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Law, Probability and Risk Advance Access





Published: Mon, 19 Feb 2018 00:00:00 GMT

Last Build Date: Tue, 20 Feb 2018 06:46:18 GMT

 



Does the use of risk assessments in sentences respect the right to due process? A critical analysis of the Wisconsin v. Loomis ruling

Mon, 19 Feb 2018 00:00:00 GMT

Abstract
On 13 July 2016, the Supreme Court of Wisconsin published a crucial decision which ruled for the first time ever about the constitutionality of using algorithms in sentencing. The ruling accepted their use, arguing that defendants’ right to due process was not violated by the mere fact that they could not gain access to an adequate explanation of the algorithm. To support this position, the Court stated that the accuracy of the tools and the capacity of the judges to understand their possible malfunctioning were enough to ensure the defendants’ rights. This article criticizes this ruling by unveiling the contradictions and misunderstandings involved in the rationale embedded in the sentence. As a consequence, it advocates the use of open source algorithms in our justice systems or, at least, in sentencing.



The four regions in settlement space: a game-theoretical approach to investment treaty arbitration. Part II: cases

Tue, 26 Dec 2017 00:00:00 GMT

Abstract
Following from Part I of this article, which introduced the notion of decision-modelling for investor–state arbitration, Part II of the article uses the game theoretic notions developed in Part I to explore the question of why a relatively large fraction of investor–state disputes proceed to arbitration tribunals. Likely explanations are advanced. The detailed mathematical model derived in Part I of the article is then used to analyse 31 cases where an investor–state dispute has been judged by an arbitration tribunal. Auxiliary mathematics are developed to identify the relevant averages and variances, which are then calculated from the full data set. Three sample cases are analysed in greater detail, with the model results being compared against the actual awards. It is concluded that applying the mathematical model of the international arbitration process developed in Part I together with the data analysis laid out in Part II will provide useful insight and guidance to both parties involved or likely to be involved in a dispute between investor and state.



The four regions in settlement space: a game-theoretical approach to investment treaty arbitration. Part I: modelling

Tue, 26 Dec 2017 00:00:00 GMT

Abstract
This article uses game theory to investigate investor–state dispute settlement and related dispute resolution strategies through international arbitration. When deciding whether either to bring or to defend a claim rather than pursue settlement, investors and states will select strategies to maximize their respective payoffs, either by securing compensation or successfully defeating a claim for compensation. This article develops a model decision-making strategy for claimant investors and defendant states based on the observed patterns of outcomes in actual investment treaty arbitration awards. Embedding the problem in the context of utility and hence risk-aversion, it will offer a general solution for the arbitration ‘game’. Four regions will be identified in the settlement space consisting of the respondent offer against claimant success probability. It will be shown that no settlement is possible in three of these four regions. The go-no-go probability of claimant victory below which it would not be reasonable for a potential claimant to proceed will be quantified. An algorithm is developed for calculating the settlement sum that the respondent may offer with a reasonable expectation of acceptance by the claimant.