In association with the International Commission of Jurists

Books

01 Oct

[Tullio Treves is a Professor of International Law at the University of Milano and a Public International Law Consultant at Curtis, Mallet-Prevost, Colt & Mosle LLP in Milan] This chapter is entitled “International investment dispute settlement in the twenty-first century: does the preservation of the public interest require an alternative to the arbitral model?” It is a detailed and well reasoned review of the criticisms raised against arbitration as the  mechanism dominating the settlement of international investment disputes, of the steps already taken or underway to attenuate the negative aspects addressed by such criticism, and of the more ambitious reforms that have been proposed. Among the criticisms addressed are the following: that the arbitral model “fails to live up to the basic precepts of democracy and the rule of law” and shows a lack of consideration of the public nature of the interests involved;  that there exists a real or perceived bias of arbitrators (and of the arbitrators’ appointing authorities) in favor of investors due inter alia to the fact that many arbitrators are at the same time practicing lawyers in law firms which may have to cater to the interests of other clients not involved in the specific dispute; that the process lacks transparency; that contradictory decisions  involve a risk of fragmentation. Notwithstanding these criticisms, the authors’ “interim conclusions” are that “arbitration works well most of the times” but that “in view of the requirements of the rule of law and in light of the public interest, ‘working well most of the time’ is not enough” (p. 434). The  “current reforms” examined by the authors and aimed at overcoming the criticisms concern transparency and the participation in proceedings by “non-parties” such as public interest non-governmental organizations as amici curiae. The assessment of the authors is summarized in the relevant chapter’s title: “too little, too late” and further elaborated  explaining that: “these reforms are unlikely to resolve the legitimacy crisis by themselves. … the transparency reforms remain subject to the consent of the parties and therefore do not institutionalise transparency per se” (p. 438). The more ambitious proposals for reforming the system are considered in a chapter entitled “Doing away with arbitration?”. As a matter of fact, only a short passage about alternative disputes resolution methods (as mentioned in the US Model BIT) concerns alternatives to arbitration. Most attention is given to the proposals, which are far from being accepted so far, for eliminating from investment agreements the exclusion of the exhaustion of local remedies rule and for introducing an appellate level, possibly through  an institutionalized permanent body. The newly acquired European Union competence in the field of investment is seen as a factor that  might change the present situation in which important reforms (including that concerning an appellate body) seem impossible. In a chapter on “Doing away with arbitration?”, one could have expected a discussion of the implication of recent denunciation, by various States, of the ICSID Convention and of BITs, which seems to me the most radical aspect of recent practice for “doing away with arbitration”.
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01 Oct

[Nicolas Hachez is a PhD student at the institute for International Law and Leuven Centre for Global Governance Studies and Jan Wouters is Professor of International Law and International Organizations, Jean Monnet Chair Ad Personam EU and Global Governance, and Director of the Leuven Centre for Global Governance Studies and Institute for International Law at the University of Leuven (KU Leuven).] This chapter, entitled ‘International investment dispute settlement in the twenty-first century: does the preservation of the public interest require an alternative to the arbitral model?’ takes a close look at the arbitral mechanism which is the preferred dispute settlement mode in investment disputes between foreign investors and host states, and reviews the criticism which arbitration is currently facing in this context. The starting point of such criticism is that investor-state disputes concern questions of public law as they allow for the review of domestic legislations. Arguably, the arbitral model would not be suitable to settle disputes which directly engage the public interest. The argument is usually articulated around the following concerns:
  • The arbitral model is designed after commercial arbitration and would fail to live up to the rule of law requirements of administrative review. This is evidenced notably by the fact that arbitral proceedings are one-off procedures not amenable to appeal, thereby allowing for inconsistent decisions, or by the fact that proceedings involving questions of public interest are untransparent as confidentiality is the rule in commercial arbitration.
  • Arbitral tribunals would lack independence, as there are no incompatibilities for arbitrators and remuneration by the claim would be an encouragement for arbitrators to take legal positions that encourage the lodging of future claims and therefore increase the arbitration business. Likewise, it has been noted that a number of arbitrators are also practicing lawyers regularly advising multinational corporations, and would therefore have an interest to adopt pro-investor decisions so as to serve the interest of their clients.
  • Arbitrators would lack impartiality, as the arbitral system would be structurally biased towards investors’ interests and towards the application of investment disciplines even when they potentially conflict with other bodies of international or domestic law.
The result of such deficiencies would be that the arbitral model for settling investor-state disputes disregards issues of public interest which such disputes naturally entail, and would be biased towards preserving the private economic interests of foreign investors. In the face of such criticism, the international investment arbitration regime (notably under the impulsion of ICSID, UNCITRAL, the PCA, and through the amendment of certain investment treaties like NAFTA) underwent reform under several counts aiming at increasing consideration of issues of public interest: 
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30 Sep

