1. Marquette University Law School
International Investment and ADR: Preventing and Managing Investment Treaty Conflict
Andrea K. Schneider
Professor of Law
Marquette University Law School

2. International Systems
Regimes/
Factors
Direct Effect
Standing for Private Actors
Supremacy
Transparency
Enforcement
Negotiation No
None
Optional
Investment Arbitration
Yes
Only as to that award
Generally
Likely
International Adjudication
Supreme,
but not integrated into domestic law
Varying—None (NAFTA) to Retaliation (WTO)
Supranational Court
Yes,
Directly and indirectly
Supreme and Integrated
Fines & Damages; Domestic Remedies Also

3. International Systems
Investment Arbitration
Supranational Court
Negotiation Regime
International Adjudication
Continuum of Constitutionalization
Weakest
Strongest
--Schneider, 1999

4. Dispute Resolution Process Spectrum
Complete
Outcome
Control No
Outcome
Control
Mediative (Non-Binding)
ADR Processes
Adjudicative (Binding)
ADR Processes
Direct
Negotiation
Trial
Facilitative
Mediation
Bracketed
Arbitration
Maximum
Process
Control
Minimum
Process
Control
Evaluative
Mediation
Final Offer
Arbitration
Early Neutral
Evaluation (ENE)
Arbitration
Mini-Trial
Private Judging
Med-Arb
Bordone, 2008
Copyright 2007 by the President and Fellows of Harvard College. All Rights Reserved

5. Procedural Justice
Explains why international system moved toward courts
Explains why domestic alternative dispute resolution took hold

6. Dispute System Design Contexts
Organizational
International institutions
Nation-States
Companies
Universities
Government Agencies
NGOs
Non-profits
“Transactional”
Mass Torts
Class Actions
Complex disputes
Natural disasters
Terrorism
Repatriation
Others?
Bordone, 2008
Copyright 2007 by the President and Fellows of Harvard College. All Rights Reserved

7. Process Design Principles
Participation
Suitability
Process Accountability
Results Accountability
Fluidity
Sustainability
Permeability

8. Process Design—Participation
Key stakeholders around the table
Stakeholders help design and troubleshoot
Funding and support
Technical & legal training

9. Process Design—Suitability
Is mediation the correct process?
Use of legal defenses
Political/domestic constraints
Cultural understanding

10. Process Design— Process Accountability
Need education & representation
Need group of skilled mediators
Transparency of process
Follow-up to see how operates

11. Process Design— Results Accountability
Outcomes—transparency issues
Repeat players—countries & municipalities
Repeat sectors

12. Process Design—Fluidity
Timing—settlement opportunities throughout
Adjust process and administration as needed

13. Process Design—Sustainability
Embedded into treaty?
New kinds of training and assumptions needed
New delegation of settlement responsibilities needed

14. Process Design—Permeability
Part of dispute prevention and management system (Ombuds offices?)
Facilitate information exchange
Facilitate administrative review

15. Where Do We Go From Here?
Need—and want—shadow of investment arbitration
Better structure time between problem arising and arbitration result
Can offer process choices between binding arbitration & negotiation
DSD is up to the challenge

16. Marquette University Law School
International Investment and ADR: Preventing and Managing Investment Treaty Conflict
Andrea K. Schneider
Professor of Law
Marquette University Law School