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BEGIN:VEVENT
DTSTAMP:20161031T131355Z
DTSTART:20161117T170000Z
DTEND:20161117T190000Z
SUMMARY:Baseball Arbitration to Resolve International Law Disputes: Nudgi
 ng States to ‘Step Up To the Plate’.
UID:{http://www.columbasystems.com/customers/uom/gpp/eventid/}eg6-iuy36xb
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DESCRIPTION:MILC is proud to welcome Professor Joost Pauwelyn (Graduate I
 nstitute\, Geneva & Georgetown Law)\, who will deliver a lecture on the 
 following topic:\nStates and international tribunals are in a love-hate 
 relationship.  States need third-party adjudication to settle at least s
 ome of their disputes\, and monitor increasingly vague commitments.  At 
 the same time\, when international tribunals make decisions they often u
 pset (mostly losing) states or are blamed for over-reach (“making law”)\
 , with little opportunity for states to engage in “legislative correctio
 n” (as this normally requires consensus). The existence of compulsory di
 spute settlement\, with a black or white outcome on what statescannot do
 \, may also have a chilling effect on states positively settling their d
 ifferences (if you can “go to court”\, why settle?) or updating or negot
 iating new rules (if rules are enforceable\, you think twice before comm
 itting). \n \nFixes to this tension traditionally involve proposals to e
 ither (i) exit from international tribunals altogether or increase state
  control over tribunals (with the risk of undermining tribunal independe
 nce)\, or (ii) make international tribunals more like domestic courts wi
 th public law type guarantees in respect of appointment\, transparency a
 nd consistency (with the risk of making tribunals even more powerful).\n
  \nThis paper assesses a concrete proposal that goes in a different dire
 ction which preserves a crucial role for neutral\, third-party adjudicat
 ion but puts more responsibility on states to work out positive solution
 s themselves (nudging them to “step up to the plate”): baseball or final
  offer arbitration (FOA) where disputing parties each offer an answer to
  the dispute (their “final offer”) and the adjudicator’s task is strictl
 y limited to picking one or the other answer. \n \nWhen carefully calibr
 ated\, FOA can\, at least for some types of disputes (especially numeric
 al ones)\, enhance both efficiency (speed\, reduced cost and complexity)
  and accuracy (reasonable party offers v. tribunals “splitting the diffe
 rence” between extreme demands). In addition\, FOA facilitates\, rather 
 than chills\, settlement and long-term cooperation\, and puts states rat
 her than tribunals in the driving seat.\n \nFOA is not new.  Long before
  it was introduced to settle salary disputes between players and their t
 eams in Major League Baseball (MLB) in the 1970s\, FOA was practiced in 
 ancient Greece\, including during the trial of Socrates. Although FOA wo
 uld seem to be particularly suited to settling international disputes (w
 here sovereignty costs and suspicion toward tribunals run high)\, surpri
 singly\, FOA is virtually unknown to international lawyers. Equally unno
 ticed\, however\, outside the confines of the tax community\, is that si
 nce 2006 US double taxation treaties set out baseball arbitration to set
 tle certain international tax disputes. Shortly after that\, both the UN
  and OECD Model Tax Conventions have included the option of baseball arb
 itration. The recently concluded OECD Multilateral Convention to Impleme
 nt Tax Treaty-Related Measures to Prevent Base Erosion and Profit Shifti
 ng (2016 OECD Multilateral Tax Convention) confirms baseball arbitration
  as the default arbitration option.\n \nIronically\, it also exactly whe
 re FOA is now being confirmed in treaty practice that FOA shows its limi
 ts.  FOA works best in bilateral disputes over a number (e.g. salary fig
 ure or intra-company transfer price).  FOA struggles in multilateral dis
 putes over threshold questions (e.g. is there liability\, discrimination
  or a permanent establishment in the first place).  FOA also raises fund
 amental questions of equal treatment and practical questions of enforcem
 ent.\n \nThis contribution proceeds as follows. Section 2 elaborates on 
 the current tensions between states and international tribunals and desc
 ribes today’s paradox of international adjudication.  Section 3 introduc
 es the concept of baseball arbitration and describes it especially in th
 e context of the recently concluded OECD Multilateral Tax Convention.  S
 ection 4 discusses the reasons why baseball arbitration may be particula
 rly appropriate to resolve at least some international law disputes.  Se
 ction 5 warns about important caveats\, including reservations that may 
 make baseball arbitration inappropriate to solve modern tax treaty dispu
 tes.  Section 6 illustrates where and how baseball arbitration could be 
 successfully used to resolve disputes where FOA is currently not in use\
 , especially certain trade (WTO) and investor-state questions.  FOA coul
 d also be considered to settle migration\, fishery or water sharing or q
 uota disputes\, sovereign debt restructuring\, IP benefit sharing or eve
 n land or maritime boundary cases. Section 7 concludes.
STATUS:TENTATIVE
TRANSP:TRANSPARENT
CLASS:PUBLIC
LOCATION:4.204\, University Place\, Manchester
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