¹ Chapter I, Article 1, Part 2 of the UN Charter states that the purposes of the United Nations are, inter alia, “[t]o develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, and to take other appropriate measures to strengthen universal peace.”

² Malcolm N. Shaw, International Law 38 (6th ed. 2008).

³ The post–World War II economic expansion is widely recognized as a period of economic prosperity that occurred in the mid-twentieth century following the end of World War II in 1945.

⁴ Thomas L. Friedman, The World Is Flat: A Brief History of the Twenty-First Century (2005).

⁵ Shaw, supra note 2, at 38.

⁶ See, e.g., the terminology adopted by the Legal Information Institute of the Cornell University Law School, http://www.law.cornell.edu/wex/international_economic_law.

⁷ The term “international trade law” is used by the Legal Information Institute of the Cornell University Law School, http://www.law.cornell.edu/wex/international_economic_law and http://www.law.cornell.edu/wex/International_trade. The term “world trade law” is used in textbooks (e.g., Simon Lester, Bryan Mercurio & Arwel Davies, World Trade Law (2d ed. 2012); Henrik Horn & Petros Mavroidis, Legal and Economic Principles of World Trade Law (2013)), in commentaries (e.g., Max Planck Commentaries on World Trade Law), and by universities (for example, by the National University of Singapore, which offers a course entitled “World Trade Law” (see the course listing at http://www.law.nus.edu.sg/student_matters/course_listing/courses_desc.asp?MC=LL4060B&Sem=1)).

⁸ See William Cornish, David Llewelyn & Tanya Aplin, Intellectual Property: Patents, Copyright, Trade Marks and Allied Rights paras. 1–31 (8th ed. 2013), where the learned authors suggest that IP law has wider associations with territoriality than other civil rights of action in general.

⁹ Lifschitz, Daniel, The ACTA Boondoggle: When IP Harmonization Bites Off More than It Can Chew, 34 Loy. L.A. Int’l & Comp. L. Rev. 197, 201 (2011)Google Scholar. It has been observed that the territorial nature of IP rights has several potential ramifications. For instance, the scope and validity of an IP right in a particular country may be determined by that country’s law independently of equivalent rights over the same subject matter in other countries; or the IP right may only affect activities pursued within a particular geographical territory; or the IP right may only be asserted by a particular country’s nationals and other persons as the national law permits; or the IP right may be asserted only in the courts of the country for which it is granted. See id.

¹⁰ Susanna H.S. Leong, Intellectual Property Law of Singapore paras. 01.001 & 01.025 (2013).

¹¹ Benedatta Ubertazzi, Exclusive Jurisdiction in Intellectual Property 4 (2012). See also Trimble, Marketa, When Foreigners Infringe Patents: An Empirical Look at the Involvement of Foreign Defendants in Patent Litigation in the U.S., 27 Santa Clara Computer & High Tech. L.J. 499, 544 (2011)Google Scholar, in which the author notes that in U.S. federal district courts, the number of IP cases involving at least one defendant from a foreign jurisdiction increased by 20% from 2004 to 2009.

¹² Dinwoodie, Graeme B., The International Intellectual Property Law System: New Actors, New Institutions, New Sources, 10 Marq. Intell. Prop. L. Rev. 205, 210 (2007)Google Scholar.

¹³ Which typically impose TRIPS-plus standards and which ratchets up the global standard through the TRIPS “most-favored-nation treatment” principle.

¹⁴ Walter Isaacson, Steve Jobs 512 (2011). See Steve Jobs vowed to ‘destroy’ Android, BBC News (Oct. 21, 2011), available at http://www.bbc.co.uk/news/technology-15400984.

¹⁵ Godfrey Lam, Staging the Mobile Phone Wars, Fourth Judicial Seminar on Commercial Litigation (Singapore), para. 6 (remarks on file with author).

¹⁶ Porter, Kate, Ottawa home to robust, controversial patent licensing industry, CBC News (Nov. 26, 2013)Google Scholar, available at http://www.cbc.ca/news/canada/ottawa/ottawa-home-to-robust-controversial-patent-licensing-industry-1.2440034.

¹⁷ Yu, Peter K., ACTA and Its Complex Politics, 3 WIPO J. 16 (2011)Google Scholar.