[Laurence Boisson de Chazournes is Professor of international law at the Faculty of Law of the University of Geneva, Switzerland]. In her chapter, Freya Baetens notes that it is necessary to scrutinize "how concepts, principles and rules developed in the context of other sub-fields could (or should) inform the content of investment law." This scrutiny is well-deserved, as the interrelations of other bodies of norms with the corpus of norms related to investment law have gained traction but remains ambiguous. The notion of cross-fertilization and that of legal regimes informing one another are abundantly referred to. While I share this a-hierarchical vision (with the caveat of the possible application of jus cogens and erga omnes obligations) of the relationships among different bodies of law, one should be cautious so as not to transform a land of its own—i.e., international law—into an archipelago of islands more or less connected, which needs artificially created pathways.  There is no reason for international investment law, as a field of public international law à part entière, not to be incorporated in the universe of international law. In addition to stressing the need for decision-makers to adopt a systemic view of such interrelationships, Freya highlights the key role that rules of interpretation play in promoting a more unitary approach.  Much more attention should be paid to the set of rules as codified in Articles 31, 32 and 33 of the Vienna Convention on the Law of Treaties.  These rules should be observed as a set of objective rules (to be interpreted in conformity with the rules they provide for) and not as a menu left to the taste and desire of tribunals. I would like to draw attention to the concept of mutual supportiveness which has emerged as an interpretative tool. Freya's viewpoint evokes it. It constitutes a lens through which international law is increasingly observed. Mutual supportiveness implies that States and arbitrators should refrain, whenever possible, from construing conflicts between international investment obligations and other legal interests. Moreover, there should be mutual adjustments: on each side, there should be an attempt to prevent the eruption of a conflict. This can be done in an ex ante manner at the time of the negotiation. Freya's chapter provides some examples in this respect. States bear an important responsibility in this context. The prevention of the eruption of a conflict can also be done in an ex post manner when a dispute is to be settled.  This is where the rules of interpretation play a key role.  It undoubtedly focuses attention on the powers of tribunals.  The wording and content of investment treaties is of crucial importance in an interpretative context. The principle of mutual supportiveness has most prominently emerged in the relationships between international trade and the environment, but is not limited to this area.  For example, the OECD has incorporated mutual supportiveness as a primary principle in its Green Growth Strategy Report (2011), encouraging Member States to foster compatibility between their investment-related and environmental policy goals. I then would like to make two observations related to two so-called sub-fields. One of these deals with human rights considerations, while the other one concerns international humanitarian law. 
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30 Sep

