Peace Lily: An Alternative Philosophical Path to Re-Approachment on Issues of Trade between China and the West - By Justin W. Askins

Introduction

I wish to convey to the reader that I believe it is necessary to view this work not as a comparative analysis or attempt at intellectual reconciliation of hegemonic cultural trends and their effect on International Arbitration. Instead, I offer my work as a plea to each and every Sovereign and supra-Sovereign entity to embrace empathy and re-approachment between constituent Sovereign states. To advance that goal, I offer this piece as an example of a starting place and a potential paradigm in favor of the principles of International Arbitration and the Rule of Law instead of all ill-conceived stratagems on the part of Sovereigns or Super-Sovereign entities to put short term National interest and Policy ahead of an International Policy which best represents natural rights owed to the citizens of all Sovereign states, as much as this respect is owed to every living being that populates our planet.

Part 1

Socio-political climate and implications

We are currently in [A] period which commentators have referred to as that of “reverse Nixon”[1] where escalation of trade tensions has given the policy “hawks” sufficient indicia to see the rise in tension in trade as proxy for tension between the two countries [China and the US], generally.  “Their analysis is that, for decades, America has got China policy wrong, naively assuming that China would become less authoritarian as it became richer, and that a rising superpower could be safely integrated into a US-led rules-based order.”[2]  These policy hawks are undoubtedly the driving force behind the recent wave of prosecution of both Chinese and US Nationals on charges of industrial espionage relating to the direct or complicit conversion of Intellectual Property owned by US Nationals or owned by Nationals of “at least 12 countries, including Brazil, Canada, France, India, Sweden, Japan and the UAE.”[3] which is one component of a larger policy known as the “China initiative. The Justice Department reports that the number of investigations in pursuit of prosecutions is “unprecedented”.[4]  On a more macro-scale, “[g]lobal trends of fortifying antitrust and foreign investment regulation may result in clearances for complex deals or transactions involving strategic or sensitive sectors becoming increasing challenging…[with] service sectors, including finance, education and health…[as] likely to form the focus of foreign investment reform in 2019.”[5]

The socio-economic results of the trade tensions, reciprocal tariffs and precluded asset purchases cannot immediately be quantified in any meaningful capacity at this point for two reasons.  Current attempts to measure the impact on the two respective economies are limited to measures of market impact as measured by cumulative equity price movement on the US and Chinese stock exchanges (inclusive of Hong Kong as part of the One China Principle), and the relative impact on Gross Domestic Product (GDP) of the Chinese and US economies.  As to the first measure of impact as communicated by the equity markets, volatility has obscured actual impact of trade tension escalation.  Equity prices are often driven by what market pundits’ term “animal spirits”, which is a combination of market participant expectations and the quantitative market trading algorithms acting in concert to obscure or, at the very least, overstate market reaction to larger international issues such as trade tensions between China and the US.  Further, market-measures relating to equity price or volatility are not stated in constant-currency terms and therefore are exposed to State monetary policy with respect to currency interventions.  Turning to the second measure of Gross Domestic Product, it is similarly hindered by a lack of constant currency basis to judge impact.  So, while it appears that pure quantitative analysis of the cost to each nation with respect to trade restrictions already in place or planned is impossible, we must at the very least appreciate the cost of de-globalization and supply chain disruption in gross GDP terms before turning attention on what  is being done to counteract their respective effects now and in the future, when these trends inevitably fade and globalism re-emerges as the engine necessary for improving our global standard of living.

The Chinese economy has been burdened by the off-balance sheet debt carried by municipalities and State sponsored corporations.  Recently the Chinese Central Government has taken great pains to prosecute and systemically remove the advantages that “shadow banking” had over its State-owned National Banks. Primary among these initiatives was a systematic reassessment of the Reserve Requirements at State-owned banks. The reason seems to be that the Chinese Central Government has taken great pains to deleverage the Central Government’s own finances. Reassessing the Reserve Requirements as monetary policy has been introduced to create demand illustrates the first real steps in addressing an unsustainable shadow banking debt load.

A Chinese Central Government to shift from a focus on trade revenue to a focus on debt liability exposure both internally and externally appears to be the first steps toward preparing China for standards and trends of globalization in the second half of the 21^st Century.  As indirect evidence of this success of Chinese Monetary policy, the Basel-based Financial Stability Board has lowered China Construction Bank, China’s second-largest bank and one of the world’s largest lenders, to the bottom tier of its list of ‘globally systemically important banks’. The list contains financial institutions that pose the greatest risks to the global banking system in the event of a crisis, requiring them to raise extra regulatory capital to buffer against shocks. While placement on the list could easily be attributed to the sheer size of CCB, the fact remains that it is considered to be among that group of “globally systemically important banks”.

If the logic is that to be systemically important, a bank would likely require new and additional capital to increase its capital buffer in an economic downturn or financial crisis, then it seems unfair to ignore the facts that requiring far less extra capital buffer and being placed low on the list would indicate the strength of the CCB balance sheet. Apparent success in monetary policy by the Central Chinese Government was initiated by the prosecution of those responsible for shadow banking abuses. Success in this clampdown on China’s shadow banking sector that kicked off in 2017, allowed China to be considered investment worthy but, according to Fitch Ratings, “although risks remain high.”[6] 

Simply consider the Trump Administration renegotiating multi-lateral trade treaties, most prominently NAFTA, into complimentary Bilateral Investment Treaties (BITs) between the Countries that feature an important departure from the NAFTA framework.  That departure is that Treaty language in these BITs now includes prohibitions and limitations on Canadian and Mexican treaty power with respect to trade with China. 

Conversely, the Trump and Biden Administrations have made efforts to continue to economically isolate China. Essentially the entire Trump Administration regime has remained intact under a Biden Administration.

Part 2

AMERICA EXPECTS A DIFFERENT KIND OF ELECTION AND CHANGES IN POLICY

Prior to the 2020 US Presidential election, there seemed to be very little pushback from the Democrats in Congress where “[s]tanding up to Beijing is the sole issue (italics are mine) on which Democrats are often to the right of Mr. Trump.”[7] 

A US Presidential election followed that will likely and forever divide our current citizenry for every imaginable reason. The fact that we must respect those reasons is exactly that force at the epicenter of our Constitution which binds our right to be Americans, collectively and not as individual right. We are not asked to tolerate but to respect other and contrary positions to our own. It is both our right and our obligation as a US Citizen. To fall any further below the standard of respect serves only to further diminish the reputation of the United States of America among our global peers.

In hope in advancing the thesis of this piece, let’s assume every piece of information and disinformation is true.

It is the thesis of this piece that the information/disinformation dystopia does not begin to direct our intentions or efforts toward how to re-approach and re-engage China as a trading partner without fear that President Xi will abandon globalism for nationalism, will continue to respect the standards, principles and Institutions of International Law and not turn away from International Arbitration to settle the competing claims of nations such as the Philippines and Vietnam. 

Without respecting the established norms of International Arbitration, It is possible that Mr. Xi’s Belt and Road Initiative is viewed increasingly as an effort to translate economic weight into geopolitical hegemony [where] Chinese companies act first and foremost as agents of the state”[8]  While there is certainly truth in that statement given the ownership structure of State Owned Entities, the projects are more likely to be undertaken to give China a competitive advantage in the world of commerce. Competitive advantage in commerce has been exchanged among Sovereigns for millennia, including some prior periods of relative market dominance where China was a primary participant.

