Panel 2: Dispute System Design on a Global Scale


Panel 2 – Realplayer Video
 

March 8, 2008
9:00 A.M. – 10:30 A.M.

As the globe has gotten smaller, new types of conflicts have developed, and new ideas have formed on how to deal with them. Trade disputes can be brought to the World Trade Organization (WTO), corporations submit themselves to international arbitration norms, and the UN provides yet another forum for resolving disputes. This panel will discuss questions such as how have these systems evolved, what challenges they face, and how best to respond to those challenges.

Negotiation, Meet New Governance: Interests, Skills, and Selves by Amy Cohen

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  • Audience (2)
  • 32 Comments

    1. Bob Bordone

      March 8, 2008 @ 9:22 am

      1

      What does new governance have to say about how to create mechanisms when there is no background adjudicatory norm or court. Amy says that “new governance” raises this challenge, which is great. Does it propose any answers? I’d love to hear them.

    2. Chieh-Ting Yeh

      March 8, 2008 @ 9:29 am

      2

      Prof. Schneider’s first contradiction: why push ADR domestically, but push for courts internationally? Perhaps you do need a well established rights based dispute resolution system (i.e. courts) before we can build an interest based system on top of it?

    3. Bernie Bonn

      March 8, 2008 @ 9:32 am

      3

      The court system here preceeded the focus on ADR but remains a fallback if ADR fails; it seems internationally you would need a government enforced backup system to make the ADR option attractive.

    4. Bob Bordone

      March 8, 2008 @ 9:35 am

      4

      The idea that mass torts might serve as a model for designing systems in the face of genocide or mass crimes is an interesting one. It’d be great to hear more what specifically might be transferable. It does seem that mass torts systems design is largely top down, not bottom up.

    5. Bob Bordone

      March 8, 2008 @ 9:36 am

      5

      In answer to Ting and Bernie’s comments — it does seem right that you need a government-enforced backup. The question is: how do you get that in any situation, but especially when many governments might be involved in the design.

    6. Bernie Bonn

      March 8, 2008 @ 9:45 am

      6

      In the mass tort area, whether it is top down depends on who you see is on top. Are plaintiffs’ class action lawyers part of the top down or are they identified with the class members/victims and working from the bottom up. Clearly they influence the process and system, and system design to some extent although the courts and Congress set the rules.

    7. Bob Bordone

      March 8, 2008 @ 9:47 am

      7

      Rachel’s thoughts about the creation of the WTO raises a question that has resonated since yesterday: Can systems only be designed and workable when the most powerful player is prepared to ‘play?” in that case, is any system design anything other than power-based in practice?

    8. Pia Owens

      March 8, 2008 @ 9:53 am

      8

      On Bob’s previous comment, I was wondering the same thing about Amy Cohen’s new governance example of not giving indigenous people rights to land, but instead including them in the process. It seems there must be some outside incentive for powerful players to participate in a process that levels the playing field.

    9. Akilesh Ayyar

      March 8, 2008 @ 9:54 am

      9

      Bob, might not many powerful players be induced to “play” for reasons other than power (e.g. moral suasion, friendly/familial relationships between its citizens and the citizens of other countries, etc.)?

    10. Bob Bordone

      March 8, 2008 @ 9:59 am

      10

      David Miller talks about getting rid of cultural barriers by creating a “third” culture — the culture of the international civil servant. On the one hand, this seems like a nice way to address issues of culture. On the other hand, it does seem that it creates problems: first, who decides what the “neutral” third culture is going to be. Secondly, the people who are part of the system do come from a particular culture. How can you expect that they will simply “neutralize” their cultural past?

    11. Bernie Bonn

      March 8, 2008 @ 9:59 am

      11

      It does seem that if there are systems in which there are particularly powerful players, the system will only work if the powerful players decide it is in their interests to give up some of that power in order to make the system work because they expect to gain more from the system than they are giving up. And the rules that are adopted will reflect a balance between the gains and losses won’t they?

