international dispute resolution prompted by policy makers’ and users’ demands for cheaper , quicker and culturally more international dispute resolution and the changing sources of international investment, developments in international relations including the Belt and Road Initiative announced by China, and the initiatives being undertaken by various investment and trade communities including APEC, particularly focusing on micro, small and medium sized enterprises (each a “MSME”). This article briefly refers to the current status of online dispute resolution utilizing innovative technology, and the legal opportunities and challenges posed by it. Finally, it briefly refers to some neuroscience research relevant to dispute resolution.
Abstract This article investigates the twofold impact that blockchain technologies and smart contracts have on dispute resolution. On the one hand, these technologies enable private parties to devise arbitral systems that are self-enforcing and, therefore, largely bypass the recognition and enforcement procedures through which State courts traditionally exert a certain control over arbitration. This phenomenon may in the future allow arbitration to become entirely self-sufficient, thus leading to the marginalization of State courts. On the other hand, however, such a marginalization has not taken place yet; to the contrary, the recent blockchain-related phenomenon of initial coin offerings has given rise to some prominent court cases. These cases raise particularly interesting jurisdictional questions, especially in light of the difficulty of reconciling the decentralized nature of the blockchain with the territorial approach whereby jurisdiction is typically allocated among national courts.
<table><tr>\n <td><p>China\n is incrementally developing a new, decentralized model of trade governance\n through a web of finance, trade, and investment initiatives involving\n memorandum of understanding, contracts, and trade and investment treaties,\n supported by an indigenous innovation policy that is transnational in its\n reach. In this way, China could create a vast, Sino-centric, legal order in\n which the Chinese state plays the nodal role. It is a hub and spokes model,\n with China at the hub. In this article, we first examine China’s export of an\n infrastructure-based development model, implemented through Chinese\n state-owned and private enterprise investments and commercial contracts (Part\n B), before turning to China’s development of a complementary web of free trade\n and investment agreements (Part C), and an indigenous innovation policy (Part\n D). The paper theorizes and empirically traces how these Chinese initiatives\n shape the evolving ecology of the transnational legal order for trade.<br></p></td></tr></table>
[excerpt] The concept of online dispute resolution (ODR) is not new. 1 But, with the advent of Web 3.0, the distributed web that facilitates pseudonymous and cross-border transactions via blockchain's distributed ledger technology, 2 the idea of, and pressing need for, appropriate dispute resolution models for blockchain-based disputes to support this novel system of distributed consensus and trust of which blockchain proponents boast, is a primary concern in rapid development. 3 The common goal of each project is to utilize smart contracts to facilitate "superior, quicker[,] and less expensive proceedings by eliminating so many of the tedious and protracted trappings of traditional arbitral proceedings, such as the sending and receiving of documents via courier.", Despite myriad approaches, all emerging blockchain-based dispute resolution services (BDR solutions) generally seek to bridge the divide between automated performance mechanisms, like smart contracts, and the human judgment traditionally required to settle legal disputes.5 How our existing legal frameworks must develop to ensure that smart contracts 6 facilitate, rather than frustrate, the parties' intent is a critically important question to ask as the blockchain stack's infrastructure and application layers are being built and, ultimately, scaled. Indeed, interest is high in the race to create alternative dispute resolution mechanisms to resolve disputes arising from blockchain-based commercial transactions that, due to the transnational, borderless, pseudonymous, and distributed nature of blockchain, clearly necessitate international solutions.7
Blockchain applications have largely been short-lived phenomena in the (classical) corporate governance arena over the past few years. However, at the same time, blockchain has also found its place in addressing agency problems in modern organizations, such as Decentralized Autonomous Organizations (DAOs), offering valuable opportunities to eliminate classical inefficiencies. After a brief introduction to the agency problem and its associated costs in corporations, this chapter explores blockchain technology as a potential solution to this issue. Furthermore, the chapter delves into these DAOs, which, at least in theory, eliminate the agent and its accompanying problem while incorporating artificial intelligence. In the governance of more traditional corporations, blockchain should also be considered a useful tool for overcoming several agency problems and inefficiencies. However, regulatory burdens, uncertainties, as well as concerns related to accountability and other associated costs and interests, slow down the adoption of blockchain in the corporate law and governance environment.