¹⁸ Dinwoodie, supra note 12, at 206.

¹⁹ Yu, supra note 17.

²⁰ Novartis AG v. Union of India et al., Civil Appeal No. 2706-2716 of 2013, available at http://judis.nic.in/supremecourt/imgs1.aspx?filename=40212.

²¹ Helfer, Laurence R., Alter, Karen J. & Guerzovich, Florencia, Islands of Effective International Adjudication: Constructing an Intellectual Property Rule of Law in the Andean Community, 103 AJIL 1 (2009)CrossRefGoogle Scholar.

²² Id.

²³ Cornish, Llewelyn & Aplin, supra note 8, paras. 2–70.

²⁴ Id., although the learned authors cited Bristol Myers v. Beecham [1978] F.S.R. 553, which assumes the possibility of issue estoppel arising pursuant to a foreign judgment.

²⁵ Ubertazzi, supra note 11, at 3.

²⁶ Litigation has numerous externalities, and the immense costs incurred by legal systems cannot be ignored. Steven Shavell notes that litigation involves two externalities: the litigant neither takes into account the legal costs that he causes others to incur, nor recognizes the associated effects on deterrence and other social benefits. Between 1960 and 1992, legal expenditures in the United States as a percentage of GDP grew from 0.523% to 1.47%. See Shavell, Steven, The Fundamental Divergence Between the Private and the Social Motive to Use the Legal System, 26 J. Legal Stud. 575 CrossRefGoogle Scholar.

²⁷ The case filed in the Federal Court of Australia involved Apple claiming that Samsung infringed 19 of its patents on a total of 120 grounds, in nine smartphones and two tablets produced by Samsung. Samsung has claimed that Apple infringed several of its patents in some iPhone and iPad models. See Legal Twist in Apple, Samsung Case, Fin. Rev. (Feb. 25, 2013), http://www.afr.com/p/technology/apple_samsung_patent_hearing_unprecedented_5ubyczd0dP9yFHfzmlsiqM.

²⁸ What’s Up Down Under with Apple and Samsung?, Patentology (Nov. 18, 2013), http://blog.patentology.com.au/2013/11/whats-up-down-under-with-apple-and.html.

²⁹ Lam, supra note 15, para. 50.

³⁰ Ubertazzi, supra note 11, at 3.

³¹ Id. at 1–2.

³² In this regard, it was observed in the 1980 edition of the American Bar Association’s journal that “[f]ostered by the demands of an expanding international commerce, by the businessman’s traditional distrust of foreign adjudication, and by numerous court decisions upholding its awards, international arbitration is distinctly in vogue.” Higgins, Francis J., Brown, William G. & Roach, Patrick J., Pitfalls in International Commercial Arbitration, 35 Bus. Law. 1035 (Apr. 1980)Google Scholar. See also Mosk, Richard M., Trends in International Arbitration, 18 Sw. J. Int’l L. 103, 105 (2011)Google Scholar.

³³ See, e.g., Seidenberg, Steven, International Arbitration Loses Its Grip, A.B.A.J. (Apr. 2010)Google Scholar, http://www.abajour-nal.com/magazine/article/international_arbitration_loses_its_grip/, in which the author notes that arbitration “offers parties a neutral forum, where neither side has the ‘home court’ advantage of litigating in its nation’s courts.” See also International Arbitration: Corporate Attitudes and Practices 2006, School of International Arbitration, Queen Mary University of London, at 5, http://www.pwc.be/en_BE/be/publications/ia-study-pwc-06.pdf, which states: “So why do nine out of ten corporations seek to avoid transnational litigation? The most common explanation is anxiety about litigating under a foreign law before a court far from home, with a lack of familiarity with local court procedures and language.”

³⁴ Alan Redfern & Martin Hunter, Law and Practice of International Commercial Arbitration paras. 1-42–1-44 & 1-53 (2d ed. 1991).

³⁵ Higgins, Brown & Roach, supra note 32, at 1036.

³⁶ See, e.g., UNCITRAL Model Law on International Commercial Arbitration art. 9 (1985).