    12. David Lee

      March 8, 2008 @ 9:59 am

      12

      Building on Bob’s and Akilesh’s comments about power in the trade context, to what extent could US be withdrawing from unilateralism because of the rise of the EU as a strong counter-force in the trade context? Also, with the Antigua example, to what extent does that exemplify the need to search for interests to engage the dominant/strong player?

    13. Pia Owens

      March 8, 2008 @ 10:00 am

      13

      Rachel Brewster mentioned one factor that might induce powerful parties to “play” — political effects on unrelated processes that are happening around the same time or will happen in the future. Alliances between less powerful parties might help, too. On an individual level, we’ve seen lots of people organizing informally as communication gets easier and cheaper. I wonder if this can happen on an international level too, or if there are too many diplomatic pressures preventing alliances of developing countries or other less powerful groups.

    14. Bob Bordone

      March 8, 2008 @ 10:01 am

      14

      I agree with Akilesh that of course there are ways that powerful players can be induced to play — given what theirindividual interest sets are. But the question is: what if the current situation is really the best for the powerful and unjust for others. Is there any way to get the powerful to the table beside changing their BATNA (which, of course, is a power-based move)? I suspect there may be, but I think it’s a tough question.

    15. David Lee

      March 8, 2008 @ 10:04 am

      15

      David Miller’s “third” culture appears attractive at first glance, but recalling Cathy Constantino’s comment from yesterday about the futility of changing culture in the organizational context, one begins to wonder: how does an international organization like the WHO reconcile the personal differences in cultural contexts and background of the various international civil servants? Does it not require a change of culture – on an individual level – of these civil servants in order for the system to work as a whole?

    16. Chieh-Ting Yeh

      March 8, 2008 @ 10:05 am

      16

      I like to go back to the “culture of the international service” and maybe express a bit of cautious optimism that it can somehow evolve on its own?

    17. Pia Owens

      March 8, 2008 @ 10:08 am

      17

      Amy Cohen’s answer to the question “can a process be too inclusive, to the point of unproductivity” was that a critical outside can act as a check to the groups inside a process. This makes sense, but I wonder how all these processes can scale. A critical outside can help a process, but does it also delegitimate it if all the possible stakeholders aren’t included? And if they are all included, we go back to the initial question.

    18. Bob Bordone

      March 8, 2008 @ 10:10 am

      18

      I do think a third culture can evolve over time. And in the case of the U.N., it has. And what’s curious, is that the neutral culture creates “conflict” with other cultures — so lots of UN “procedure”, for example, can be deemed by Americans as “inefficient” and therefore unworkable. How cann you amke a third culture that is “acceptable” to all the other cultures?

    19. Akilesh Ayyar

      March 8, 2008 @ 10:14 am

      19

      Bob, do you consider moral argument to be a matter of BATNA or power? Or do you simply doubt its efficacy in the int’l dispute resolution context?

    20. Pia Owens

      March 8, 2008 @ 10:14 am

      20

      Andrea’s question about whether a national identity (stronger than ethnic identity) has emerged is a good measure of whether reconciliation has occurred is an interesting one. It seems to me that achieving some balance between national identity and ethnic identity, or a redefinition of ethnic identity that does not include opposition to other groups, might be an indiciation that the process is working.

    21. Bob Bordone

      March 8, 2008 @ 10:18 am

      21

      Akilesh —

      I think moral arguments relate directly to BATNA — if the moral arguments, for example, can force leaders to change their view because of either domestic constituencies or bec ause of international pressure — they can work. In that case, I do think they have some efficacy. But at the end of the day, I do think that moral arguments have limits if a side has power to force the other’s hand and doesn’t care.

    22. Bob Bordone

      March 8, 2008 @ 10:19 am

      22

      Pia — Your point is really interesting to me. And figuring out what the right “balance” between ethnic and national identity is a question worthy of study — looking at places where it has worked, places where it hasn’t, and places where the question is still open.

    23. Akilesh Ayyar

      March 8, 2008 @ 10:28 am

      23

      Bob, that’s very interesting. I’m having trouble conceptualizing a force to bring people to the table not ultimately based on affecting BATNAs somehow. Could you please give an example?

