2024 New Voices in Dispute Resolution Goldberg Scholars

Ylli Dautaj on Disputes with state Enterprises

Much of my previous research has focused on international commercial arbitration (ICA) and investment treaty arbitration (ITA). The latter being an auspice of international economic law, and therefore of public international law. Much of the work relates to international disputes where at least one of the parties is a state or entity thereof.
My next project is to build upon this previous research (as well as practical experience) by developing further the theoretical and practical framework of the state and its entities in international dispute resolution. The title of my research project is: “The (State) Group and Piercing the (Sovereign) Veil: Disputes with State Enterprises.”
Because the complexities in international dispute resolution are exacerbated where one of the parties is a state or state enterprise (owned, controlled, or otherwise), wearing both a practical and academic hat, my research will help navigate the intersection between international dispute resolution, international law, private law. In that lens, the project will offer cross-fertilization between academic input (theory) and counsel experience (practice).
“State Group” is referring to the situation where a state enterprise is considered to form part of the organization of the state directly or indirectly, and whether generally or for a specific purpose. “Piercing the Sovereign Veil” is referring to the situation where a court or tribunal pierces the state enterprise’s veil in order to hold the state (i.e., its owner/controller) accountable for the breach of the entity, or conversely the entity accountable for the breach of the state, as case may be. This research will highlight five situations where the intersection between a private party, state, and a state enterprise presents unique challenges in international dispute resolution: (1) attribution for the state enterprise’s conduct; (2) state enterprises acting as investors in investment treaty arbitration; (3) state enterprises invoking force majeure; (4) state enterprises and their corporate social responsibility; and (5) enforcing arbitral awards against state enterprises for the state’s debt.
Thus, this research focuses on: First, when the state enterprise’s actions can, and under what circumstances, be attributed to the state. Secondly, it is explained when the state enterprise can be considered to be the state and not an investor for the purposes of accepting the offer to arbitrate in an international investment agreement. Thirdly, it highlights the rare situations where the state enterprise can be considered to be the state (or so closely aligned with it or its actions) so that it cannot rely on laws/decisions of the state to constitute force majeure events. Fourthly, it explains that, in certain highly exceptional circumstances, the state enterprise can be considered to have assumed “statesmanship” so that the state’s violations of inter alia environmental obligations or human rights undertakings of CSR obligations can be attributed to it. Finally, it identifies that in rarely and in only certain limited circumstances can the state enterprise be liable for the debt of the state in an award/judgment enforcement context.

Hossein Fazilatfar on Clause Expansion

In recent years, enforcement of a new generation of arbitration agreements with ultra-expansive language has divided courts across the country. Arbitration agreements that if enforced to full extent access to courts will be limited through arbitrary party-consent. Clausal language “strikingly broad as to the who, what, and when of coverage” would favor repeat actors eager to arbitrate all claims and disputes at any cost to the average consumer, employee, patient, etc. Recently, the Fourth, the Ninth, and the Eleventh Circuit Courts of Appeals have coped with the issue, yet inconsistently. Some authorities via overreaching employment of the long-standing federal policy favoring arbitration have found “infinite arbitration clauses” valid and arguably within the realm of party consent. Others, by relying on state contract law defenses, have ruled such clauses unenforceable. The former approach disregards basic contract formation principles by presuming consent. The latter approach is vulnerable to the preemptive effects of the Federal Arbitration Act (FAA). This Article is focused on the expansive reach of such clauses in terms of coverage and their enforceability (claim expansion). The Article addresses Clause Expansion under statutory language of the FAA, current lower court precedent, and critically discusses, the circuit split and how the Supreme Court will treat such agreements with the precedent and interpretive tools at its disposal.
The Article argues that despite calls over enforcing the statutory limitations of Section 2 of the FAA – which gives, and should give, effect to agreements that “arise out of” the container contract or transaction – may not have a purchase at even a textualist Supreme Court. The Article, alternatively, argues that courts should treat expansion at the formation stage, rather than the scope stage – a two-step analysis courts have traditionally employed in dealing with arbitration agreements. A long-term pattern of treating scope issues at formation may warrant a consistent application and exclude claims unrelated to the underlying contract or transaction, in particular in clauses signed by the average person. The Article suggests that courts should
 Associate Professor of Law, Creighton University School of Law.
contract (de-expand) superficial expansive clausal language by recognizing parties realistic reach of party consent at formation and under basic state contract law applicable to “any contract.” Treating expansion at formation would make any outcome immune from the pro-arbitration policy’s interpretive tool (the Moses Cone Canon), which presumes consent, and thus coverage, in cases of doubt at the scope stage analysis. Further, approaching expansion from a formation stance, since applicable to all contracts, the treatment will not be subject to preemption under the FAA. This approach has received little attention from the judiciary. But as argued here, it deserves a purposeful shift by the judiciary in analyzing such clauses at the first step, agreement formation, rather than reserved for the second step, agreement scope