Deference in Investment Treaty Arbitration: Re-Conceptualizing the Standard of Review Through Comparative Public Law

Abstract:
The standard of review to be applied by investment treaty tribunals when reviewing host state conduct is a crucial, but still insufficiently analyzed issue. Although tribunals frequently make reference to “deference” as the applicable standard, the criteria they apply to concretize that concept remain uncertain and little predictable. What is more, the conceptual foundations of granting deference to host states are opaque. The present paper focuses on these foundations and argues that they are intrinsically connected to how investment treaty arbitration is qualified as either a form of commercial arbitration, a means to settle disputes under public international law, or as an internationalized form of judicial review in public law disputes. Siding with the latter, the present paper proposes to conceptualize the standard of review within a separation of powers framework that fuses domestic and international legal considerations in allocating power between states and arbitral tribunals. Within this framework, considerations originating from both international dispute settlement and comparative public law interact to determine and concretize the standard of review.

Schill, Stephan W., Deference in Investment Treaty Arbitration: Re-Conceptualizing the Standard of Review Through Comparative Public Law (June 28, 2012). Society of International Economic Law (SIEL), 3rd Biennial Global Conference.

Comparative Law and the Quest for Optimal Rules on the Transfer of Movables for Europe

Abstract:
The drafters of Book VIII Draft Common Frame of Reference (DCFR) have devoted an impressive amount of time and energy in collecting and publishing comparative data with regard to the existing property law within all Member States of the European Union, and in particular with regard to the subject matter of that Book: acquisition and loss of ownership of movables. This in itself suggests that comparative research played an important role in the drafting process, and this impression is enhanced by the abundance of comparative references and notes in the official Comments to Book VIII. However, the fact that the drafters made an extensive study of the relevant property law of every European legal system does not imply per se that the outcome of their comparative research was taken as guiding in the establishment of the DCFR rules.

In order to gain a better insight into the character of the rules of Book VIII, this contribution seeks to answer the question whether comparative arguments really weighed heavily in the drafting of Book VIII: is the ‘comparative activism’ of its drafters a manifestation of a determination that common or even majority solutions should be the basis of the model rules to be proposed, or did the drafters feel free to propose novel rules even if these were contrary to what applies in most European countries, according to the comparative data they collected and presented themselves? ...

Salomons, Arthur F., Comparative Law and the Quest for Optimal Rules on the Transfer of Movables for Europe (June 8, 2012). Amsterdam Law School Research Paper No. 2012-72; Centre for the Study of European Contract Law Working Paper Series No. 2012-09; European property Law Journal 2012(3), (forthcoming).

The Good-Faith Purchaser: Markets, Culture, and the Legal System

Abstract:
A key legal institution is the set of rules balancing theft with markets as alternative means to transfer property rights. Even if all legal systems forbid theft, different societies provide different ex post solutions to the conflict arising between the original owner and the good-faith buyer of a stolen good. These rules range from the full protection of the original owner's property right to the full protection of the buyer's reliance on contract. In situations in which only intermediaries can transfer goods by using either theft or markets, society should condone transfers occurred through theft when innocent buyers value the good more than original owners and reverse them otherwise. We show that, in the first case, provided that the difference between the owner's and the buyer's valuation is not too wide, there are separating equilibria in which moral intermediaries --- i.e., those for whom theft entails a sufficiently high moral cost --- signal their proper title by charging higher prices. In the second case, the market shrinks since moral intermediaries refrain from stealing. In the most likely case, in which buyers tend to value the good more than original owners, the extent of protection of the owner increases (decreases) with the share of moral intermediaries (the quality of the legal system) because of the lower probability of theft (lower impact of public enforcement). Instrumental variables estimates based on a cross section of 77 jurisdictions are consistent with this prediction.

Dari-Mattiacci, Giuseppe, Guerriero, Carmine and Huang, Zhenxing, The Good-Faith Purchaser: Markets, Culture, and the Legal System (June 20, 2012). Amsterdam Law School Research Paper No. 2012-70; Amsterdam Center for Law & Economics Working Paper No. 2012-01.