In short, there is no clearly elucidated statement that recent Chinese attempts to gain competitive market advantage is any different than prior attempts. There may be Central Government Policy, but its constituent parts are just as economically and geographically diverse as those among the constituent EU Countries. After spending several weeks with “UNDERSTANDING THE CHINESE ECONOMIES”, a textbook written by Rongxing Guo, my impression is that the geography, topography and distribution of necessary economic inputs is so diverse that the actual administration by the Central Party Government appears to be a considerable task for any kind of Administration because of the sheer scale of the endeavor. However just because administration is highly regulated at several levels of government does not guarantee good or fair governmental practice.

However, The Rule of International Law, and International Arbitration remains to support and facilitate attempts to gain market advantage by punishing those that break International Law or breach International Investment Treaty obligations in pursuit of market advantage. For any Sovereign to abandon the systems in place and the advantages of globalism seems to be discordant, if only because of the duration of the projects that comprise the Belt and Road Initiative.

Part 3

Literary Sources

UN-RESTRICTED WARFARE and (ostensibly) authored by Col. Qiao Liang and Col. Wang Xiangsui

While it is true that the authors of UN-RESTRICTED WARFARE state that “non-state forces (which ostensibly includes arbitral institutions under their definition) serve as a type of socially destructive force which both destroys the normal international order and restrains the destruction of international community by those large nations…because all principals without national power who employ non-military warfare actions to declare war against the international community all use means that go beyond nation, regions and measures (italics are mine)…[t]hey are not responsible to anyone, nor limited by any rules, and there is no disgrace when it comes to the selection of targets, nor are there any means that are not used.”[9]  These “measures” include fact that the Chinese Central Government is encouraging the rapid growth in the number of China-based providers of Alternative Dispute Resolution “with more than 300 providers doing business in China and arbitration being regularly used.”[10]

“[W]ar has always been the beast truly tamed by mankind.  On the one hand, it is the street cleaner of the ecological chain of society, and on the other hand, it also formed threat facing the survival of mankind…[i]t is for this reason that people have formulated enumerable treaties and rules.  From the famous Geneva Convention to the United Nations and to the present, they have begun to continuously make various resolutions concerning war, erected one railing after another on the roads of crazy and bloody wars, and have wanted to utilize international laws and regulations to control the harm of war to mankind to the lowest level,…[a]ll of these regulations are gradually becoming accepted by each nation.  The most commendable of these is a series of treaties on nuclear non-proliferation, the banning of nuclear testing, bilateral and multilateral of nuclear weapons, etc., which have to date resulted in mankind avoiding entrance into a nuclear winter… [t]he collapse of the polarized world resulted in the beasts of local wars roaring out of their cages one by one, drenching the nations and regions of Rwanda, Somalia, Bohei, Chechen, Congo and Kosovo in pools of blood… [w]hether or not each nation acknowledges the rules often depends on whether or not they are beneficial to themselves.  Small nations hope to use the rules to protect their own interests, while large nations attempt to utilize the rules to control other nations.”[11]

In a world that operates under the construct of “unlimited warfare” presented above, who could deny that ICSID is as likely to be used for the purposes of financial domination and not as a competent method for the resolution of Investor / State disputes?  Their conclusion seems flawed because the very notion behind ICSID was to rectify and address disparity of bargaining power between a private citizen and a Sovereign with respect to Foreign Direct Investment.

Finally and most importantly the authors propose the fact that the side-principal-derived, “modified combined war that goes beyond limit” creates a paradox where “any surpassing of limits can only be done within certain restrictions.  That is, ‘going beyond limits’”[12] certainly does not equate to ‘no limits’, only to the expansion of limits.”   To counter this threat Nation-States have assembled in “supra-national combinations” and cites the EU, ASEAN, OPEC, IMF, World Bank, WTO, UN and the Olympic Committee as examples of the “multinational, non-state, and supra-national organizations [which] together constitute an up and coming worldwide system of power (Italics are mine).”[13] 

I cannot think of a text that implies the process of International Arbitration more pervasively without actually mentioning the term. 

It is clear from the aforementioned author’s conclusion that International Arbitration serves principles of power and influence and that these supra-national entities shall be the source to oversee International Arbitration in the world that is proposed by the authors.  The authors conclude that “the curtain is now slowly falling on the era in which the final decision on victory and defeat is made by way of state vs. state tests of strength.  Instead, the curtain is quietly opening an era in which problems will be resolved and objectives achieved by using supra-national means on a stage larger than the size of a country.”[14] 

To substantiate the underlying logic of “un-limited warfare”, that authors expressly appeal to the principles of Taoism, yet in a that text boasts 205 footnotes in its 196 pages, only one single quotation stands alone without citation in a footnote.  On page 98, in support of their premise concerning the importance of the “rule of addition”, appears the following text: “The Way (Italics are mine) produced the one, the one produced the two, the two produced the three, and the three produced the ten thousand things”. 

How is it that this particular text does not require a proper attribution and citation in an otherwise ubiquitous display of footnotes? My inference from this error in citation is that the Tao Te Ching is so central to the creation of the Chinese world perspective that it requires no attribution, and subsequently no citation. 

But where it has been misattributed might it not also be misused and misapplied by the authors of “UN-LIMITED WARFARE”?

Whether this oversight was intentional or not, it does not excuse this author from properly attributing the text. 

This passage is an excerpt from one of the central tenets of Taoism, represented in Chapter 42 of the Tao Te Ching (alternatively spelled Tao Teh Ching).  I have worked from two separate translations (with alternating spellings as reflected in text and footnotes), one that is more expansive in translation and one that is more technically accurate in the literal translation of the ancient Chinese text.  While the former is far more poetic and compelling given its imagery, the latter is the best source reconciling Unlimited / Unrestricted Warfare theory and the Way of the Tao. 

Chapter 42 of Tao Teh Ching states:

“The universal subtle essence gave birth to One.

One gave birth to Two.

Two gave birth to Three.

Three gave birth to the Myriad Things.

All lives have their backs to the yin and embrace the yang.

There is nothing more loathed by people than to be orphaned, desolate, and hapless.

Yet the wise ancient kings, princes, and barons used such titles to refer to themselves.

A thing is sometimes benefitted by being humbled, and diminished by being expanded.

What the ancients have taught, I also shall teach: “A man of force and violence will come to a violent end.”

Whoever said this can be my teacher and father.”[15]

It was this particular translation of the text with its respective linguistic style and the overall symmetry within the text which dictated the choice of secondary source text that would be used as the Eurocentric basis for the reconciliation of Taoist principles with Western concepts of International Arbitration, and its appropriate place in the future of trade between Eastern and Western Sovereigns. 

The text chosen to best illustrate the established principles of arbitration theory and practice was Jan Paulsson’s “The Idea of Arbitration”.  Professor Paulsson’s text is the most economical linguistic text I have ever read.  Further, the balance and careful symmetry of his text resembles the textual structure of the Tao Te Ching translation by Stephen Mitchell.  Only these two author’s approach to textual symmetry differs. 

