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Alternatives to Investor-State Dispute Settlement
Get PDFProponents often explain support for international investment agreements (IIAs) for their ability to: (1) promote investment flows; (2) depoliticize disputes between investors and states; (3) promote the rule of law; and (4) provide compensation for certain harms to investors – objectives of varying degrees of importance to multinational enterprises, home states, host states, and other stakeholders.
While each of these objectives may seem desirable, it is important to consider what exactly they mean and whether IIAs are optimally tailored to achieve them.
This two-part series aims to consider just that. In the first blog installment, we asked of investor-state dispute settlement: What Are We Trying to Achieve? Does ISDS Get Us There?
To follow up, in this Working Paper we’ve considered a number of alternative tools that, when used alone or in combination, might better serve the above objectives as well as the goals of sustainable development more generally
Please Tweet Responsibly: The Social and Professional Ethics of Public Defenders Using Client Information in Social Media Advocacy
No full textEvery day the criminal legal system hauls poor and marginalized individuals through a process wrought with trauma, indignity, and abuse. Public defenders representing the criminally accused view their clients and the system from a unique vantage point: they bear witness to the human costs of a system that falls far short of its purported norms and ideals. For the public defender who works within this reality day in and day out, fighting for each individual client might feel limited in its wider impact. Some public defenders have found that using online and social media platforms, such as Twitter, to provide insights and commentary on the human toll of the criminal legal system is one way to contribute to a deepened public awareness of the criminal legal system’s shortcomings. Indeed, while statistics about mass criminalization and mass incarceration provide powerful data points, narratives about the very real ways that clients experience being arrested, charged, processed and adjudicated can influence public debate and create momentum for both an individual case and more comprehensive systemic reform.
These online and social media narratives about clients can be powerful because they help to convey to unfamiliar audiences how the law is actually being experienced by those who have been marginalized because of their economic status, ability, race, sexual orientation, gender identity, or immigration status.1 While this can be a compelling and effective approach, public defenders need to consider what their ethical obligations are and also what a strong sense of social and professional responsibility requires. The deep racial disparities in the criminal legal system and the particularly unique vulnerabilities of the indigent criminal client necessitate that public defenders refrain from using client narratives in ways that may inadvertently oversimplify and exploit a client’s life experience. This article offers public defenders practical guidance on how to ethically and responsibly draw from their specialized knowledge and the experiences of their clients in order to expose systemic injustice
Columbia Law Scholars Respond to New HHS Rule, Protecting Statutory Conscience Rights in Health Care
Get PDFDuring his National Day of Prayer remarks, President Trump announced a finalized rule that creates expansive legal protections for healthcare providers with specific religious beliefs, including opposition to abortion, sterilization, end-of-life care, and healthcare for LGBTQ persons. The final rule does not offer similarly broad protections to healthcare providers who feel religiously obligated to provide comprehensive sexual and reproductive healthcare to their patients
Red Mining: Mining and the Right to Water in Porgera, Papua New Guinea
Get PDFAn interdisciplinary study of the human right to water in the villages near the Porgera Joint Venture (PJV) gold mine in Papua New Guinea (PNG) finds that local residents do not have consistent access to sufficient, acceptable, and safe water, or adequate information about their water resources. It concludes that the PNG government and the mining companies Barrick Gold and Zijin Mining, as well as their jointly controlled operator of the mine, Barrick (Niugini) Limited (BNL), can do more to meet their human rights obligations and responsibilities
Standing Rock Plaintiffs File First Amended Complaint
Get PDFNew York, February 1, 2019—Today, Cissy Thunderhawk, Wašté Win Young, the Reverend John Floberg, and José Zhagñay filed their First Amended Complaint in response to state and local defendants’ motions to dismiss. The amended complaint clarifies the civil rights violations caused when defendants closed, to the Tribe and its supporters, the primary road connecting the Standing Rock Reservation to both Bismarck and to numerous public sites of great expressive and religious significance. The plaintiffs are represented by Columbia Law School Lecturer in Law Noah Smith-Drelich and Professor Bernard E. Harcourt through the Columbia Center for Contemporary Critical Thought
Divergence and Convergence at the Intersection of Property and Contract
