Georgia Law Dean Bo Rutledge, 2L student Emina Sadic Herzberger publish on circuit split regarding discovery before arbitral tribunals

A federal judicial disagreement on the extent to which a discovery statute applies to private arbitration is the subject of a new commentary by the dean and a student researcher here at the University of Georgia School of Law.

Coauthoring the Daily Report article, entitled “Circuit Split Deepened by Second Circuit’s ‘Functional’ Test Application in Recent Section 1782 Ruling,” were international business law expert Peter B. “Bo” Rutledge, Dean and Herman E. Talmadge Chair of Law at Georgia  Law, along with 2L Emina Sadic Herzberger.

The article concerns whether 28 U.S.C. § 1782 – which authorizes discovery for use in proceedings before a “foreign or international tribunal” – extends to proceedings before private arbitral tribunals. The U.S. Courts of Appeals for the 4th and 6th Circuits generally say yes; for the 2d and 5th Circuits, no. The doctrine is uncertain, the authors point out, in the Atlanta-based 11th Circuit.

Their full commentary is here.

Georgia Law, ASIL to cosponsor conference on legal responsibility of corporations and nation-states

  • When private companies perform governmental functions and governments own companies, which acts should be attributed to the state?
  • Which should be attributed to the corporation?
  • And whose religious beliefs, speech rights, and moral standing can those entities claim?

These questions and more will be explored in The Law and Logics of Attribution: Constructing the Identity and Responsibility of States and Firms, a 2-day online conference that our Dean Rusk International Law Center, University of Georgia School of Law, will cohost next month.

Melissa “MJ” Durkee, Allen Post Professor at Georgia Law, is leading the event, which will bring together a multinational group of scholars in law and social sciences. It’s cosponsored by the American Society of International Law and ASIL’s Interest Group on International Legal Theory. Durkee serves as Vice Chair of that interest group; Chair is her Georgia Law colleague Harlan G. Cohen, Gabriel M. Wilner/UGA Foundation Professor in International Law and Faculty Co-Director of our Center. Registration is available here.

Scheduled to speak at the conference, which will take place 1-5 p.m. Friday, September 11, and Friday, September 18:

Olabisi Akinkugbe, Assistant Professor, Schulich School of Law, Dalhousie University, Canada

William C. Banks, Board of Advisors Distinguished Professor, Syracuse University College of Law, New York

Joshua Barkan, Associate Professor, Department of Geography, University of Georgia

Kristen Boon, Miriam T. Rooney Professor of Law, Seton Hall School of Law, New Jersey

Rachel Brewster, Jeffrey and Bettysue Hughes Professor of Law, Duke Law School, North Carolina

David Ciepley, Fellow, Center for Advanced Study in the Behavioral Sciences, Stanford University, California

Laura Dickinson, Oswald Symister Colclough Research Professor of Law, George Washington School of Law, District of Columbia

Melissa “MJ” Durkee, Allen Post Professor, University of Georgia School of Law

Benjamin Edwards, Associate Professor of Law, William S. Boyd School of Law, University of Nevada, Las Vegas

James Gathii, Wing-Tat Lee Chair in International law, Loyola University Chicago School of Law, Illinois

Sarah Haan, Associate Professor of Law, Washington and Lee School of Law, Virginia

Catherine Hardee, Associate Professor of Law, California Western School of Law

Doreen Lustig, Associate Professor, Tel Aviv University, Buchmann Faculty of Law, Israel

Kish Parella, Associate Professor of Law, Washington and Lee University School of Law, Virginia

Dalia Palombo, Senior Research Fellow, Institute for Business Ethics, University of St. Gallen, Switzerland

Mikko Rajavuori, Academy of Finland Post-Doctoral Fellow, University of Eastern Finland Law School

Ingrid Wuerth, Helen Strong Curry Chair in International Law, Vanderbilt School of Law, Tennessee

 

They’ll be examining aspects of the conference’s concept note:

“In international law, scholars and practitioners struggle to attribute rights and responsibilities between state and private entities in areas as diverse as military contracting, environmental accountability, human rights, international investment, and cyber espionage and warfare. In the corporate governance realm, attributing responsibility to entities is increasingly challenging in the context of globally dispersed corporate families with intricate parent-subsidiary structures; identity attribution has also produced headlining debates.

