To litigate or not to litigate, that is the question any Chinese companies operating in the United States long enough must contemplate. For American companies, litigation is nothing but an unavoidable business risk and often a vital competition strategy, routinely dealt with by legal and managerial professionals applying monetarized cost–benefit analysis. Such analysis typically incorporates attorney fees and other litigation expenses, potential reputational damage, time and human resource consumption, and the present value of expected litigation gains or losses. By contrast, litigation in China carries complex social meanings and is often avoided to preserve long-term cooperative relationships or to signal desirable attributes to uninformed third parties. When lawsuits do occur, they are often handled by stakeholders without professional legal assistance. Disputants consider a wide range of material and nonmaterial interests that are shaped by both formal institutions undergoing significant transformation and complex, entrenched social norms governing dispute resolution. Chinese companies immersed in these two disparate institutional environments approach legal disputes in the United States.

Chapter 4 surveys a wide range of friendly and hostile interstate relations in ancient societies, where war was often the normal state of affairs. Notwithstanding the numerous conflicts, polities tried in the end, through alliances and diplomatic relations, to establish peaceful relations in view of political stability and economic prosperity. The chapter analyses hospitality rules regarding foreigners, treaties between polities and the establishment of diplomatic relations, which emerged as an international system in the ancient Near East during the mid-fourteenth century bce. An alternative to diplomacy in conflict management, typical of the Greek world, was arbitration and mediation with the help of a third party. In a final section, the chapter outlines how states, when diplomacy failed, started a war procedurally. In conclusion, the chapter argues that, in the absence of an international court, the enforcement of diplomatic rules and treaties was in many ancient societies ensured by the supranational authority of the gods.

Although civil trials provide for the lawful resolution of many kinds of disputes, the vast majority of civil matters are resolved through other processes: Negotiation, mediation, and arbitration. This chapter provides an overview of the main psychological and structural factors that influence disputants’ decisions to select and use these primary alternative dispute resolution (ADR) processes. Further, the chapter discusses the psychology of decision-making in the context of alternative dispute resolution, including identifying what constitutes successful outcomes and how biases and other tendencies can prevent parties from realizing these outcomes. Finally, the chapter addresses research on the ways in which non-parties such as mediators, facilitators, arbitrators, and judges can improve (or diminish) the likelihood that parties’ voices will be heard, that parties will be satisfied with the process, and that the selected process will result in substantively satisfactory outcomes. Major research gaps and policy implications are identified and discussed.

To what extent does soft law ensure harmonisation? Does it replace the governing law or does it complement it?

Does arbitration permit a self-sufficient contract? To what extent can relevance be disregarded without affecting the validity and enforceability of an award? What power does the arbitral tribunal have?

Contract practice andthe reasons for its standardised style. A discussion ofboilerplate clauses. A presentation of the theories of the relational contract and of the autonomous contract.

How is the governing law of a contract determined? What are the effects of the parties' choice of law? How is the governing law chosen in arbitration?

How did polities interact in the Archaic and Classical periods, and which norms influenced their behaviour? This chapter aims to answer these questions. By moving away from the dominant Realist interpretation of ancient history, and employing a variety of themes that played a role in neighbourly relations, a fresh and different understanding of neighbourly diplomatic interactions emerges. Four norms are investigated; first, the decision to go to war or avoid that possibility; second, friendship ties; third, reciprocity; and fourth, reputation. By analysing the reasoning behind the breakdown of neighbourly relations, it will become that clear political actors frequently sought ways to restore the status quo and peaceful co-existence. A second factor is the friendship ties between leaders and how this influenced the direction of the neighbours vis-à-vis one another. The third aspect is reciprocity, and how this formed a staple of neighbourly relations and could be called upon to reinforce neighbourly ties. Finally, the notions of reputation and trust are investigated to show that the reputation of a polis influenced neighbourly relations, whether positively or negatively. Earlier behaviour, such as abandoning an alliance, impacted decision-making and required significant efforts to restore the trust between the neighbours.

In this chapter, Sir Michael Wood examines the future of the international dispute settlement system. The core claim of this chapter is that continuity is, and will continue to be, this system’s defining feature. It observes that the fundamentals of inter-State disputes have changed little since 1920. Most notably, consent to third-party dispute settlement remains at the heart of the system, as does a widespread reluctance by sovereign States to give that consent in advance of disputes arising. The Optional Clause, for example, remains unchanged after 100 years, as does States’ unwillingness to accept it or to do so without extensive reservations. That said, and reflecting on the chapters contained in this collection, this chapter accepts that there have been new and important developments in the international dispute settlement system in recent years and, providing their promise is realised, they will perform a critical function in maintaining international peace and security.

In this chapter, Eric De Brabandere zeroes in on the settlement of disputes in the context of investment arbitration. This chapter accepts that the case law of the current investor-State dispute settlement system is inconsistent and unpredictable and requires reform. However, this chapter claims that the problems associated with the dispute settlement system for investment arbitration cannot be isolated from broader questions on the coherence of general international law, the determinacy of legal norms, and the role of arbitral tribunals in the interpretation of these norms. The chapter argues that coherence is a matter of degrees and that a ‘middle ground’ might be to consider that international investment law forms part of international law, which is a coherent legal system from the perspective of the sources or the secondary norms of international law. Consistency, on the other hand, is not completely achievable in the current investment landscape, given its lack of uniformity in terms of substantive law and ad hoc method of dispute settlement. Consistency must be sought through different options, such as redrafting investment treaties to ensure better balance and predictability of outcomes.

