Academic

Kornfeld on the International Joint Commission of the Boundaries Waters Treaty

By Lawrence Solum

Itzchak E. Kornfeld (Hebrew University of Jerusalem - Faculty of Law) has posted Polycentrism and the International Joint Commission (Wayne Law Review, Vol. 54, p. 1695, 2009) on SSRN. Here is the abstract:

Courts are called upon everyday to resolve disputes. Does that mean that they are the most appropriate forum for settling all types of cases? This article posits that they are not. It argues that courts are not suited to settling polycentric issues. Polycentric disputes are said to have numerous complicated, multifaceted, and unpredictable social and economic repercussions. In most cases, the settlement of polycentric issues requires significant expertise. They are therefore regarded as ?unsuitable for judicial resolution?. Hence, adjudication is best appropriate for bilateral disputes over private claims of rights. It is least well-suited to disputes that implicate polycentric issues, which require a weighing of interests and the capacity to seek out and evaluate complex data. This is particularly true in environmental and natural resource cases. This article is part of a Wayne Law Review symposium volume commemorating the one hundredth anniversary of the Boundary Waters Treaty of 1909, between Canada and the United States. It examines the International Joint Commission (?IJC?), created by the Treaty, as a dispute settlement body and how it has resolved over 100 environmental disputes in since it was established in 1912. I posit here that non-court or non-adversarial dispute settlement bodies, such as the IJC, are better suited to resolving environmental and natural resource disputes than are courts. This because they offer the parties and the members of the ?tribunal? the time and opportunity to delve into the issues, to employ technical expertise and to work towards a win-win outcome as opposed to the winner take all outcomes that are the necessary result in courts. In many respects these types of tribunals act like Masters that are appointed by United States federal courts pursuant to Fed.R.Civ.Pro. 53.

Full post as published by Legal Theory Blog on September 09, 2009 (boomark / email).