IECL Lunchtime Seminar

Constitutional Public Policy and Contract Boilerplate

Prof Russell Korobkin

The modern economy is awash in standard form contracts filled with “boilerplate” terms drafted by repeat players and routinely accepted by consumers, employees, and businesses without reading or understanding their content.  Standard form contracts weaken but do not subvert party autonomy but, they do undermine contract efficiency.  While American courts attempt to counter the worst excesses of boilerplate with the ad hoc and unpredictable use of the “unconscionability” doctrine, this paper argues that an expansive reading of the “public policy” doctrine – constitutional public policy – can provide courts with an additional tool that is more predictable and more keeping with the institutional competence of courts. 

Use of the AI in environmental and green transition arbitrations

Dr Sorin Dolea

Environment-related disputes often involve a direct conflict between competing obligations of the State to, on one hand, promote foreign investment and, on the other hand, protect its population and territory from environmental harm while responsibly managing its natural resources.

Climate change and the protection of the environment have been in the public debate since at least the 1972 Stockholm Declaration and the ensuing United Nations Framework Convention on Climate Change (UNFCCC), which is the founding instrument of international environmental law. Since the 2015 Paris Agreement, the United Nations Intergovernmental Panel on Climate Change (IPCC) committed States to the goal of limiting global average temperature rise to well below 2°C (preferably 1.5°C) above the pre-industrial levels. To achieve the goals of the Paris Agreement, the States are encouraged to take significant and rapid measures to prompt changes in virtually all fields of economic activity. Implementing the IPCC’s recommendations will necessarily involve a wide array of governmental regulations, some of which will redefine the scope of previously authorized permissible activities in industries that involve high greenhouse gas emissions. Some of these regulations will eliminate the economic viability of proprietary interests and acquired rights of private sector investors. Therefore, the next wave of investor-state arbitrations will likely target host state measures aimed at implementing the mitigation and adaptation goals of the Paris Agreement.

The complexity of the issues discussed in investor-state environmental arbitrations determine us to examine whether Artificial Intelligence (AI) could be of any application in the process of settlement of environmental arbitrations. Decision making in dispute settlement is a highly complex task for human arbitrators as it entails fact-finding, recognizing evidence, interpretation of laws, etc. It undoubtedly becomes even more complex in environmental arbitrations, given the wide web of applicable laws and stakes involved. Such being the case, it is fundamental to evaluate the efficiencies of AI models within the decision-making process. This paper focuses on the use of AI in the context of investor-state environmental arbitrations.