
Contents
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A. Introduction: The Type of Change We Call Progress A. Introduction: The Type of Change We Call Progress
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Fifty years of movement Fifty years of movement
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Explaining change Explaining change
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Saris and catsuits Saris and catsuits
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Intellectual cross-pollination Intellectual cross-pollination
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Accident or design? Accident or design?
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B. Arbitration and the Courts: The Scope of Judicial Oversight B. Arbitration and the Courts: The Scope of Judicial Oversight
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The emergence of laissez-faire judicial review The emergence of laissez-faire judicial review
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Competing models of judicial review Competing models of judicial review
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The public policy wrinkle The public policy wrinkle
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The French influence and “delocalization” The French influence and “delocalization”
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The Belgian experiment The Belgian experiment
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American exceptionalism American exceptionalism
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Manifest disregard of the law Manifest disregard of the law
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Consumers and employees Consumers and employees
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Arbitral jurisdiction Arbitral jurisdiction
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Subject matter arbitrability Subject matter arbitrability
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Contract scope Contract scope
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Separability and compétence-compétence Separability and compétence-compétence
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Error of law or excess of jurisdiction? Error of law or excess of jurisdiction?
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When may a claim be brought? When may a claim be brought?
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C. Investment Treaties, Backlash and Public Policy C. Investment Treaties, Backlash and Public Policy
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Paradigm shifts Paradigm shifts
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Lessons from the North American Free Trade Agreement Lessons from the North American Free Trade Agreement
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Politicized dispute resolution and global economic efficiency Politicized dispute resolution and global economic efficiency
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The new free trade agreements The new free trade agreements
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D. Guidelines for the Conduct of Proceedings D. Guidelines for the Conduct of Proceedings
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The emergence of soft law The emergence of soft law
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Balancing fairness and efficiency Balancing fairness and efficiency
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Due process Due process
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Judicialization Judicialization
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Rhetoric and reality Rhetoric and reality
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Institutional provisions Institutional provisions
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Baselines and equal treatment Baselines and equal treatment
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The example of in-house privilege The example of in-house privilege
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Timing and the establishment of rules Timing and the establishment of rules
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Secondary markets for procedural norms: some examples Secondary markets for procedural norms: some examples
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Who gets the last word? Who gets the last word?
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Ex parte interim measures Ex parte interim measures
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Conflicts of interest Conflicts of interest
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Procedural predictability: a modest proposal Procedural predictability: a modest proposal
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E. Conclusion: A View from Mount Pisgah E. Conclusion: A View from Mount Pisgah
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5 Arbitration’s Procedural Matrix
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Published:September 2012
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Extract
Introduction: The Type of Change We Call Progress
In 1891, a Dutch doctor named Eugene Dubois unearthed in Java a skull fragment with a low forehead, buried only a few metres from where a human thigh bone was later found. Concluding (incorrectly) that both fossils came from the same creature, he announced the discovery of evolution’s missing link, an extinct primate called Pithecanthropus erectus that was neither fully ape nor fully human.1
The evolution of ideas also implicates a search for connections and missing links. Sometimes the hunt yields only dead ends, like Dr Dubois’s hypothetical primate. Sometimes, however, the quest supplies clues to advance knowledge about the type of change we call progress.
While change is inevitable (today is not yesterday), not all change is positive. A cannibal who learns to use a knife and a fork remains a cannibal. Moreover, some things are better left alone. The familiar configuration of keyboard letters endures through generations because the costs of innovation (including the time to learn something new) outweigh potential benefits.2
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