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The Transnational Protection of Private Rights: Issues, Challenges, and Possible Solutions

Published online by Cambridge University Press:  23 September 2014

Sundaresh MENON
Sundaresh MENON*
Affiliation:
Supreme Court of Singapore, Singaporecjoffice@supcourt.gov.sg
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Abstract

The global community faces the challenge of dealing with movements in opposite directions: the emphasis on decolonization and self-determination in the postwar world has encouraged the building of barriers and boundaries between jurisdictions, while globalization has encouraged the breaking or transcending of the same. This paper focuses on the legal protection of private economic rights in the transnational arena by considering the regulation of transnational economic relationships at three different levels: (a) where a party's rights are not regulated or governed by any contract; (b) where there is a contract between the parties; and (c) where a foreign investor looks to protect its investment against unlawful interference by a host state. It concludes with some thoughts on what might lie ahead and suggests possible solutions to the issues and challenges faced.

Type
Invited Articles
Information
Asian Journal of International Law , Volume 5 , Issue 2 , July 2015 , pp. 219 - 245
Copyright
Copyright © Asian Journal of International Law 2014 

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Footnotes

*

Chief Justice, Supreme Court of Singapore. This paper is adapted from the Charles N. Brower Lecture that I delivered on 10 April 2014. The views and ideas contained here are personal. I am deeply grateful to my colleague, Justin Yeo, Assistant Registrar of the Supreme Court, for the considerable assistance he gave me in the research and preparation of this lecture and for his valuable contributions to the ideas which are contained here.

References

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27. The case filed in the Federal Court of Australia involved Apple claiming that Samsung infringed nineteen 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” Financial Review (25 February 2013) online: <http://www.afr.com>.

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34. REDFERN, Alan and HUNTER, Martin, Law and Practice of International Commercial Arbitration, 2nd edn. (London: Sweet and Maxwell, 1991)Google Scholar at paras. 1-42, 1-43, 1-44, and 1-53.

35. Higgins, et al., supra note 32 at 1036Google Scholar.

36. See e.g. art. 9 of the UNCITRAL Model Law on International Commercial Arbitration, UN Doc. A/40/17 (1985).

37. MENON, Sundaresh, “Transnational Commercial Law: Realities, Challenges and a Call for Meaningful Convergence” (2013) Singapore Journal of Legal Studies 231 at 239Google Scholar.

38. Seidenberg, , supra note 33Google Scholar. 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, A. and HUNTER, M., Law and Practice of International Commercial Arbitration, 4th edn. (London: Sweet and Maxwell, 2004)Google Scholar at 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” (2005−06) 12 ILSA Journal of International and Comparative Law 499 at 499Google Scholar.

39. See School of International Arbitration, Queen Mary, University of London, “Corporate Choices in International Arbitration: Industry Perspectives” (2013), online: <http://www.pwc.com> at 7.

40. Ibid., which notes 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. ibid.

42. This statement was made in STIPANOWICH, Thomas J., “Arbitration: The ‘New Litigation’” (2010) University of Illinois Law Review 1 at 8Google Scholar, in the context of American business arbitration, but it applies similarly to international commercial arbitration. This view is also supported by ibid., at 5, 21−2. Also see Higgins et al., supra note 32 at 1042Google Scholar, 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” (2009) 7 DePaul Business and Commercial Law Journal 455 at 455Google Scholar, citing STEMPEL, Jeffrey W., “Forgetfulness, Fuzziness, Functionality, Fairness, and Freedom in Dispute Resolution: Serving Dispute Resolution Through Adjudication” (2003) 3 Nevada Law Journal 305 at 314Google Scholar.

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46. Helmer, , supra note 44 at 36Google Scholar.

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50. Seidenberg, , supra note 33Google Scholar, citing the view of Joseph R. Profaizer, of counsel to Paul, Hastings, Janofsky, and Walker in Washington, DC.

51. Toby LANDAU QC, Opening Keynote Address at the Singapore International Arbitration Forum (2 December 2013) (on file with author).

