Lady Bracknell is not often relied on as an authority on matters relating to international dispute settlement. Perhaps unjustifiably so; some of the recent debates do bring to mind her remark about end-of-season conversations, ‘when everyone has practically said whatever they had to say, which, in most cases, was probably not much’ (I). ESIL Reflections of Mathias Kumm and Stephan Schill, I hasten to add, do not fall into that category. Even if the readers are not persuaded by their arguments, the precise reason for disagreement is useful for reflecting upon and clarifying one’s own position. I am grateful for the opportunity to offer a few observations of my own, presented from the perspective of international law of dispute settlement.
Kumm and the argument against arbitration
Kumm, it is fair to say, is not a fan of investor-State arbitration. He makes the argument against its inclusion in mega-regional agreements in a forceful, clear, and eloquent manner, which is in many ways appealing. Of course, the cost of making a clear argument about a complicated issue of international law is that pedantic blackletter positivists will (attempt to) side-track the discussion by raising spurious ‘well, yes, but’ objections. Let me illustrate that point with three questions and a coda.
Empire and remedies
First, Kumm suggests that modern investment protection law continues the approaches of empire, colonialism, and consular jurisdiction. Well, yes. But it does so in a structurally very different way. Empires protected investments by acquiring territorial title (whether in terms of annexation or colonisation) and directly applying their own (home State) law, usually excluding the application of international and host State law. Consular jurisdiction protected investments through international law, excluding the application of domestic law of the host State. In a crucially different manner, modern investment law enmeshes international law and domestic law of the host State. There may be structural echoes of empire in the US internationalisation of its constitutional law (Annex B), or in writings that rely on domestic public law standards of developed home States, whether to defend, nudge, or criticise investment protection law. And a whiff of extraterritoriality is perceptible when international law is pushed to apply to issues properly governed by host State law. But that is plainly not what positive international law on the issue is about.
Secondly, ‘there is … no other situation in international law where a private party can sue a state without showing that the state’s domestic courts are not independent or reliable’. Well, yes, as a general proposition (Arts 14-5). But not a peremptory one: e.g., the Iran-US Claims Tribunal did not require exhaustion of either Iranian or American courts (Art VII(2)); claims about prompt release can be brought directly to the ITLOS (Art 292(2)); and claims about exploration agreements to its Seabed Disputes Chamber (Art 187(c)). And, of course, no exhaustion applies to claims under an arbitral agreement, which can come close enough to international law through application of general principles (or may be directly governed by international law, as per Karavias Chapter 4). Indeed, such contracts may restrict benevolent regulatory instincts at least as comprehensively as ‘proper’ international law.
Movers and shakers
Thirdly, ‘[d]oes anybody doubt that the pattern of outcomes would differ considerably’ between claims on individual rights decided by national security practitioners and academics, or practitioners and academics with inclinations towards droit l’hommisme? Well, no. Who could doubt that, say, a PCIJ of Anzilotti would differ considerably from a PCIJ of Schücking, or a PCIJ of such academics from that of former legal advisors like Hurst and Fromageux? But the point, surely, is that the PCIJ in the 1930s had all of them (Chapter 7), and the real question is which group(s) dominate(s) the judicial process, numerically as well as intellectually. I hope that I am not misrepresenting Kumm’s argument if I say that, in his view, investment treaty arbitrators are ‘investment experts drawn from large law firms, generally specialized in providing services for MNC´s complemented by academic experts closely aligned with them’, at least partially composed of ‘senior partners of major law firms without additional judicial experience or serious academic reputations’. Is it fair to describe arbitrators as business lawyers without judicial or academic background, and what are the implications?