The enforcement of outcomes in online dispute resolution (ODR) is a delicate problem. Since disputes arising out of e-commerce transactions are typically low in value, the traditional channels of coercive enforcement are often not a viable option. The article argues that the Bitcoin system can be used as a source of inspiration to devise new models of self-enforcement. The article describes the legal framework of ODR and argues that the goal of self-enforcement can be attained through the use of technology. It then describes the relevant features of the Bitcoin system, underlining its potential as a new forum for the expression of private autonomy. It then investigates the features of Bitcoin adjudication, before arguing that Bitcoin must be regarded as an original and self-contained system of dispute resolution, whose characteristics can be used to theorise new models of self-enforcement. Next, it compares four alternative models of self-enforcement, two of which take Bitcoin adjudication as an example. Finally, it puts forth recommendations for all actors involved in the implementation of self-enforcing ODR mechanisms and argues that different models should be left free to compete.
A major challenge for investment treaty designers and adjudicators is to separate opportunistic behavior by host states that should be sanctioned under international law from bona fide public policy measures that should not. This article suggests that international investment agreements ( iia s) need to be both ‘smarter’ and more ‘flexible’ to better make that distinction. It draws on economic contract theory as a basic framework, and political economy theory for fine-tuning.
Defines ownership arrangement as the way the state organizes itself to exercise its ownership rights over state-owned enterprises (SOEs), and focuses on how to create effective ownership arrangements by improving traditional ownership arrangements; by creating advisory or coordinating bodies to facilitate the state’s ownership role; by centralizing the state’s ownership functions; and by ensuring the effectiveness of ownership arrangements. While countries vary substantially, ownership models fall broadly into four categories: (1) The decentralized model, where ownership responsibilities are dispersed among different line ministries; (2) The dual model, a variation of the decentralized model, where in addition to line ministries a second ministry, such as the ministry of finance, may also have certain responsibilities; (3) The advisory model, where ownership remains dispersed but an advisory or coordinating body is created to advise ministries on ownership matters; and (4) The centralized model, where ownership responsibilities are centralized in an entity or entities that may be independent or may fall within government.
Independent regulatory bodies are important economic institutes, which take on a part of classical state affairs, which generally need particular, i.e. specialized knowledge, which does not exist in state management. European countries have different experiences when it comes to bearers of public authorization, representing intermediaries between the state on one hand, and companies and citizens on the other. In those countries with a traditionally big state apparatus, there are few agencies and vice versa, where there is a large portion of state affairs decentralized, small governments, supported by a modest central state apparatus are established. In the countries of Central and Eastern Europe, along with the process of transition, there occurred the process of "agencification". Serbia is maybe the worst example, with large coalition governments, which have established almost 200 different independent institutions. The causes of independent public body boom in Serbia are to be sought in a too liberal understanding of laws regulating this area, which has created the possibility of political feudalism. Also it has created an inappropriate autonomy of institutions (inappropriate for Serbian conditions, especially when it comes to finance), with a clear debalance of quality of employees in those bodies and the system of their compensation compared to contribution given by their work. Recent political changes, "new waves" of global economic crisis and large crisis of state financing are making boom problem solving quicker, and also are putting under control the behavior of bearers of public authorization in Serbia. However, it seems that this process still lacks good and impartial methodology and argumented atmosphere for making political decisions.
In its first decade, the International Competition Network has prospered, contributed to the development of widely accepted international policy norms, and come to exemplify the form of voluntary multinational collaboration that commentators have identified as a promising way to facilitate international ordering amid the global decentralization and diversification of economic regulations. This article takes stock of ICN’s achievements, considers why it has succeeded in many of its aims, and asks a number of questions regarding what comes next. It seeks to inform the ICN’s future by offering a way to think of its institutional characteristics to assess its relative advantages.The ICN’s paramount goal is to facilitate convergence - the broad acceptance of standards concerning the substantive doctrine and analytical methods of competition law, the procedures for applying substantive commands, and the methods for administering a competition agency - on superior approaches concerning the substance, procedure, and administration of competition law with the expectation that if competition systems around the world opt in to superior techniques, they will achieve greater progress toward dismantling competitive restraints. The article begins by examining the convergence methods, specifically the four elements of ICN’s convergence strategy. It then discusses the context of the ICN within the major international competition networks that have played important roles in the development of international competition policy standards - OECD, UNCTAD, and the WTO. Finally, it looks at the ICC’s interaction with other multinational networks and considers how much the ICN’s convergence-related initiatives will reduce conflicts among jurisdictions with respect to the treatment of specific matters and whether ICN inspired convergence will suffice to eliminate transnational conflicts.The authors see three major focal points for the ICN in the coming decade. The first is to build on its past successes and continue to pursue the identification and adoption of best practices with respect to substantive standards, procedures and the administration of competitive agencies. The second is for future ICN efforts to identify and make use of complementarities with the OECD and UNCTAD to provide a basis for the networks to identify areas in which collaboration will improve their collective effectiveness. The third is to examine and refine the ICN’s operational framework and determine whether its structure and operational forms are adequate to supports its current and future programs. Finally, the authors see major and administrative challenges ahead with problems of resources, financing, and management that must be resolved for the ICC to have a successful second decade.
