In The Case of the Monetary Gold Removed from Rome in 1943, the International Court of Justice concluded that it cannot decide a dispute in which a third party's legal interests “would form the very ...subject-matter of the decision.” This Article argues that what has become known as the Monetary Gold principle conflicts with the Court's obligation to decide cases submitted by consenting parties and should be abandoned.
On July 1, 2018, China’s Supreme People’s Court published the “Provisions on Several Issues regarding the Establishment of International Commercial Courts.” The Provisions followed on the heels of a ...January announcement from the Central Leading Group for Comprehensively Deepening Reforms alluding to plans to establish a dispute settlement mechanism dedicated to China’s Belt and Road Initiative. The Provisions confirmed that what the press had swiftly branded the “Belt and Road Court” (BRC) will comprise three international commercial courts. Regardless of analysts’ discipline or affiliation, the response to the initial proposal, and now to the framework laid out in the Provisions, has been predictably binary, reflecting a longstanding division in interpretations of China’s commercial dispute resolution policies. One branch, call it the sociological school, explains China’s policies with reference to the country’s history and culture. It contends that a direct line may be drawn from the Chinese people’s traditional aversion to litigation to their government’s preference for informal and private mechanisms for dispute resolution. With reference to the BRC, the causal narrative this school presents is one of continuity, contending that to understand the BRC, the basic explanatory trajectory must proceed from China outward to the international arena. An alternative branch, call it the political-economy school, argues that China’s policies toward international commercial dispute resolution respond to the same goals and imperatives as any other state. China’s policies are viewed as a self-interested response to factors such as commercial flows, security considerations, and development goals. Insofar as such matters are subject to constant flux, China’s dispute resolution policies are understood to be commensurately fluid. Here, the basic explanatory trajectory proceeds from the international arena inward into China. As with all binaries, there is a middle way—an approach that interprets China’s commercial dispute resolution policies generally, and the newly established BRC in particular, as a product of continuity as well as change, influenced as much by internal dynamics as external imperatives. This Article adopts this middle way in order to identify and assess the principal tensions that have confronted, and will continue to challenge, the designers of what will amount to an international commercial court with Chinese characteristics.
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Section 939A of the Dodd-Frank Wall Street Reform and Consumer Protection Act requires federal agencies to identify, remove, and replace all references to credit ratings in their regulations. It ...responds to longstanding concerns—heightened by the recent financial crisis—that investors place undue reliance on the opinions of a small number of eminently fallible (and perhaps fundamentally conflicted) credit rating agencies. At first blush, the approach adopted in § 939A appears commonsense: if one wishes to reduce reliance on credit ratings, amending regulations that compel investors to consult credit ratings seems like a straightforward place to start. This Note reconsiders: what appears straightforward in principle has proved to be anything but in practice. As a targeted critique of § 939A of Dodd-Frank, the Note contend that there is a fundamental mismatch between Congress's diagnosis and prescription. The diagnosis was, inter alia, investor overreliance on credit ratings. Section 939A's prescription, however, was the removal of "any" reference to credit ratings. Separating the two is Congress's failure to recognize that overreliance necessarily implies that some level of dependence on credit ratings remains appropriate. The up-shot of Congress's blunt mandate has been a haphazard (and ongoing) process of regulatory reform that, where not facially non-compliant with § 939A, rarely upholds anything more than its letter. As a broader criticism of federal securities regulation, the Note argues that this outcome should not be surprising. Section 939A is afflicted not just by its mismatch between diagnosis and prescription, but also by a flawed motivating ideal best understood as "mandatory self-reliance," or the belief that independence can be compelled.
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4.
The Constitution of Arbitration Mollengarden, Zachary
The American journal of comparative law,
02/2024, Volume:
71, Issue:
4
Journal Article
PDF
