[Andreas Ziegler is Professor at the University of Lausanne and Counsel at Blum & Grob Attorneys-at-law in Zurich.]
The reference to John Gray’s bestselling “Men Are from Mars, Women Are from Venus” which states that most of common relationship problems between men and women are a result of fundamental psychological differences between the genders certainly oversimplifies Moshe Hirsch’s argument in his Chapter. And yet a recurring idea in his contribution is that human rights lawyers refer differently to human rights treaties than investment lawyers because of their socialization. What he describes as the sociological perspective can be summed as the explanation of these different attitudes by the different career paths of those involved in investment cases and those involved in human rights cases. He holds “[w]hile most human rights lawyers work in legal divisions of NGOs of academia, foreign investment lawyers (and arbitrators) are predominantly senior lawyers/practitioners, legal scholars of former judges affiliated with major international firms.” (p. 90 in fine).
This is not the only argument in his contribution but I would like to focus on it as I find it particularly intriguing and worthwhile to be developed in more detail. There is certainly some truth in this statement. When it comes to the application of investment treaties we are traditionally confronted with lawyers who take a certain interest in the global economy and especially the role of investors (normally multinational enterprises). These were for a long time mostly civil servants negotiating such treaties and (national) business associations interested in the conclusion of such treaties with specific partner countries. More recently when these treaties (or chapters thereof – most prominently Chapter 11 NAFTA) were discovered for their practical use by practicing lawyers we got used to their arguments being heard by investment tribunals.
When it comes, however, to the arbitrators one must say that originally and still to a large extent today we see small group of specialists in international commercial arbitration being appointed to the respective arbitration tribunals. But there is an increasing number of arbitrators being appointed who are not specialized in international commercial law but come from public international law – not only international economic law. Some may remember the very early appointment of René-Jean Dupuy as sole arbitrator in Texaco Overseas Petroleum Company and California Asiatic Oil Company v. The Government of the Libyan Arab Republic (1977). It is certainly still true that it is more often the State appointing a specialist in public international law than the investor involved in a case. This is not surprising as the investor is focusing on his individual commercial interests and the State often invokes some public policy concern or constraint for his action. Also commercial law firms actively search for appointment by multinational firms and have traditional links to commercial lawyers they have worked with in the past. Yet, one can no longer claim that there would not be an increasing number of arbitrators appointed who do not have a commercial arbitration background. Among the academics being appointed there is an increasing number of academics who have a broader view of the applicable law and are open to consider the relevance of human rights treaties or other norms of public international law that should be taken into account when settling a dispute. This is also true for the other participants in the proceedings where Parties have normally the possibility to involve experts from other fields and NGOs are increasingly making contributions – be it officially in amicus curiae briefs or using the public domain. The same is obviously true for academia where non-investment specialists have only recently discovered the relevance of investor-State arbitral awards but now contribute considerably to the debate on how investment treaties should be interpreted- and more importantly negotiated in the future. (see my forthcoming volume "Towards Better BITs")
A particularly interesting situation results from the case law of tribunals when their character as a human rights or an investment tribunal is not so clear.