In association with the International Commission of Jurists

Author: Anthea Roberts

03 Jun

[Anthea Roberts is an Associate Professor at the School of Regulation and Global Governance, Australian National University.] In withdrawing from the Paris Accord, President Donald Trump emphatically rejected globalism in favor of nationalism. “As president, I can put no other consideration before the well-being of American citizens,” he explained. “I am fighting every day for the great people of this country....

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23 May

[Anthea Roberts is an Associate Professor at the School of Regulation and Global Governance, Australian National University.] American exceptionalism is nothing new. Nor are debates about whether it is appropriate for US courts to look to foreign or international law, particularly when interpreting the US Constitution. Yet now-Justice Gorsuch’s recent testimony on the issue during his confirmation hearing still took my...

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31 Mar

[Anthea Roberts is an Associate Professor at the London School of Economics and Political Science and a Professor of Law at Columbia Law School.] This post is part of the HILJ Online Symposium: Volumes 54(2) & 55(1). Other posts in this series can be found in the related posts below. I want to thank Opinio Juris for hosting this symposium and Martins Paparinskis for taking the time to comment on this article. I highly respect Paparinskis’ work in the field, so I am grateful for his substantive engagement. I have two responses to his post. 1. Why is it important to develop hybrid theories? As I have argued previously, investment treaty arbitration can be understood through many different paradigms, including traditional public international law, international commercial arbitration, public law, human rights law and trade law. A number of scholars, including Douglas and Paparinskis in two articles, have likewise sought to show that (1) the investment treaty system does not fit neatly into any one mold and (2) the application of different molds often leads to radically different solutions to concrete problems. For instance, in Analogies and Other Regimes of International Law, Paparinskis recognizes that “investment law partly borrows and partly diverges from pre-existing regimes of international law” so that an interpreter is “required to determine the degree of similarity and difference so as to elaborate the ordinary meaning of both particular terms and broader structures.” Moreover, he continues, “the interpreter may plausibly rely on different approaches, with importantly different implications for the meaning and operation of particular elements of investment law.”
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30 Oct

[Anthea Roberts holds a joint appointment as a Professor of Law at Columbia Law School and a Senior Lecturer in Law at the London School of Economics and will be in residence at Columbia Law School from 2013-2015.] Michael Goldhaber has written an interesting and timely article charting the rise of international arbitrators exercising power over and with respect to domestic courts. He gives examples ranging from Chevron to Saipem to White Industries. This is an important and growing phenomenon that has not yet received adequate attention. I believe that the rise of arbitral power over domestic courts that Goldhaber describes is the first stage in what will ultimately become a longer and more contested saga about the respective powers of arbitral tribunals and domestic courts. That is because arbitral tribunals not only exercise power over domestic courts, but their own power is also dependent on domestic courts. The power of arbitral tribunals ultimately comes down to whether their decisions will be enforced by domestic courts. While Goldhaber charts the first stage in the battle between arbitral tribunals and domestic courts where arbitrators are in the position of authority, we are likely to witness a second stage when domestic courts are asked to pass judgment on whether arbitral tribunals have exceeded their jurisdiction or violated public policy by hearing these sorts of cases or ordering certain relief. Arbitral tribunals will sit in judgment of domestic courts and domestic courts will sit in judgment of arbitral tribunals. Neither reigns supreme. BG Group v Argentina represents an early example of this type of phenomenon. The tribunal in that case chose not to enforce the requirement in the treaty that the investor resort to the domestic courts for 18 months prior to bringing an arbitral claim. Many other tribunals adopted the same approach, often painting the issue as one of admissibility rather than jurisdiction or viewing domestic remedies as futile rendering resort to them unnecessary. But when the Court of Appeals for the District Court of Columbia was asked to enforce the resulting award, it refused to do so on the basis that the tribunal had exceeded its jurisdiction because Argentina had only consented to arbitration on certain conditions, one of which was not met.
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10 Apr

[Anthea Roberts is currently the Visiting Professor of Law and John Harvey Gregory Lecturer on World Organization at Harvard Law School. She also holds the position of Lecturer in Law, Department of Law, London School of Economics and Political Science.] This post is part of the Virginia Journal of International Law Symposium, Volume 52, Issues 1 and 2. Other posts in this series can be found in the related posts below. Thank you very much to Opinio Juris for hosting this discussion and to the Virginia Journal of International Law for inviting me to participate. Investment treaty arbitration has typically been viewed as a field that marries public international law (as a matter of substance) with international commercial arbitration (as a matter of procedure). During the 2000s, however, a number of authors - including Gus Van Harten (2007), David Schneiderman (2008), Santiago Montt (2009) and Stephen Schill (2010) - have argued that investment treaty arbitration should be reconceptualized as a form of public law because it performs a function that is akin to international judicial review. Public law approaches have played a key role in legitimacy critiques of the investment treaty system. Some authors, such as Van Harten and Schneiderman, have used the public law approach to argue for the system to be fundamentally overhauled by, for instance, proposing that ad hoc investment tribunals be replaced with a standing investment court. Others authors, such as Montt and Schill, argue that many of the legitimacy critiques leveled against investment treaty arbitration could be countered by an expansion of public law thinking within the existing structure of investment treaty arbitration. In thinking about these public law approaches, some questions continually recur in my mind. I am grateful for this opportunity to pose some of them to Schill: * What motivates some scholars to use the public law approach to suggest fundamentally revising the system and others to suggest refining the system from within? If most investment arbitrations continue to be heard by arbitrators with a primary background in public international law or international commercial arbitration, how effective can we expect the public law approach to be in revamping the system from the inside? Can some public law changes be affected only by a radical revision of the system? If so, what are the limits of Schill's more moderate approach? * Public law principles often seem to be drawn from North American and Western European states, such as the USA, Canada, England, Germany and France. To what extent does the public law approach assume that the respondent state is robustly democratic? How do principles like deference and standards of review apply when dealing with non-democratic states? Could this result in a two-tiered approach with considerable deference being granted to established democracies and little deference being granted to non-democracies? If so, would this reinforce some of the North-South critiques that have plagued investment protection in the past?
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