³⁷ Sundaresh Menon, Keynote Address at the 26th LAWASIA Conference and the 15th Biennial Conference of Chief Justices of Asia and the Pacific: Transnational Commercial Law: Realities, Challenges and A Call for Meaningful Convergence, para. 23 (Oct. 28, 2013).

³⁸ Seidenberg, supra note 33. Commentators have gone so far as to state that international arbitration has become the established method of determining international commercial disputes. See, e.g., Redfern & Hunter, supra note 34, para. 1-01, where it was pointed out that the International Chamber of Commerce recorded 344 requests for arbitration in 1986 and 580 requests in 2003; Franck, Susan D., The Role of International Arbitrators, 12 ILSA J. Int’l & Comp. L. 499, 499 (2005–2006)Google Scholar.

³⁹ Corporate Choices in International Arbitration: Industry Perspectives 7, http://www.pwc.com/gx/en/arbitration-dispute-resolution/assets/pwc-international-arbitration-study.pdf.

⁴⁰ Id., noting that “Several interviewees commented that, for certain cases, the use of litigation is unavoidable. This is because arbitration is sometimes unavailable by operation of law—for example, in non-contractual claims like breach of patent rights, as well as in potentially non-arbitrable disputes (e.g. in employment).”

⁴¹ See, e.g., id.

⁴² This statement was made in Stipanowich, Thomas J., Arbitration: The ‘New Litigation,’ 2010 U. Ill. L. Rev. 1, 8 (2010)Google Scholar, in the context of American business arbitration, but it applies similarly to international commercial arbitration. This view is also supported by id., at 5, 21–22. See also Higgins, Brown & Roach, supra note 32, at 1042, recognizing that whether arbitration is more or less costly than court adjudication may depend on the precise ambit of discovery obligations and procedures.

⁴³ Holt, L. Tyrone, Whither Arbitration? What Can Be Done to Improve Arbitration and Keep Out Litigation’s Ill Effects, 7 DePaul Bus. & Com. L.J. 455, 455 (2009)Google Scholar (citing Stempel, Jeffrey W., Forgetfulness, Fuzziness, Functionality, Fairness, and Freedom in Dispute Resolution: Serving Dispute Resolution Through Adjudication, 3 Nev. L.J. 305, 314 (2003)Google Scholar).

⁴⁴ Helmer, Elena V., International Commercial Arbitration: Americanized, ‘Civilized,’ or Harmonized? 19 Ohio St. J. on Disp. Resol. 35, 46 (2003)Google Scholar.

⁴⁵ Stipanowich, supra note 42, at 8; Helmer, supra note 44, at 36.

⁴⁶ Helmer, supra note 44, at 36.

⁴⁷ Stipanowich, supra note 42, at 23 (citing Mustill, Michael John, Arbitration: History and Background, 6 J. Int’l Arb. 43, 56 (1989)Google Scholar.

⁴⁸ Stipanowich, supra note 42, at 23; von Mehren, George M. & Jochum, Alana C., Is International Arbitration Becoming Too American? 2 Global Bus. L. Rev. 47, 49–50 (2011)Google Scholar; Alford, Roger P., The American Influence on International Arbitration, 19 Ohio St. J. on Disp. Resol. 69 (2003)Google Scholar; Helmer, supra note 44, at 46.

⁴⁹ Strong, S.I., Increasing Legalism in International Commercial Arbitration: A New Theory of Causes, A New Approach to Cures, 7 World Arb. & Med. Rev. 117, 119 (2013)Google Scholar.

⁵⁰ Seidenberg, supra note 33. The author was citing the view of Joseph R. Profaizer, of counsel to Paul, Hastings, Janofsky & Walker in Washington, DC.

⁵¹ Toby Landau, Opening Keynote Address at the Singapore International Arbitration Forum (Dec. 2, 2013).

⁵² Stipanowich, supra note 42, at 13 & 15.

⁵³ See Dallah Real Estate & Tourism Holding Co. v. Ministry of Religious Affairs of the Gov’t of Pakistan, [2011] 1 AC 763.

⁵⁴ PT First Media TBK (formerly known as PT Broadband Multimedia TBK) v. Astro Nusantara Int’l BV et al., [2014] 1 SLR 372 at [75].