In the author’s Foreword, Mitchell describes how that while he attempted to deviate as narrowly from the original Chinese text as possible, but he admits that he had “paraphrased, expanded, contracted, interpreted, worked with the text, played with it until became embodied in a language that felt genuine to me.  If I haven’t always translated Lao Tzu’s words, my intention has always been to translate his mind.”[16]  Conversely, Paulsson’s text is as an exacting work on the topic of the working logic behind the theory and process of arbitration as can be imagined.  It is a fantastic odyssey of Western European perspective laid out in an inescapable logic that has an algebraic symmetry.  Paulsson’s text unequivocally reveals that the author’s understanding of theory is firmly rooted in his practice and practical experience in International Arbitration.  It appears that almost every word chosen by Professor Paulsson is laden with the subtext of experience with the realities of the arbitral process.  The result is far more instructive because of that subtext.  Similarly, Mitchell attributed his ability to create his translation to his fourteen years of Zen training. As such, the basis of practice effecting theory is central to both texts.

It was through this combination of divergent theoretical works that this author sought to draw out every possible positive inference in Chinese Taoist theory represented in the Tao Te Ching that stood in direct conflict with the inferences and conclusions of the author’s of “UN-LIMITED WARFARE”.  To do so correctly, the historical landscape, character and theory of Lao Tzu must be understood beyond the text of the Tao Te Ching.

Part 4

Lao Tzu

“Lao Tzu is considered the greatest teacher of all time and his spiritual title is ‘Most Exalted One’…[which] legend states that he spent eighty-one years in his mother’s womb.  In plain language, this means it took many years for him to bear the fruit of wisdom.”[17] According to general consensus, Lao Tzu was the official historiographer of the government, interpreter of and consultant on the “I Ching” (known as “Book of Changes”- an ancient Chinese divination text) for the imperial court and observer of celestial phenomena. Beyond this approximate fact, only legend remains to explain how, when and for what purpose Lao Tzu wrote the Tao Te Ching.  This legend more or less follows the general narrative that Lao Tzu lived in a time when “great confusion and spiritual disintegration was about to befall the empire.”[18]  He decided to leave society on a Westward track, on the back of a water buffalo.  When he came to the Han Gu pass at the border of China, he was requested by the pass official to write down the essence of wisdom as the price to cross the pass out of China.  This text became known as the Tao Te Ching.  Further work that can be attributed to Lao Tzu is the Hua Hu Ching.  Its text became known when forces of Syria interacted with Chinese establishment and revealed that the Hua Hu Ching served as the basis for their particular form of religion, and it was claimed that Lao Tzu was its author.  The text has the prescriptive nature of the Torah, but shares the same dialectic style of the Bhagavad Gita, as it represents a conversation between enlightened teacher and ardent student in search of “Subtle Universal Law”[19]. 

To the extent that this latter similarity is not a matter of coincidence, the Hua Hu Ching is said to have influenced Mahayana Buddhism, Tibetan Buddhism, Sufism, Japanese and Korean forms of Buddhism and the teachings of Zoroaster.  What is clear that the general direction of the spread of the philosophical influence of the teachings of Lao Tzu moved from the East to the West, perhaps on the back of a water buffalo.

Part 5

THE SUM IS ZERO

Having read the primary sources more carefully, it appears that authors of UN-RESTRICTED WARFARE have either consciously or unconsciously but, specifically abandoned the general influence and principles of the Tao Te Ching and have instead replaced the principles espoused specifically in the Tao Te Ching with the specific prescriptive emphasis of the Hua Hu Ching as the basis for the authors’ thesis in UN-RESTRICTED WARFARE. As both are attributed to Lao Tzu, the ability to create this fallacy was without restriction but that does not change the fact that it is in fact a fallacy created by two ostensibly Chinese Army Officers.

They state that: “Breaking the boundaries of ideology is a prerequisite for breaking the boundaries of action.”[20]  The authors attempt to accomplish this action by essentially taking the essence of harmonization of Taoism expressed in the Tao Te Ching and turn it on its head by employing interpretations of the Hua Hu Ching’s prescriptive admonitions as the basis for reclaiming subtle universal law underlying Taoism in the name of Chinese State national interest.  It was an interesting attempt of intellectual sleight of hand but it remains a manipulation of both the language and theory espoused in the Tao Te Ching.

Once this intellectual fallacy was exposed, the necessity of that a “Zero-Sum” mindset presumed by the authors of “UN-LIMITED WARFARE” is far more conceptual game theory which is not representative of the concrete results in international commerce, if only measured by the Belt and Road Initiative.

Taoist principles that espouse the inevitable reality that actions in furtherance of subtle universal law are those actions that balance the actor with their respective environment become far more manifestly obvious among the interpretations of Western principles fundamental notions of Justice and Equity of International Arbitration. 

This theme is repeated within and across literary works attributed to Lao Tzu, but is central to the Tao Te Ching.

For example, Chapter 8 of the Tao Teh Ching states:

“One of universal nature is like water; he benefits all things but does not contend with them.

He unprotestingly takes the lowest position; thus, he is close to the universal truth.

One of universal virtue choses to live in a suitable environment.

He attunes his mind to become profound.

He deals with others with kindness.

In his speech, he is sincere.

His rule brings about order.

His work is efficient.

His actions are opportune.

One of deep virtue does not contend with the people; thus, he is above reproach.”[21]

The definition of subtle universal truth in the previous Chapter is further clarified and refined in Chapter 29 of the Tao Teh Ching.

“Those who want to conquer the world and make it conform to their own desires will never have success, for the sovereignty of the world is a subtle thing.

He who tries to shape it spoils it.

He who tries to hold it loses it.

The things of the world are constantly changing.

There is a time for things to move ahead, and a following time for tings to retreat; a time to withdraw internally; a time to grow luxuriantly, and a following time of decay; a time to rise up, and a following time to down low.

Therefore, one who does not separate his being from the deep nature of the universe avoids all extremes, extravagance and excess.”[22]

The principles and concepts in these two chapters indicate that Western concepts of International Arbitration are expressly represented. What was therefore required was a reconciliation of the accepted principles of Taoism with those of International Arbitration, by looking past the misappropriation and misapplication of these same Taoist principles in “UN-LIMITED WARFARE” that created the logical fallacy of “Zero-Sum”. 

In recognition of Taoist thought and theory already being part of Lex Arbitrati, I looked for analogy and metaphor that is shared between the Tao Te Ching and Jan Paulsson’s “The Idea of Arbitration. Metaphor and analogy were measured relative to the presence of Taoist principles in International Arbitration, both in form and function.

China’s current Government formally recognizes five religious doctrines, and among these Taoism is the most pervasive primarily because Taoist concepts and teachings form the basis of both ‘folk religion’ in rural areas and what is more accurately described as ‘philosophy’ in the urban centers. 

The principles of Taoism itself do not change in their essence but only in their application, which by definition embraces the concept of change at its core.  Any person trained in Law or logic would certainly label the previous statement as one of circular logic, and they would be correct, but it is exactly that difference in logical convention that must be understood completely for successful socioeconomic interaction between those who are schooled in Western thought and logic and those individuals that have embraced, either consciously or unconsciously, the logic of Taoism. 