[Dr Freya Baetens is Associate Professor of Law at Leiden Law School, Director of Studies at Leiden University College (LUC) and Head of the LUC Research Centre at Leiden University.] The last two decades have witnessed an exponential increase in investor-State arbitrations. Investment tribunals now regularly render binding decisions as to whether States have violated protection standards guaranteed under various investment treaties. The pace by which these tribunals deliver their awards has turned investment law into one of the most dynamic fields of public international law. Developments in other sub-fields of international law influence the development of international investment law, but also vice versa, changes in investment law have an impact on the evolution of other fields of international law. As the majority of publications focuses on the application and interpretation of investment protection standards, the interaction of international investment law with other sub-fields of international law has not been so extensively explored yet. To fill this gap, academics and practitioners contributing to this collection examine specific links between investment law and such other rules of international law. In particular, this book scrutinizes how concepts, principles and rules developed in the context of other sub-fields of international law could (or should) inform the content of investment law. Solutions conceived for resolving problems in other settings may provide instructive examples for addressing current problems in the field of investment law, and vice versa. This serves as an aid for several contributors to determine whether various sub-fields of public international law, particularly international investment law, are open to cross-fertilisation, or, whether they are evolving ever further into self-contained regimes. This book contains a peer-reviewed selection of the most innovative and outstanding papers resulting from presentations at the international conference on ‘The Interaction of International Investment Law with Other Fields of Public International Law’ which took place on 8 and 9 April 2011 at Leiden University. This conference brought together experts from the field of international investment law with renowned scholars and practitioners from other sub-fields of international law. The five parts of this volume each address one particular interrelationship: the authors of each part have had the opportunity to examine each other’s ideas so as to guarantee a coherent approach to the matter, thereby avoiding a fragmented discussion. One important comment received in the course of preparing this book/volume was that a book such as this one could pursue two goals: (1) an overall - single volume - assessment of the literature ‘with some extra edge’; or (2) a selection of the most relevant issues. So, in which category does this work belong?
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30 Sep

This week we are hosting a symposium on Investment Law Within International Law: Integrationist Perspectives, a brand new volume edited by Dr. Freya Baetens (Leiden - Law) and published by Cambridge University Press. Here is the abstract: Developments within various sub-fields of international law influence international investment law, but changes in investment law also have an impact on the evolution of other fields within international law. With...

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20 Sep

[Jeffrey L. Dunoff is the Laura H. Carnell Professor of Law at Temple University Beasley School of Law and Mark A. Pollack is professor of Political Science and Jean Monnet Chair ad personam at Temple University]

Many thanks to Opinio Juris – and to all of the Symposium participants – for a stimulating and informative discussion of the virtues and vices of international law and international relations (IL/IR) scholarship.

The Symposium highlights some of the ways that IL/IR research has enriched our understanding of the making, interpretation, and enforcement of international law.  Larry Helfer’s post provides a superb summary of what IL/IR scholarship teaches about the design of international legal agreements, and in particular of flexibility provisions.  In terms of interpretation, IL/IR scholarship has prompted a rediscovery of international courts by political scientists, who seek to explain patterns in international judicial behavior.  Finally, as Jana von Stein notes, IL/IR research has produced both increasingly systematic data collection on IL compliance, as well as sophisticated understandings of the diverse causal mechanisms behind law’s compliance pull on states.

However, our project seeks not only to identify “lessons learned,” but also to identify IL/IR’s weaknesses, blind-spots, and potential for further development.  The lively exchange between Richard Steinberg and Ian Hurd (see here, here, and here), as well as the thoughtful posts by Judge Joan Donoghue, Ed Swaine, Tim Meyer, and Ruti Teitel, suggest several ways that existing scholarship can be strengthened.

In this concluding post, we explore a different critique, namely that IL/IR scholarship is less interdisciplinary than its name implies, frequently consisting of a one-way application of IR as a discipline to IL as a subject.