52. Stipanowich, , supra note 42 at 13Google Scholar, 15.

53. See Dallah Real Estate and Tourism Holding Co v. Ministry of Religious Affairs of the Government of Pakistan [2011] 1 AC 763.

54. PT First Media TBK (formerly known as PT Broadband Multimedia TBK) v. astro Nusantara International BV and Others and Another Appeal, (2014) 1 Singapore Law Reports 372 at para. 75.

55. Menon, , supra note 37 at para. 29Google Scholar, citing MISTELIS, Loukas, “Unidroit Principles Applied as ‘Most Appropriate Rules of Law’ in a Swedish Arbitral Award” (2003) 8 Uniform Law Review 631CrossRefGoogle Scholar.

56. Ibid., at para. 29, citing GAILLARD, Emmanuel and SAVAGE, John, eds., Fouchard, Gaillard, Goldman on International Commercial Arbitration (The Hague: Kluwer Law International, 1999)Google Scholar at 802.

57. Mosk, , supra note 32 at 107Google Scholar.

58. Max Planck Encyclopedia of Public International Law, “Investments, Bilateral Treaties” (May 2011), online: <http://opil.ouplaw.com> at para. 8.

59. Ibid., at para. 9.

60. The bilateral approach had the potential to create a “depoliticized and technocratic environment” that would enable private decision-making while avoiding wide consultation with a large and diverse group of stakeholders. See supra note 58 at 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, Mumbai, 19 April 2013, online: <http://app.supremecourt.gov.sg> at para. 14.

63. ROBERTS, Anthea, “Clash of Paradigms: Actors and Analogies Shaping the Investment Treaty System” (2013) 107 American Journal of International Law 45Google Scholar.

64. BROWER, Charles N. and BLANCHARD, Sadie, “What's in a Meme? The Truth About Investor-State Arbitration: Why It Need Not, and Must Not, be Repossessed by States” (January 2014, draft on file with author) at 69Google Scholar.

65. HWANG, Michael and LIM, Kevin, “Issue Conflict in ICSID Arbitrations” in Michael HWANG ed., Selected Essays on International Arbitration (Singapore: Singapore Academy of Law, 2013)Google Scholar, 472 at para. 65.

66. The decision is dated 5 March 2014.

67. The 7−2 split decision by an eminent bench is illustrative of 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). BG Group did not first seek relief in the courts of Argentina. Argentina argued that the arbitration was improper because BG Group did not comply with the local litigation requirement. The panel disagreed and awarded BG Group $185 million. BG Group sought to confirm the monetary award in US courts, while Argentina sought to vacate the award arguing that the panel lacked jurisdiction. The majority (Breyer, J, with whom Scalia, Thomas, Ginsburg, Alito, and Kagan JJ joined, and Sotomayor J joined 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 (Roberts CJ, with whom Kennedy J joined) 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. GONZÁLEZ, Daniel E.et al., “U.S. Supreme Court Decides First Case Related to International Investment Treaty Arbitration” Lexology (13 March 2014)Google Scholar, online: Lexology <http://www.lexology.com>. See also International Institute for Conflict Prevention and Resolution, “BG Group v. Argentina: CPR Reviews US Supreme Court Decision”, online: <http://www.cpradr.org>.

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

70. MATIATION, Stefan, “Arbitration with Two Twists: Loewen v. United States and Free Trade Commission Intervention in NAFTA Chapter 11 Disputes” (2003) 24 University of Pennsylvania Journal of International Law 451 at 458Google Scholar.

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

72. White Industries Australia Limited v. The Republic of India, Final Award, 30 November 2011, online: <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, “The Interference of the Court of the Seat with International Arbitration” (2012) Journal of Dispute Resolution 217 at 237Google Scholar. This principle was codified, at the turn of the century, in art. 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”, see International Law Commission, “Draft Articles on Responsibility of States for Internationally Wrongful Acts” (2001), online: UN <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 claiming that their rights were violated by national courts: see Carbone, supra note 74 at 238.