The earliest, easiest and most prolific example of Taoist philosophy is the Yin and Yang symbol and the philosophical dualism that they represent.  These symbols are correlative in and by their nature, whereby they are considered complementary, non-absolute (with each symbol’s representation containing an element of its complementary symbol), ‘magnetic’ in the sense that each symbol draws and defines the contours of the other only through their combination, and finally dynamic whereby each symbol is seen as transformative of the other and unable to exist in any meaningful sense without its complement.  The underlying force that drives the dynamic of dualism of the Yin and Yang, and that of Taoism generally is defined by the term ‘Li’.  The earliest historical references to Li define it as patterns that occur in nature of their own accord.  Later references, and those most germane to discuss in this paper define Li as the ‘organizing principle’ underlying all things, with three levels of dimension.  The first dimension is the Li in each individual thing in the Universe.  The second dimension is the Li within human consciousness.  The third and final dimension is that of a cosmic Li, that is best described as the grand Universal pattern comprised of the aggregate of the first two dimensions of patterns.

This brief illustration and explanation of the principles of Taoism is to underscore the fundamental difference between viewpoints of Western philosophy where perceived dualism promotes inherently antagonistic (zero-sum) results, while Taoist philosophy that perceives dualism as part of a larger construct or organizing principle known as Li. Li is by its very nature self-generating and regarded along the “interpersonal” dimension by Lao Tzu, as ‘The subtle virtue’ (Tao Teh Ching, Lao Tzu, Chapter 5). The subtle virtue may be roughly translated as the appreciation of the ‘universal nature’ in the individual consciousness. 

Universal nature has its closest equivalent in the concept of Equity within the paradigm of International Arbitration. Equity lies at the heart of the process and product of International Arbitration and appears to be in accord with Taoist principles that espouse the inevitable reality that actions in furtherance of subtle universal law are those actions that balance the actor with their respective environment.

Part 6

CHAPTERS OF TAO THE CHING THAT HAVE FORM AND FUNCTIONAL EQUIVENCY TO CONCEPTS AND PROCEDURE IN INTERNATIONAL ARBITRATION

Once the parameters of Taoism are better understood, seeking the “organizing principle” (known in Taoism as “Li”) in the instruments, Conventions and ius cogens of International Arbitration became an act of discovering both the obvious and sublime.

What follows is a compendium of Tao Teh Ching Chapters from the Ni translation: containing Principles that most affirmatively align with the idea of International Arbitration theory and process.  Also included are those Chapters that are more circumspect in nature because these Chapters refer to the characteristics of the arbitrator that are in alignment with “Public Policy” harmonization within arbitration that is necessary to preserve and promote a virtuous cycle in the arbitration process that embraces the subtle virtue and organizing principle that is Tao, “The Way”.  These are to be considered in addition to the aforementioned Chapters noted as more thematic applications underscoring a logical end to the analysis.

Chapter 2:

“…One holds no preconceptions, and does things without insisting on personal conditions.  One guides people by living in accord with the essence of life.  One brings good things about, but has no intention of possessing them.  One performs work, but has no intention to acquire personal power.  When one’s task is accomplished, one lets go of it and seeks no reward or recognition.  Because one does not claim credit for oneself, one does not do any damage to oneself.”

Chapter 7:

“…One who does not separate his being from the nature of universal wholeness lives with the universal virtue of wholeness… By putting himself behind others, he finds himself foremost.  By not considering his own personal ends, his personal life is accomplished.  He finds himself safe, secure and preserved.  Because he does not hold a narrow concept of self, his true nature can fully emerge.”

Chapter 11:

“Thirty spokes together make a wheel for a cart. It is the empty space in the center which enables it to be used.  Mold the clay into a vessel; it is the emptiness within that creates the usefulness of the vessel. 

Cut out doors and windows in a house; it is the empty space inside that creates the usefulness in a house. 

Thus, what we have may be something substantial, but its usefulness lies in the unoccupied, empty space. 

The substance of your body is enlivened by maintaining the part of you that is unoccupied.”

Chapter 15:

“The ancient ones who knew how to live with the subtle essence of the universe were gentle and flexible, profound and indistinguishable.  They were too deep to be known, thus we can only describe their appearance.  They did not rush into anything, as if fording an icy stream in winter.  They were retiring and hesitant, not assertive, as if they were shy of people.  They were reverent in their demeanor to everyone, as if meeting honored guests.  They did not insist on imposing their views on others or interfering in worldly affairs, as if they were passing travelers.  They adapted themselves to a circumstance like melting ice.”

Chapter 17:

“High beings of deep universal virtue work unassertively.  They help all people, yet people are barely aware of their existence.  Leaders of great achievement earn the friendship and praise of people.  Leaders of great strength make people afraid.  People despise and defy a leader who is untrustworthy.

One cannot inspire confidence in people through words alone; it must be

accompanied by correct deeds. 

When one of subtle virtue has accomplished his task, all the people will say: ‘It is we ourselves who make it so.’”

Chapter 22:

“The yielding are preserved whole.  The crooked become straight.

The empty become fulfilled.

The depleted are renewed.

What has little will gain.

What has much will become confused.

Therefore, one with a whole mind holds fast to the one essence and thereby becomes an example to the rest of the world.

Because he does not flaunt his brightness, he becomes enlightened. 

Because he is not self-important, he becomes illustrious.

Because he does not boast his accomplishments, he becomes successful.  Because he is not self-assertive, he becomes supreme.

Because he does not strive for superiority, there is no one in the world who can contend with his superiority.

Indeed, the ancient teaching that ‘the yielding are preserved whole’ is no empty saying.  Truly, they are preserved whole in order to attain one universal life.”

Chapter 27:

“…One of natural, integral virtue is good at helping people impartially.  Thus no one is abandoned. Because he is good at protecting and preserving things, nothing is ever thrown away.  This is called ‘embodying the light of the subtle truth’.”

Chapter 30:

“…a leader…effects his right purpose, but does not delight in violence, for he knows that to be excessively strong is to hasten decay and that violence is against the integral nature of the universe.  Whoever goes against the nature of the universe will soon perish.”

Chapter 33:

“One who knows others is clever.  One who knows himself has insight.

One who overcomes others is forceful.  One who overcomes himself is truly strong.  One who knows he has enough is rich.  One who does not divert his mind for the realization of integral virtue is wisely willful.  One who preserves his natural integrity will endure.  One who embraces the subtle essence dies yet does not perish and thus enjoys true immortality.”

Chapter 34:

“The subtle essence of the universe is omnipresent.  It may go to the left or the right.  All things derive their life from it, and it holds nothing back from them, yet takes possession of nothing.  It accomplishes its purpose but claims no merit.  I clothes and feeds all, but has no ambition to be master over anyone.  Thus it may be regarded as ‘the Small.’  All things return to it, and it contains them, yet it claims no authority over them.  Thus it may be recognized as ‘the Great.’  The wise one who never attempts to be emotionally great and who accomplishes each small task with full devotion as if it were the greatest of tasks, is naturally recognized as great.”

Chapter 37:

“…When confusion takes place in one’s surroundings, it can be dissolved with the power of undisturbable Simplicity.  When life is ruled by Simplicity, desire and passion naturally fall away and reveal people’s true, original nature. Then peaceful of the universe prevails and unity manifests again of its own accord.”