The author attempts to unravel the close conceptual and practical connection between consent and autonomy. The chapter argues that consent is the vehicle of autonomy, vehicle through which States give themselves their own rules, both primary rules and secondary rules. Because the exercise of autonomy in the international society faces contextual limits, linked to the self (auto) and to the law (nomos), it is claimed, that consent appears not only to be characterized by power, but also by limitations. This holds true for consent in international law-making as much as for consent in international dispute settlement. The chapter focuses on both categories, discussing the theory of sources and institutional law-making with respect to the former and jurisdictional matters and applicable law with respect to the latter. It concludes – prospectively – with some thoughts on the future of autonomy and consent in international legal theory and practice

Chapter 9 finally turns to the results of litigation in the courts of royal justice. Analysing the well-preserved books of orders and decrees made by the Court of Requests, this chapter asks how far this tribunal’s determinations met the expectations of petitioners, acknowledged the arguments of defendants, and subscribed to existing legal norms. It first surveys the changing circles of men who passed judgment in Requests, and considers the extent of their legal and judicial expertise. It then sets out the general formula of decrees recorded in this period, and what they can reveal about the processes of decision-making in this Court, the evidence it examined, and the awards within its gift. Finally, the chapter turns to the longer-term significance of rulings made within this burgeoning jurisdiction: assessing the signs of increasing caution about the scope of Requests’ powers, on the one hand, and the future utility of written royal decrees once they were in the hands of winning parties, on the other. In all, this chapter demonstrates that making the extraordinary powers of the Crown more ordinary meant balancing litigants’ demands with practical limitations.

Chapter 5 turns from the demography of the Court of Requests to the issues that its plaintiffs presented. It begins with a breakdown of the subject matter of petitions, including violent assaults, debt and goods disputes, and quarrels over the possession of land. Thereafter, the chapter abandons firm legal categorisations used in other single-court studies, observing that supplicants to the king more often framed their cases in terms of emotions, relationships, and social values – of personal status and a wider social order that they perceived to be at risk. Finally, the chapter examines claims made by Requests’ petitioners about their inability to find justice elsewhere, in other parts of the legal system. This serves to trace the various possible steps between the onset of a localised feud and the pursuit of litigation before the king, and therefore to better contextualise the Court of Requests and the conciliar justice network. It also demonstrates how subjects and supplicants perceived this new jurisdiction: not as a forum for trying particular areas of case law but as a mechanism for remedying tangled feuds that could not be so simply defined nor easily remedied elsewhere.

This chapter discusses how international courts operate, and how their jurisdiction is dependent on consent of states. It goes systematically through notions of jurisdiction, admissibility, interim measures, and compensation, ending with a discussion of advisory opinions and the possibilities for judicial review

This chapter reviews the enforcement of IHL through a range of legal and non legal mechanisms. It first addresses the obligation to respect and ensure respect for IHL, protecting powers, the international humanitarian fact finding committee and the role of human rights bodies. State responsibility, state immunity and acts of state and political question doctrines are then discussed. Reparations, including state reparations, individual reparations and reparations by armed groups are then reviewed. UN immunity, UN enforcement and responsibility in peacekeeping operations, liability and reparations in peacekeeping operations and criminal responsibility in peacekeeping operations are also addressed. The use of belligerent reprisals in the enforcement of IHL and armed groups and enforcement of IHL is then discussed. In conclusion the chapter considers United Nations Action in enforcement of IHL.

This chapter explores third-party mediation and peacekeeping. Mediation, along with arbitration and adjudication, is a form of peacemaking. Peacekeeping means maintaining durable peace after conflict has ended. The UN is one of several kinds of actors that engage in peacekeeping missions. They leverage the costs belligerents would pay if they return to war, provide information, reduce uncertainty, and provide political cover to facilitate political concessions. Also discussed in the chapter are peacebuilding efforts, including developing the proper political, legal, social and economic infrastructure to stabilize the security environment. Challenges for third parties seeking to engage successfully in peacekeeping and peacemaking include the difficulties they face in providing long-term incentives for peace, the possibility of distorting information flows such that peace is less stable, and being sensitive to local contexts. The chapter applies many of its concepts to a quantitative study of the causes of peacekeeper sexual exploitation and abuse, and a case study of third-party involvement during the conflicts in the Great Lakes region of Africa in the 1990s and 2000s.

This chapter analyses the policies and practices related to resolving investor–state disputes through ISDS. In this area, three broad themes emerged from our data. First, there are practices of forming the defence strategy for specific investment arbitrations and handling ISDS proceedings. The main issue is whether to engage lawyers from private practice and, if so, to what extent. Second, we discuss the matter of coordination and communication between various governance actors during ISDS proceedings. The third issue is that of dispute prevention. Given the stakes, risks, and challenges resulting from ISDS disputes, many governance actors dealing with IIAs realise that dispute prevention is crucial in internalising the IIA disciplines. This section focuses on various training and educative programmes for bureaucrats that were designed, proposed, or implemented to increase the knowledge about and awareness of IIAs within the broad sphere of national governance. We end with a discussion on the blurring of the public–private divide through the engagement of private expertise in the service of the public when defending ISDS cases.