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19 Sep

[Tim Meyer is an Assistant Professor of Law at the University of Georgia School of Law] As is de rigueur in discussions of compliance with international law, von Stein’s chapter quotes in the opening paragraph Louis Henkin’s statement that “almost all nations observe almost all principles of international law and almost all of their obligations almost all of the time” (p. 477) – the claim that launched a thousand journal articles.  Appropriately, von Stein’s excellent review of the compliance literature returns to Henkin in conclusion, noting in sum that “we know, for instance, that it is not the case that almost all states respect their obligations almost all the time.”  (emphasis in original) (p. 495).  In between, von Stein provides a clear, concise, and illuminating review of theories of compliance with international law and the empirical evidence for and against, and empirical challenges in evaluating, these theories.  International law seems to drive states to conform to its mandates at least some of the time, and our understandings of the mechanisms at work is improving, if still in need of improvement. In this comment, I want to suggest one way in which we can deepen our understanding of how international law affects state behavior. Specifically, I want to problematize the notion of compliance as a dependent variable.  Von Stein’s essay describes the state of the art in compliance studies, but as Dunoff and Pollack note the IL/IR literature consists overwhelmingly of the application of IR theories to international law.  Reconceptualizing how international law affects state behavior is a key way in which law can increasingly inform IL/IR scholarship. To put it simply, compliance – “the degree to which state behavior conforms to what an agreement prescribes or proscribes” (p. 478) – is undoubtedly a useful place to start studying how international law affects behavior, and great strides have been made in this area, but moving forward we need a conception of legal process that more accurately reflects how states actually implement and evaluate compliance with international law.
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19 Sep

[Jana von Stein is a Senior Lecturer in Political Science and International Relations at Victoria University of Wellington (New Zealand) and a Faculty Associate at the Center for Political Studies (University of Michigan)] When do – and don’t – states comply with international rules? For instrumentalists (adopting Keohane’s –admittedly simplified– categorization of the literature as ‘instrumentalist’ and ‘normative’, the puzzle starts with the observation that no overarching power exists to enforce international law. If there is no ‘highest power’ to enforce rules, why follow them? The ‘engines of compliance’ are typically more diffuse than in domestic systems, but they are nonetheless real:
  • International inducements. Sometimes a state benefits enough from having others follow the rules that it pays the ‘cost’ of ensuring compliance itself, whether in the form of ‘carrots’ (e.g., trade concessions) or ‘sticks’ (e.g., economic sanctions). Inducements are typically decentralized and based on self-help, so their application can be uneven. Inducements also face typical collective action problems, and so often work best when a powerful state is doing the heavy lifting.
  • Reciprocity. Axelrod demonstrated long ago that reciprocity can be an engine of cooperation if the involved parties are sufficiently sure that they will interact into the future. The same logic holds for compliance, under certain conditions. Reciprocal noncompliance must harm the party that is tempted to renege: this is why (direct) reciprocity is rarely useful in international human rights law, but can work in the realms of trade and war conduct. Reciprocity is also problematic if the ‘punishment’ can’t be limited to the violator, as is often the case in international environmental affairs.
  • Reputation. For instrumentalists, reputation is a means to an end: a reputation for keeping promises can make it easier to secure cooperation more broadly or in the future. Reputation is important for predicting future behavior, not for punishing past actions. Scholars debate just how much reputation carries over from one issue-area to another, or from one government administration to another. What is more, concerns about reputation can sometimes push governments not to comply, for instance if they want to foster a reputation for protecting their interests or their friends. 
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18 Sep

[Joost Pauwelyn is Professor of International Law at the Graduate Institute of International and Development Studies in Geneva and Manfred Elsig is Associate Professor of International Relations and Deputy Managing Director of the World Trade Institute of the University of Bern.] We are extremely grateful for Judge Donoghue’s balanced and thoughtful comments.  We really appreciate the insights from someone who is actually operating from within...