Chapter 38:

“One of subtle universal virtue is not conscious of being virtuous, therefore, he is truly virtuous.  One of partial virtue attempts to live up to an external standard of virtue.  One of whole virtue does not need to do anything in order to be virtuous, because virtue is the very essence of one’s true nature.  But, one of partial virtue believes that something must be done in order to prove that he is virtuous.  Thus, partial virtue becomes prevalent when the people fail to follow their own true nature.  Benevolence becomes prevalent when people fail to be naturally kind.  Etiquette becomes prevalent when people fail to be righteous and considerate.  When people find no response with etiquette, they roll up their sleeves and force others to respond to them…. When virtue is lost, society depends on the doctrine of humanism.  When humanity becomes corrupted, social and religious teachings appear and become powerful forces.  When social and religious teachings become corrupted, what is left behind is the empty shell of superficial ceremonies and artificial etiquette.  When etiquette is emphasized, it is because people lack simple qualities of fairness and kindness…”

 Chapter 49:

“One with wholeness of virtue has an unconditioned mind.  He regards the mind of being as his own mind.  He is kind to the kind.  He is also kind to the unkind, for the subtle nature of the universe is kind.  He is faithful to the faithful.  He is also faithful to the unfaithful, for the integral virtue of the universe is undeceiving…”

Chapter 54:

“…The wise establish virtue firmly within themselves…Apply natural, integral virtue to your own character, and it will be genuine.  Apply natural, integral virtue to your family, and it will abound.  Apply natural, integral virtue to the state, and it will flourish abundantly.  Apply natural, integral virtue to the world, and it will be pervasive. 

Understand people’s lives by means of your own life.  Understand other people’s families by means of your own family.  Understand other societies by means of your own society.  Understand other countries by means of your own country.  How can you know what is right for the world?  By knowing what is right in your own life.”

Chapter 61:

“A great country is like the lower regions of a river: a place where all the streams of the world unite.  She is the mother of the world.  The peaceful and feminine always overpowers the masculine.  Being peaceable, one takes the lower position.  Hence if a great country can lower itself to greet a smaller country, it will win the friendship and trust of the small country.  If a small country can lower itself to greet a great country, it will win the friendship and support of the great country.  One wins by taking the lower position, while the other wins by remaining low.  Thus if each is to find its proper place, the one that is great must place itself low and offer help.”

Chapter 68:

“A good warrior is never violent.  A good fighter is never offensive.  A great victor defeats his opponent, but not by challenging him.  A great commander is humble.  This called the power of non-contention.  This is also called making use of the effort of others.  To follow this is to follow the pattern of the subtle law of the universe.”

Chapter 69:

“…. There is no greater mistake than to underestimate the power of an opponent.  To underestimate the power of an opponent may cost a man his life.  Therefore, when opposing troops meet in battle, it is the side with greatest caution that wins.”

To conclude this compendium, I would like to offer the last two Chapters I intend on presenting, using the Mitchell translation so that the reader may appreciate the stylistic difference between the two translations.  The Mitchell translation of Chapter 77 and Chapter 78 follow:

Chapter 77:

“As it acts in the world, the Tao is like the bending of a bow.  The top is bent downward; the bottom is bent up.  It adjusts excess and deficiency so that there is perfect balance.  It takes from what is too much and gives to what isn’t enough.  Those who try to control, who use force to protect their power, go against the direction of the Tao.  They take from those who don’t have enough and give to those who have far too much.  The Master can keep giving because there is no end to her wealth.  She acts without expectation, succeeds without taking credit, and doesn’t think that she is better than anyone else.”

Chapter 78:

“Nothing in the word is as soft and yielding as water.  Yet for dissolving the hard and inflexible, nothing can surpass it.  The soft overcomes the hard; the gentle overcomes the rigid.  Everyone knows this is true, but few can put it into practice.  Therefore the Master remains serene in the midst of sorrow.  Evil cannot enter his heart.  Because he has given up helping, he is the people’s greatest help. True words seem paradoxical.”

Part 7

The Occidental tourist

In the final part of this text, I hope to locate paradigms within instruments of International Arbitration and Professor Paulsson’s text, The Idea of Arbitration.

The primary instrument in both International Law and International Arbitration is the Treaty.  Within each Treaty, there is typically a statement of drafter intent that is incorporated into the text of the Treaty as a Preamble.

The primary Treaty is the Vienna Convention on the Law of Treaties (1969).  The Preamble states that it recognizes “the ever-increasing importance of treaties as a source of international law and as a means of developing peaceful cooperation among nations, whatever their constitutional and social systems…Affirming that disputes concerning treaties like other international disputes should be settled by peaceful means in conformity with the principles of justice and international law…”[23]  

The general sentiment of peaceful resolution of international disputes through treaty creation and enforcement is a very general theme and one that is embodied throughout the Tao Te Ching, specifically the aforementioned Chapters 17 and 27.  Those Chapters speak most closely to the sentiment expressed in the general tone.  A closer analysis looks specifically at the introductory verbs used in the Preamble of the Vienna Convention.  These introductory verbs are: “Considering; Recognizing; Noting; Affirming; Recalling; Having in mind; Believing; Affirming; and Agreed”.  This collection of verbs is quite passive in nature, stating what is a general understanding of shared goals but actually only “Affirming” that the disputes controlled under treaty, “like other international suits, should be settled by peaceful means and in conformity of with the principles of justice and international law; further “Affirming” that rules of customary international law will continue govern questions not regulated by the provisions of the present Convention.  The Drafters are not actually taking an active role or more importantly  creating “new” treaty law, but more of a statement of a proactive stance with respect to the proposition that application of the Convention will not disturb “customary international law” that governs questions outside of the scope of the Vienna Convention.  Taken from that perspective of passive, or better said receptive posture taken by the drafters, the most applicable Chapters of the Tao Te Ching are Chapters 11 and 68.  Chapter 11 speaks to the necessity of understanding the parameters of working within the gestalt of a situation.  As the Vienna convention affirms general principles without disruption of existing “customary international law”, it implies that the real intent of this Convention is to reconcile signatory-State responsibility under treaty with “customary international law”.  In that sense the goal of the Convention is to navigate and define that negative conceptual space between those two sources of international law.  Chapter 68 speaks to the principle of “non-contention” but greatly expands the interpretation of “making use of the effort of others.”  The efforts of others are analogous to the creation of treaties between nation-States that will be governed by the Vienna Convention.  From that perspective, the principle of non-contention suggests that an ancillary function of the Convention is to enable arbitration between the parties in the absence of an intervening authority, be it in any of the forms of authority figures referenced in Chapter 68.

In hopes of finding a preamble that would allow more comprehensive analysis, I was completely disappointed in the second choice of Paris Agreement.[24]  I was hopeful that a far more ambitious agreement, full of hope in creating and executing a treaty governing climate change would be full of action verbs that would ultimately be toned down in the process of drafting the ultimate version of the Treaty, as a result of negotiation among the signatory nation-States.  The most active verb in the Preamble is that of “Agreeing”.[25]  The agreement sought is simply that of “cooperation” and coordination of civil and private stakeholders.  This is not sufficiently ambitious enough or well-defined enough to invoke an analysis similar, if not identical, to the above analysis of the Vienna Convention.

I abandoned Treaty as a source for analysis upon discovery that the New York Convention ostensibly lacks a Preamble. 

Without a Preamble to explore and analyze, only a discussion of the Taoist paradigm suggested in an assemblage of Tao Te Ching Chapters which would assist in interpreting Article 5(2)(b) is possible.  However, it is manifest from Professor Marike Paulsson’s treatise on the New York Convention that an adequate analysis using the intentional vagueness of the Tao Te Ching would absorb the entirety of the ius cogens generated in the creation of the New York Convention.

