Utilization of ADR Concepts to Bridge the Gap Between the Extractive Industry and Environmental Interests: An Anticipatory Cooperative Effort (ACE)

The extractive industry, more than any other sector of the economy, often finds itself mired in conflicts with various environmental and community interests. As traditional legal avenues of resolution gave way to the collaborative ideas of alternative dispute resolution, the outcomes, especially the relational outcomes, were less than desirable. This capstone project proposes that an Anticipatory Cooperative Effort (ACE) can help to bridge the gap between industry and environmental interests by encouraging a pro-active and pre-emptive engagement. The point of the ACE concept is not that it defines a new set of principles so much as it repositions where established ADR principles are entertained.

Tackling barriers to trade in the Single Market. ACES Cases No. 2014.2

This paper focuses on the challenges operating in the single market due to continued persistence of regulatory barriers to trade, despite being considered one of the most integrated and successful areas of market integration. We use a unique data set on infringements to the free movement of goods to assess the types of barriers that firms encounter, their impact and variation across states and sectors, and their resolution method - through Court decisions or the pre-litigation, administrative means available within the infringement proceedings mechanism to restore compliance. We also resort to the Solvit dataset provided to the authors by the Commission to analyse some features and the effectiveness of this informal mechanism in dealing with discriminatory domestic trade and regulatory practices. We examine four key questions: What are the most problematic policy areas in terms of barriers to trade that undermine the single market? What different dispute resolution mechanisms are utilized to address trade barriers and thus improve the functioning of the single market? Under what conditions are different enforcement mechanisms and strategies more likely to be used to resolve barriers for businesses operating in the single market? How important and effective are the more informal strategies in improving market access? In doing so, our goal is to link the research on trade barriers to that of implementation and compliance to assess the diverse strategies undertaken to reduce regulatory barriers to trade.

Antitrust, regulatory capture and economic integration. Bruegel Policy Contribution ISSUE 2015/11, JULY 2015

There is growing worldwide concern about bias in the enforcement of competition law in favour of domestic firms. Even seemingly neutral antitrust laws can lead discrimination if they are enforced selectively. - Authors investigate the distortions that national competition authorities generate when they pursue non-competition goals in favour of domestic firms, and discuss ways to address this negative policy development in a globalised world. - The distortions identified in the paper would dissipate if governments agreed that the sole objective of competition law ought to be the protection of consumer welfare that competition-law institutions ought to be protected against capture. - A realistic and effective way to prompt international convergence towards independent enforcement of competition laws is through the inclusion of competition clauses in bilateral trade agreements and the development of dispute-resolution mechanisms.

The Extensive (but Fragile) Authority of the WTO Appellate Body

The authority of an international court (IC) is not necessarily evolutionary and its development unidirectional. This article addresses the authority of the Appellate Body (AB) of the World Trade Organization (WTO) and shows how it rapidly and almost immediately became extensive, but has since exhibited signs of becoming more fragile. The article applies a typology of IC authority developed by Alter, Helfer and Madsen (2014) and explains the transformation from narrow authority (a dispute resolution venue under the GATT based on political negotiations) to extensive authority (a judicialized WTO dispute settlement system with a sophisticated case law) and presents empirical indicators of the rise of the AB’s authority. Such rapid development of extensive authority is arguably a unique case in international politics at the multilateral level. That authority nonetheless remains fragile, and shows signs that it could decline significantly for reasons we explain.

Community justice : striving for safe, secure, and just communities /

"March 1996."

Mediation & conference programs in the federal courts of appeals : a sourcebook for judges and lawyers / Robert J. Niemic.

Shipping list no.: 97-0241-P.

The new court.

Goldsmiths'-Kress no. 24743.

Testimony delivered to the Commission on the Future of Worker-Management Relations, U.S. Department of Labor, Washington, D.C. /

"April 6, 1994."

Learning from Incredible Commitments: Evolution and Impact of Bilateral Investment Treaties

Ostensibly, BITs are the ideal international treaty. First, until just recently, they almost uniformly came with explicit dispute resolution mechanisms through which countries could face real costs for violation (Montt 2009). Second, the signing, ratification, and violation of them are easily accessible public knowledge. Thus countries presumably would face reputational costs for violating these agreements. Yet, these compliance devices have not dissuaded states from violating these agreements. Even more interestingly, in recent years, both developed and developing countries have moved towards modifying the investor-friendly provisions of these agreements. These deviations from the expectations of the credible commitment argument raise important questions about the field's assumptions regarding the ability of international treaties with commitment devices to effectively constrain state behavior.