Botnia S.A./Metsä-Botnia Oy's construction of the Orion pulp mill in Uruguay raised concerns regarding violations of national, regional, and international law with regard to social and environmental protection. On 18 April 2006, the Center for Human Rights and Environment (CEDHA), an Argentinean non-governmental organisation, submitted to Finland's National Contact Point (NCP) a “specific instance” regarding the possible non-compliance of Botnia S.A. (a Finnish enterprise) with the OECD Guidelines for Multinational Enterprises (OECD Guidelines for MNEs, Guidelines) when building the envisaged pulp mill in Uruguay. According to the Center for Human Rights and Environment, Botnia S.A. violated the OECD Guidelines for MNEs especially with respect to Chapter II “General Policies”, Chapter III “Disclosure”, Chapter V “Environment” and Chapter VI “Bribery”. Specific instances concerned with related issues were filed by the Center for Human Rights and Environment with the Swedish and Norwegian NCPs against Nordea, a leading financial services group of the Nordic and Baltic Sea area, for possible financing of Botnia S.A.'s pulp mill project and against the Finnish state bank Finnvera for providing export guarantees to Botnia S.A. Other fora that have in the meantime become involved in the issue are the International Court of Justice and member institutions of the World Bank Group, the International Finance Corporation and the Multilateral Investment Guarantee Agency.
I am particularly honoured by your invitation to this Second Biennial Conference of the European Society of International Law. Indeed, I am both honoured and pleased, not only because I am in Paris, but above all because I support the ESIL project, one of the objectives of which is to develop a deeper understanding of trade law and to promote closer cooperation among all those working in the field of international law. Admittedly, I have only distant memories of the Hague Academy of International Law where I once worked on estoppel, but the general theme of this conference – International Law: Do We Need It? – convinced me that there was room, this evening, for a non-specialist. It is in that capacity that I will be speaking to you, in the hope that I can contribute the views of a practitioner on the role and place of WTO law within the international legal order. In doing so, I am seeking to establish a constructive dialogue between doctrine and practice with the aim of improving normative and institutional coherence within the international legal order. Trade is to be found at the origin of entire segments of public international law, and it accounts for one of its main sources: the treaty. Indeed, one of the first international legal instruments to leave a trace in history was the commercial treaty between Amenophis IV and the King of Alasia (Cyprus) in the 14th century BC. This treaty exempted Cypriot traders from customs duty in exchange for the importation of a certain quantity of copper and wood. Nothing has fundamentally changed since then: at the beginning of the 21st century we still have bilateral trade agreements. But they now have to be reported to the WTO, so that they may be checked for consistency with international trade rules. The international legal order, on the other hand, has evolved dramatically. The great empires have disappeared into the annals of history. Philippe le Bel and Jean Bodin’s jurists progressively conceptualized the notion of sovereignty; the treaties of Westphalia ushered in a society defined by the pre-eminence of sovereign states, the 1815 Congress of Vienna laid the foundations of multilateralism, and the 19th century saw the first international organizations come to light. With the creation of the League of Nations, followed by the United Nations system and, finally, with the disintegration of the Eastern Bloc, the 20th century witnessed the evolution from traditional international law between states towards a contemporary and universal international law open to new players, including international organizations and non-governmental organizations. Thus, the international legal order has experienced a number of upheavals. But its evolution has been neither linear nor homogeneous – which is why international society still bears the marks of several historical stages in the process. As a metaphorical illustration, let us take the three physical states of matter: gas, liquids and, finally, solids. Today’s international legal order is simultaneously composed of these three states. Gas is the coexistence of particles devoid of any hierarchical differentiation: the Westphalian order made up of sovereign states organized according to an essentially ‘horizontal’ logic with a decentralized responsibility mechanism. The solid state is reflected in the European Union, the perfect example of an international integration organization which produces rules that it interprets ‘autonomously’ and whose primacy and direct applicability is guaranteed through a system of judicial remedy. The judicialization of responsibility of Member States for violations of Community law is a cornerstone of this integrated legal order. Between the gaseous state and the solid state, there remains the liquid state. It is to this category that the World Trade Organization belongs. Neither