76. Carbone, , supra note 74 at 241Google Scholar.

77. TEITELBAUM, Ruth, “A Look at the Public Interest In Investment Arbitration: Is it Unique? What Should We Do About It?” (2010) 5 Berkeley Journal of International Law Publicist 54 at 54Google 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 Corporate Europe Observatory and the Transnational Institute, “Profiting from Injustice: How Law Firms, Arbitrators and Financiers are Fuelling an Investment Arbitration Boom” (November 2012), online: <http:// corporateeurope.org/sites/default/files/publications/profiting-from-injustice.pdf> at 8. See also PERRY, Sebastian, “Investment Arbitration under Fire from Think Tank” Global Arbitration Review (27 November 2012)Google Scholar, online: <http://globalarbitrationreview.com>.

79. Blanchard, Brower and, supra note 64Google Scholar at ftn 199 and accompanying text.

80. Sundaresh MENON, “International Arbitration: The Coming of a New Age for Asia (and Elsewhere)”, speech delivered to the International Council of Commercial Arbitration Congress 2012, Singapore, 11 June 2012, online: <http://www.arbitration-icca.org/media/0/13398435632250/ags_opening_speech_icca_congress_20 12.pdf> at paras. 19, 22, and 32.

81. The 2013 ICSID report showed that forty-eight percent of arbitrators, conciliators, and ad hoc committee members in 2013 were chosen from Western Europe, with just seventeen percent from South and East Asia, and the Pacific region. See International Centre for Settlement of Investment Disputes, “ICSID 2013 Annual Report” (September 2013), online: <https://icsid.worldbank.org> at 26.

82. NOTTAGE, Luke and WEERAMANTRY, J. Romesh, “Investment Arbitration in Asia: Five Perspectives on Law and Practice” (2012) 28 Arbitration International 19 at 33Google Scholar, citing Saadia M. PEKKANEN et al., “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, 1−2 August 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 Nassib G. ZIADE, “How Many Hats Can a Player Wear: Arbitrator, Counsel and Expert?” (2009) 24 ICSID Review 49 at 49; HRANITZKY, Dennis H. and ROMERO, Eduardo Silva, “The ‘Double Hat’ Debate in International Arbitration” New York Law Journal (14 June 2010)Google Scholar, online: <http://www.dechert.com>, citing A.C. SINCLAIR and M. GEARING, “Partiality and Issue Conflicts” (2008) 5 TDM; Hwang, and Lim, , supra note 65Google Scholar at para. 3.

84. See Hranitzky and Romero, ibid. The recurring legal issues include jurisdictional questions (e.g. the definition of “investment” and the use of a most-favoured 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, and Lim, , supra note 65Google Scholar at para. 64 citing ZIADE, Nassib G., “How Many Hats Can a Player Wear: Arbitrator, Counsel and Expert?” (2009) 24 ICSID Review 49 at 50Google Scholar.

85. Hranitzky, and Romero, , supra note 83Google Scholar.

86. Teitelbaum, , supra note 77 at 54−55Google Scholar.

87. ICSID Arbitration Rule 32(2) provides: “Unless either party objects, the Tribunal, after consultation with the Secretary-General, may allow other persons, besides the parties, their agents, counsel and advocates, witnesses and experts during their testimony, and officers of the Tribunal, to attend or observe all or part of the hearings, subject to appropriate logistical arrangements. The Tribunal shall for such cases establish procedures for the protection of proprietary or privileged information.” International Centre for Settlement of Investment Disputes, Rules of Procedure for Arbitration Proceedings, online: ICSID <www.icsid.worldbank.org>.

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

The tribunal shall conduct hearings open to the public and shall determine, in consultation with the disputing parties, the appropriate logistical arrangements. However, any disputing party that intends to use information designated as protected information in a hearing shall so advise the tribunal. The tribunal shall make appropriate arrangements to protect the information from disclosure.

Online: <http://www.fta.gov.sg/ussfta/chapter_15_us.pdf>.