“While attribution questions fuel important conversations in both corporate and international law, the two literatures are not often in conversation. Questions of attribution in both domains nevertheless are becoming more complex and urgent, and the fields increasingly intersect: In some areas of law, attribution doctrines must determine the dividing line between states and firms. Doctrines of attribution construct the public domain, and thereby also the private. Attribution questions in both domains reinvigorate classic inquiries about the nature of a corporation, the relationship between private entities and the state, and the proper function of the law in mediating between the two.

“This conference will draw together corporate and international legal scholars, as well as thinkers outside the law, in order to cross-pollinate these two fields and the questions at their intersection, and to unearth promising theoretical tools. It will consider theoretical and doctrinal approaches to attribution, potential consequences of these approaches, and whether they may reconcile the ambiguities and deficiencies that drive current debates. The project aims to offer a new point of entry to enduring theoretical and doctrinal questions about the nature of corporations, of states, and of the relationship between them. It is particularly relevant at a time where corporations are ‘jurisdictionally ambiguous and spatially diffuse,’ states are deferential, dependent or outflanked, and multilateralism is at an ebb.”

Full details, including registration for this online event, are available here.

Georgia Law Prof. Cohen presents “Nations and Markets” at International Economic Law and Policy seminar

Harlan Cohen, who is Gabriel M. Wilner/UGA Foundation Professor in International Law and Faculty Co-Director of the Dean Rusk International Law Center here at the University of Georgia School of Law, recently presented his paper, “Nations and Markets,” in the International Economic Law and Policy work-in-progress seminar.

IELAP is a London-based series (currently online) convened by: Dr. Federico Ortino, Reader of International Economic Law, King’s College London; Dr. Lauge Poulsen, Associate Professor in International Political Economy and Director of Graduate Studies in Political Science, University College London; and Dr. Mona Pinchis-Paulsen , Assistant Professor at the Department of Law, London School of Economics.

Georgia Law Professor Harlan Cohen on “Metaphors of International Law”

Harlan G. Cohen, Gabriel M. Wilner/UGA Foundation Professor in International Law and Faculty Co-Director of the Dean Rusk International Law Center at the University of Georgia School of Law, has posted “Metaphors of International Law”, to appear in International Law’s Invisible Frames – Social Cognition and Knowledge Production in International Legal Processes.

Set to be published by Oxford University Press in 2021, the volume is co-edited by Andrea Bianchi, Professor of International Law at Switzerland’s Graduate Institute Geneva, and Moshe Hirsch, Maria Von Hofmannsthal Chair in International Law at the Hebrew University of Jerusalem.

Cohen presented the essay at a European Society of International Law workshop in Israel last December (prior post).

Here’s the abstract:

This chapter explores international law in search of its hidden and not-so-hidden metaphors. In so doing, it discovers a world inhabited by states, where rules are mined or picked when ripe, where trade keeps boats forever afloat on rising tides. But is also unveils a world in which voices are silenced, inequality is ignored, and hands are washed of responsibility.

International law is built on metaphors. Metaphors provide a language to describe and convey the law’s operation, help international lawyers identify legal subjects and categorize situations in doctrinal categories, and provide normative justifications for the law. Exploring their operation at each of these levels, this chapter describes the ways metaphors allow international lawyers to build a shared, tangible universe of legal meaning. But it also reveals how metaphors simultaneously help hide international law’s dark side, blind international lawyers to alternative ways of organizing the world, and prejudge legal outcomes. Metaphors, a key building block of the international law we know, become key also to its demolition, restoration, or remodeling.

The chapter is now available at SSRN.