ADR and Justice in consumer disputes in the EU

This policy brief reports on the main conclusions from an international conference held at Wolfson College, Oxford on 18–20 April 2016, at which representatives from seven governments, ombudsmen, and academic experts assessed efforts to implement new dispute resolution mechanisms across EU Member States. The briefing also assesses the levels of trust the public holds in ombudsmen, and what drives this trust. It finds a number of mechanisms under development, and makes a range of recommendations for future approaches.

designing + (dis)assembling disputes: an ethnography of disputes & lawyers in the construction industry

The UK construction industry is notorious for the sheer amount of disputes which are likely to arise on each building and engineering project. Despite numerous creative attempts at “dispute avoidance” and “dispute resolution”, this industry is still plagued with these costly disputes. Whilst both academic literature and professional practices have investigated the causes of disputes and the mechanisms for avoidance/resolution of these disputes, neither has studied in any detail the nature of the construction disputes and why they develop as they do once a construction lawyer is engaged. Accordingly, this research explores the question of what influences the outcome of a construction dispute and to what extent do construction lawyers control or direct this outcome? The research approach was ethnographic. Fieldwork took place at a leading construction law firm in London over 18 months. The primary focus was participant observation in all of the firm’s activities. In addition, a database was compiled from the firm’s files and archives, thus providing information for quantitative analysis. The basis of the theoretical framework, and indeed the research method, was the Actor‐Network Theory (ANT). As such, this research viewed a dispute as a set of associations – an entity which takes form and acquires its attributes as a result of its relations with other entities. This viewpoint is aligned with relational contract theories, which in turn provides a unified platform for exploring the disputes. The research investigated the entities and events which appeared to influence the dispute’s identity, shape and outcome. With regard to a dispute’s trajectory, the research took as its starting point that a dispute follows the transformation of “naming, blaming, claiming…”, as identified by Felstiner, Abel and Sarat in 1980. The research found that construction disputes generally materialise and develop prior to any one of the parties approaching a lawyer. Once the lawyer is engaged, we see the reverse of the trajectory “naming, blaming, claiming…” this being: “claiming, blaming, naming…” The lawyers’ role is to identify or name (or rename) the dispute in the best possible light for their client in order to achieve the desired outcome – the development of which is akin to the design process. The transformation of a dispute and the reverse trajectory is by no means linear, but rather, iterative and spatial as it requires alliances, dependencies and contingencies to assemble and take the shape it does. The research concludes that construction disputes are rarely ever completely “resolved” as such. Whilst an independent third party may hand down a judgment, or the parties may reach a settlement agreement, this state is only temporal. Some construction disputes dissipate whist others reach a state of hibernation for a period of time only to pick up momentum and energy some years later. Accordingly, this research suggests that the concept of “dispute resolution” does not exist in the UK construction industry. The ultimate goal should be for parties to reach this ultimate and perpetual state of equilibrium as quickly and as cost effectively as possible: “dispute dissolution”, the slowing down of the dispute’s momentum. Rather than focusing on the design and assemblage of the dispute, the lawyers’ role therein is, or should be, to assist with the “disassembling” of the dispute.

Capital 2.0 capital formation and legal risk in a new global economic order from fiat to exit: including case studies of the proposed transatlantic trade and investment partnership between the United States and the European Union and the financing relation between the United States and the People’s Republic of China