⁵⁵ Menon, supra note 37, para. 29 (citing Mistelis, Loukas, Unidroit Principles Applied as “Most Appropriate Rules of Law” in a Swedish Arbitral Award, 8 Uniform L. Rev./Revue de droit uniforme 631 (2003)CrossRefGoogle Scholar).

⁵⁶ Id. para. 29 (citing Fouchard, Gaillard, Goldman on International Commercial Arbitration 802 (Emmanuel Gaillard & John Savage eds., 1999).

⁵⁷ Mosk, Richard M., Trends in International Arbitration, 18 Sw. J. Int’l L. 103, 107 (2011)Google Scholar.

⁵⁸ Jacob, Marc, Investments, Bilateral Treaties, in Max Planck Encyclopedia Pub. Int’l L. para. 8 (May 2011)Google Scholar, available at http://opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law-9780199231690-e1061#law-9780199231690-e1061.

⁵⁹ Id. para 9.

⁶⁰ The bilateral approach had the potential to create a “depoliticized and technocratic environment” that would enable private decisionmaking while avoiding wide consultation with a large and diverse group of stakeholders. See Jacob, supra note 58, para. 78.

⁶¹ The first BIT was entered into between Germany and Pakistan in 1959. The adoption of the 1966 ICSID Convention (also known as the Washington Convention) saw a significant development in the realm of investment dispute resolution.

⁶² Sundaresh Menon, The Impact of Public International Law in the Commercial Sphere and Its Significance to Asia, Lecture Jointly Organized by the International Council of Jurists and the University of Mumbai, para. 14 (Apr. 19, 2013).

⁶³ Roberts, Anthea, Clash of Paradigms: Actors and Analogies Shaping the Investment Treaty System, 107 AJIL 45 (2013)Google Scholar.

⁶⁴ Charles N. Brower & Sadie Blanchard, What’s in a Meme? The Truth About Investor-State Arbitration: Why It Need Not, and Must Not, Be Repossessed by States 69 (Jan. 2014 draft).

⁶⁵ Hwang, Michael & Lim, Kevin, Issue Conflict in ICSID Arbitrations, in Selected Essays on International Arbitration 472, para. 65 (2013)Google Scholar.

⁶⁶ The decision is dated March 5, 2014.

⁶⁷ The 7-2 split decision by an eminent bench illustrates the difficult questions that can sometimes be raised in investor-state arbitration. The case concerns the distinction between questions of “arbitrability” (i.e., whether there is an agreement to arbitrate at all, and the enforceability and scope of that agreement), which are decided by courts, and questions on “procedural preconditions” (i.e., whether there was adequate notice, whether waiver or estoppel were applicable, etc.), which are decided by arbitrators. There was a provision in the UK-Argentina BIT entitling a party to proceed unilaterally to arbitration, provided the dispute was first submitted to a court in the country where the investment was made (“local litigation requirement”). In 2003, Argentina changed the way it calculated gas “tariffs,” and this negatively impacted the BG Group. The BG Group sought arbitration against Argentina for violating substantive provisions of the BIT (expropriation and denial of fair and equitable treatment). The BG Group did not first seek relief in the courts of Argentina, so Argentina argued that the arbitration was improper because the BG Group did not comply with the local litigation requirement. The panel disagreed and awarded the BG Group $185 million. The BG Group sought to confirm the monetary award in U.S. courts, while Argentina sought to vacate the award on the basis that the panel lacked jurisdiction.

The majority (Justices Alito, Breyer, Ginsburg, Kagan, Scalia, and Thomas, with Justice Sotomayor joining in part) noted that a BIT is simply a contract and should be interpreted in a manner similar to ordinary private contracts. The majority concluded that whether the “local litigation requirement” was excused in this case was for the arbitrators to decide, as it was a “purely procedural precondition to arbitrate.” It therefore upheld the arbitrators’ decision under the “considerable deference” standard.

The minority (Chief Justice Roberts, joined by Justice Kennedy) focused on the fact that the treaty was not a contract between the parties to the dispute, and was instead a “unilateral standing offer” by Argentina and the UK to arbitrate with investors if the local litigation requirement was met. The minority viewed the “local litigation requirement” as a condition to the formation of an agreement between the investor and the state. The issue should be analyzed as one of contract formation, and therefore would be for the court to decide on whether there was any agreement to arbitrate at all.

