That subjective and political values form the sources and function of international law, is an often encountered claim and the literature produced by schools of international legal theory in response to this inquiry diverge. On the one hand, according to classical and positivist approaches to international law, a formalistic and ideal form of the law that is also detached from the world of politics is possible. On the other hand, the perception that attitudinal and institutional constraints might determine the content of the law is common in international legal scholarship ranging from international relations approaches and the New Stream to policy oriented perspectives. Understanding the content of the law, however, would also necessitate questioning how adjudicators interpret legal texts and decide in causal-positive terms. In other words, in theorizing international law, one should explore the interpretation and application of international law in order to test whether adjudicators are influenced by background, training, personality, value preferences as well as normative and structural institutional constraints and, thus, if international law operates based on law and/or politics. Based on the theories and methods of judicial behaviour that originate from the American legal realism movement of the early 20th century, this work undertakes a non-empirical socio-legal research that studies the behaviour of ITA tribunals. It considers that law is indeterminate and that the process of judicial-decision making is a mixture of law, politics and policy. This work constructs a framework based on the political regimes approach by Clayton and May (1999), supplemented by the political jurisprudence literature of Shapiro (1964) and the historical interpretive approach of Smith (1988). It argues that ITA Tribunals “may believe that individual legal institutions are themselves embedded within, and draw meaning from, the larger political regime”. In doing so, the ITA Tribunal may assume a principal political role in order to accommodate the interests of various stakeholders involved in the broader political regime of international investment, albeit limited to constitutive and non-constitutive institutions. This work investigates the role of institutions embedded in the broader political regime in judicial decision-making in ITA. How do institutions, with their political characteristics, affect the process of decision-making in ITA or do they affect at all? To that extent, this work is concerned with whether the ITA Tribunal oscillates between the normative character of the law and the political contingency of the law. It examines the extent to which the ITA Tribunal accommodates politics in its decisions and, in this vein, whether there is a correlation between politics and decision-making in ITA. As its case study, this work studies arbitral decision-making under NAFTA Chapter 11. It first explores the broader political regime in which NAFTA tribunals operate, revisiting the original bargain that underlies the NAFTA deal. It then identifies specific constitutive institutions that are influential in NAFTA ITA decision-making. It traces the specific vocabulary or ‘grammar’ (Koskenniemi 1989) that is used by Chapter 11 Tribunals in considering the place of these constitutive institutions in ITA decision-making. Subsequently, this work studies the normative political development of Article 1105 on the minimum standard of treatment within the broader political regime under NAFTA. It investigates shifts in the specific vocabulary vis-à-vis the distortions to the two pillars of the political regime of NAFTA, namely asymmetric obligations and the regulation of environment. This work demonstrates that the development of the minimum standard of treatment under Article 1105 reflects a brief history of intrusion by non-disputing parties from sovereign states and amici. This is enabled through the constitutive institutions and draws meaning from the political regime of international investment under NAFTA. It concludes that the ITA Tribunal is able to develop a vocabulary with which it could internalize the conundrums of the broader political regime in which it operates. This shows that the ITA Tribunal is not only competent in settling disputes but also in judicial politics.

Deciding disputes in international commercial transactions - advantages and disadvantages of arbitration compared to proceedings before Czech courts International trade is an area that forms a significant part of social life in today's globalised world. This thesis deals with the solution of the disputes that arise in the international trade with the accent on the commercial arbitration and its comparison with the court proceedings in the Czech Republic. The decision-making of international trade disputes is not easy due to different legislations and various ways of solvings. The aim of the thesis is a insight into the issues of international trade, international and Czech commercial arbitration and its comparison with the court proceedings in the Czech Republic. This thesis also presents other alternative dispute resolutions, their specifics and possibilities of use. To achieve the stated goal, description, analysis and comparison are used as research methods. The description is mainly applied in the first chapters of the single parts of the thesis, in order to define the institutes under examination and all the aspects of dispute resolution in international commercial transactions. Description is followed by their analysis in terms of usability, practicality, characteristics and specifics. In the...

