The Coming Crisis in the Global Adjudication System - WAMR 2013 Vol. 7, No. 1
Charles N. Brower has been a Judge of the Iran-United States Claims Tribunal in The Hague since 1983 and has served as Judge Ad Hoc of the Inter-American Court of Human Rights. He has been Acting Legal Adviser of the United States Department of State, Deputy Special Counselor to the President of the United States, and a member of the United States Secretary of State’s Advisory Committee on Public International Law, of the Register of Experts of the United Nations Compensation Commission and the Panels of Arbitrators and Conciliators of the International Centre for Settlement of Investment Disputes. He is a past President of the American Society of International Law and Chair of the Advisory Board of the Institute for Transnational Arbitration. He is a former partner and Special Counsel at White & Case LLP in both New York City and Washington, DC, where he handled litigation in federal and state courts throughout the United States, including jury trials, bench trials and appeals, in a wide range of civil, administrative, and criminal proceedings, while specializing during the last 30 years in the handling of disputes involving States or State entities before international courts, tribunals and commissions. He is also a member of 20 Essex Street Chambers in London. In 2009 Judge Brower was awarded the American Society of International Law’s Manley O. Hudson Medal for “preeminent scholarship and achievement in international law . . . without regard to nationality;” in 2010 he received the Stefan A. Riesenfeld Award of the University of California Berkeley School of Law (Boalt Hall) in recognition of “outstanding achievements and contributions in the field of international law;” and, just recently, on April 23, 2013, he received the “Lifetime Achievement Award” of the Section of International Law of the American Bar Association. Judge Brower may be contacted at email@example.com.
Charles H. Brower II is Professor of Law at Wayne State University. Before joining Wayne Law, he was Croft Professor of International Law at the University of Mississippi School of Law. In addition to serving as Vice-Chair of the Institute for Transnational Arbitration, and Chair of the ITA’s Academic Council, Brower is an elected member of the American Law Institute and participates in the Member’s Consultative Group for the Restatement (Third) of the U.S. Law of International Commercial Arbitration. He also is an arbitrator who currently serves on the Commercial Panel of the American Arbitration Association (AAA), the Board of Directors for the Atlanta International Arbitration Society, and the AAA’s observer delegation to the United Nations Commission on International Trade Law Working Group II (Arbitration and Conciliation). In previous years, Brower has received appointments to serve as Visiting Fellow at Cambridge University’s Lauterpacht Research Centre for International Law, as a member of the ASIL’s Executive Council, and as Advocate for the Government of the Republic of Costa Rica in advisory proceedings before the International Court of Justice. Professor Brower may be contacted at firstname.lastname@example.org.
Jeremy K. Sharpe is Chief of Investment Arbitration in the Office of the Legal Adviser at the U.S. Department of State, representing the United States in investor-state and state-to-state disputes arising under bilateral investment treaties and investment chapters of free trade agreements, such as NAFTA and CAFTA. He also is an adjunct professor at Georgetown University Law Center, where he teaches courses on international dispute resolution. He has served as the Legal Adviser to U.S. Embassy Baghdad and as an Attorney-Adviser in the State Department’s Office of African and Near Eastern Affairs and Office of International Claims and Investment Disputes. He previously practiced arbitration with White & Case LLP and served as Legal Assistant to Judge Charles N. Brower at the Iran-United States Claims Tribunal. He received his J.D. from New York University School of Law and LL.M. from Harvard Law School. Jeremy may be contacted at email@example.com.
Originally from World Arbitration And Mediation Review (WAMR)
It is necessary, first, to define the “global adjudication system” in which incipient crisis is perceived. Only then does one address that crisis, and begin to consider whether the title of this article should be punctuated by an exclamation mark, a question mark, or an ellipsis. Following that, it falls to consider possible solutions, if any, to the crisis.
II. THE GLOBAL ADJUDICATION SYSTEM
The global adjudication system is the legal framework within which international investment and other commercial disputes are resolved by binding and final arbitration, as regulated, however, by national legislation and judiciaries; the two components of the system being linked through international agreements, principally the New York Convention.1 As is by now conventional wisdom, this system has greatly expanded in the past decade, thanks in part to the roughly 2,000 bilateral investment treaties now in force around the world,2 as well as some multilateral investment treaties, namely the North American Free Trade Agreement (NAFTA)3 and the European Energy Charter.4