entirely vertical nor entirely horizontal in essence, resembling an organization for intergovernmental cooperation in certain respects while being closer to an international integration organization in others, the WTO represents a unique legal order or system of law. At the risk of oversimplification, in fact, I will draw no distinction between a system of law, a legal system and a legal order. The reason why the international legal order exists in several physical states is that it is evolving; and the WTO is both a product and a vehicle of that evolution. Indeed, the WTO is an international organization that brings together two concepts of international law. Leaving aside one or two specificities, it is a permanent negotiating forum between sovereign states and is therefore a cooperation organization akin to international conferences traditional international law. But it a which it an integration in contemporary international law. In the it a the WTO a legal order. we take up Jean of rules of law a system and a society or we that there within the international legal order, a WTO legal order. The WTO system has two rules and But the that it is not that it is or the two that I will be in an to this legal system into the international legal order and, it in with the other legal us with the first and the WTO a unique legal system within the international legal order. 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1 Arbitration — Applicable law — Relation between concession contract, bilateral investment treaty and ICSID Convention — Dispute with provincial authorities relating to interpretation and application of contract to be submitted to administrative courts Economics, trade and finance — Bilateral investment treaty — Argentina-France bilateral investment treaty, Article 8(2) — “Fork in the road” provision — Relevance to Tribunal’s jurisdiction over treaty claim — Relevance to merits of claim Arbitration — Jurisdiction — Jurisdiction issue joined to merits — Failure to designate or consent to application of ICSID Convention to province under Article 25(1) and (3) does not deprive Tribunal of jurisdiction — Local forum clause in concession contract does not divest Tribunal of jurisdiction for claims against State State responsibility — Imputability — Attribution of responsibility for actions of political subdivisions — Responsibility not limited by federal or decentralized character of State — No factual basis for attribution — State’s obligation under bilateral investment treaty to pursue in good faith and with reasonable efforts the resolution of the dispute — State’s constructive role in renegotiation process Relationship of international law and municipal law — Impossibility of separating claims for breaches of contract from bilateral investment treaty violation without prior resort to administrative courts — Claimant required under contract to assert its rights in proceedings before administrative courts prior to invoking ICSID procedure — Claimant not precluded from asserting its rights in administrative courts — No evidence that courts lacked independence or fairness or would have denied claimant’s rights procedurally or substantively — No principle of exhaustion of remedies Claims — Exhaustion of local remedies — Requirement incompatible with Article 8 of bilateral investment treaty and Article 26 of ICSID Convention — Resort to administrative courts required under contract for purposes of interpretation and application
Prescriptive Jurisdiction over Internet Activity:The Need to Define and Establish the Boundaries of Cyberliberty Samuel F. Miller (bio) Introduction Globalization occurs at the nexus of politics, culture, technology, finance, national security, and ecology.1 "Globalization" refers to the increasingly "complex, dynamic legal and social processes" occurring throughout the world.2 It is the development of a global mindset that challenges the traditional political, social, and economic characteristics of nations and has led to the "deterritorialization and reterritorialization of [vast] policy spaces."3 Many of the changes and challenges attributed to globalization rely on the exchange of information throughout the world, making "the flow of ideas across national borders" a key agent of globalization.4 Due to the increasing availability of personal computers and software, the Internet provides the ideal forum for information transfer.5 The Internet engenders "the notion of distributed power: decentralization, openness, possibility of expansion, no hierarchy, no center, no conditions for authoritarian or monopoly control."6 The Internet has become vital to the [End Page 227] broader dynamics of organizing global society, "both economically and politically."7 One of the vital aspects of organizing global society has been individual liberty. With the introduction of the Internet, traditional notions of liberty are challenged. The global reach of information transfer requires examining liberty in its new form—"cyberliberty." Cyberliberty expands across all borders, affects all nations, and as of yet, has not been defined by any nation. This note recommends a definition of cyberliberty in order to provide a legal foundation for regulating conduct on the Internet. The definition is predicated upon freedom from the control and