    24. Pia Owens

      March 8, 2008 @ 10:33 am

      24

      Andrea responded to the question about whether closure in Liberia isn’t justice enough by saying that in that country, it was a bottom-up process where people felt they need closure. She contrasted the situation in South America where the government imposed closure by granting amnesty from the top down. I wonder how you build the process so it is bottom-up versus top-down. Is it who decides to start the process — whether it’s the government deciding that it needs to deal with ongoing disputes, or people organizing? Or does it have something to do with the culture or power structure within the country? Not being familiar with the situation in South America, I don’t know how the process went but it’s surprising to me that the government would make a unilateral decision — they must have involved people involved in the disputes (?) but is it a question of how they made the decisions of who to involve?

    25. Bob Bordone

      March 8, 2008 @ 10:35 am

      25

      It’s not clear that if you can’t persuade a party that it isin their interest to enter into a new disptue resolution process and you can’t change their BATNA to get them to the table and you can’t use moral or normative arguments, that you can be successful. But, one possible idea might be to think about how you can change the time frame that parties are considering (i.e. long term v. short term), or perhaps working for long-term internal structural change (i.e. changing leadership) which is different from actually changing the BATNA of the nation-state itself.

    26. hnmcp

      March 13, 2008 @ 1:41 pm

      26

      This is a source mentioned by one of the participants that represents a point of view not expressed in the conference – Abram Chayes and Antonia Hadler Chayes “New Sovereignty” Chapter 9. The chapter deals with dispute settlement mechanisms as an instrument of active management of treaty regimes.

    27. Rosalie Braunstein

      March 14, 2008 @ 12:21 pm

      27

      Amy’s point of thinking about the intersection of institutional design and actual individuals strikes me as particularly salient, especially when designing a dispute system for a foreign set of cultures and values, where the value of the individual versus the value of the community may differ from the conceptions and experiences of the designer. Pia’s point about creating outside incentive to induce powerful players to work to level the playing field is interesting when thinking about the intersection of institutional design and the individual in areas with different conceptions about individuality–perhaps these outside incentives can be broadened to take these values into consideration as well.

    28. Rosalie Braunstein

      March 14, 2008 @ 2:00 pm

      28

      I think Andrea’s point about collective amnesty being a bottom up choice is such an underreported phenomenon. A dispute design really requires a deep understanding of what the individual requires for his or her own good, and what the society at large needs in order to recover. That tension obviously must be addressed. I wonder how much different cultural conceptions of ‘justice’ actually inform these decisions on a local level?

    29. Rosalie Braunstein

      March 14, 2008 @ 2:06 pm

      29

      Bob’s point about changing time frames (i.e. short term versus long-term) or changing internal structure of governments, etc. as opposed to trying to change BATNAs or forcing parties to the table is interesting to me. To what extent can outside forces creating an ADR framework expect to control these factors? And, more importantly, how hard should they try to do so? At what point does this whole approach become too aggressive?

    30. Rosalie Braunstein

      March 14, 2008 @ 2:31 pm

      30

      In response to Bob’s comment on Rachel’s description of the WTO, i.e. does the most powerful player have to be willing to play: Creative thinking on the part of the small states is clearly key (i.e. her example with Antigua and intellectual property rights). I think it is sometimes overlooked how effective smaller states can be as players, even though they aren’t as powerful individually, when they work together with each other as against a more powerful dominating party. I’m not sure how one would design a dispute system that would take power into account, but one idea might be to examine partnerships and alliances among the parties and think about how that alters the power dynamic as well.

    31. Rosalie Braunstein

      March 14, 2008 @ 2:40 pm

      31

      On David Lee’s comment above regarding David Miller’s third culture: I think that there are other elements of being a civil servant that does work to neutralize cultural differences and bind together otherwise conflicting parties. For example, common goals, common interests, common desires, common fears; many of those who work at the UN have similar concerns for their own country that their colleagues have for another country. A well-designed dispute system should capitalize on these commonalities, and try to bring them out in discussion to better enhance this third culture and its viability.

    32. food pyramid

      August 18, 2011 @ 2:41 am

      32

      Thanks, that’s really good thing to know.

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