Transnational Litigation as a Prisoner's Dilemma

In this Article we use game theory to argue that perceptions of widespread corruption in the judicial processes in developing countries create ex ante incentives to act corruptly. It is rational (though not moral) to preemptively act corruptly when litigating in the courts of many nations. The upshot of this analysis is to highlight that, contrary to judicial narratives in individual cases—such as the (in)famous Chevron–Ecuador dispute used herein as an illustration—the problem of corruption in transnational litigation is structural and thus calls for structural solutions. The Article offers one such solution: the establishment of an international court of civil justice.

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