Although multinational companies (MNCs) often complain about enormous financial losses from counterfeiting, they are not really harmed by counterfeiting. MNCs cannot substantiate their claims of massive losses through credible evidence; instead, they use methods for calculating losses based upon dubious and spurious assumptions. MNCs make claims about massive economic losses in order to divert attention from the real harms of counterfeiting and their role in perpetuating these harms. While counterfeiting may not truly harm MNCs, counterfeiting does create serious social harms to the countries in which it occurs. The MNCs' introduction of technology and intellectual property into developing countries with weak governments and legal systems creates a predictable and irresistible opportunity for lucrative economic crimes in which criminal organizations and corrupt government officials play a significant role. Counterfeiting provides a significant source of new revenue that strengthens organized crime and further encourages and deepens government corruption. These social harms retard developing countries' progress in the development of the rule of law, human rights, and transparency in government, which combine to intensify a mistrust of government and awareness and fear of crime.

These harms from counterfeiting are externalities for MNCs because the bulk of these harms do not fall upon MNCs themselves but on developing countries. So long as counterfeiting is an externality, MNCs have no incentives to take the full costs of counterfeiting into account; MNCs continue to provide access to commercially valuable intellectual property rights by investing in developing countries and feed the steady rise of the global trade in counterfeit goods.

The legitimacy of the World Bank's dispute resolution body - the International Centre for the Settlement of Investment Disputes (ICSID) - is a matter of heated debate. Some states have alleged that ICSID is biased, withdrawn from the ICSID Convention, and advocated creating alternative arbitration systems. Using pre-2007 archival data of the population of then- known arbitration awards, this Article quantitatively assesses whether ICSID arbitration awards were substantially different from arbitration awards rendered in other forums. The Article examines variation in the amounts claimed and outcomes reached to evaluate indicators of bias. The results indicated that there was no reliable statistical relationship between ICSID arbitrations and either amounts claimed or ultimate outcomes. The results generally did not show a statistical difference when controlling for (1) the presence of an Energy dispute, (2) the presence of a Latin American respondent, or (3) the respondent's Development Status. Nevertheless, although outcomes were not statistically different for Latin American and non-Latin American respondents, amounts claimed against Latin American states were higher - but only for non-ICSID arbitration. While the arguably higher initial arbitration risk may contribute to concerns related to perception of bias, the results provide initial evidence that those criticisms may have been misattributed to ICSID. Results suggested, on the whole, that ICSID arbitration awards were not statistically different from other arbitral processes, which is preliminary evidence that ICSID arbitration was not necessarily biased or that investment arbitration operated in reasonably equivalent ways across forums. Caution about this finding is appropriate given the size of the pre-2007 population and as one analysis suggested that for the subset comprised only of ICSID Convention awards as compared to all other awards (including ICSID Additional Facility awards), awards against Low Income respondents were statistically higher than awards against High Income respondents. Qualitative commonalities in that small subset of awards revealed the presence of certain types of law firms (or the lack thereof) or recent civil war in African states. In light of the initial quantitative findings for a pre-2007 population of arbitration awards, but recognizing the need for replication and methods to facilitate qualitative and normative assessments of ICSID, this Article concludes by suggesting that there may be value in implementing tailored reforms and structural safeguards to address arguable concerns of bias, improve the management of international economic conflict, and minimize a potential backlash to the international investment system.

The immunity of foreign states from suit in U.S. courts is governed by a federal statute, the Foreign Soveriegn Immunities Act (FSIA). This statute does not apply to the immunity of individual foreign officials, however, as the Supreme Court recently held in Samantar v. Yousuf. Instead, the Court reasoned, the immunity of foreign government officials is controlled by common law. But there is no extant body of federal or state common law governing foreign official immunity, and the Court did not clarify how this law should be developed going forward. The State Department claims that it holds constitutional power to make indvidual immunity determinations on a case-by- case basis that are binding on the courts, and that the immunity principles articulated by the government should be followed even in cases where it does not make a specific determination.

I argue in this article that the executive branch lacks such "lawmaking" power. I examine the text and structure of the Constitution, functional and historical arguments, the Court's case law, and implied congressional authorization, and I reject each of these as possible grounds for the power asserted by the executive branch. Instead, I assert that the development by courts of a federal common law of individual immunity (with no binding authority in the executive branch) fits comfortably within the existing jurisprudence on federal common law and is preferable on functional grounds. Federal common law should be constrained in some respects, however, by the content of the FSIA, by customary international law, and by the views of the executive branch on certain discrete issues.