⁶⁸ Lovells, Hogan, U.S. Supreme Court Decides First Case Related to International Investment Treaty Arbitration, Lexology (Mar. 13, 2014)Google Scholar, http://www.lexology.com/library/detail.aspx?g=5bf8ae15-fead-4f53-a07f-16afe58119ef. See also BG Group v. Argentina: CPR Reviews US Supreme Court Decision, International Institute for Conflict Prevention & Resolution (Mar. 6, 2014), http://www.cpradr.org/Resources/ALLC-PRArticles/tabid/265/ID/850/BG-Group-v-Argentina-CPR-Reviews-US-Supreme-Court-Decision.aspx.

⁶⁹ Loewen Group, Inc. & Raymond L. Loewen v. United States, ICSID Case No. ARB(AF)/98/3, Award (June 26, 2003).

⁷⁰ Matiation, Stefan, Arbitration with Two Twists: Loewen v. United States and Free Trade Commission Intervention in NAFTA Chapter 11 Disputes , 24 U. Pa. J. Int’l Econ. L. 451, 458 (2003)Google Scholar.

⁷¹ Saipem SpA v. People’s Republic of Bangladesh (ICSID Case No. ARB/05/7), Award (June 30, 2009).

⁷² White Industries Australia, Ltd. v. Republic of India, Final Award (Nov. 30, 2011), available at http://italaw.com/sites/default/files/case-documents/ita0906.pdf.

⁷³ On this basis, the tribunal awarded White Industries the amount of AUD4.08 million, which was the amount due under the ICC award.

⁷⁴ Carbone, Giulia, Interference of the Court of the Seat with International Arbitration, 2012 J. Disp. Resol. 217, 237 (2012)Google Scholar. This principle was codified, at the turn of the century, in Article 4(1) of the International Law Commission’s Draft Articles on Responsibility of States for Internationally Wrongful Acts, which expressly states that “[t]he conduct of any State organ shall be considered an act of that State under international law, whether the organ exercises legislative, executive, judicial or any other functions…”, http://legal.un.org/ilc/texts/instruments/english/commentaries/9_6_2001.pdf.

⁷⁵ Other than Loewen, Saipem, and White Industries, there have been a number of claims raised by investors alleging that their rights were violated by national courts. See Carbone, supra note 74, at 238.

⁷⁶ Id. at 241.

⁷⁷ Teitelbaum, Ruth, A Look at the Public Interest In Investment Arbitration: Is it Unique? What Should We Do About It? 5 Berkeley J. Int’l L. (Publicist) 54, 54 (2010)Google Scholar, observing that “The transparency movement in investment arbitration—a movement driven by non-governmental organizations (NGOs)—believes that arbitration, a private method of dispute settlement, is an inappropriate means of adjudicating disputes involving sovereigns.”

⁷⁸ See Eberhardt, Pia & Olivet, Cecilia, Profiting from Injustice: How Law Firms, Arbitrators and Financiers Are Fuelling an Investment Arbitration Boom 8 (Corporate Europe Observatory and the Transnational Institute, 2012)Google Scholar, http://www.tni.org/sites/www.tni.org/files/download/profitingfrominjustice.pdf. See also Perry, Sebastian, Investment Arbitration Under Fire from Think Tank, Glob. Arb. Rev. (Nov. 27, 2012)Google Scholar.

⁷⁹ Brower & Blanchard, supra note 64, n.199, and accompanying text.

⁸⁰ Menon, Sundaresh, International Arbitration: The Coming of a New Age for Asia (and Elsewhere), Speech Delivered to the International Council of Commercial Arbitration Congress 2012, paras. 19, 22 & 32 (June 11, 2012)Google Scholar, http://www.arbitration-icca.org/media/0/13398435632250/ags_opening_speech_icca_congress_2012.pdf.

⁸¹ The 2013 ICSID report showed that 48% of arbitrators, conciliators, and ad hoc committee members in 2013 were chosen from Western Europe, with just 17% from South and East Asia, and the Pacific region.