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18 Sep

[Joan Donoghue is a Judge on the International Court of Justice.]  Interdisciplinary Perspectives is an important contribution to the international law/international relations (IL/IR) literature that deserves the attention of scholars and practitioners alike.  I am grateful to the editors for inviting me to comment on the interesting chapter by Joost Pauwelyn and Manfred Elsig. My first exposure to the IL/IR literature was in the early 1990s, when my particular interest was the role that international agreements play in addressing environmental concerns.  This literature has helped international lawyers to look beyond treaties to regimes, and has drawn our attention to the distinction between compliance and effectiveness. Serving as a judge on the International Court of Justice (ICJ), I have had the opportunity again to study the IL/IR literature, as I have pondered the role that an ICJ judgment plays in the resolution of a dispute.  There have been studies of compliance with the judgments of the ICJ and other tribunals. In addition, I have been pleased to see scholarly exploration of the more nuanced question of the effectiveness of judgments of tribunals, which calls for reflection of the goals of the tribunal (effective as to what?) and for an examination of the linkages between tribunal outputs and the roles of other actors, such as other UN organs, regional organizations and non-party states.  Many of the authors represented in the present volume are important contributors to the study of international tribunals. Interdisciplinary Perspectives demonstrates that the IL/IR field is diverse and maturing.  At the same time, the editors do not overstate its potency.  Like Anne-Marie Slaughter in her retrospective at the close of the volume, the editors are less “starry-eyed” (p. 624) than were some earlier adherents. Much as I welcome the study of international tribunals by IL/IR scholars, I also appreciate that there are obstacles to applying social science disciplines to these institutions.   Several challenges come to mind: 
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18 Sep

[Joost Pauwelyn is Professor of International Law at the Graduate Institute of International and Development Studies in Geneva and Manfred Elsig is Associate Professor of International Relations and Deputy Managing Director of the World Trade Institute of the University of Bern.] In principle, the Vienna Convention rules on treaty interpretation apply equally to all treaties and all international tribunals.  In practice, however, we...

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17 Sep

[Ed Swaine is Professor of Law at George Washington University Law School] Larry Helfer is the perfect author for a chapter on the topic of treaty flexibility mechanisms: he writes from both theoretical and empirical perspectives, has a wide range of substantive expertise (including in human rights and trade, two fields that are central to this topic), and has a penetrating and remarkably clear style of analysis.  He deliberately provokes a number of questions in his chapter and post; because I’m conscious that blog readers themselves have numerous “exit” options, like closing this tab, I will try to be brief and touch on only a few. This topic includes a wide variety of behaviors – reservations, denunciations, suspension, differentiated treatment, amendment, withdrawal, and so forth – and one set of issues concerns nomenclature and taxonomy.  Larry has a state-of-the-art table in his chapter laying out and sorting the flexibility options.  Personally, I have never been happy with describing certain formal flexibility mechanisms (those involving temporary relief from treaty obligations) as “escape” clauses, supposedly as distinct from “exit” clauses that entail permanent cessation of status as a treaty party.  Prisoners do not “escape” from Alcatraz with a view to returning; a word like “avoidance” better captures the idea in this context.  More generally, the categorization of flexibility mechanisms has certain routine difficulties – the basic problem of trying simultaneously to sort on when a state seeks flexibility and what its legal consequences are; conflicting tendencies both to include and exclude certain noncompliance acts as informal flexibility mechanisms; and an inherently unsatisfying distinction between so-called unilateral mechanisms (not always exploited in a completely autonomous fashion) and collective mechanisms (frequently, one suspects, prone to exploitation or capture by particular states).  Typology is rarely gripping, and I don’t want to mislead anyone into thinking that Larry’s chapter is focused on these questions or has unique difficulties with them.  However, they matter because we are concerned with the relationship among these mechanisms, principally in order to describe the choices states confront and make; he highlights this in his post as well.  In addition, beyond worrying whether these descriptions have formal integrity, we should also try to explore whether these are in fact the way state representatives think about the alternatives.  It might be the case, for example, that they focus predominately on collective rather than unilateral forms of flexibility, or informal rather than formal avenues, either of which might marginalize other kinds of inquiries. A second set of issues concerns the proper perspective on these questions. 
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