Les parties qui font le choix de l'arbitrage encourent des risques absents de la justice de l'Etat. La comparaison entre ces deux modes de résolution des différends est de nature à mettre en exergue le niveau de ces risques et à permettre leur identification. Du point de vue des garanties offertes au justiciable, il apparaît que l'importance des difficultés auxquelles s'exposent les plaideurs est assez faible. L'arbitrage offre généralement des garanties identiques à celles de la justice de l'Etat. Parfois, celles-ci sont même plus fortes que ce que propose la justice de l'Etat : obligations de transparence et de célérité. En revanche, les menaces pesant sur l'efficacité de la procédure arbitrale sont plus problématiques : l'arbitre bénéficie d'un régime de responsabilité nettement moins favorable que le juge de l'Etat. En outre, les décisions des tribunaux arbitraux ne constituent pas une jurisprudence. Enfin, ces derniers sont dépourvus d'imperium merum. Ils ne disposent pas de la faculté d'apposer la formule exécutoire. / Parties choosing arbitration are facing various risks. They are very different from the difficulties occurring within state justice. Identifying and assessing the level of those risks can be made possible by comparing those two forms of justice. Regarding the procedural guarantees, it appears that the parties are facing risks of a very weak importance. Arbitration is generally providing the same guarantees than state justice. Sometimes, they are even stronger : duty of disclosure, and reasonable time, for instance. However, the threats over the procedural efficiency are raising bigger problems : the arbitrator benefits from a liability regime far less favorable than the state judge. Moreover, arbitral tribunals' decisions do not constitute a case law. At last, arbitrators do not have any imperium merum powers. For instance, they cannot issue orders for the enforcement of their decision.

Dispute Settlement in International Economic Law - Selected Aspects Abstract At the time of the emergence of investor state arbitration, such regulation of states was seen as necessary to protect Western investors from expropriation of their investments by developing states, in which there was an absence of rule of law and the protections that flow from that. The ICSID Center was established primarily to ensure the availability of an assured impartial and independent dispute resolution service. The increase in the number of cases over the years, together with sometimes expansive, unexpected and inconsistent interpretations of International Investment Agreement provisions by tribunals, had triggered a worldwide debate and a number of countries had adopted reform measures. The EU has proposed a Permanent Investment Court to address criticism, aimed at investment arbitration and to be included as a measure under the TTIP. This concept has been also adopted in the CETA, and if successful, is likely to be adopted in other treaty agreements as the European Parliament has expressed a preference for the proposed investment court under the TTIP to be included in other free trade agreements. The concept of a permanent legal body providing public proceedings and decisions, establishing binding case law to address...

63 Recognition and execution of foreign arbitral awards Abstract This thesis deals with the issue of recognition and performance of foreign arbitral awards in the field of private international law. The aim of the thesis is to clarify the distinction between recognition and performance and to focus on the issue of enforceability in judicial and enforcement proceedings. The thesis is divided into four chapters describing individual elements of arbitration and recognition and enforcement of arbitral awards. In the first chapter I deal with the arbitration, which is a prerequisite for the arbitral award. The second chapter defines the arbitral award itself, its particulars, types, and the procedure for its abolition. In the third chapter I dealt with the most important sources in the field of foreign arbitral awards and the last chapter is the most comprehensive. It contains a process of recognition and execution, including denial under the New York Convention, the current issue of the decision-making practice of the Supreme court of the Czech Republic, as well as recognition and enforcement in the territory of Switzerland. At the end of the thesis the Swiss and Czech legal regulations of the arbitration proceedings are compared, the amendment of the rules of arbitration of the International Chamber of...

The rise in the number of Black, male, incarcerated, rural youth and the retributive juvenile justice system is a prominent problem in the United States, creating a revolving door for youth in conflict with the law. Restorative justice is an alternative approach that diverts youth from court and focus on rehabilitation, but lacks sufficient experiential evidence from those involved in the process to support broader implementation. The purpose of this study was to explore the experiences of restorative justice arbitrators and the role they play in facilitating resolution of youth criminal charges in a rural setting in a southern U.S. state. The research question asked how restorative justice arbitrators perceive and explain their roles, and successes and failures of a restorative justice process with Black male rural youth. The theoretical framework for the study was Braithwaite's reintegrative shaming, which posits the significance of the immediate family and community in rehabilitation. In this multicase study, research data were collected from semistructured interviews of 4 rural restorative justice arbitrators and analyzed using content analysis. Themes that emerged from the analysis were: the key role of rural community involvement in holding youths accountable to victims for their actions, preventing youths from developing a criminal record, and redirecting youth away from incarceration and more toward the community wellbeing. These findings contribute to social change by informing those working with youth crime about implications for the field of restorative justice specifically related to the opportunity for communities to provide benefits not only for juvenile offenders but also for victims and the community as a whole.