⁸² Nottage, Luke & Weeramantry, J. Romesh, Investment Arbitration in Asia: Five Perspectives on Law and Practice, 28 Arb. Int’l 19, 33 (2012)CrossRefGoogle Scholar (citing S.M. Pekkanen, H. Gao & D. Ahn, From Rule Takers, Shakers to Movers: How Japan, China and Korea Shaped New Norms in International Economic Law, Second Biennial General Conference of the Asian Society of International Law, Tokyo (Aug. 1–2, 2009)).

⁸³ An issue conflict is a conflict of interest stemming from an arbitrator’s relationship to the subject matter of the dispute, rather than his relationship with the disputing parties. See Ziade, Nassib G., How Many Hats Can a Player Wear: Arbitrator, Counsel and Expert? 24 ICSID Rev. 49, 49 (2009)CrossRefGoogle Scholar; Hranitzky, Dennis H. & Romero, Eduardo Silva, The “Double Hat” Debate In International Arbitration, N.Y. L.J., June 14, 2010 Google Scholar (citing Sinclair, Anthony & Gearing, Matthew, Partiality and Issue Conflicts, 5 Transnat’l Disp. Mgmt. (July 2008)Google Scholar; Hwang & Lim, supra note 65, para. 3.

⁸⁴ Hranitzky & Romero, supra note 83. The recurring legal issues include jurisdictional questions (e.g., the definition of “investment” and the use of a most-favored nation clause) and substantive questions (such as the requirements for direct or indirect expropriation, the minimum standards of treatment in international law that include the notions of fair and equitable treatment and full protection and security, and the concept of discriminatory acts). See Hwang & Lim, supra note 65, para. 64 (citing Ziade, supra note 83, at 50).

⁸⁵ Id.

⁸⁶ Teitelbaum, supra note 77, at 54–55.

⁸⁷ ICSID Arbitration Rule 32(2) provides:

https://icsid.worldbank.org/ICSID/StaticFiles/basicdoc/CRR_English-final.pdf.

⁸⁸ The U.S.-Singapore Free Trade Agreement (May 6, 2003) includes a section titled “Transparency of Arbitral Proceedings” and provides in Article 15.20(2) that:

http://www.fta.gov.sg/ussfta/chapter_15_us.pdf.

⁸⁹ European Commission, EU-Canada CETA: Main Achievements, at 3, http://trade.ec.europa.eu/doclib/docs/2013/november/tradoc_151918.pdf.

⁹⁰ I have explored some of these deficiencies elsewhere and do not propose to provide a detailed analysis of the deficiencies here. See Sundaresh Menon, International Investment Arbitration in Asia: The Road Ahead, Fourth Annual Singapore International Investment Arbitration Conference, paras. 34–46 (Dec. 3, 2013).

⁹¹ Sornarajah, Muthucumaraswamy, Evolution or Revolution in International Investment Arbitration? The Descent into Normlessness, in Evolution in Investment Treaty Law and Arbitration 634 (Brown, Chester & Miles, Kate eds., 2012)Google Scholar.

⁹² Sundaresh Menon, Closing Address at the Singapore International Arbitration Forum (Dec. 2, 2013).

⁹³ Menon, supra note 90.

⁹⁴ Id. para. 37.

⁹⁵ Id.

⁹⁶ United Nations Conference on Trade and Development, “Most-Favoured-Nation Treatment” in UNCTAD Series on Issues in International Investment Agreements II (2010), http://unctad.org/en/docs/diaeia20101_en.pdf.

⁹⁷ Menon, supra note 90, para. 44.

⁹⁸ Id. para. 46.

⁹⁹ Tams, Christian J., An Appealing Option? The Debate About an ICSID Appellate Structure, in 57 Essays in Transnational Economic Law 20 (June 2006)Google Scholar.

¹⁰⁰ The London tribunal refused to award any damages, while the Stockholm tribunal ordered $355 million in damages.

¹⁰¹ See Lauder v. Czech Rep., Final Award, at 187–91 (2001) (UNCITRAL); CME Czech Rep. B.V. v. Czech Rep., Partial Award, at 5–7 (Sept. 13, 2001).

¹⁰² Teitelbaum, supra note 77, at 59–62.

¹⁰³ Menon, supra note 90, para. 55.

¹⁰⁴ European Commission, supra note 89, at 3–4.