Georgia Law Professor Christopher Bruner presents to International Monetary Fund on corporations and sustainability

Professor Christopher Bruner, the Stembler Family Distinguished Professor in Business Law here at the University of Georgia School of Law, recently presented “The Corporation as Technology: Re-Calibrating Corporate Governance for a Sustainable Future” to the International Monetary Fund, a 75-year-old organization of 189 countries that, operating within the United Nations system, works to “foster global monetary cooperation, secure financial stability, facilitate international trade, promote high employment and sustainable economic growth, and reduce poverty around the world.”

Bruner’s online presentation was organized by the IMF Legal Department and moderated by Rhoda Weeks-Brown, Director of the Legal Department and the IMF’s General Counsel.  Attendees included staff lawyers and economists from across the IMF.

His talk was based on the book that he is currently writing, which is due to be published by Oxford University Press next year.

Georgia Law Professor Amann presents on sovereignties, Nuremberg woman in online Global History seminar

In this post Professor Diane Marie Amann, the Emily & Ernest Woodruff Chair in International Law and Faculty Co-Director of our Dean Rusk International Law Center here at the University of Georgia School of Law, discusses her most recent presentation, at an innovative online seminar.

What an honor to present my work in progress, “Intersectional Sovereignties: Dr. Aline Chalufour, Woman at Nuremberg – and at Paris, Ottawa, and Dalat” last week in “Global History and International Law”, a months-long seminar under way online.

Organizer of this superb scholarly offering is Dr. Anne-Sophie Schoepfel of the Institut d’études politiques de Paris, better known as SciencesPo. Her affiliation struck me as serendipitous, given that the subject of my paper was a graduate of SciencesPo. Born in 1899, Chalufour was also the 6th woman ever to earn a Ph.D. in international law from the University of Paris. In 1945-1946, she was the only woman lawyer on the French team that joined U.S., British, and Soviet allies in prosecuting vanquished Nazi leaders at Nuremberg.

Chalufour is one of the women on whom I’m focusing in my book-length study of women’s roles at that first Nuremberg trial, before the International Military Tribunal. But the richness of her experiences inspired this separate article.

Among the other highlights in Chalufour’s 90-year life: practice before the Paris Bar; activism in national and international feminist groups; teaching at colonial schools in what’s now Vietnam; serving de Gaulle’s Fighting French as a propagandist in Canada; gathering evidence about war crimes from liberated ex-detainees; taking part as the only French prosecutor in Britain’s first trial on Ravensbrück, a Nazi concentration camp for women; and, starting a few years after Nuremberg, service as a national judge.

My paper considers these episodes in light of of 3 theorizations: 1st, the shared sovereignty of the post-World War periods; 2d, sovereignty dynamics in colonial and imperial sites; and 3d, sovereignties of the person, imagined and corporeal. The paper then examines interrelations among these 3.

Serving as my discussant at last Wednesday’s session was Dr. George Giannakopoulos of King’s College London and NYU London. Numerous other participants offered valuable comments.

This was the 5th session in the seminar, which is slated to run through June 24 and has attracted law and history scholars from Asia and Latin America as well as Europe and North America. Next up, at 3 pm EDT this Wednesday, May 20, are 2 papers within the umbrella theme “Imperial Origins of the World Order”; details here.

What’s more, in due course Dr. Schoepfel and her SciencesPo colleagues are posting edited podcasts of each session. Already available at the seminar’s website and its YouTube channel:

  • “Epistemic Communities in Exile: Coining ‘Crimes against Humanity’ at London, 1940-45” by Dr. Kerstin von Lingen of the University of Vienna, Austria and author of a new journal article on this subject, as well as ‘Crimes against Humanity’. Eine Ideengeschichte der Zivilisierung von Kriegsgewalt 1864-1945 (Paderborn 2018), a monograph soon to be available in English. Discussants were Dr. Barak Kushner of the University of Cambridge, England, and Dr. Sabina Ferhadbegović of Imre Kertész Kolleg Jena, Germany.
  • “Genocide in Historical Perspective. The Language of Trangression” by Dr. Dirk Moses, of the University of Sydney, Australia, and author of The Problems of Genocide. Permanent Security and the Language of Transgression (forthcoming Cambridge University Press). Discussant was Dr. Charles Maier of Harvard University.
  • “The Nuremberg Moment. International Trial, American Lawyers and the Racial Question” by Dr. Guillaume Mouralis of Centre Marc Bloch in Berlin, and author of Le Moment Nuremberg. Le procès international, les lawyers et la question raciale (Presses de Sciences Po 2019). Discussant was Dr. Elizabeth Borgwardt of Washington University in St. Louis.

The full list of seminar participants is here; full schedule and registration information, here.

(cross-posted from Diane Marie Amann blog)

Georgia Law Professor Amann in symposium on next Prosecutor of International Criminal Court

In this post Professor Diane Marie Amann, the Emily & Ernest Woodruff Chair in International Law and Faculty Co-Director of our Dean Rusk International Law Center at the University of Georgia School of Law, discusses her recent international law commentary.

Caution in giving too much credit, or blame, to one individual formed the focus of my contribution to last week’s symposium on “The Next ICC Prosecutor.”

Entitled “Placing the Prosecutor within the International Criminal Justice Project,” my post appeared Friday at Opinio Juris, cosponsor along with Justice in Conflict of the online symposium.

My post began by welcoming the rich dialogue – in anticipation of December’s election of the 3d Prosecutor of the International Criminal Court – that had unfolded all week. Fueling that discussion were contributions from a couple dozen commentators on international criminal law: Ewan Brown, Danya Chaikel, David Crane, Geoff Dancy, Tom Dannenbaum, Christian De Vos, Elizabeth Evenson, Kate Gibson, James Goldston, Douglas Guilfoyle, Kevin Jon Heller, Mark Kersten, Patryk Labuda, Stephen Lamony, Luis Moreno Ocampo, Jonathan O’Donohue, Mariana Pena, Priya Pillai, William Schabas, Melinda Taylor, Valerie Oosterveld, Beth Van Schaack, and Kate Vigneswaran, Alex Whiting, and William H. Wiley.

My post then pointed to risks involved in “placing too much weight on the person and position of Prosecutor.” These included:

  • the risk of generating expectations, “inevitably doomed to disappoint”; and
  • the risk that “the very association of a complex project with a lone person or position” obscures the myriad ways that many other actors “play roles, in helping to construct perceptions of the project and in contributing, or not, to the project.”

My contribution is available in full here. For additional posts in the symposium, see list here.

(Cross-posted from Diane Marie Amann blog)

Invitation to virtual AtlAS Lecture this Thursday, cosponsored by our Center and featuring international arbitration expert Horacio Grigera Naón

The University of Georgia School of Law Dean Rusk International Law Center is honored to host the 5th annual Atlanta International Arbitration Society Lecture at 6 p.m. this Thursday, April 23. The event will be held remotely this year due to the ongoing COVID-19 situation.

Delivering the lecture will be Dr. Horacio Grigera Naón, whose expertise in international arbitration spans more than 30 years, and who is now serving as a Distinguished Practitioner in Residence and the Director of the International Commercial Arbitration Center of the Washington College of Law, American University, Washington, D.C.

Grigera Naón’s previous positions include Secretary General of the International Court of Arbitration of the International Chamber of Commerce and Senior Counsel for the International Finance Corporation. He holds LL.M. and S.J.D degrees from Harvard Law School, LL.B and LL.D. degrees from the School of Law of the University of Buenos Aires, and is a member of the Bars of the Argentine Federal, New York, District of Columbia and United States Supreme Court Bars.

This lecture series began in 2016 in honor of Glenn Hendrix, the founding president of the Atlanta International Arbitration Society, a non-profit organization that seeks to grow the international arbitration community in the southeastern United States. AtlAS sponsors the annual event in conjunction with academic institutions in the region – including Georgia Law, a founding AtlAS member.