For decades, unresolved conflicts have negatively influenced the general public through increased violence, overwhelming the judicial system. A literature review suggested that between 15% and 20% of conflicts result in an impasse. This study was designed to understand how the implementation and application of the transformative meditation technique (TMT) is used to resolve conflicts. The purpose of this qualitative case study was to investigate the interpretation and implementation of TMT. This qualitative case study was grounded in the conceptual framework of interest-based negotiation (IBN) principles. The research questions focused on mediators' perceptions, interpretations, and depth of knowledge, as well as the effectiveness of the transformative mediation technique (TMT) as an improvement over evaluative or facilitative techniques in resolving conflicts and reducing impasses. Twenty face-to-face interviews were conducted with purposefully selected mediators. Data were coded and analyzed to identify recurring themes: interests, needs, responsibility, relationship, empowerment, problem solving, and negotiation. The findings of the data analysis revealed that mediators were familiar with TMT; interpretation and implementation varied with mediator style. Moreover, most mediators were not highly educated in TMT. In addition, it was found that simply having knowledge of TMT did not prepare mediators to apply the technique appropriately. Mediators were more attracted to the hybrid transformative mediation technique (HTMT). This study has the potential to create positive social change by reducing the number of litigations, giving relief to the overburdened justice system, and thus decreasing the use of limited courts resources.

New generations of video surveillance systems are expected to possess a large-scale network of intelligent video cameras with built-in image processing capabilities. These systems need to be tethered for reasons of bandwidth and power requirements. To support economical installation of video cameras and to manage the huge volume of information flow in these networks, there is a need for new shared-medium daisy-chained physical and medium access control (bus arbitration) layer communication protocols. This thesis describes the design principles of Spatial reuse FireWire Protocol (SFP), a novel request/grant bus arbitration protocol, architected for an acyclic daisy-chained network topology. SFP is a new extension of the IEEE 1394b FireWire architecture. SFP preserves the simple repeat path functionality of FireWire while offering two significant advantages: 1) SFP supports concurrent data transmissions over disjoint segments of the network (spatial reuse of bandwidth), which increases the effective throughput and 2) SFP provides support for priority traffic, which is necessary to handle real-time applications (like packet video), and mission critical applications (like event notifications between cameras) that have strict delay and jitter constraints. The delay and throughput performance of FireWire and SFP were evaluated using discrete-event queuing simulation models built with the CSIM-18 simulation library. Simulation results show that for a homogeneous traffic pattern SFP improves upon the throughput of IEEE 1394b by a factor of 2. For a traffic pattern typical of video surveillance applications, throughput increases by a factor of 7. Simulation results demonstrate that IEEE 1394b asynchronous stream based packet transactions offer better delay performance than isochronous transactions for variable bit rate video like MPEG-2 and MPEG-4. SFP extends this observation by supporting priority traffic. QoS for packet video is provided in SFP by mapping individual asynchronous stream packets to the three priority classes.

L’arbitrage est un moyen de gestion de litige apprécié et privilégié par les acteurs du commerce international. Son bon fonctionnement dépend de la justice étatique. Ces deux appareils doivent entretenir un rapport tantôt fusionnel et tantôt concurrentiel. Le déroulement de cette relation peut réciproquement susciter des complications et de la méfiance. En France comme dans plusieurs autres États de l’Afrique subsaharienne, le juge étatique est le collaborateur de l’arbitre malgré l’envergure de leurs rapports. Ces États reconnaissent à la justice étatique son pouvoir explicite et implicite durant l’arbitrage. La présente recherche et étude aborde la mise en œuvre des compétences respectives attribuées à l’arbitre et au juge durant l’arbitrage. Afin d’accentuer et de pérenniser le bon déroulement de l’arbitrage en France et en Afrique francophone, cette étude s’est attardée sur la question de l’arbitrabilité et du développement économique. Après avoir énuméré des réalités freinant la floraison durable de l’arbitrage en Afrique, quelques solutions sont proposées pour le préserver de tout dysfonctionnement. / Arbitration has been used to resolving cases appreciated by international trade actors. However, well-functioning depends upon state justice. Both devices should have maintain a fusional and competitive relationship. The unfolding of this relationship can reciprocally bring complications and mistrust. State judge is referee’s collaborator despite the spacing of reports in France and several other states in sub-Saharan Africa. These states recognize the explicit and implicit power of state justice during arbitration. This study approaches courts assigned to the arbitrator and judge during their challenge. In order to accentuate and sustain the smooth running of arbitration in France and Francophone Africa, this research has been focused on the issue of economic development. After listing realities hindering the flowering of arbitration in this part of Africa, some solutions have been proposed to preserve this method of dispute resolution of dysfunction.

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