¹⁰⁵ Bolivia served a written notice of its denunciation of the ICSID Convention on May 2, 2007, and the denunciation took effect six months after the receipt of notice, on November 3, 2007. See List of Contracting States and Other Signatories of the Convention, https://icsid.worldbank.org/ICSID/FrontServlet?requestType=ICSIDDocRH&actionVal=ContractingStates&ReqFrom=Main.

¹⁰⁶ Ecuador served a written notice of its denunciation of the ICSID Convention on July 6, 2009, and the denunciation took effect six months after the receipt of notice, on January 7, 2010. See id.

¹⁰⁷ Venezuela served a written notice of its denunciation of the ICSID Convention on January 24, 2012, and the denunciation took effect six months after the receipt of notice, on July 25, 2012. See id.

¹⁰⁸ Australian Government Department of Foreign Affairs and Trade, Gillard Government Trade Policy Statement: Trading Our Way to More Jobs and Prosperity, at 14 (April 2011)Google Scholar; see also Gillard Government Reforms Australia’s Trade Policy (Apr. 12, 2011), http://trademinister.gov.au/releases/2011/ce_mr_110412.html.

¹⁰⁹ Menon, Sundaresh, The Somewhat Uncommon Law of Commerce, Commercial Bar Association Annual Lecture 2013, para. 49 (Nov. 14, 2013)Google Scholar.

¹¹⁰ Id.

¹¹¹ Id. (citing Helmut Wagner, Costs of Legal Uncertainty: Is Harmonization of Law a Good Solution? UNCITRAL Fortieth Annual Session, at 1 (July 9–12, 2007), http://www.uncitral.org/pdf/english/congress/WagnerH.pdf).

¹¹² Id. para. 52 et seq.

¹¹³ See The Hague Convention of 30 June 2005 on Choice of Court Agreements—Outline of the Convention (May 2013), http://www.hcch.net/upload/outline37e.pdf.

¹¹⁴ See http://www.hcch.net/index_en.php?act=conventions.status&cid=98.

¹¹⁵ See Hague Convention on Choice of Court Agreements art. 31(1), http://www.hcch.net/index_en.php?act=conventions.text&cid=98.

¹¹⁶ Tiong Min Yeo, International Litigation in Asia: Will the Hague Choice of Court Convention Make Any Difference?, para. 18, http://www.jsil.jp/annual_documents/2013/1012224.pdf.

¹¹⁷ See Hague Convention on Choice of Court Agreements, http://www.hcch.net/index_en.php?act=conventions.text&cid=98.

¹¹⁸ Pribetic, Antonin I., The Hague Convention on Choice of Court Agreements, 10 Globetrotter 2 (Sept. 2005)Google Scholar.

¹¹⁹ Id.

¹²⁰ See http://www.siaf.sg/.

¹²¹ Menon, supra note 92.

¹²² Sundaresh Menon, Some Cautionary Notes for an Age of Opportunity, Chartered Institute of Arbitrators International Arbitration Conference, para. 51 (Aug. 22, 2013).

¹²³ A “final draft” dated February 18, 2014, has been uploaded on the LCIA website. Article 18 (on party representation) is certainly more substantial in the draft than in the existing LCIA Rules. There is also an annex that provides general guidelines for the parties’ legal representatives. Article 18.6 provides for sanctions, including (a) a written reprimand; (b) a written caution as to future conduct in the arbitration; (c) a reference to the legal representative’s regulatory and or professional body; and (d) any other measure necessary to maintain the general duties of the arbitral tribunal. See http://www.lcia.org/Default.aspx.

¹²⁴ Menon, supra note 122, para. 52.

¹²⁵ Id. para. 54.

¹²⁶ Sundaresh Menon, Contemporary Challenges in International Arbitration, Seminar Hosted by the School of International Commercial Arbitration, Queen Mary University of London and the Singapore International Arbitration Centre (Sept. 27, 2012), video available at http://www.arbitration-icca.org/AV_Library/Queen-Mary-University-of-London.html.

¹²⁷ See http://www.iccamiami2014.com/.

