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Most-favored-nation (MFN) provisions have formed the center of a jurisdictional dispute that has plagued international arbitration for the past two decades. Since the Maffezini decision in 2000, holding that MFN clauses can be used to import jurisdictional provisions, the international arbitral system has seen a long succession of inconsistent and irreconcilable arbitral decisions, some following Maffezini’s approach and others rejecting it. The result is a jurisdictional crisis in international arbitration that has consumed opposing parties’ time and money, undermined the international arbitral system’s legitimacy, and called into question the very reasons for the system’s existence.

However, a glimmer of hope has emerged: A new variety of MFN clauses has begun to appear that explicitly specify that they do not apply to procedural issues. Despite their potential to solve one of international arbitration’s most intractable problems, these jurisdiction-limiting MFN clauses have largely escaped serious analysis. This Note fills this gap in scholarship by providing the first academic analysis focused exclusively on these new jurisdiction-limiting provisions, analyzing the trend towards the increased use of these provisions, the form the provisions take, their reception in arbitrated cases, and the implications that these provisions carry.

EU data protection law is playing an increasingly prominent role in today’s global technological environment. The cornerstone of EU law in this area, the General Data Protection Regulation (GDPR), is now widely regarded as a privacy law not just for the EU, but for the world. In the conventional wisdom, the EU has become the world’s privacy cop, acting in a unilateral fashion and exercising de facto influence over other nations through its market power. Yet, understanding the forces for convergence and divergence in data privacy law demands a more nuanced account of today’s regulatory environment.

In contrast to the established narrative about EU power, this Article develops a new account of the diffusion of EU data protection law. It does so through case studies of Japan and the United States that focus on how these countries have negotiated the terms for international data transfers from the EU. The resulting account reveals the EU to be both collaborative and innovative.

Three important lessons follow from the case studies. First, rather than exercising unilateral power, the EU has engaged in bilateral negotiations and accommodated varied paths for non-EU nations to meet the GDPR’s “adequacy” requirement for international data transfers. Second, while the adequacy requirement did provide significant leverage in these negotiations, it has been flexibly applied throughout its history. Third, the EU’s impressive regulatory capacity rests on a complex interplay of institutions beyond the European Commission. Not only are there a multiplicity of policy and lawmaking institutions within the EU, but the EU has also drawn on non-EU privacy innovations and involved institutions from non-EU countries in its privacy policymaking.

Finally, this Article identifies two overarching factors that have promoted the global diffusion of EU data protection law. The first such factor regards legal substance. Public discourse on consumer privacy has evolved dramatically, and important institutions and prominent individuals in many non-EU jurisdictions now acknowledge the appeal of EU-style data protection. Beyond substance, the EU has benefited from the accessibility of its omnibus legislative approach; other jurisdictions have been drawn to the EU’s highly transplantable legal model. In short, the world has weighed in, and the EU is being rewarded for its success in the marketplace of regulatory ideas.

Though the jurisdiction of US courts is broad enough to give many foreign plaintiffs the ability to file suit here, the doctrine of forum non conveniens (FNC) enables a court to dismiss a case because another forum—typically the plaintiff’s home forum—would be more convenient for it. FNC dismissal is warranted only if the alternative forum is adequate, available, and more convenient for the case. Often, the alternative forum’s availability is a nonissue. However, many Latin American countries subscribe to a system of preemptive jurisdiction, which extinguishes their courts’ jurisdiction once a case is filed elsewhere. This system would seem to block the use of FNC by making the alternative forum unavailable, but U.S. courts have not treated this issue consistently. Some courts have reached divergent results using the same evidence, and some have avoided the inquiry altogether by making dismissals conditional. This Note analyzes and explains courts’ inconsistent treatment of Latin American rules of preemptive jurisdiction by illustrating certain subtle but crucial doctrinal missteps. The Note argues that FNC doctrine requires courts to analyze a foreign forum’s availability from that forum’s perspective while also paying heed to the movant’s burden of persuasion. Yet this doctrinally honest approach could preclude courts from using FNC to mediate between important policy concerns, as is usually possible. This Note identifies these competing concerns and proposes a possible solution.

This Note critiques the current structure and practice of the ICSID annulment mechanism by shifting away from the traditional focus on the ICSID arbitration system as a dispute settlement body and instead analyzing the annulment mechanism’s role in a progressively “judicializing” investor-state arbitration system. Recent developments in ICSID arbitration indicate that, over time, ICSID arbitral tribunals have undergone “judicialization”—that is, they have acquired domestic court–like characteristics enabling them to impact state and individual behavior prospectively, rather than merely to resolve the specific dispute at bar. These developments raise the question of whether the current annulment mechanism, which provides for cancellation of tribunal awards on a strictly limited set of grounds, is capable of accommodating this shift. Although the drafters of the ICSID Convention did not intend to allow an annulment committee, convened after the tribunal’s issuance of an award, to review the substantive merits of that tribunal’s award, annulment committees have previously based their decisions on more expansive substantive review than that permitted under the Convention. This Note argues that in a recent series of decisions, annulment committees appear to be engaging in greater substantive review of tribunals’ awards once again, a fact that triggers a renewed sense that annulment committees are still confused over the proper role of annulment in the ICSID arbitration system. Such confusion has serious implications in that it leads to the production of inconsistent decisions at the annulment level of the ICSID arbitration system, thus adding to the layer of inconsistent decisions produced at the tribunal level. These incoherent decisions may ultimately imperil the legitimacy of the ICSID arbitration system as a judicialized body for shaping prospective state and individual behavior. To strengthen the legitimacy of ICSID arbitral decisions and promote further development of coherent international investment law, I argue that it is critical for ICSID to establish a mechanism with official powers of substantive review.