This year’s event will begin with introductory remarks from AtlAS President Philip W. “Whit” Engle and Georgia Law Dean Peter B. “Bo” Rutledge.

Joining AtlAS and Georgia Law’s Dean Rusk International Law Center in presenting this year’s event is King & Spalding LLP, a founding law firm of AtlAS.

Registration for the free event is required and available here.

Georgia Law Professor Kent Barnett on comparative study in “Chevron Abroad,” Notre Dame Law Review article co-authored with Georgia Law 3L student Lindsey Vinson

Pleased today to welcome a contribution from Kent Barnett (near right), J. Alton Hosch Associate Professor of Law here at the University of Georgia School of Law. He reprises his recent Yale Journal on Regulation blog post; it summarizes the forthcoming article, Chevron Abroad, which he co-authored with Georgia Law 3L Lindsey Vinson (above right). An expert on administrative law and related areas—at times using comparative approaches—Professor Barnett’s previous Exchange of Notes contribution is here.

The Kids Will Be Alright—How comparative study can inform U.S. judicial review of agency statutory interpretation

Chevron deference—the U.S. doctrine that calls for courts to defer to reasonable agency statutory interpretations—is under siege. A majority of current U.S. Supreme Court Justices have, at one time or another, expressed concern over its domain, operation, or very existence. Two state courts in the U.S. have overruled their state-law equivalents. Some welcome Chevron’s demise as an antidote to an ever-encroaching administrative state that chafes at statutory limits to authority. Others view Chevron’s internment as nothing but a judicial power grab in the face of ideological hostility to an effective administrative state. For my part, my past research co-authored with Dr. Christy Boyd and Professor Chris Walker suggests that—whatever its downsides—Chevron deference has the benefit of muting ideological judicial behavior. This muting can further national uniformity in lower court decisions concerning agency statutory interpretation.

But is the angst surrounding Chevron worth it? Do we really need to worry that administrative agencies will eventually consume all our liberty if Chevron continues or that the American bureaucracy will become an ineffective wasteland if Chevron ends? Moreover, even those not taken to hyperbolic worry have argued, to varying degrees, that Chevron deference is inevitable—whatever its drawbacks.

To evaluate whether Chevron or something like it exists or is absent in other stable democracies, my co-author, Lindsey Vinson, and I considered judicial review of agency statutory interpretation in five other countries in Chevron Abroad, our forthcoming article in the Notre Dame Law Review. Although we would have liked to see how countries with a presidential system like that of the United States behave, that system is rare, especially among mature legal systems. Instead, we looked at 5 parliamentary systems. These included countries with separation of powers guaranteed in written constitutions, with civil-law legal systems, and with federal systems. Among the countries studied were Germany, Italy, the United Kingdom, Canada, and Australia.

Based on our study, we cannot say that Chevron or something like it is inevitable. Only one of the countries that we studied had a doctrine similar, if not more expansive than, Chevron. One has rejected deference altogether, and one has rejected Chevron specifically in dicta. The others, at best, had some small space for deferring to agency interpretations. This variation among these major legal systems also suggests that the existence or absence of something like Chevron does not mean the end of either democracy or an effective bureaucracy. After all, citizens in both Canada—with a strong form of deference—and Germany—without one—have strong confidence in their governments. Of course, we cannot say that any of these systems are operating optimally, but we can say that Chevron existence or absence alone does not appear as significant as the U.S. administrative law cognoscenti often suggests.

In brief, here’s the variation that we found in our study:

Germany. Influenced by its conscious concern over the relationship between judicial abdication and its Nazi past, Germany has its own 2-step deference doctrine that has a much more limited domain than Chevron. Deference in Germany is significantly limited to certain technical, scientific, or economic matters that the legislature has delegated to the agency.

Italy. Italy has had tumultuous doctrinal shifts in the past few decades. As it stands, it has rejected judicial deference altogether when reviewing agency statutory interpretations. But it sends contradictory signals occasionally.

