By: David B. Wilkins, David M. Trubek & Bryon Fong

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Abstract

Beginning in the 1990s, India, Brazil, and China have each developed a distinct corporate legal “ecosystem,” comprised of new (or newly repurposed) domestic corporate law firms, foreign law firms competing (on the ground or virtually) to serve both foreign and domestic clients, general counsel offices of both domestic and multinational companies, and law schools either designed or retooled to supply lawyers qualified to practice corporate law. In this Article, we utilize data from an unprecedented set of empirical studies to document the rise of this new corporate ecosystem in these three important emerging economies, and to develop grounded theory about the forces that have produced this transformation and that help to explain differences among the ecosystems that have developed in each jurisdiction. Specifically, we argue that differences in what we call the “micro-level gearing” in the relative importance of the three key elements in the corporate legal ecosystems that have developed in India, Brazil, and China — law firms, clients, and legal education — can be explained, in part, by differences in what we will call the “macro-level gearing” in the relative power of the state, the market, and the bar — both between all three countries and the United States, and among the three jurisdictions. This difference has been most pronounced in China, where the dominance of the “state gear” in shaping the corporate legal market contrasts sharply with both the U.S. “market” driven model, and the influence of the “bar” in shaping the micro-level corporate ecosystems in India and Brazil. We conclude by offering some tentative thoughts about the implications of our findings for a rapidly globalizing corporate legal services market in which a growing number of states are beginning to exert greater control at the macro-level.

One of the defining features of international investment law is its enforceability; almost all bilateral investment treaties (“BITs”) in a network of more than 3,200 agreements allow enforcement through investor-state arbitration. Thus, if a host country violates a treaty and harms a protected investment, the investor can bring a direct enforcement action against the host country through international arbitration. More than 800 enforcement actions have been initiated by investors, and more than seventy billion dollars have been awarded by arbitrators. The enforcement of international investment law has also given rise to a critique that arbitrators are expanding treaty protections through judicial interpretations that unfairly benefit wealthy corporations at the expense of developing economies. Some countries are responding with en masse treaty terminations and a wholesale rejection of investor-state arbitration. An alternative is for states to negotiate new, balanced treaties with more precise language to limit the discretion of arbitrators.

This paper is the first to document precisely which countries update investment treaty provisions in response to prominent arbitration decisions. Using a new comprehensive database, created by one of the authors in partnership with the United Nations Conference on Trade and Development (“UNCTAD”), we document a lagged and modest response to these decisions. We also develop a simple framework to infer preference formation in treaty negotiations. Our framework and empirical evidence suggest that incomplete information and status quo bias contribute to the persistence of original treaty provisions in the investment treaty network. Based on these findings, we recommend a more aggressive policy response: a multilateral investment instrument that would enable countries to respond more efficiently to developments in investorstate arbitration. Current trends in unilateral treaty terminations indicate that such a response may be necessary to restore the legitimacy of international investment law and to prevent a further erosion of the investment treaty network.

This Article is the first of its kind to map out imminent challenges facing the World Trade Organization (WTO) against the emergence of artificial intelligence. It does so by examining critically AI’s normative implications for four issue areas—robot lawyers, automated driving systems, computer-generated works, and automated decision-making processes. By unpacking the diverse governance approaches taken in addressing these issues, this Article highlights the underlying economic, societal, cultural, and political interests in different jurisdictions and identifies the growing normative relevance of global legal pluralism. In light of the changing fabric of international law, this Article seeks to reconceptualize AI and global trade governance by offering three recommendations and two caveats. First, more institutional flexibility within the WTO is essential to allow for rigorous and dynamic cross-sectoral dialogue and cooperation. Less focus should be laid on the specificity and predictability of rules, but on their adaptability and optimal design. Second, while we acknowledge that the human rights-based approach to AI governance offers a promising baseline for many, it is crucial to point out that the global trading system should be more deferential to local values and cultural contexts in addressing AI-related issues. One must exercise greater caution and refrain from pushing strong harmonization initiatives. The third recommendation highlights incrementalism, minilateralism, and experimentalism. We propose that the global trading system should accommodate and encourage emerging governance initiatives of AI and trade governance. Two crucial caveats, however, should be noted. For one, we must bear in mind the “pacing problem” faced by law and the society in keeping up with rapid technological development. For another, the changing power dynamic and interest groups landscape in the age of AI cannot be neglected. In contrast to the conventional power dynamics in international law, states with stronger technology and more quality data will likely dominate, and one may envisage a new North-South divide reshaping the international economic order.

Critics often contend that human rights litigation is not particularly useful in advancing human rights. Yet such critiques tend to miss the mark both because they demand too much of litigation—which is, of course, but one tool available to the human rights movement—and because they fail to understand the multiple goals, beyond court verdicts, of human rights plaintiffs and litigators.

This article excavates those diverse goals, many of which have previously gone unexamined. It draws on insight gained from nearly a decade spent litigating a complex Alien Tort Statute suit that sought to hold corporations accountable for their role supporting and facilitating human rights violations in apartheid South Africa. This article also evaluates both successes and failures in the Apartheid case to explore the extent to which common critiques ring true.

It would be foolhardy to claim that lawsuits alone can fundamentally improve respect for and protection of human rights. Still, this article concludes that litigation can be a powerful option for individuals or communities that have survived human rights abuse, particularly when deployed in tandem with other strategies, and that it played an important role for many stakeholders involved in the apartheid suit. In so doing, this article opens up fresh scholarly terrain and shares unique perspectives that may inform the work of other affected communities and human rights practitioners.

Women around the world suffer from discriminatory treatment ranging from violent persecution to social differentiation. Likewise, religious people are routinely targeted because of their faith. Moreover, many women of faith have historically been and are still today subject to increased risk of harm or actually experience a greater level of targeted harm (as compared to non-religious women or religious men) because of the interplay between their religious and gender identities. Despite this, a number of the most prominent international legal institutions that deal directly with discrimination against women inadequately use intersectional language to refer to religious women. In fact, there is a notable gap in scholarship and legal documents specifically addressing the disparate impact of discrimination toward religious women and a tendency to treat religion more as a source of oppression than as a distinct identity. Although many international organizations and agreements address issues of gender and religious discrimination separately, human rights bodies need to do more to address the intersection of gendered religious discrimination. This Note is directed both at audiences who may be skeptical of or hostile toward intersectionality as a legal or policy framework, and at audiences who may support intersectionality but who are skeptical of or hostile toward religion. It addresses the importance of religious and gender identities and the ways those two identities are often inextricably linked. This Note highlights a variety of historical and contemporary examples of persecution of religious women through an intersectional perspective, evaluates the failings of various international human rights institutions to address gendered religious persecution, and proposes a variety of recommendations for such groups to more consistently employ intersectionality to advance the human rights of women of faith.