Professor Susan Franck has opened two new areas of international investment law for one common goal: improving international dispute resolution systems.
Professor Franck is best known in academic and policy circles for her scholarship on the empirical evaluation of international investment law. This work has been cited in the U.S. Department of State’s Report of the Advisory Committee on International Economic Policy Regarding the Model Bilateral Investment Treaty and published in journals such as the Washington University Law Review and the Harvard International Law Journal. Her groundbreaking empirical research not only generates new empirical research opportunities in international law, but also supports Professor Franck’s primary objective – to create meaningful innovations in the dispute resolution process and consider how best to benefit from Alternative Dispute Resolution (ADR) by using empirical tools to diagnose the investment treaty dispute resolution system.
Professor Franck’s beneficial ADR-based insights lead her to publish an article in the Minnesota Law Review. The article explores how to use Dispute Systems Design to more effectively manage international investment conflict by minimizing the harm created by conflict at an early stage and by maximizing the benefits of ADR processes throughout the life cycle of disputes. The concepts articulated by the article led to a conference—International Investment and ADR—sponsored by the United Nations Conference on Trade and Development (UNCTAD), the Washington & Lee Francis Lewis Law Center, the Transnational Law Institute, the American Society of International Law, the American Arbitration Association and major international law firms including Foley Hoag LLP, Arnold & Porter LLP, Crowell & Moring LLP, Curtis, Mallet-Prevost, Colt & Mosle LLP, and Shearman & Sterling LLP.
That conference did several crucial things. For the first time in history, it brought together scholars on international investment and ADR scholars to explore the possible application of ADR-insights to international investment law. Next, with the help of Washington & Lee and an innovative use of technology, it created a pre-conference “Collaboration Blog” to bring together stakeholders from government, the private sector and the academy to discuss their concerns. The Blog generated nearly 150 podcasts, blog posts and comments and also lead to the creation of eight Weekly Digests synthesizing the blog content. Ultimately, the in-person conference in Lexington then physically brought together a “Mini United Nations” where Washington & Lee was able to host speakers and commentators from the governments Argentina, Costa Rica, the Dominican Republic, Ecuador, Japan, Rwanda, Thailand, the United States. The Secretary-General of the World Bank’s International Centre for the Settlement of Investment Disputes (ICSID), the President and CEO of the American Arbitration Association and the President of the American Society of International Law also offered their thoughts on the possibility of applying ADR to international investment law.
But the story does not end there. Professor Franck’s scholarly efforts have taken root. The success of the conference warranted a major publication by the United Nations in June 2011. Investor-State Disputes: Prevention and Alternatives to Arbitration II features a preface from the Secretary-General of UNCTAD, Rapporteur Reports from several Washington & Lee Students, keynote addresses from Professor Michael Reisman, Margrete Stevens and Lucy Reed, fifteen other expert reports about the role of using ADR to facilitate better international dispute resolution, and a legal research pathfinder to facilitate capacity building from the W&L Law Library. Meanwhile, the International Bar Association has created a sub-committee on Investor-State mediation, which will explore the possible use of ADR for international investment disputes. Early in September, the World Trade Institute in Bern’s World Trade Forum 2011 spent a morning focusing on opportunities to use ADR and Dispute Systems Design in international investment law. Meanwhile, in connection with a World Bank initiative related to Law, Justice and Development, in November, Professor Franck will participate in a panel entitled, “What Will This Fight Cost? Mediation vs. Arbitration vs. Litigation”. But most tellingly, ICSID, the World Bank entity tasked with facilitating international investment disputes, just issued a list of designated Conciliators for the first time in its history. Four of the ten names on that historically innovative list were participants and speakers in either the Collaboration Blog the in-person conference in Lexington, or both. We are pleased to see that Professor Franck’s ideas are launching opportunities for global change.