ICA Theory

Question 1

Cutler refers to the problem of the:…

Answer 1

Subject. Law used to originate from the state; it now originates with the objects.

Question 2

How, says Cutler, has process of ICA emerged?

Answer 2

He asserts that the rules of international commerce, emanating from arbitration, have been ‘cemented’ by states by giving such arbitration decisions the force of law. This is complicity on the state’s behalf in the ‘mercatocracy.’

Question 3

There is a ‘legitimacy crisis’, says Cutler. Why?

Answer 3

Such areas as antitrust and IP are not subject to public law. Private disputes do not have to - and they often do not - consider interests of third parties, unlike public law disputes. This “imputed political authority and accountability to private market activity.”

Question 4

Why, says Cutler, should the relocation of authority to the private sphere be a problem?

Answer 4

It removes the scope and auspice of representative democracy. A consent-based system of law cannot permit corporations having legal personality, that is, to think/produce law.

Question 5

What latter stages of international commerce does Michaels identify?

Answer 5

The new lex mercatoria (the shrinking of the state, decline in welfare state, lack of rules), and the new new lex mercatoria (codification of arbitration eg UNCITRAL).

Question 6

How does Michaels agree with Teubner?

Answer 6

Teubner asserts that the ICA regime is self-generating, free-standing. Michaels argues that such law is not anational; that it is not autonomous from the state, but is beyond the state. It still requires reference to the state.

Question 7

Why does Michaels think the pigeonholing of ICA is unhelpful?

Answer 7

Because it originates in lex mercatoria, international law such as the New York Convention, and domestic law (eg courts enforce agreements provided there is corresponding legislation), the question is not what type of law it is, but rather what it is for.

Question 8

What is concern of Hanotiau?

Answer 8

That the new global lex mercatoria has experienced too much judicialization, and has lost the original benefits of lex mercatoria.

Question 9

How has the process of judicialization taken place?

Answer 9

Hanotiau says national laws and institutional rules have gone through convergence.

Question 10

What are the two implications of denationalisation?

Answer 10

1. That an award can be enforced in X even if not enforced in Y.
2. Still requires courts - and court in Y could not enforce award in X (not without courts in X).

Question 11

Why does Sornorajah oppose Hanotiau? What is the outcome, says Sornorajah?

Answer 11

Sornorajah says greater judicialization should take place through MAI. Consolidating over 3000 BITs into one MAI would produce “greater uniformity and transparency.”

Question 12

Why is it suggested that Sornorajah is confused?

Answer 12

Sornorajah says we currently have a formalised process per new new lex mercatoria, yet is too informal as far as what he wants to see emerge.

Question 13

What cases are cited as examples of denationalisation?

Answer 13

Yukos; Parsons & Whittemore v Raktai.

Question 14

What are the implications of convergence?

Answer 14

National laws and rules are uniformly recognising such allies concepts as kompetenz-kompetenz, separability.

Question 15

Cutler says there is a disjuncture between what? Who is harmed by this?

Answer 15

Between legal theory and legal practice. Those who suffer are ‘invisible subjects’ particularly indigenous people.

Question 16

What says Koskenniemi, is an unrealistic formulation of ICA? What is the alternative?

Answer 16

The functional regimes he says are not closed billiard balls (eg private; public). Instead, various elements are always implicated, such as human rights.

Question 17

What is the problem, as identified by Koskenniemi, with ICA?

Answer 17

That we have no political institutions governing this emerging legal sphere; it is instead directed by ‘self-appointed’ problem-solving technocrats, who - limited as they are to restricted private cases - do not see the larger constitutional questions.

Question 18

What is Koskenniemi’s proposed alternative?

Answer 18

The formation of a ‘global village’, a cosmopolitan project. Direct such initiatives (eg UNCITRAL how to make arbitration more efficient) to consider other questions such as how to respect human rights and relieve poverty.

Question 19

What criticism can be made against Koskenniemi?

Answer 19

That he confuses the formalist element with the normative element.

Question 20

How would Shalakany’s interpretation differ from Koskenniemi?

Answer 20

Shalakany says it is the ostensible technocratic assumptions of ICA that hide its politicised aim: to make decisions that prioritise private parties and exclude public concerns.

Question 21

What is the impact of the chilling effect?

Answer 21

It turns any new legislation into a cost-benefit analysis that must take into account the arrangements with companies, made perhaps decades earlier.

Question 22

How does Shalakany critique Sornorajah?

Answer 22

Sornorajah says arbitrators are predisposed to consider the interests of western countries, thus their political intent is somewhat more overt than the unconscious disciplinary bias which Shalakany says permeates and guides IIA.