The Conceptual Framework For Remedies

created for the Harvard Negotiation Project by Bruce M. Patton, based on an idea from the American Arbitration Association. Copies of the original

In the U.S. many people turn to courts’ to help them settle disputes, gain monetary compensation, or seek justice for a crime. Many people only know the basics about courts within the U.S. In the recent case of Shelly Sterling v. Donald Sterling, who was seeking the aid of the court in order to sell the L.A. Clippers to Ballmer. Let’s use this as a primary example through this paper to better understand, who makes up the court? Furthermore, it will be explained what types of cases are received and the process and jurisdiction of appeals within a state.

The first case I have chosen involves a breach of contract between Anthony Leness and Eventmonitor inc. Anthony claims Eventmonitor breached his employment contract when they stopped paying him his salary for one year upon termination. Eventmonitor monitor claims that Anthony breached the contract when he didn’t return items embodying propitiatory information upon his termination (site case). The second case I have chosen involves United States of America alleging Lewis F. Carter owes back taxes. Lewis claims that the government lacks an enforcement clause to collect taxes. In this paper I will discuss how each of these cases move their way through the appropriate court system as well as the differences in the process.

Kolkey, D. M., Chernick, R., & Neal, B. R. (2012). Practitioners handbook on international arbitration and mediation (3rd ed.). Huntington: JurisNet.

Third, it can be mentioned from the same article that the Federal Arbitration Act (“FAA”) is a federal statute which authorizes courts to recognize and enforce arbitral awards. Some courts and commentators have concluded that FAA is broad enough to reach all foreign arbitral awards.” They said that nothing can prevent from enforcing the arbitral awards made in the Non-Contracting States.

These big corporations have big plans when they enter a country they are looking to benefit from. They want avoid and worry as less as possible about the local or regional government that protects their people and environment. The WTO allows these companies to enter a foreign country, execute their mission, and leave even if they are contaminating the resources that they are diminishing. If trade were fair many countries would be able to grow their economy with the natural resources their countries have. However, trade policies, which are controlled by WTO, are created crookedly. Ultimately, WTO controls the way trade is conducted through agreements and rules that they have created to protect their own interests. These imposed trade regulations are created with a major bias for rich nations and corporations. Developing poor countries with natural resources are exploited and given an unfair chance to protect their land and people. Under the WTO, subsidies are prohibited, human rights are ignored, environmental protection laws are eliminated, and overall global, regional, and local scales are all affected through these

TTIP is an initiative of the United States and the European Union to boost the trade-flow between the countries. On the surface this seems a reasonable idea that should not face much opposition, but this is far from reality. When in 2013 negotiations started about TTIP, little was known about the implications of such a new trade agreement (EU in the US). Major newspapers, tv-shows, and politicians have raised concerning questions about the way TTIP is giving multinational corporations (MNC’s) the right to influence decision making in a sovereign country. One topic that stands out when discussing TTIP is the ‘evil’ Investor-State Dispute Settlement.

Introduction: Many nations are opting for treaties that will facilitate trade for their investing partners. Consequently, it is not unusual to see agreements enacted to protect foreign investors through an independent international law system and arbitration to free these investors from local judicial pressure. But the recent Transatlantic Trade and Investment Partnership (TTIP) to facilitate trade between the EU and the U.S. along with its ISDS inclusion is the kind of trade everyone is questioning and has raised concerns. Despite that, negotiations are still undergoing to include ISDS provisions in TTIP. Is this, the type of agreement that will lead to a prosperous trade agreement? Establishing a parallel alternative method of dispute resolution system or ISDS, allowing private investors that are much representative of large corporations to bypass our local laws through private tribunals is a threat to our society, our public system, our democracy, therefore a threat to the establishment of our public policies. It is time to stop this manipulative agreement. In the next paragraphs, I will give my views as to why ISDS negotiations should be suspended by all means and why it is an impediment to the foundation of our constitutional rights as well as the mandated judicial system in place to promote the well-being of our society.

Article 21.2 permits investors to opt for international arbitration after pursuing remedies in domestic courts, but not to engage in local remedies during or subsequent to investment arbitration. If the investor submits a claim to international arbitration, it must waive its rights to continue or initiate a claim based on the same measure in domestic courts. This means domestic courts have the opportunity to provide redress for wrongs before they are raised at the international level. Investors may continue or initiate claims at the domestic level following submission of a claim at international level in cases where the investor seeks “injunctive, declaratory or other extraordinary relief.”

This chapter reviews the historical development of different methods of international tax dispute resolution, looking at the workings of the mutual agreement procedure, its strengths and weaknesses, and at the reasons for the infiltration or for the lack of it of arbitration as a more conclusive and effective method of dispute resolution.

After World War II, there were two drawbacks referring to the legal framework of international trade and investment. Firstly, although the GATT did exist as a response of the failure of the International Trade Organization (‘ITO’), it did not have a formal organizational structure to conduct its function. Besides, the GATT only covered goods and yet services, although the latter was becoming more vital for countries’ economies. In international investment, there was no applicable law protecting the interest of foreign investment, for example, how to regulate monetary transfer from host countries, and how to calculate compensation upon nationalisation. Albeit customary international law did exist, it did not accommodate the needs of multinational enterprises. Moreover, it was nearly impossible to change customary international law.

place institutions that support market liberalization and increased transparency. As argued by Drabek and Baccheta (2004), WTO membership eventually enhances good governance by upholding the rule law, contract enforcement and makes countries to have a strong judicial system. Other elements such as culture and group norms have fundamentally transformed how international organizations or governments shape their motivations and thus, the governing process is controlled by multiple entities with varying interest (Denhardt and Denhardt, 2015). If any country wants to be a part of the international community, they will have no choice but to conform to WTO’s stipulations and adapt to the ever evolving global system. Policy making and economic conditions in WTO member states have changed drastically over the last two decades because the two elements are heavily influenced by forces of globalization.

Most of the foreign investments are protected by investment treaties and if there is any breach, the investor can seek for compensation under international arbitration. The question is whether to which extent does the arbitration provides them solution and which ways or methods they can seek alternative to arbitration. The answers for all these will be discussed in this research analysis step by step considering all the issues and the pros and cons as well, which it will give a meaningful conclusion at the end. International arbitration serves as the important method where foreign investors can bring claims against host state arising from an investment disputes under the current international investment law. Investor State Dispute

International investment law was developed as a response to the inadequacies of the customary international law in protecting foreign property by providing responsibility to host state.[footnoteRef:2] Most of capital exporting countries was developed states which required better market access commitments from capital exporting countries, and also better standards of investment protection.[footnoteRef:3] The failure to conclude multilateral investment agreement forced developed states to find an alternative for investment protection. Consequently, bilateral investment treaties become the most common legal tools to provide both protection and promotion of investment.[footnoteRef:4] In addition, according to (?..) a massive breakthrough in the development of international investment regime occurred after the end of World War II during the Bretton Woods negotiations, the idea came from Keynes to create an international trade organization.[footnoteRef:5] [2: Historical development of investment treaties p.71] [3: Historical development of investment treaties p.71] [4: Historical development of investment treaties p.71] [5: Is it time to change traditional BITs]

Regarding civil cases, if the claimant/plaintiff is successful in presenting his case the outcome will be in the form of a civil remedy, which are designed to benefit the claimant. However, the State will have no direct interest in the remedy (Molan, 2007).