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53 Va. J. Int'l L. 127 (2012)


Today foreign investors have a new and powerful weapon to challenge denial of justice. Bilateral investment treaties (BITs) require “fair and equitable treatment” consistent with customary international law, including “the obligation not to deny justice in criminal, civil, or administrative adjudicatory proceedings in accordance with the principles of due process embodied in the principle legal systems of the world.” Those treaties also create a private right of action, empowering investors with the right to initiate international arbitral proceedings directly against the host State. BITs provide the substance and the means for the effective review of judicial behavior. These treaties do not stand alone. They are part of an elaborate system of international scrutiny of national courts. A key emerging component of that system is ancillary discovery to prove denial of justice. Pursuant to bilateral investment treaties, international tribunals sit in judgment on domestic judicial misconduct. Pursuant to federal law, federal courts assist in the discovery of such misconduct. Far from deferring to the judicial acts of other sovereigns, federal courts are the handmaiden of international tribunals adjudicating foreign judicial misconduct, unearthing evidence that would be impossible to discover otherwise.



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