Current Issue

  • Volume 31,
  • Number 2 -
  • Spring 2021


Arbitrators’ Duties to Non-Parties

Perry S. Bechky

The notion that arbitrators owe duties to the parties in investor-state disputes is familiar. This article
explores less-trodden terrain. It argues that, notwithstanding the party-centric norms of arbitration,
investment arbitrators also owe duties to non-parties. It begins by establishing a beachhead – a clear example
of a duty to a non-party, as a proof of concept – before moving into rougher territory. The article catalogs and
surveys various duties owed to non-parties, discussing the nature of these duties and how they are enforced.
Finally, the article shows that recognizing duties to non-parties both informs a proper understanding of the
investment arbitration system and may help improve that system.

Comparing Impeachment

John Ohnesorge

Impeachment, whether of presidents, judges, or other government officials, is increasingly common in political
systems around the world, most importantly in presidential systems, where it can be used to remove heads of
state who otherwise serve fixed terms. Despite this existence of a common and important legal tool in many
jurisdictions, comparative scholarship on impeachment is rare, especially by legal scholars. This article
responds to that scarcity by offering a methodological approach upon which future comparative impeachment
scholarship can draw. The approach addresses many of the legal and political issues that impeachment raises, and
incorporates insights from both law and political science, based on a belief that impeachment cannot be fully
understood through either a purely legal or purely political lens. In order to construct this approach, this
article draws on characteristics of the impeachment regimes of the United States and the Republic of Korea,
which differ along several important dimensions and can thus be used to highlight different approaches to common
issues. The goal is to demonstrate the value of comparative impeachment scholarship to those who seek to
understand impeachment more deeply, whether as scholars or as citizens.

Political Interference in the Governance of Listed Companies: A Market and Behavioral Analysis

Christopher Chen & Lauren Yu-Hsin Lin

This Article examines how regulators and a company’s stakeholders can and should respond to external
political interference from a foreign government. This Article argues that the interactions created by different
stakeholders influence the market’s response to such interference. This Article uses the “Party
building” political movement in China to illustrate how Chinese businesses listed in Hong Kong reacted to
interference from the Chinese Communist Party (CCP). The Party building is the CCP’s attempt to strengthen its
control of listed companies by: having CCP organization’s in a company (organizational interference),
controlling management decisions (management interference), and controlling human resources (human resources
interference). The political campaign offers a rare chance to observe how corporate stakeholders respond to
external political interference from another country. This Article shows that fewer than a third of the
companies examined were early adopters of Party building provisions. This suggests that managers have not been
willing to accept political interference, especially when their companies are registered outside of China.
However, companies that have adopted “Party building” provisions in their corporate charters have generally
accepted some organizational interference or managerial interference. Still, they have been less accommodating
to more direct control over personnel or human resources decisions. Consequently, this Article argues that
securities regulators, in an open market, should adopt a market-driven approach to counter foreign political
interference that empowers shareholders by increasing transparency, instead of implementing drastic
interventions, such as mandatory delisting.

Human Rights Obligations of the Holy See Under the Convention on the Rights of the Child

William Thomas Worster

This article analyzes how human rights obligations apply to the Holy See, focusing on the Convention on the
Rights of the Child (CRC) as the case study. The Holy See is the sovereign of a state and yet it is also a
unique nonstate actor in international law. Unlike other non-state actors, it has international legal
personality, controls territory, and is party to several human rights treaties. At the same time, the Holy See
is also a religious institution whose governance of a church is not subject to international law. This unusual
arrangement challenges the application of human rights treaties whose terms were designed with territorial
states in mind.

Under human rights treaties, including the CRC, states parties are only responsible for wrongful acts that are
attributable to them, and occur within their jurisdiction. In order to violate the CRC, consequently, a state
must not only act wrongfully, but it must have done so in a situation in which it has a sufficient degree of
control. However, the Holy See is non-territorial entity that governs a micro-state as one of its international
roles, and this reality challenges the application of the jurisdictional requirement. Although the Holy See is
bound, it is unclear when its obligations arise.

This article concludes that human rights obligations, such as the CRC, should apply to the Holy See similarly to
the current approach applied to states. The first critical issue in assessing the applicability of the CRC to
the Holy See is describing the relationship between the Holy See and the Vatican City, as two distinct
international legal persons, and identifying which entity is party to the CRC. The second issue is applying the
concept of jurisdiction as provided in the CRC and in keeping with other human rights treaties, being de facto
control, to this non-territorial entity that governs a territorial state. This analysis shows that the Holy See
is indeed bound by the CRC and subject to its obligations where it has sufficient control.


The Emperor’s Old Bonds
Mike Chen, Charlie Fendrych & Andres Paciuc

Recent news articles have suggested that Trump’s trade war may finally provide relief to American holders of
defaulted, pre-1950s Chinese bonds. Here, we examine the hurdles set before these bondholders, namely
establishing jurisdiction over the People’s Republic of China as a sovereign and the long-lapsed statute of
limitations. We also evaluate the Chinese government’s possible recourse.

Our investigation yielded key takeaways. First, to establish jurisdiction in the U.S., the bond must be
denominated in U.S. Dollars or state a place of performance within the country. Second, to overcome the
long-expired statute of limitations and win an equitable remedy, it must be shown that the PRC violated an
absolute priority or pari passu clause and is a “uniquely recalcitrant” debtor. Finally, despite China’s
commitment to the odious debt doctrine, the doctrine is unlikely to provide meaningful legal protection in an
otherwise successful suit. Overall, it is a difficult suit to bring. However, through our investigations, we
have discovered one issue in particular which holds the greatest danger—or perhaps the greatest promise: the
Chinese Government 2-Year 6% Treasury Notes of 1919.

Letter to the Editor

RE: Proportionality and Its Applicability in the
Realm of Cyber-Attacks

Nabil Mikhail