United Kingdom. For decades, the UK has rejected judicial deference to agency statutory interpretation, after having a doctrine similar to Chevron. Although it defers in some instances for “special” matters decided by entities that U.S. law would characterize as agencies, its limited deference arises under its law on charities.

Canada. Canadian judicial review comes the closest to Chevron, with a highly functional, contextual inquiry into whether deference is appropriate for statutory provisions that can support more than one reasonable interpretation. Canada has applied deference even to questions that implicated constitutional or common-law matters.

Australia. Finally, Australia’s High Court expressly rejected Chevron in dicta. Nonetheless, Australia continues to have a very limited, rarely applied doctrine somewhat similar to Chevron when statutes expressly give agencies exclusive jurisdiction and limit judicial review.

Our study also provides insight on how U.S. courts—whether or not they prefer Chevron—could go about improving Chevron in a way that is more consistent with its theoretical grounding.

For instance, Chevron, like other countries’ deference doctrines, is grounded primarily on notions of legislative delegation and expertise. Chevron relies primarily upon ambiguity in a statute that the agency administers to signal legislative delegation. But the presence of statutory ambiguity somewhere in a statute is not the most direct way of assessing either actual delegation or agency expertise on the matter at issue. Germany focus on expertise. German courts permit deference only in limited circumstances—for certain scientific, economic, or technical matters—as a way of ensuring that deference adheres only to matters in which the agency has likely epistemological advantage over courts. Australia has its limited Hickman deference doctrine that requires that the legislature signal its intent with two statutory clauses that it wants agencies (or inferior courts) to have interpretive primacy over the matter at issue. By doing so, Hickman requires a more direct, although not express, signal of legislative delegation than Chevron. These approaches in other countries suggest how Chevron could better ground itself on its theoretical foundations.

We hope that our article will lead more American scholars to consider how other countries approach administrative law matters. Doing so not only provides examples of possible improvements to the American administrative state, but it also helps lower the temperature of academics and judges who worry over the current or future state of Chevron deference.

Georgia Law Professor Diane Marie Amann on her article, in International Review of the Red Cross, on ICC OTP Policy on Children, accountability for conflict-related crimes against children

In this post Professor Diane Marie Amann, the Emily & Ernest Woodruff Chair in International Law and Faculty Co-Director of our Dean Rusk International Law Center here at the University of Georgia School of Law, discusses her most recent article related to the effects on children of armed conflict and similar extreme violence.

Very pleased to announce the publication of my new article, “The Policy on Children of the ICC Office of the Prosecutor: Toward greater accountability for crimes against and affecting children.”

As indicated in the just-before-publication version that I’ve posted at SSRN, the International Review of the Red Cross placed this article online last month, on February 21. Currently, that published version is available to Cambridge Core subscribers at a First View page; once it appears in print, in a special issue on “Children and War,” it will be freely accessible at the Review‘s website.

Here’s the abstract:

The Policy on Children published by the International Criminal Court Office of the Prosecutor in 2016 represents a significant step toward accountability for harms to children in armed conflict and similar extreme violence. This article describes the process that led to the Policy and outlines the Policy’s contents. It then surveys relevant ICC practice and related developments, concluding that despite some salutary efforts, much remains to be done to recognize, prevent and punish the spectrum of conflicted-related crimes against or affecting children.

This article represents my latest effort to assist in raising awareness and developing strategies respecting children and conflict (prior posts). It’s an effort in which I’ve been deeply involved since my 2012 appointment as the International Criminal Court Prosecutor’s Special Adviser on Children in and affected by Armed Conflict.

Central to this effort was the multiyear process of researching and drafting, along with an Office of the Prosecutor working group and in consultation with others, of the document published in 5 languages and launched in November 2016 as the Policy on Children. Other aspects have included:

Happy to provide further details. And as always, comments welcome.

(Cross-posted from Diane Marie Amann blog)