Remarks by David N. Smith

Abstract

I would like to begin this discussion by providing a framework for a general analysis of the concessions problem. If one were to take a look at the general literature relating to concessions in the late 1940’s, 1950’s, and early 1960’s, one would obtain a very special view of concessions in that literature. This view was shaped, to some extent, by the sociology of concessions knowledge. Most concessionaires and most concession-giving countries have traditionally held their concession agreements very close to their vests, and it has until recently been extremely difficult to obtain copies of actual agreements. Consequently, those academics and others who wrote about concessions in the 1940’s, ‘50’s, and ‘60’s found that they had very little to write about except the traditional lawyer’s concern for sanctity of contract, choice of law, and arbitration. With regard to the latter topic it might be observed that never has so much been written by so many for so few because, as we all know, concession agreements seldom come to arbitration. One reason is that the arbitration clause usually deals with the sort of disputes which are not at the heart of most country concessionaire conflicts.