Media & Publications
The Case for an International Court of Civil Justice
When multinational corporations cause mass harms to lives, livelihoods, and the environment in developing countries, it is nearly impossible for victims to find a court that can and will issue an enforceable judgment. In this work, Professor Maya Steinitz presents a detailed rationale for the creation of an International Court of Civil Justice (ICCJ) to hear such transnational mass tort cases.
Zombie Litigation: Claim Aggregation, Litigant Autonomy and Funders' Intermeddling
The main debate surrounding litigation funding in recent years has focused on the question of disclosure of funding agreements. While the issue is important, predominantly because of its effects on the course and outcome of individual cases, far more important are bigger, interrelated questions which have systemic effects on the civil justice system, the legal profession, and the nature of the rise of portfolio funding- which I here propose to view as a new form of undisclosed and unregulated claim aggregation- has broader-still effects including clients' potential, and at times actual, loss of autonomy over their cases as their lawyers become originators, brokers and/or managers of 'litigation assets.'
Stanford Law Review: The Case for an International Court of Civil Justice
We live in a world in which the victims of cross-border mass torts de facto (not de jure) have no court to turn to in order to pursue legal action against American multinational corporations when they are responsible for disasters. The only way to provide a fair and legitimate process for both victims and corporations is to create an International Court of Civil Justice (ICCJ). This Essay seeks to start a conversation about this novel institutional solution. It lays out both a justice case, from the plaintiffs’ viewpoint, and an efficiency case, from a corporate defendant’s viewpoint, for why a world with an ICCJ would be a better place. The Essay also provides an initial blueprint for such an ICCJ. In so doing, it explains why an ICCJ is politically viable and may, specifically, appeal to rather than repel the least likely constituency: corporate America. The Essay concludes with a call for action and a research agenda.
Transnational Mass Tort Litigation: A Proposal for an International Court of Civil Justice
This chapter will present an argument for the creation of an International Court of Civil Justice to hear transnational mass tort cases. It will consider some of the challenges of adjudicating cross-border mass torts, along with the incentives and feasibility of a new international court to adjudicate these claims. Drawing upon a number of case studies, including the Bhopal disaster, litigation surrounding the devastation of the Ecuadorian Rain Forest, and the attempts to sue over human rights abuses in Nigeria, the chapter will show that the world's legal systems were not designed to solve these kinds of complex transnational disputes, and the absence of mechanisms to ensure coordination means that victims try, but fail, to find justice in country after country, court after court. The chapter also explains how an ICCJ would provide victims with access to justice and corporate defendants with a non-corrupt forum and an end to the cost and uncertainty of unending litigation-more efficiently resolving the most complicated types of civil litigation.
Report of the National Expert for the United States in Mapping Third Party Litigation Funding In The European Union
Commercial third-party litigation funding (“TPLF”) is not centrally regulated in the United States. It is subject to the overlapping jurisdiction of state and federal courts, state and federal legislatures, regulatory agencies, and bar associations. Legislation, regulation, and oversight of TPLF is being undertaken at each of those levels – much of it centered around the questions of when and whether TPLF should be disclosed; how to mitigate conflicts of interest created by TPLF (including the potential for claimants to lose control over their case to funders); and the identification of any foreign individuals, entities, or countries that may be providing the funding. At least 12 state legislatures and the U.S. Congress have passed or considered TPLF legislation. Many federal and state courts have issued standing orders regarding litigation finance. In TPLF cases, courts have used their inherent powers to investigate potential abuse of process and to determine whether those appearing before the court are the real parties in interest.
Financial Times on Chinese-funded lawsuit Challenges
The Financial Times (FT), a top global business publication, recently published a major piece examining the future of the multi-billion dollar litigation funding industry. The article focused on the challenges and criticisms facing the sector, including regulatory scrutiny and the complexities of capital management, especially as it relates to foreign investment in U.S. and international disputes.
Third Party Funding of Investment Arbitration
This Essay discusses Third-Party Funding in Investment Arbitration.
It describes the rise of third-party funding of investment arbitration; the debate over the definition of litigation/arbitration finance; the forms arbitration finance takes; the normative debate in favor and against third-party funding of investment arbitration; the effects of arbitration funding on the arbitral process; developments in national, international, and soft law governing investment arbitration funding; and the likely effects of third-party funding on the international bar.
Back to the Basics: Public Adjudication of Corporate Atrocities Torts
The editors of this online symposium invited me to contribute to the subject of an argument I have recently advanced. This argument is that the world needs a permanent International Court of Civil Justice (ICCJ) to adjudicate cross-border mass torts. A common reaction to this proposal has been to suggest that the function of such an international court be assumed by one of the existing arbitration institutions or filled by a new one. I’d like to take this opportunity to argue against that idea.
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.
Transnational Legal Process Theories
This Chapter of The Oxford Handbook of International Adjudication is devoted to transnational legal process theories. The main thrust of the Chapter is that the field of transnational legal process theories has proceeded without the benefit of conceptual clarity regarding the key underlying concept: the concept of a/the ‘legal process’ and that a myriad of partly-overlapping concepts — such as international adjudication, supranational adjudication, and transnational litigation — are used interchangeably, willy-nilly.
The Ad Hoc International Criminal Tribunals and a Jurisprudence of the Deviant
This short article is a synopsis of a doctoral thesis entitled Law as Communication: A Concept of International Law. Embedded in the legal theory of philosopher Joseph Raz - who argued that "whatever else the law is, it either claims legitimate authority, is held to possess it, or both" - this analysis of international law's claim of legitimate authority is based on an ethnographic study of the International Criminal Tribunals for the former- Yugoslavia and Rwanda.
The analysis of international law's claim of legitimate authority, which uses semiotics and performance-studies perspective, is then used as a basis for an examination of issues in analytic legal philosophy: the relationship between the phenomenology of law and its concept and the social-psychological dimensions of methodologies used and advocated for by legal philosophers.
Internationalized Pro-Bono and a New Global Role for Lawyers in the 21st Century: Lessons from Nation-Building in Southern Sudan
From 2004 to 2006, the author led the pro bono representation of the Sudan People’s Liberation Movement (“SPLM”), assisting the SPLM in drafting and negotiating the National Interim Constitution of Sudan, the Interim Constitution of Southern Sudan and the Constitutions of two “transitional” states. The representation was part of an emerging trend in pro bono representations. In small but increasing numbers, private law firms have begun to take on pro bono projects with global significance - assisting governments and civil society in post-conflict countries to deal on an even footing with foreign investors, for instance, or working with international criminal courts to prepare indictments of war criminals.
Robust Constitutions - The Deal News Weekly
Maya Steinitz conceived and oversaw one of the most ambitious international pro bono undertakings ever by a commercial law firm, a more-than-yearlong effort to assist the Southern Sudanese in drafting federal and regional interim constitutions.
The effort harnessed the energies of about 50 Latham & Watkins LLP lawyers in multiple offices around the world. It established a model for law firms wading into pro bono development of international rule of law.
The Impact of Sovereign Wealth Funds on the Regulation of Foreign Direct Investment in Strategic Industries: A Comparative View
Investments by sovereign wealth funds ('SWFs') - pools of capital accumulated by and under the control of sovereign states, mostly from the Persian Gulf and East Asia - in European and North American companies have changed dramatically both in scope and in nature in the last few years. This article examines the screening mechanisms in place, recently changed, or currently under consideration by the United States, France and India. While by no means an exhaustive or even representative survey, this sample highlights how different jurisdictions apply varying degrees of scrutiny to FDI in an age of increased sovereign-directed investments.