influence of states through their assertion of prescriptive jurisdiction, a liberty that has always been an essential element of sovereignty.8 Part I briefly describes how traditional international law principles of prescriptive jurisdiction have been applied to activities on the Internet. It then identifies some limits to these methods that arise from the unique characteristics of the Internet. Part II surveys philosophic conceptions of liberty, recognizing the implications of liberty on the Internet, and recommends a definition of cyberliberty that favors expansive liberty and clear expectations for Internet actors. I. Prescriptive Jurisdiction over Internet Activity Despite the unique quality of the Internet as a key agent of globalization, and some scholarly arguments that the Internet should not be regulated under traditional standards,9 jurisdiction over Internet-related activity is still generally tested under international jurisdictional law.10 Jurisdiction exists in three forms: [End Page 228] jurisdiction to prescribe, to adjudicate, and to enforce.11 The primary jurisdictional problem that arises in relation to the Internet as a platform of globalization is one of prescriptive jurisdiction. It is the application of a single state's laws to Internet content that gives rise to complication. For example, may State A prohibit citizens of State B, located in State B, from posting advertisements for purple farm tractors on the Internet simply because State A prohibits the sale of purple farm tractors? Questions of this sort have strong implications for the global character of the Internet. A firm basis for jurisdiction to prescribe is required to justify the infringement of sovereignty that would accompany regulation of Internet content. As stated in the Permanent Court of International Justice's opinion in the Lotus case, "a state . . . may not exercise its power in any form in the territory of another state," and jurisdiction "cannot be exercised by a state outside its territory except by virtue of a permissive rule derived from international custom or from a convention."12 As the Federal District Court for the Southern District of New York has noted, The Internet is a worldwide phenomenon, accessible from every corner of the globe. [A defendant] cannot be prohibited from operating its Internet site merely because the site is accessible from within one country in which its product is banned. To hold otherwise would be tantamount to a declaration that this Court and every other court throughout the world, may assert jurisdiction over all information providers on the global World Wide Web.13 A. Traditional Bases for Prescriptive Jurisdiction International law recognizes five sources of prescriptive jurisdiction: the nationality principle, the subjective territoriality principle, the objective...
In Inside Appellate Courts: The Impact of Court Organization on Judicial Decision Making in The United States Courts of Appeals (Michigan 2002), Jonathan Matthew Cohen, a sociologist and practicing attorney, asks a question that has received scant attention in the academic commentary on appellate judging: If we accept the dominant conception of appellate court judging as a process of atomistic contemplation, how do federal circuit court judges continue to maintain high quality opinions in the face of pervasively growing judicial dockets? Cohen advances the provocative thesis that increasing workloads have not prevented appellate judges from producing high quality outputs, but rather, that the dominant image of appellate judging as an isolated contemplative task is conceptually flawed. A better approach, Cohen argues, is to compare the task of appellate court judging to production within a multi-divisional private firm. While Cohen recognizes the inherent limits of his analogy, and in particular, that unlike private firms, circuit courts lack a central coordinating authority, he nonetheless contends that it is more fruitful to consider the judges in the manner of workers in a complex organization than as autonomous actors reflecting in isolation on the legal issues presented on appeal. In this review essay, Stearns considers three complementary methodologies for analyzing appellate courts that yield insights of particular interest to lawyers and legal scholars. Such questions include how appellate courts transform preferences into doctrine; the nature of cases that are likely susceptible to further appellate process through en banc, mini-en banc, or Supreme Court review; and how best to evaluate appellate court opinions. While organizational theory provides a useful starting point, Stearns contends that insights drawn from other methodologies, including economics (demonstrating how decentralized informational processes can provide more meaningful data), probability analysis (demonstrating the quality of data drawn from subsets of a larger group), and social choice (demonstrating the nature and limits of group decision making), might prove more fruitful in evaluating at least some of these questions. Stearns concludes that a comprehensive understanding of federal appellate judging requires not only an understanding of the circuit courts' internal organizational structure, but also an analysis of the edifice of circuit court decision making from inside and out.