Similarly UNCITRAL Model Law was inappropriate for thorough analysis because in many ways it is a stand-alone product of expert Committee that simply “Recommends” that nation-States review and adopt the Model Law (in its entirety) in the hope of harmonizing (expressed in terms of “desirability of uniformity”) International Commercial Arbitration process, and resultant awards.  It is however important to note that the Model Law is explicit in its goal of harmonization which does allow at least a cursory analysis.  Chapter 37 of the Tao Teh Ching mentions the natural state of unity caused by a conscious decision (in omitted section) to follow the teachings of the Tao Teh Ching, thereby removing false or incomplete virtues and result in a state Harmony with the Tao itself. 

The final element of my analysis of Taoist principles and their application in International Arbitration is to review Professor Jan Paulsson’s “The Idea of Arbitration”[26], in an attempt to reconcile its text and concepts with concepts expressed in the Tao Teh Ching compendium included infra. 

As a result of that reconciliation, I wish to include in this paper, a brief analyses of the degree to which The Idea of Arbitration reflects Taoist Principles directly, whether intended by Professor Paulsson or not. I also sought to weigh conceptual consonance of his work against the Taoist principles included in the compendium of the Tao Te Ching, infra..

I drew the first parallel between the text of the Idea of Arbitration and the Chapters of the Tao Teh Ching when I read Professor Paulsson’s statement that “Technical rules and solutions come and go, as fashions change and practice evolves.  The usefulness of craft is ever incomplete without some insight into the nature and objectives of our enterprise.”[27] The introspective aspect of those statements that immediately precede Paulsson’s discussion of the various forms of “thesis” theory that justify the existence of arbitration and which speak to the “nature” of arbitration reminded me the final sentence of  The Tao Teh Ching Chapter 7 which contains the conclusion that one who lives their life in accordance with the universal wholeness found in following the Tao continually evolves “[b]ecause he does not hold a narrow concept of self, his true nature can fully emerge.”

A virtuous cycle of growth and reflection are necessary for both the understanding the essence of arbitration and the essence of the self, which would in turn prompt adaptation to the newer concepts and rules of arbitration into an understanding of their effect on the existing environment vis a’ vis the arbitrator.  In terms of the text of Chapter 7, this kind of adaptation as part of this aforementioned virtuous cycle is one where the adaptation or change is an affirmative action to merge with “one universal life.”[28] 

Further, in indicating the untenable nature of the Territorial thesis as a justification of the existence of arbitration generally, Paulsson states that, “To give legal effect to events occurring inside the plot by reference to external norms (Italics are mine) is aberrant as a matter of political philosophy, and nonsense as matter of law.”[29]  The corresponding Chapter 54 of the Tao Teh Ching similarly speaks of external norms, but text of Chapter 38 is not just similarly dismissive of these external norms but is prescient in what Professor Paulsson omits from the proposition that the Territorial Thesis is no longer viable.  For those who follow the Territorial Thesis to its logical conclusion, the territory at issue would likely fall into the kind of social disintegration anticipated in Chapter 38. 

In the discussion of the principle of “Kompetenz-Kompetenz”, Professor Paulsson states the elemental proposition necessary for continued “waves” of arbitration as part its own self-generating, virtuous cycle is that, “Arbitrators must have the authority to decide whether they have the jurisdiction to deal with a particular case.”[30] Chapters 30, 37, 49 and 54 of the Tao Teh Ching.  Chapter 30 speaks to the “leader”, (here) arbitrator’s responsibility to minimize further societal intrusion once the goal is achieved.  It is the self-limiting, self-censoring aspect intrinsic to both the concept of Kompetenz-Kompetenz and self-governance and self-responsibility elucidated in Chapter 30.  Chapter 37 deals with the concept of Kompetenz-Kompetenz in a very limited sense in that Chapter 37 focuses on the need for and importance of simplicity in analysis. The principle of Kompetenz-Kompetenz is similarly appealing because of its fundamental simplicity. Free of regular National Court Oversight or an allowance for judicial determination of “gateway issues” of Jurisdiction, Kompetenz-Kompetenz becomes an exercise of the arbitrator aligning themselves continually with “one universal life.”  While the sense of application may be limited, the scope of the application is simultaneously vast.  Finally, Chapter 49 points to the fact that the actor, again here arbitrator in determination the primary jurisdictional issue, must regard the “mind of all being as his own mind.”[31] He is also kind to the kind and unkind in similar fashion as he is loyal to those loyal and disloyal in equal measure. In other words, where a situation requires transcendence of the self, so does an arbitral claim require a necessary level of intellectual detachment to successfully determine Kompetenz-Kompetenz as a threshold issue and as an exercise of the arbitrator aligning themselves continually with “one universal life. Chapter 54 has the most direct link to the concept of Kompetenz-Kompetenz in the second half of that Chapter that concludes, “How can you know what is right for the world? By knowing what is right for your own life.”[32]

Further, in the analysis discriminating between the concepts of Jurisdiction and Admissibility, Professor Paulsson adamantly demands that logical construct and labels be abandoned in the pursuit of “sensible construction of the parties’ intent.”[33]  The complimentary Chapters of the Tao Teh Ching are identical to those in the previous illustration and for essentially the same reasons and propositions.  Party autonomy is the necessary and corresponding complement to Kompetenz-Kompetenz. “This conclusion seems to underscore the essential logic in Professor Paulsson’s demand for a fundamental approach to determining both intent and how understanding intent relates to or modifies the term “sensible”.  The adamant nature in his call for a return to sensible analysis is explained by the importance of achieving that goal of simplicity with respect to its ultimate effect on reviewability of awards.[34] Moreover, simplicity and sensibility are revisited later in Chapter 3 where Professor Paulsson completes the logical circuit through reference to the importance of “[t]he arbitrator’s promise…to try to follow the parties’ instructions.”[35] The concept of simplicity is reflected in Chapters 2, 17, 34 and Chapter 37 (directly) of the Tao Teh Ching.

A repeating message in Professor Paulsson’s work is the proposition that “[t]hat the mission of the arbitrators is to resolve disputes in a fair and principled manner, not to uphold contracts at all costs.”[36]  This repeated message also appears as a comprehensive mandate in light of ‘”’basic doctrine that the courts will not permit themselves to be used as instruments of inequity and injustice [i.e.] the enforcement of a ‘bargain’ in which one party has unjustly taken advantage of the economic disparity of the other’”[37]  The corresponding Chapters of the Tao Teh Ching are two of my personal favorite and most informative while remaining two of the most poetic. Chapter 77 deals to a certain extent with a loose definition of “equity” where it speaks of “balance” as a necessary outcome to following the Tao.  Both Courts and arbitral entities (individual arbitrators or panels) adjust “excess and deficiency” as an integral part of their respective mandates but, where judges are bound by stare decisis and legislative boundaries, arbitrators are bound only by their professional reputation for rendering fair and enforceable awards.  In this fashion, the arbitrator “can keep giving because there is no end to her wealth. She acts without expectation, succeeds without taking credit (Confidentiality in arbitration process) and doesn’t think she is better than anyone else.”[38]  Chapter 78 adds to this conclusion with the statement that “[b]ecause he has given up helping, he is people’s greatest help.”[39]  I chose to define the “giving up of helping” to be loosely synonymous with the abandonment of role of the functionary who would automatically enforce the concept of Pacta Sunt Servanda in contracts well-outside the parameters of equity, sensibility or party expectations. This would only serve to create confusion through enforcement of contractual terms or legal obligations too strictly.  This resulting paradox further underscores the importance of the issues addressed in this paragraph and the necessity of acceding to the demand for existential respect for the principle of Kompetenz-Kompetenz.

