In association with the International Commission of Jurists

Emerging Voices

09 Jul

[Maninder Malli recently completed a LL.M. (International Legal Studies) at New York University and he is currently working with the Legal Vice Presidency of the World Bank in Washington, D.C.] International investment law (IIL) is highly dynamic.  The lack of a broad multilateral agreement on investment coupled with the rapid rise of foreign direct investment (FDI) has led to the profusion of bilateral investment treaties (BITs) and, increasingly, minilateral arrangements between three or more geographically-proximate or otherwise like-minded States.  The ‘spaghetti bowl’ of international investment agreements is becoming further entangled with hundreds of minilateral arrangements, including free trade agreements (FTAs) with investment provisions, economic partnership agreements and regional agreements. In many areas of international law, including international trade, States are abandoning glacial multilateral initiatives and opting for regional or sectoral approaches to solve global problems and coordinate mutually beneficial action.  Moses Naím suggests that the failure since the 1990s of most grand multilateral negotiations represents not only a perpetual lack of international consensus, but also a “flawed obsession with multilateralism as the panacea for all the world’s ills.”  Naím argues for a smarter, more targeted approach, by bringing to the relevant table “the smallest number of countries needed to have the largest possible impact on solving a particular problem.”  Francis Fukuyama, similarly, has advocated for “multi-multilateralism,” entailing a diversity of institutions and institutional forms to provide governance across a range of security, economic, environmental, and other issues. In the context of IIL, the profusion of regional investment arrangements (such as the recent trilateral investment agreement between China, Japan and South Korea and the Mexico–Central America FTA) and the ongoing discussions for investment regulation in a Trans-Pacific Partnership (TPP) and a Transatlantic Trade and Investment Partnership (TTIP) are clear evidence of this minilateral trend.  As proposed in the TPP and TTIP, investment regulation is incorporated into broader economic arrangements which often include trade, intellectual property and regulatory coherence.  The Energy Charter Treaty (ECT) is a sectoral example of a minilateral treaty which entails investor protection.  States are clearly converting their strong bilateral economic and political relationships into minilateral arrangements to regulate FDI. These initiatives, at least in part, reflect a desire of State parties to circumvent broader multilateral efforts that lack consensus on the precise standards of treatment of foreign investors and thus fail to achieve substantive common ground.  The OECD’s failed Multilateral Agreement on Investment in the late 1990s and the inability to advance the multilateral investment agenda within the World Trade Organization illustrate the challenge of crafting comprehensive general principles and specific treaty provisions which are responsive to the diverse and vacillating economic, social and political conditions of a large number of States.  In the IIL context, this is most clearly manifested in the dichotomy between (i) the desire of States to attract FDI and to be perceived as active participants in the liberal economic order, on one hand, and (ii) the need to retain regulatory flexibility and avoid plethoric investor-state arbitration, on the other.  The absence of complete and adequate multilateral investment rules was historically blamed on the discord between capital-supplying and capital-receiving nations.  This dichotomy is today no longer as simple, as an increasing number of countries are both capital suppliers and capital recipients, and the correlation between the two is ever-fluctuating. I submit that greater attention should be paid to the potential for minilateral arrangements to better reflect modern State desires and ambitions for reciprocal FDI promotion and protection.  While the content of most investment agreements is remarkably similar, there are important deviations in the wording, application and interpretation of many substantive provisions. 
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08 Jul

[Christopher Warren is an Assistant Professor of English at Carnegie Mellon University] Disciplinarily, as my title suggests, I come from elsewhere.  But having travelled here to the shores of international law from my home in early modern cultural studies, I come in part to praise the fragmented landscape. “Fragmentation” in recent legal discussions usually refers to “traditional international law [being] pushed aside by a mosaic of particular rules and institutions, each following its embedded preferences.” “An everyday international occurrence such as the transport of hazardous chemicals at sea,” as Martti Koskenniemi explains, can now be “narrate[d] as part of a different set of human pursuits, values, and priorities,” including trade law, transport law, environmental law, law of the sea, or human rights. Koskenniemi’s account of jurisdictional and normative fragmentation usefully captures two main insights, first, that narrative—story—plays a critical and maybe increasing role on what is notably called the “international stage”; and secondly, that the stories we tell and the ways that we tell them have legal, social, economic, and political consequences. Robert Cover’s foundational essay “Nomos and Narrative” (pdf) powerfully articulates such insights as well.

Disciplinary Fragmentation

My first interest here, however, is not normative fragmentation but a different though related kind of fragmentation, namely disciplinary fragmentation, specifically the present disconnect between international law and humanistic disciplines like literature and history. Fortunately, disciplinary fragmentation has left rough, jagged edges, and while I’m visiting here I want to take the opportunity to celebrate the craggy coastlines where we can still find evidence of international law’s connections with the humanities. The present distance between international law and literary and cultural studies might make my participation in this forum surprising, but it’s also, I’d suggest, a fruitful way to think historically and methodologically about international law.
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08 Jul

It's been a few months in the making, but today we're kicking off our inaugural Emerging Voices symposium. Until late August, we'll bring you a wide variety of posts, all written by graduate students, junior practitioners and junior academics. So watch this space if you want to read more about international law's often forgotten connections with the humanities, expat voting rights under...

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