Following the intrinsically linked balance sheets in his Capital Formation Life Cycle, Lukas M. Stahl explains with his Triple A Model of Accounting, Allocation and Accountability the stages of the Capital Formation process from FIAT to EXIT. Based on the theoretical foundations of legal risk laid by the International Bar Association with the help of Roger McCormick and legal scholars such as Joanna Benjamin, Matthew Whalley and Tobias Mahler, and founded on the basis of Wesley Hohfeld’s category theory of jural relations, Stahl develops his mutually exclusive Four Determinants of Legal Risk of Law, Lack of Right, Liability and Limitation. Those Four Determinants of Legal Risk allow us to apply, assess, and precisely describe the respective legal risk at all stages of the Capital Formation Life Cycle as demonstrated in case studies of nine industry verticals of the proposed and currently negotiated Transatlantic Trade and Investment Partnership between the United States of America and the European Union, TTIP, as well as in the case of the often cited financing relation between the United States and the People’s Republic of China. Having established the Four Determinants of Legal Risk and its application to the Capital Formation Life Cycle, Stahl then explores the theoretical foundations of capital formation, their historical basis in classical and neo-classical economics and its forefathers such as The Austrians around Eugen von Boehm-Bawerk, Ludwig von Mises and Friedrich von Hayek and most notably and controversial, Karl Marx, and their impact on today’s exponential expansion of capital formation. Starting off with the first pillar of his Triple A Model, Accounting, Stahl then moves on to explain the Three Factors of Capital Formation, Man, Machines and Money and shows how “value-added” is created with respect to the non-monetary capital factors of human resources and industrial production. Followed by a detailed analysis discussing the roles of the Three Actors of Monetary Capital Formation, Central Banks, Commercial Banks and Citizens Stahl readily dismisses a number of myths regarding the creation of money providing in-depth insight into the workings of monetary policy makers, their institutions and ultimate beneficiaries, the corporate and consumer citizens. In his second pillar, Allocation, Stahl continues his analysis of the balance sheets of the Capital Formation Life Cycle by discussing the role of The Five Key Accounts of Monetary Capital Formation, the Sovereign, Financial, Corporate, Private and International account of Monetary Capital Formation and the associated legal risks in the allocation of capital pursuant to his Four Determinants of Legal Risk. In his third pillar, Accountability, Stahl discusses the ever recurring Crisis-Reaction-Acceleration-Sequence-History, in short: CRASH, since the beginning of the millennium starting with the dot-com crash at the turn of the millennium, followed seven years later by the financial crisis of 2008 and the dislocations in the global economy we are facing another seven years later today in 2015 with several sordid debt restructurings under way and hundred thousands of refugees on the way caused by war and increasing inequality. Together with the regulatory reactions they have caused in the form of so-called landmark legislation such as the Sarbanes-Oxley Act of 2002, the Dodd-Frank Act of 2010, the JOBS Act of 2012 or the introduction of the Basel Accords, Basel II in 2004 and III in 2010, the European Financial Stability Facility of 2010, the European Stability Mechanism of 2012 and the European Banking Union of 2013, Stahl analyses the acceleration in size and scope of crises that appears to find often seemingly helpless bureaucratic responses, the inherent legal risks and the complete lack of accountability on part of those responsible. Stahl argues that the order of the day requires to address the root cause of the problems in the form of two fundamental design defects of our Global Economic Order, namely our monetary and judicial order. Inspired by a 1933 plan of nine University of Chicago economists abolishing the fractional reserve system, he proposes the introduction of Sovereign Money as a prerequisite to void misallocations by way of judicial order in the course of domestic and transnational insolvency proceedings including the restructuring of sovereign debt throughout the entire monetary system back to its origin without causing domino effects of banking collapses and failed financial institutions. In recognizing Austrian-American economist Schumpeter’s Concept of Creative Destruction, as a process of industrial mutation that incessantly revolutionizes the economic structure from within, incessantly destroying the old one, incessantly creating a new one, Stahl responds to Schumpeter’s economic chemotherapy with his Concept of Equitable Default mimicking an immunotherapy that strengthens the corpus economicus own immune system by providing for the judicial authority to terminate precisely those misallocations that have proven malignant causing default perusing the century old common law concept of equity that allows for the equitable reformation, rescission or restitution of contract by way of judicial order. Following a review of the proposed mechanisms of transnational dispute resolution and current court systems with transnational jurisdiction, Stahl advocates as a first step in order to complete the Capital Formation Life Cycle from FIAT, the creation of money by way of credit, to EXIT, the termination of money by way of judicial order, the institution of a Transatlantic Trade and Investment Court constituted by a panel of judges from the U.S. Court of International Trade and the European Court of Justice by following the model of the EFTA Court of the European Free Trade Association. Since the first time his proposal has been made public in June of 2014 after being discussed in academic circles since 2011, his or similar proposals have found numerous public supporters. Most notably, the former Vice President of the European Parliament, David Martin, has tabled an amendment in June 2015 in the course of the negotiations on TTIP calling for an independent judicial body and the Member of the European Commission, Cecilia Malmström, has presented her proposal of an International Investment Court on September 16, 2015. Stahl concludes, that for the first time in the history of our generation it appears that there is a real opportunity for reform of our Global Economic Order by curing the two fundamental design defects of our monetary order and judicial order with the abolition of the fractional reserve system and the introduction of Sovereign Money and the institution of a democratically elected Transatlantic Trade and Investment Court that commensurate with its jurisdiction extending to cases concerning the Transatlantic Trade and Investment Partnership may complete the Capital Formation Life Cycle resolving cases of default with the transnational judicial authority for terminal resolution of misallocations in a New Global Economic Order without the ensuing dangers of systemic collapse from FIAT to EXIT.

Freedom versus security in regulating ADR and international arbitration