On one point I must differ from Professor Paulsson which appears undramatic enough at the onset but takes on a far larger importance when the issue is expanded in the last half of his text.  Specifically, Professor Paulsson states that “litigants will be certain of an opportunity to put their case to perfectly open minds only if they are prepared to be judged by very young children.”[40]  Chapter 7 and 49 of the Tao Teh Ching underscore the point that not only is pure ambivalence desirable, it is accessible to those that follow the Way of the Tao.  Chapter 49 opens with: “One with wholeness of virtue has an unconditioned mind.”[41]  The deviation between our positions is compounded when Professor Paulsson indicates that the only way to limit ethical challenges at the core of what he calls a “failure of confidence” is to have an independent nominating entity for arbitrators to assure independence, integrity and impartiality.  I disagree wholeheartedly and would rely on these same two Chapters of the Tao Teh Ching as illustrative of the construct that one who assiduously follows the tenets of Taoism would provide similarly qualified arbitrators bound solely by the dynamics underlying the principle of Kompetenz-Kompetenz, and decisions with respect to party autonomy. It also seems ironic that the community to which Professor Paulsson appeals to become the preferred nominating body is the United Nations – [described as] a motley crew of giants, dwarves and cadavers.”[42]

This last issue is revisited again under the auspices of a discussion regarding the various forms of Public Policy recognized as impinging on the free practice of arbitration.  Professor Paulsson states that, “Although harmonization is the ultimate goal, each legal system is likely to develop its own view of what these accommodations [for various iterations of Public Policy] should be…”[43]

To address this position, as comprehensively as possible, I will recommend the reader revisit the text of Chapter 8 of the Tao Teh Ching in its entirety so that it may be fully appreciated with respect to the impact on this important point in his text, this Thesis and the Tao Teh Ching itself.

Perhaps Professor Paulsson himself may be guilty of the criticism leveled at statist legal theory which he states “has impeded the Western mind’s understanding of non-Western arrangements, not only because of their inherent interest, but also because the future too is a foreign word – and our need to understand where we might be going is compelling.”[44]  I agree wholeheartedly with this last part of his statement but am hesitant to define the Statist Thesis as the sole impediment to Western minds appreciating more Oriental or Regional theoretical constructs.  As his text and this text illustrates, there are already competing theses with respect to the basis and justification for International Arbitration. 

In fact, I feel reassured in the measured approach employed in this work by virtue of the description of the absolute minimum standard for Public Policy Exception under the New York Convention offered by Professor Paulsson, who states that the defense “must pertain to the most basic value of the legal order before which it is invoked, we add in the same breath that it is indispensable to avoid abuse.”[45]  The Taoist approach yields a minimum standard substantially above a standard that rests on basic legal order necessary to thwart abuse.

Further, “If arbitration is to thrive, it must adapt to the societies it serves.”[46]  As a result, the most cautious foreign investors or new business entries will scale back the business to the most fundamental elements and adapt their behavior to the new culture with the same behaviors noted in the text of Chapter 15 of The Tao Teh Ching.  

The question becomes, if Professor Paulsson is correct in his assertion that arbitrators are business people looking for the next business opportunity (paraphrasing), how will the business of arbitration be forced to deconstruct to suit a greater array of societies? Will highly specialized Institutions fragment the business skewing value propositions in all but the most highly specialized elements of arbitration, or will we see consolidation in the business of arbitration? Perhaps technology somehow displaces the current arbitration process partially or completely? 

The future is clearly unclear, dripping with known-unknowns and contingencies but it is difficult to see that arbitration activity will do anything but grow in volume as re-engagement with China using newly discovered commonality of philosophy becomes the basis of re-approachment.

None of us can afford to rely on outmoded principles that are now out of fashion, either independently or in a constellation of interrelated principles. Chapter 22 of the Tao Teh Ching speaks exactly to this deconstruction necessary to peaceful reconstruction of structures that will define International Arbitration in the future. 

Chapter 22 states in part:

“The yielding are preserved whole.  The crooked become straight.

The empty become fulfilled.

The depleted are renewed.

What has little will gain.

What has much will become confused….”

Finally, I would like to offer the admission that it did not take long to find the first instance where Professor Paulsson’s statements intersected with a correlative Chapter of the Tao Te Ching[47] but that chapter is outside of the included compendium and the statement similarly outside the actual text of Professor Paulsson’s work.  It is in the author’s dedication that I found the first parallel. He states, “For Manne and Mia and for other gentle souls who accept that those who disagree with them may turn out to be right, and who are therefore never in the wrong.” (Italics are mine).  I have chosen to use the more poetically graceful, Mitchell translation of Chapter 21 of the Tao Te Ching to illustrate the parallel. 

Chapter 21 reads:

“The Master keeps her mind always at one with the Tao; that is what gives her her radiance.

The Tao is ungraspable.  How can her mind be at one with it?  Because she does not cling to ideas.  The Tao is dark and unfathomable.  How can it make her radiant?  Because she lets it.

Since before time and space were, the Tao is.  It is beyond is and is not.  How do I know this is true?  I look inside myself and see.”[48] 

It would appear that this particular Taoist principle might resonate quite distinctly and personally with Professor Paulsson. 

The personal significance and impetus to redraft a Thesis into this paper has much to do with mourning Martin Hunter.  His death was an exceptional loss to the International Arbitration Community and his absence will likely be felt for as much time it took Professor Martin to find “a decent Chablis”.

I am intent on expressing my own sense of loss in an insatiable appetite to “carry on” with the knowledge of the text contained in Chapter 15 of the Tao Teh Ching representing Martin Hunter in mind and manner.

That is how the Tao entered my life as an Arbitrator and began its own work of dismantling outmoded constructs while it opened my mind to a far greater array of possibility.  For me, possibility in an infinite variety of contractual and treaty applications is the social value of International Arbitration, known as Party Autonomy. Thus as a primer for fellow practitioners in this specific area of International Law, allow me to remind you that a comprehensive failure to supplant outmoded dogma with replacement dogma is the essential and defining quality of Taoism, which is best expressed by the relevant text itself. 

Chapter 48 of the Tao Te Ching states:

“In the pursuit of knowledge, every day is something is added.  In the practice of the Tao, every day something is dropped. Less and less do you need to force things. Until finally you arrive at non-action. When nothing is done, nothing is left undone. 

True mastery can be gained by letting things go their way.  It can’t be gained by interfering.”[49]

About the Author

Jud Askins is the Principal at @Askins Advocates Arbitration, LLC., where he leverages his combined financial and legal expertise to provide solutions for complex business issues and disputes. He holds an LL.M. in International Arbitration from the University of Miami School of Law, sponsored by White & Case, a J.D. from Gonzaga University School of Law, an MBA in Finance from Fairleigh Dickinson University, and a Bachelor’s Degree in Psychology from Kenyon College.