¹²⁸ In the context of investor-state arbitration, see Yannaca-Small, K., Improving the System of Investor-State Dispute Settlement 10 (OECD Working Papers on International Investment, 2006/01)CrossRefGoogle Scholar, http://dx.doi.org/10.1787/631230863687. See also Franck, Susan, The Legitimacy Crisis in Investment Treaty Arbitration: Privatizing Public International Law Through Inconsistent Decisions, 73 Fordham L. Rev. 1521 (2005)Google Scholar.

¹²⁹ In the context of investor-state arbitration, this could ensure that the interpretive approaches adopted at first instance give the necessary weight to treaty texts, as well as expressions of state intent in preambles and statements of objectives. On the issue of interpretive approaches in investor-state arbitration, see Menon, supra note 90, para. 48 et seq.

¹³⁰ ICSID Secretariat, Possible Improvements of the Framework for ICSID Arbitration (Discussion Paper, Oct. 22, 2004), https://icsid.worldbank.org/ICSID/FrontServlet?requestType=ICSIDPublicationsRH&actionVal=ViewAnnouncePDF&AnnouncementType=archive&AnnounceNo=14_1.pdf.

¹³¹ Under the WTO appellate mechanism, appeals are permitted, although these are limited to issues of law and questions of interpretation. Each appeal is heard by three members of a seven-member Appellate Body set up by the Dispute Settlement Body and broadly representing the range of WTO membership. See Understanding the WTO: Settling Disputes, https://www.wto.org/english/thewto_e/whatis_e/tif_e/disp1_e.htm#appeals.

¹³² Menon, supra note 90, para. 62.

¹³³ This has been the basis for concluding several U.S. FTAs.

¹³⁴ 19 U.S.C. § 3802(b)(3)(G)(iv). See also Sauvant, Karl P., Appeals Mechanism in International Investment Disputes 232 (2008)Google Scholar; Yannaca-Small, supra note 128, at 9.

¹³⁵ Yannaca-Small, supra note 128.

¹³⁶ See U.S.-Dominican Republic-Central American FTA, ch.10, art. 10.20, para. 10, http://www.ustr.gov/sites/default/files/uploads/agreements/cafta/asset_upload_file328_4718.pdf.

¹³⁷ European Commission, supra note 89, at 3.

¹³⁸ Menon, supra note 37, para. 56.

¹³⁹ Menon, supra note 109, para. 60.

¹⁴⁰ Report of the Singapore International Commercial Court Committee (Nov. 29, 2013), http://www.mlaw.gov.sg/content/dam/minlaw/corp/News/Annex%20A%20-%20SICC%20Committee%20Report.pdf.

¹⁴¹ Id. para. 22.

¹⁴² Rajah & Tann LLP, The Development of the Singapore International Commercial Court, at 3 (Dec. 2013), http://www.rajahtann.com/ipad/newsDec2013_2.html.

¹⁴³ Report of the Singapore International Commercial Court Committee, supra note 140, para. 31.

¹⁴⁴ Id. para. 32.

¹⁴⁵ Neil Wilkof, Can Patent Judges “Colloquy” Themselves to Greater Uniformity? (Aug. 30, 2013), http://ipkitten.blogspot.sg/2013/08/can-patent-judges-colloquy-themselves.html. Wilkof was referring to a comment by Chief Judge Randall Rader of the United States Court of Appeals for the Federal Circuit.

¹⁴⁶ In re Maxwell Comm. Corp., 170 B.R. 800 (Bankr. S.D.N.Y. 1994), aff’d, 186 B.R. 807 (S.D.N.Y. 1995).

¹⁴⁷ James M. Farley, Judicial Cooperation: Good Practices in the Field of Cross-Border Insolvency Proceedings in Light of the Proposed Hague Draft General Principles for Judicial Communications, Joint European Union–Hague Conference on Private International Law Conference on Direct Judicial Communications on Family Law Matters and the Development of Judicial Networks (Jan. 15–16, 2009).

¹⁴⁸ Id.

¹⁴⁹ Westacre Investments Inc. v. State-Owned Company Yugoimport SDPR (also known as Jugoimport-SDPR), [2009] 2 SLR(R) 166.

¹⁵⁰ http://www.iccwbo.org/products-and-services/trade-facilitation/incoterms-2010/.

¹⁵¹ http://fidic.org/node/13#sthash.on7HSusc.dpuf.

¹⁵² Menon, supra note 37, para. 2.