New international law blog to check out

The Invisible College Blog is a new international law blog, merging two prior sites. It looks to be an interesting site, and is loaded with people who, like me, got hooked on international law through moot courts. The backgrounds of the people include a collection of focused academics, international criminal law specialists, and general internationalists.

Check it out.

International Law in U.S. Court

The topic of international law in U.S. courts may have reached its peak after the Supreme Court ruled that juvenile death penalties were unconstitutional in Roper v. Simmons (2005), but it continues to be a popular topic for scholarship. Recent contributions include:

• Judge Diane Wood (a personal favorite as well as "L" alum) spoke at Duke in November;



• Northwestern Prof. John McGinnis has co-authored a piece in the forthcoming issue of the Stanford Law Review, titled Should International Law be Part of Our Law?, (he is a frequent commentator on this issue); and



• NYU Prof. Jeremy Waldron presented a colloquium titled "Partly Laws Common to All Mankind: Foreign Law in American Courts" (from International Law Reporter).

All are good, but Judge Wood's talk was particularly interesting, and not only in that it timely addresses Medellin v. Texas (what effect does a U.S. state have to give an ICJ decision). Her insightful discussion noted that the U.S. is party to many treaties with arbitration clauses, and that the ICJ decision could be treated as an arbitral body (albeit with a fancy name-MP). The standard arbitration review questions then become the standard for enforcement, i.e. was there an agreement (Art. 36 of the ICJ Statute), was it within the scope of the agreement (Vienna Convention of Consular Relations and Art. 36 of the ICJ Statute), and is there some public policy which forbids enforcing it?

Personal update

I am now an associate at Depres, Schwartz & Geoghegan, where I will work on a variety of legal matters including ongoing federal litigation in the N.D. of Illinois and the D.C. Circuit Court of Appeals.

I will continue my duties as coach of the DePaul moot court team competiting at this year's Niagara International Moot Court Competition. This year's problem deals primarily with NAFTA rights including free movement of people, goods, and energy; as well as the national security and general exceptions in NAFTA and GATT-WTO.

Florida goes after Allstate

Florida and Allstate are apparently in the middle of a rather nasty dispute. Last October, the Florida Office of Insurance Regulation issued subpoenas to certain Allstate companies to testify at congressional hearings scheduled for Jan. 15 and 16.

Allstate officials appeared, but were less than forthcoming. In response, Florida's insurance commissioner suspended Allstate from writing any new policies in the state. As reported by Reuters:

State investigators have been trying to determine if Allstate and other
companies colluded to prevent property insurance rates from dropping despite the
legislative action last year aimed at reducing premiums.

Allstate struck back in court, getting the Florida First District Court of Appeals to issue a stay, allowing it to continue policy writing.


This reminded me that the insurance industry is largely exempt from federal anti-trust law, and is left to the regulation of the states.

Illiberal capitalism

The Financial Times is hosting a live online Q&A with Dr. Robert Kagan of the Carnegie Endowment for International Peace and the FT's own Gideon Rachman on January 22 on the topic of "illiberal capitalism."

So, what is this "illiberal capitalism"? Rachman describes it as a marriage of capitalism with a large state role in the economy. It also consists of economic liberalization without accompanying political freedoms. Perestroika without Glasnost. And as more "communist" countries enter the global economy, it becomes a much more prevalent model, e.g. Vietnam.

So while this is not technically a legal post, it does remind me that states are people too. What I mean is, like a corporation, a state is a legal person, able to have actions attributed to it, and to have social and economic priorities that it acts on in the marketplace. This is the point that gets lost at times in U.S. domestic politics, and is also the point that people are freaking out about when state investment companies start throwing money into U.S. banks.

It's Pebble Beach all over again.

Bolivia and ICSID

The International Center for the Settlement of Investment Disputes (ICSID) is a World Bank body formed under the Convention on the Settlement of Investment Disputes Between States and Nationals of Other States. ICISD is the primary forum for resolving foreign investment disputes, and is incorporated into many bilateral investment treaties (BITs).