With over five years of experience as an independent arbitrator, Jud currently serves as Vice Chair of the ABA International Arbitration Committee for Rule of Law, Vice Chair of the International Trade Committee of the ABA for Policy, and Deputy to the Chair of the Committee on CLE at the ABA. He is also a proud Member of the FDI Moot College of Arbitrators (FDIMARB).

He has been actively involved in prominent international moot court competitions—including the VIS Moot, FDI Moot, Cross Examination Moot, Jessup, and Frankfurt Moot—as a panelist, coach, and consultant. Notably, he has contributed to the success of Indian, African, Turkish, Iranian, and other international teams by mentoring and consulting on oral advocacy skills.

Jud’s professional affiliations include several leading arbitration institutions such as FINRA, LCIA, NYIAC, BIAMC, and CACC. He is expanding his practice into international trade and commercial transactions, foreign direct investment, and private equity, with a strong commitment to advancing fairness, equity, and efficiency in alternative dispute resolution.

In addition to practice, Jud contributes to scholarship in the field. His publication “Peace Lily” explores Taoist concepts in arbitration, and he is currently finalizing a paper on reworking the Fair and Equitable Treatment (FET) standard in international arbitration through the African concept of Ubuntu, which is set to be presented to the AfCFTA committee.

References

[1] Edward Luce, The new era of US-China decoupling, Financial Times, December 21, 2018.

[2] Gideon Rachman, America, China and the art of confrontation, Financial Times, December 18, 2018.

[3] Demetri Sevastopulo, David Bond, US and UK accuse China of cyber espionage campaign, Financial Times, December 20, 2018.

[4] Id. at 2.

[5] Linklaters LLP, People’s Republic of China: What happened in 2018 and significant events in 2019, 8 Business Law Section of the Florida Bar, December 14, 2018.

[6]Don Weinland, China banks pose lower global risk after curbs on shadow banking, Financial Times, November 25, 2018.

[7] Edward Luce, The new era of US-China decoupling, Financial Times, December 21, 2018.

[8] Editorial Board, Conflict between the US and China is not inevitable, Financial Times, November 8, 2018.

[9] COL. QIAO LIANG and COL. WANG XIANGSUI, UN-RESTRICTED WARFARE 18-20 (1999).

[10] JAMS, A Glimpse into the Future of Alternative Dispute Resolution in China, Business Law Section of the Florida Bar, December 4, 2018

[11] COL. QIAO LIANG and COL. WANG XIANGSUI, UN-RESTRICTED WARFARE 18-20 (1999).

 108-109.

[12] Id. at

[13] Id. at 156

[14] Id. at 157, citing Brzezinski’s view of the certainty of a future world where “confederacies” of nation-States with shared interest vying with other groups with a competing shared interest for dominance

[15] LAO TZU, THE COMPLETE WORKS OF LAO TZU: TAO TEH CHING AND HUA HU CHING Tao Teh Ching Chapter 42 (Hua Ching Ni trans. “and Elucidation”, Tao of Wellness-Publisher 2008) (1979).

[16] LAO TZU, TAO TE CHING (Stephen Mitchell trans., Frances Lincoln Limited 1999) Author’s Forward.

[17] LAO TZU, THE COMPLETE WORKS OF LAO TZU: TAO TEH CHING AND HUA HU CHING author’s INTRODUCTION TO TAO TEH CHING (Hua Ching Ni trans. “and Elucidation”, Tao of Wellness-Publisher 2008) (1979).

[18] Id. at INTRODUCTION TO THE TAO TEH CHING.

[19] Id. at INTRODUCTION OF HUA HU CHING 105

[20] COL. QIAO LIANG and COL. WANG XIANGSUI, UN-RESTRICTED WARFARE 161 (1999).

[21] LAO TZU, THE COMPLETE WORKS OF LAO TZU: TAO TEH CHING AND HUA HU CHING Tao Teh Ching 15 (Hua Ching Ni trans. “and Elucidation”, Tao of Wellness-Publisher 2008) (1979).

[22] LAO TZU, THE COMPLETE WORKS OF LAO TZU: TAO TEH CHING AND HUA HU CHING Tao Teh Ching 42 (Hua Ching Ni trans. “and Elucidation”, Tao of Wellness-Publisher 2008) (1979).

[23]Vienna Convention on the Law of Treaties, United Nations, Treaty Series, vol. 1155, p331 at 332 (2005) (adopted: 1980), May 23, 1969

[24] Paris Agreement, United Nations, FCCC/CP/2015/L.9/Rev.1 1-2 (2015) November 30-December 11, 2015.

[25] Id. at 2

[26] Jan Paulson, The Idea of Arbitration, Oxford University Press (2013).

[27] Id. at 30.

[28] LAO TZU, THE COMPLETE WORKS OF LAO TZU: TAO TEH CHING AND HUA HU CHING author’s INTRODUCTION TO TAO TEH CHING 14 (Hua Ching Ni trans. “and Elucidation”, Tao of Wellness-Publisher 2008) (1979).

[29] Jan Paulson, The Idea of Arbitration, 33 Oxford University Press (2013).

[30] Id. at 54.

[31] LAO TZU, THE COMPLETE WORKS OF LAO TZU: TAO TEH CHING AND HUA HU CHING 67 (Hua Ching Ni trans. “and Elucidation”, Tao of Wellness-Publisher 2008) (1979).

[32] Id. at 73.

[33] Jan Paulson, The Idea of Arbitration, 83 Oxford University Press (2013).

[34] Id. at 85.

[35] Id. at 94.

[36] Id. at 99.

[37] Id. at 109, quoting 32 N.J. 358 (1960)

[38] LAO TZU, TAO TE CHING Chapter 77 (Stephen Mitchell trans., Frances Lincoln Limited 1999)

[39] LAO TZU, TAO TE CHING Chapter 78 (Stephen Mitchell trans., Frances Lincoln Limited 1999)

[40] Jan Paulson, The Idea of Arbitration, 150 Oxford University Press (2013).

[41] LAO TZU, THE COMPLETE WORKS OF LAO TZU: TAO TEH CHING AND HUA HU CHING 67 (Hua Ching Ni trans. “and Elucidation”, Tao of Wellness-Publisher 2008) (1979).

[42] Jan Paulson, The Idea of Arbitration, 184 Oxford University Press (2013).

[43] Id. at 207.

[44] Jan Paulson, The Idea of Arbitration, 194 Oxford University Press (2013).

[45] Id. at 217

[46] Jan Paulson, The Idea of Arbitration, 256 Oxford University Press (2013).

[47] LAO TZU, TAO TE CHING (Stephen Mitchell trans., Frances Lincoln Limited 1999).

[48] Id. at Chapter 21.

[49] LAO TZU, TAO TE CHING Chapter 48 (Stephen Mitchell trans., Frances Lincoln Limited 1999).

---

The views and opinions expressed in this article are solely those of the author(s) and do not necessarily reflect the position of the Turkish Arbitration Blog (TARB) or its editorial team. Authors bear full responsibility for the accuracy of facts, legal arguments, and opinions presented in their contributions.

All articles published on the Turkish Arbitration Blog remain the intellectual property and copyright of the respective author(s). No part of this publication may be reproduced, distributed, or transmitted in any form or by any means without the prior written permission of the author(s). Proper citation is required for any reference to this publication.