I cannot compete with the macro-picture painted so elegantly by Puig, and therefore propose to look at an arbitrary and unrepresentative sample of the 5 most recently constituted ICSID Tribunals (by 1 June), checking them against Kumm’s benchmarks. Who are these 15 arbitrators? (A side note: arbitrators may fall under more than one category, boundaries of categories may be blurred, and some arbitrators may be perceived as properly belonging to a single category; in an unapologetically impressionistic manner, I will assign them to the first category to which they seem to me to have a plausible claim.) 5 arbitrators have judicial experience in international or domestic tribunals (Paulsson, Guillaume, El-Kosheri, Edward, and Pryles). ‘Serious academic reputations’ is a slippery criterion, but, if permanent professorial positions suffice, 4 arbitrators would have (had) that (Mayer, Stern, Kaufmann-Kohler, and McRae). What about former public officials and international civil servants? Kumm does not mention them, but the logic of his argument would seem to apply, an additional 4 would qualify then (Joubin-Bret, Legum, Gómez-Pinzón, and Crook). That leaves us with just 2 (non-judicial/professorial/official) practitioners (Gharavi and Malintoppi), leaving aside their academic reputation derived from publications, and possible relevance of international law-related representation of, or nomination by States. If the 10 most recent Tribunals were considered, the list would be increased by 3 judges (van Houtte, Torres Bernández, and Hoffmann), 5 professors (Park, Gaillard, Schill, McLachlan, and Caron), 1 international civil servant (Rigo Sureda), and 3 practitioners (Carlevaris, Thomas, and Townsend). It seems that neither CV-related restrictions of the kind suggested by Kumm nor disapproval of overabundance of head coverings could significantly affect the composition of these Tribunals; drafting lists or building institutions would have been needed for that. (I do not have space here to muse about professional backgrounds and patterns of outcomes but without number-crunching correlation is not obvious: think of authors of narrow and broad definitions of indirect expropriation, or the different ways that gentlemen handle umbrellas, SGS I, II, and III).
Coda: argument against what exactly
Let us call ‘[a] tool for digging, paring, or cutting ground, turf, etc., now usually consisting of a flattish rectangular iron blade socketed on a wooden handle which has a grip or cross-piece at the upper end, the whole being adapted for grasping with both hands while the blade is pressed into the ground with the foot’ what it is: a spade. Kumm’s argument is troubling not because he has spotted a peculiar outlier, but because he is describing the commonplace. International investment arbitration is part and parcel of the contemporary international law of dispute settlement. Cases are often decided by the same judges and arbitrators: if my numbers are right (which they are probably not), that includes 6 current and 13 former ICJ judges, 9 former WTO AB members, a significant number of arbitrators of inter-State cases, and a fair sprinkling of former Strasbourg, Luxembourg, and domestic judges. Counsels are often the same members of barreau invisible, and use the same vocabulary and precedents. Indeed, rules on challenges and amicus curiae may be more enlightened in investment arbitration than elsewhere.
Something being commonplace does not necessarily make it proper: things may be common and (rightly) seem particular (I: II). But it would be useful to be clear about Kumm’s target. Is it just investor-State arbitration, with some distinguishing element that makes otherwise unremarkable practice inappropriate? Or does his challenge necessarily extend to the structure and dynamic of (the system of) international dispute settlement tout court? Perhaps paradoxically, the latter point may have more staying power. Kumm’s criticism of investor-State arbitration will provide an erudite authority to those who already agree with his conclusions, but may be too sweeping to persuade international lawyers who are still making up their minds. The broader argument, however, could contribute to a more interesting debate: is judicialisation of international law unstoppable and a jolly good thing too? Or have we already passed its high-water mark because ‘of an increasing perception that courts and tribunals are not at all well-equipped for dealing with certain kinds of international disputes’?
Schill and the argument for arbitration
Schill argues that international arbitration should be appreciated as part of international adjudication. That is so obviously right that there is a sense of a straw person in his crosshairs. The point that international arbitration is an integral part of international dispute settlement has been made by leading scholars over the last decades (Collier and Lowe, Sands and Mackenzie, Shany, Brown, and Caron come to my mind first); what international lawyer would ever suggest that international arbitration is something alien to, or irrelevant for adjudication? An excessive focus on differences may distract from the systemically more important cross-cutting similarities. It is not a huge exaggeration to say that cases in international arbitration and adjudication are argued and decided by the same people, address the same substantive issues, and struggle with the same procedural challenges. Is adjudication different because it is permanent? Well, yes. But the Iran-US Claims Tribunal, the United Nations Compensation Commission, and the Eritrea-Ethiopia Claims Commission have not been fleeting either. Is arbitration different because of parties’ control over who the adjudicators are? Well, yes. But their influence on the formation of Chambers is not insignificant either. And so on, with every seeming peculiarity replicated elsewhere.
I am not suggesting that structural differences are irrelevant and everything is the same – far from it. But the argument for adding arbitration to adjudication is as much of a red herring as pushing them apart. The better way to approach such challenges is to inquire into the international judicial function that can be fulfilled within the procedural, substantive, and institutional confines of the particular regime. Hernández has brilliantly showed how it should be done in his recent work on the ICJ. International law of dispute settlement should be able to frame such discussions for other purposes as well.