Last May, Bolivia gave notice that it was withdrawing from the ICSID treaty, pursuant to art. 71. This was effective November 3, 2007, presumably closing any new claims against it in that forum. The last complaint registered against Bolivia was by a European Telecom on October 31, 2007 (No. ARB/07/28).

This complaint is the target of a civil society campaign against ICSID and BITs, which calls on Robert Zoellick (who oversees ICSID) to prevent the case from going forward. As noted at the Global Arbitration Review, ICSID still has jurisdiction over the proceedings, as art. 72 provides,

Notice by a Contracting State [of its withdrawal] shall not affect the rights or
obligations under this Convention [of the withdrawing state or its nationals]
arising out of consent to the jurisdiction of [ICSID] given by [the
withdrawing state] before such notice was received [by ICSID].

So what does this mean? While some claim that the "before such notice was received" language implies that no new claims can be filed, this is incorrect as it would lead to the six-month notice period as having no effect. Art. 72 is best read as a "survivor" clause, protecting and preserving claims during the six-month notice period. A further question remains as to whether investors can bring claims relating to investments made prior to the notice of withdrawal after the withdrawal is effective (probably not, but a good argument exists).

The people at Global Arbitration Review point to a further issue, the fact that the BITs Bolivia signed call for ICSID to be the dispute forum. Essentially, they claim that Bolivia needs to withdraw (or modify) from all BITs which provide recourse to ICSID, or ICSID remains a valid forum as an ad hoc tribunal. One major problem with this is ICSID's own jurisdictional statement.

Art. 25 states, in relevant part,

The jurisdiction of the Center shall extend [to any investment dispute] between a Contracting State...

The point being, that the ICSID convention does not provide for ad hoc tribunals; it can only hear disputes between contracting states, and once Bolivia withdraws it is no longer a contracting state!

Contracts 101 in Nevada debate suit

The Nevada Supreme Court ruled against Rep. Kucinich in his suit to force NBC to include him in the Tuesday Democratic debates.

The Court's rulings included:

• The District Court had no jurisdiction over the sec. 315(a) claim under the Federal Communications Act because Kucinich failed to first bring his complaint through the FCC; and
• There was no contract NBC could breach because of lack of consideration.

So, while pundits spout about activist courts, or the right to vague first amendment rights, it all boiled down to: (1) lack of consideration and (2) failure to plead promissory estoppel at the District Court.

The latter point is interesting. The position that promissory estoppel cannot be raised for the first time on appeal is the general rule, but one Wisconsin court has held otherwise:

"In Winnebago Homes Inc. v. Sheldon, [29 Wis. 2d 692, 700-01, 139 N.W. 2d 606
(1966)], we made it clear that the failure to plead a cause of action for
promissory estoppel in the trial court precludes the plaintiff, as a matter of
right, from raising the question for the first time on appeal. However, in the
instant case, the facts which plaintiff relies upon to support this new cause of
action are of record, and the defendant-respondent has been able to defend on
the basis of the facts as found by the trial court. Under these circumstances,
where the consideration of promissory estoppel for the first time on appeal does
not result in hardship or inequity to either party, we will proceed upon the
basis of the facts found by the trial court to dispose of the plaintiff's
contention upon the merits." [citing to]Babler, 39 Wis. 2d at 572-73. Based on Holt,
Liberty Trucking and Babler, we are confident that our action is supported by
law and promotes justice.

In general, promissory estoppel is used to create a cause of action under a "quasi-contract" theory. So, would it be reasonable, and within the Supreme Court's discretion, to construe the breach of contract claim as implicitly containing a quasi-contract claim? Especially where there is a well-developed factual record?

Even if this theory was accepted, Kucinich would had to have shown some form of detrimental reliance (continued campaign costs possibly?).