Harvard ILJ

In a timely article, Jason Yackee proposes a pair of important, attractive, and politically plausible reforms to the international investment law (IIL) system. Because his proposals offer real promise as a way to bolster the regime’s credibility and efficacy, this response will engage both the particulars proposed and the theory that informs them. I hope [...]

Jason Webb Yackee’s thoughtful article, Controlling the International Investment Law Agency, is an important contribution to a growing literature on the question of the legitimacy of the international investment law (IIL) system, and, in particular, investor-state arbitration, which is largely the focus of his article.  Rather than taking a for-or-against position on the IIL system in [...]

The increasing practical importance of IIL has been accompanied by a (still) growing number of academic contributions. This brief comment will first outline the main arguments of Yackee’s article and then critique some of the arguments it makes, specifically around whether there is indeed a functional IIL agency and Yackee’s comparative analysis with domestic administrative agencies, before offering some concluding remarks.

But Professor Sloss and I disagree about the source of this problematic approach. I have traced this approach to Chief Justice Marshall’s opinion in Foster v. Neilson. Professor Sloss traces it to courts and scholars (including me) who, in his view, have misread Foster.

In my view, the argument that the ICC should focus “exclusively on sentencing” when determining whether “ordinary” crime prosecution is admissible is neither desirable nor manageable in all cases. I will focus on three aspects: The assumptions underlying the central claim, the desirability of a new methodology, and its manageability.

While Professor Heller may be successful in showing that a sentence-based approach is superior to a charge-based approach, I will argue that a sentence-based approach also raises some serious difficulties that have not been addressed. I will therefore suggest a third option, a process-based approach.

Landau’s article advances our understanding of the remedial issues he discusses. But, I believe that there are some empirical and conceptual matters that require additional exploration.

In my comments I would like to emphasize some points that may not be fully accounted for in this supply-and-demand scenario.

First, while the hunt for arable land for food may explain many of the large transnational land deals, they appear to be part of a deeper structural change – the emergence of a transnational real estate market. What explains this change?

Recognizing that Hollis’ project here is not to propose a complete solution [to the threat posed by cyber attacks] but merely a framework upon which to build, I will focus my comments on four points in Hollis’ paper: proximity, frequency, technology protection, and the continuing problem of attribution. While these four points are fundamental to Hollis’ proposal, I believe that they also present some difficulties.

Blum’s normative analysis of the desirability of CDRs in IHL is exceptionally powerful, and I agree with most of her conclusions. This brief response, therefore, is intended to be more constructive than critical. In particular, I want to raise five issues that I believe warrant further exploration…

Sources of instability in the emerging global regime for foreign investment lie in its origin in dispersed negotiations for bilateral treaties and in the absence of a central organizational authority. Given the lack of convincing evidence that the regime encourages more investment or lowers its cost, one might ask whether the system is worth trying to preserve.

A widespread “turn to history” has marked international legal scholarship in recent years. In the rich and extensive study to which the present note responds, Arnulf Becker Lorca offers a new contribution to the growing literature on nineteenth-century international law by approaching this period from the semi-periphery.