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International Investment and ADR: Preventing and Managing Investment Treaty Conflict

International Investment and ADR: Preventing and Managing Investment Treaty Conflict. Andrea K. Schneider Professor of Law Marquette University Law School andrea.schneider@marquette.edu. International Systems. Investment Arbitration. Negotiation Regime. Supranational Court.

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International Investment and ADR: Preventing and Managing Investment Treaty Conflict

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  1. International Investment and ADR: Preventing and Managing Investment Treaty Conflict Andrea K. Schneider Professor of Law Marquette University Law School andrea.schneider@marquette.edu

  2. International Systems

  3. Investment Arbitration Negotiation Regime Supranational Court International Adjudication Continuum of Constitutionalization Weakest Strongest International Systems --Schneider, 1999

  4. Dispute Resolution Process Spectrum Complete Outcome Control No Outcome Control Adjudicative (Binding) ADR Processes Mediative (Non-Binding) ADR Processes Direct Negotiation Trial Facilitative Mediation Bracketed Arbitration Maximum Process Control Minimum Process Control Evaluative Mediation Final Offer Arbitration Early Neutral Evaluation (ENE) Arbitration Private Judging Mini-Trial Med-Arb Bordone, 2008

  5. Procedural Justice • Explains why international system moved toward courts • Explains why domestic alternative dispute resolution took hold

  6. Dispute System Design Contexts Organizational International institutions Nation-States Companies Universities Government Agencies NGOs Non-profits “Transactional” Mass Torts Class Actions Complex disputes Natural disasters Terrorism Repatriation Others? Bordone, 2008

  7. Process Design Principles • Participation • Suitability • Process Accountability • Results Accountability • Fluidity • Sustainability • Permeability

  8. Process Design—Participation • Key stakeholders around the table • Stakeholders help design and troubleshoot • Funding and support • Technical & legal training

  9. Process Design—Suitability • Is mediation the correct process? • Use of legal defenses • Political/domestic constraints • Cultural understanding

  10. Process Design— Process Accountability • Need education & representation • Need group of skilled mediators • Transparency of process • Follow-up to see how operates

  11. Process Design—Results Accountability • Outcomes—transparency issues • Repeat players—countries & municipalities • Repeat sectors

  12. Process Design—Fluidity • Timing—settlement opportunities throughout • Adjust process and administration as needed

  13. Process Design—Sustainability • Embedded into treaty? • New kinds of training and assumptions needed • New delegation of settlement responsibilities needed

  14. Process Design—Permeability • Part of dispute prevention and management system (Ombuds offices?) • Facilitate information exchange • Facilitate administrative review

  15. Where Do We Go From Here? • Need—and want—shadow of investment arbitration • Better structure time between problem arising and arbitration result • Can offer process choices between binding arbitration & negotiation • DSD is up to the challenge

  16. International Investment and ADR: Preventing and Managing Investment Treaty Conflict Andrea K. Schneider Professor of Law Marquette University Law School andrea.schneider@marquette.edu

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