89. European Commission, “Investment Provisions in the EU-Canada Free Trade Agreement (CETA)” (3 December 2013), online: EC <http://trade.ec.europa.eu> at 3.

90. I have explored some of these deficiencies elsewhere, and do not propose to provide a detailed analysis of them here: see Sundaresh MENON, “International Investment Arbitration in Asia: The Road Ahead”, 4th Annual Singapore International Investment Arbitration Conference, 3 December 2013, at paras. 34−46.

91. SORNARAJAH, M., “Evolution or Revolution in International Investment Arbitration? The Descent into Normlessness” in Chester BROWN and Kate MILES, eds., Evolution in Investment Treaty Law and Arbitration (Cambridge: Cambridge University Press, 2012)Google Scholar at 634.

92. Sundaresh MENON, Closing Address at the Singapore International Arbitration Forum, 2 December 2013 (on file with author).

93. Menon, , supra note 90Google Scholar.

94. Ibid., at para. 37.

95. Ibid.

96. Most-Favoured-Nation Treatment, United Nations Conference on Trade and Development (UNCTAD) Series on Issues in International Investment Agreements II, UN Doc. UNCTAD/DIAE/IA/2010/1 (2010), online: UNCTAD <http://unctad.org/en/docs/diaeia20101_en.pdf>.

97. Menon, , supra note 90Google Scholar at para. 44.

98. Ibid., at para. 46.

99. TAMS, Christian J., “An Appealing Option? The Debate about an ICSID Appellate Structure” in C. TIETJE et al., eds., Essays in Transnational Economic Law No 57, June 2006 (Halle: Martin Luther Universität, 2006)Google Scholar at 20.

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

101. See Lauder v. Czech Republic, Final Award, 3 September 2001, online: <http://www.italaw.com> at 66−72 and CME Czech Rep. B.V. (The Netherlands) v. Czech Republic, Partial Award, 13 September 2001, online: < http://www.italaw.com> at 5−7.

102. Teitelbaum, , supra note 77 at 59−62Google Scholar.

103. Menon, , supra note 90Google Scholar at para. 55.

104. Supra note 89 at 3−4.

105. Bolivia served a written notice of its denunciation of the ICSID Convention on 2 May 2007, and the denunciation took effect six months after the receipt of notice, i.e. on 3 November 2007. See International Centre for the Settlement of Investment Disputes, “List of Contracting States and Other Signatories of the Convention” (11 April 2011), online: ICSID <https://icsid.worldbank.org>.

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

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

108. Australian Government Department of Foreign Affairs and Trade, “Gillard Government Trade Policy Statement: Trading Our Way to More Jobs and Prosperity” (April 2011), online: < http://www.acci.asn.au/> at 14. Also see Ministry of Trade and Investment, Australia, “Gillard Government Reforms Australia's Trade Policy” (12 April 2011), online: <http://trademinister.gov.au>.

109. MENON, Sundaresh, “The Somewhat Uncommon Law of Commerce” (2014) 46 Singapore Academy of Law Journal 23 at 49Google Scholar.

110. Ibid.

111. Ibid., citing Helmut WAGNER, “Costs of Legal Uncertainty: Is Harmonization of Law a Good Solution?”, delivered at the Fortieth Annual Session of UNCITRAL, Vienna, 9−12 July 2007, online: <http://www.uncitral.org/pdf/english/congress/WagnerH.pdf> at 1.

112. Ibid., at para. 52 et seq.

113. See The Hague Conference for Private International Law, “The Hague Convention of 30 June 2005 on Choice of Court Agreements—Outline of the Convention” (May 2013), online: <http://www.hcch.net>.

114. See The Hague Conference for Private International Law, “Status Table” (19 November 2010), online: <http://www.hcch.net>.

115. See art. 31(1), The Hague Choice of Court Convention, 30 June 2005, 44 I.L.M. 1291.

116. YEO Tiong Min, “International Litigation in Asia: Will the Hague Choice of Court Convention Make Any Difference?”, online: <http://www.jsil.jp> at para. 18.