Get PDFIn this Article, we study rules that solve the conflict between the original owner and an innocent buyer of a stolen or embezzled good. These rules balance the protection of the original owner’s property and the buyer’s reliance on contractual exchange, thereby addressing a fundamental legal and economic trade-off. Our analysis is based on a unique, hand-collected dataset on the rules in force in 126 countries. Using this data, we document and explain two conflicting trends. There is a large amount of first-order divergence: both rules that apply to stolen goods and those that apply to embezzled goods vary widely across countries. Yet, there is also remarkable second-order convergence: virtually all legal systems protect the innocent buyer more strongly if the good was embezzled (rather than stolen) and if she purchased it in an open market, at an auction, or from a professional seller (as opposed to a private sale). We show that, while divergence is attributable to varying cultural values, convergence can be rationalized using a classic functional approach: these rules harmonize the owner’s incentives to protect property and the buyer’s incentives to inquire about title
European Union Law and International Arbitration at a Crossroads
Get PDFIt is no exaggeration to describe the relationship between the European Union and international arbitration as the most dramatic confrontation between two international legal regimes seen in a great many years. International law scholars commonly lament the fragmentation of international law, i.e., the co-existence of multiple international legal regimes whose competences overlap and whose policies may differ, resulting in a degree of regulatory disorder. However, seldom do these regimes actually collide. By contrast, the two international regimes in which we are interested this evening international arbitration and the European Union may be described, without hyperbole, as on a collision course. Arguably, the collision has already occurred.
The emergence of hostilities on this scale in recent years came about as something of a surprise to me. At Columbia and elsewhere, I have taught EU law and international arbitration law concurrently in different courses, of course for more decades than I care to count. Over that period, I have written and spoken about the EU and international arbitration as separate and distinct enterprises. Rarely did teaching, writing or speaking of one necessitate, or even prompt, discussion of the other
From a Culture of Unwellness to Sustainable Advocacy: Organizational Responses to Mental Health Risks in the Human Rights Field
Get PDFThis Article presents findings from a qualitative study of how individual human rights advocates perceive well-being and mental health issues within the human rights field, and how human rights organizations in all regions of the world are responding to well-being concerns. The findings are based on an analysis of 110 interviews, which include advocates at 70 human rights organizations from 35 countries and more than three dozen experts; surveys of organizational policies and practices; desk research concerning well-being and mental health; and the experiences of the coauthors working as human rights practitioners with non-governmental organizations (“NGOs”) around the world
The Legitimacy of Economic Sanctions as Countermeasures for Wrongful Acts
Get PDFThis essay offers an installment of what would have been a continuing conversation with David D. Caron, a close colleague in the field of international law, on themes that engaged both of us across multiple phases of our intersecting careers. The issues are fundamental ones for both the theory and the practice of international law, involving such core concerns as how international law can be enforced in an international system that is not yet adequately equipped with institutions to determine the existence and consequences of violations or to impose sanctions against violators; and how to ensure that self-help enforcement measures in a largely decentralized and still incomplete system are consistent with the principles and values underlying the international legal order. David Caron was uniquely positioned to speak and write on these issues, not only with a mature scholar’s authority, but also with the authoritativeness conferred by the judicial appointments he held in recent years and the cases on which he would have deliberated and rendered judgments, but for his untimely death. Without his eloquent voice to provide wisdom and reach decisions in the context of concrete Disputes, I venture still-evolving thoughts on what may well seem unanswerable questions
Dark Trading at the Midpoint: Does SEC Enforcement Policy Encourage Direct Feed Arbitrage?
Get PDFPrevailing research in market microstructure posits that liquidity providers bypass queue lines on exchanges by offering liquidity in dark venues with de minimis sub-penny price improvement, thus exploiting an exception to the penny quote rule. We show that (a) the SEC enforces the quote rule to prevent sub-penny queuejumping in dark pools unless trades are “pegged” to the NBBO midpoint and (b) the documented increase in dark trading due to investor queue-jumping stems from increased midpoint trading. Although encouraging pegged midpoint orders can subject traders to direct feed arbitrage, we estimate that less than 2% of shares traded per year present exploitable trading opportunities for this form of latency arbitrage, yielding annual gross potential profits of less than $20 million