117. See The Hague Choice of Court Convention, 30 June 2005, online: <http://www.hcch.net>.

118. PRIBETIC, Antonin I., “The Hague Convention on Choice of Court Agreements” (2005) 10 The Globetrotter 2 at 2Google Scholar.

119. Ibid.

120. See Singapore International Arbitration Forum, online: <http://www.siaf.sg/>.

121. Sundaresh MENON, Closing Address at the Singapore International Arbitration Forum, 2 December 2013 (on file with author).

122. Sundaresh MENON, “Some Cautionary Notes for an Age of Opportunity”, keynote address at the Chartered Institute of Arbitrators International Arbitration Conference, 22 August 2013, online: <www.singaporelaw.sg> at para. 51.

123. A “final draft” dated 18 February 2014 has been uploaded onto the LCIA website. Art. 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. Art. 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 LCIA, “New LCIA Rules 2014”, online: <www.lcia.org>.

124. Menon, , supra note 122 at para. 52Google Scholar.

125. Ibid., at 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, London, 27 September 2012, online: <http://www.arbitration-icca.org>.

127. International Council for Commercial Arbitration, Miami 2014, online: <http://www.iccamiami2014.com/>.

128. In the context of investor-state arbitration, see Katia YANNACA-SMALL, “Improving the System of Investor-State Dispute Settlement”, OECD Working Paper on International Investment (February 2006), online: OECD <http://dx.doi.org/10.1787/631230863687> at 10. See also FRANCK, Susan, “The Legitimacy Crisis in Investment Treaty Arbitration: Privatizing Public International Law Through Inconsistent Decisions” (2005) 73 Fordham Law Review 1521Google 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 further Menon, supra note 90 at para. 48 et seq.

130. ICSID Secretariat, “Possible Improvements of the Framework for ICSID Arbitration”, Discussion Paper (22 October 2004), online: ICSID <https://icsid.worldbank.org>.

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 World Trade Organization, “Understanding the WTO: Settling Disputes”, online: <www.wto.org>.

132. Menon, , supra note 90 at para. 62Google Scholar.

133. US Trade Act of 2002, 19 U.S.C. §§ 3803–3805. This has been the basis for concluding several US FTAs.

134. 19 USC s 2102(b)(3)(G)(iv). See also SAUVANT, Karl P., Appeals Mechanism in International Investment Disputes (New York: Oxford University Press, 2008)Google Scholar at 232, and Yannaca-Small, supra note 128 at 9.

135. Yannaca-Small, supra note 128.

136. See the US-Dominican Republic-Central American FTA. Chapter 10, art. 10.20 at para. 10: Office of the United States Trade Representative, “CAFTA-DR (Dominican Republic-Central America FTA)”, online: <http://www.ustr.gov/sites>.

137. European Commission, supra note 89 at 3.

138. Menon, , supra note 37Google Scholar at para. 56.

139. Menon, , supra note 109Google Scholar at para. 60.

140. Ministry of Law, Singapore, “Report of the Singapore International Commercial Court Committee” (29 November 2013), online: <http://www.mlaw.gov.sg>.

141. Ibid., at para. 22.

142. Rajah & Tann LLP, “The Development of the Singapore International Commercial Court” (December 2013), online: < http://eoasis.rajahtann.com> at 3.

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

144. Ibid., at para. 32.

145. WILKOF, Neil, “Can Patent Judges ‘Colloquy’ Themselves to Greater Uniformity?” (30 August 2013)Google Scholar, online: <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 Communication Corporation 170 B.R. 800 (Bankr. S.D.N.Y. 1994), affirmed in 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, 15−16 January 2009, online: <http://www.cambridgeforums.com>.

148. Ibid.

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

150. International Chamber of Commerce, “The New Incoterms® 2010 Rules”, online: ICC <http://www.iccwbo.org>.

151. International Federation of Consulting Engineers, “About FIDIC”, online: FIDIC <http://fidic.org/node/13 #sthash.on7HSusc.dpuf>.

152. Menon, , supra note 37Google Scholar at para. 2.