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Comments on Sergio Puig’s ‘Social Capital in the Arbitration Market’

Published on September 23, 2014        Author: 

Tom SchultzThomas Schultz is a Reader in Commercial Law in the Dickson Poon School of Law at King’s College London and a Swiss National Science Foundation Research Professor in the International Law Department at the Graduate Institute of International and Development Studies, Geneva. He is also the Editor-in-Chief of the Journal of International Dispute Settlement (Oxford University Press).

Professor Puig’s article ‘Social Capital in the Arbitration Market’ is a quite wonderful contribution to a number of things: our understanding of the dynamics of investment arbitration, the literature on arbitrator appointments, the methodological diversification of studies in international law, and certainly a few more. And it brings us rather convincing evidence, in a field where claims and representations (not to speak of copious discussions of what other people happen to have said) are more readily found than data and studies to substantiate claims. It is, in other words, intellectually edifying. The experimental design is well done, the plan well executed and the findings credible. In this, it is intellectually responsive to developments in the social sciences and the humanities. We don’t even need a mood-elevating metaphor to set great store by this sort of works, and this work in particular. (Incidentally, the study is also a formidable ‘who’s who in investment arbitration’, which undoubtedly will make for welcome entertainment in certain circles.)

A few small methodological points would probably deserve more discussion. (I said ‘would deserve’, not ‘would have deserved’: the article is long enough as it is and this is a law journal after all.) For instance, the author says that ‘The network analysis advanced in this article relies upon displayed preferences by the appointing entity (litigation parties, arbitrators, and the institution) to provide a larger picture of the network’s aggregate topology.’ But how do we know the preferences of the appointing entity? Right, by looking at appointments. But do effective appointments really tell us what the preferences are? What if individuals, who are the preferred choices of the appointing entity, refuse an appointment, and the appointing entity has to turn to their second or third choice? Never happens. Well… Actually, could such situations be statistically relevant?

Another methodological point: Figure 8 is puzzling. Not puzzling as in ‘probably wrong’. Puzzling as in ‘how come’? Here’s the author’s accompanying notes: “Figure 8 shows how, despite the fact that most ICSID cases were registered in the last 10 years, most ‘power-brokers’ or those arbitrators at the top of the profession entered the network in or prior to 2004.” In other words, the mid-2000s is the moment when you see the network effects. Why? Why did the network stabilise at that point in time? The network seems to have acquired self-organisational elements at that point in time, but, again, why then? Any hypothesis? Just happenstance? Just puzzling.

Beyond methodological considerations, we may also wonder–and perhaps the author wants to elaborate on this–why, in fact, it is a bad thing that a small number of arbitrators decide a great number of cases. Read the rest of this entry…

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Social Capital in the Arbitration Market

Published on September 22, 2014        Author: 

sergio puig-picDr. Sergio Puig is an Associate Professor of Law at the University of Arizona James E. Rogers College of Law.

I am grateful to Professor Weiler, the editors of EJIL and the organizers of EJIL: Talk! for hosting the discussion of my article. I am privileged to have Daphna Kapeliuk, Michael Waibel, and Thomas Schultz as collaborators in this endeavor.  This is a great opportunity to engage with wonderful scholars in the field of international law, all of whom have produced very interesting and inspiring empirically-based research in the field. Below I summarize the methodology and main arguments of this piece.

In this modest contribution, I try to bring together different scholarly traditions. In framing the question, I note that scholars with different academic traditions have provided diverse and, at points, conflicting explanations regarding why arbitration professionals are such a seemingly small and homogenous group in terms of gender, national origin and educational background. In this article, I seek to empirically assess this observation and to explore why this may be happening. Given the limited access to the record of appointments under most arbitration facilities, I used the data of the International Centre for Settlement of Investment Disputes (ICSID). In spite of critiques regarding ICSID’s practices with respect to transparency, it is the sole arbitration institution to publicize its entire record of appointments.

By surveying the list of ICSID appointments, I seek to operationalize the basic characteristics of the social structure of international arbitrators.  Anticipating some reactions, I must admit that this is an imperfect alternative. Ideally we would have more information about international arbitration appointments generally. But given the shared characteristics between general international arbitration and the more specific field of investor-state arbitration, I argue that ICSID’s record of appointment can imperfectly inform this scholarly debate. So, while the article focuses on ICSID arbitrators–a group that has not escaped controversy in recent years–my point is more general and tries to speak to a broader scholarly debate.

Applying network analytics (and some basic statistical analysis) to ICSID’s record of appointment, I confirm what we already knew: a few, socially prominent actors are dominant in the field. But not all arbitrators are equal; hence there are different sources of social capital. Read the rest of this entry…

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Discussion of Sergio Puig’s “Social Capital in the Arbitration Market”

Published on September 22, 2014        Author: 

Over the next few days, we will be hosting a discussion of Sergio Puig’s article Social Capital in the Arbitration Market, which was published in volume 25, no. 2 of the European Journal of International Law (2014). Sergio is an Associate Professor of Law at the University of Arizona James E. Rogers College of Law.  The commentaries on his article will be by Daphna Kapeliuk (Radzyner Law School, IDC Herzliya), Thomas Schultz (King’s College London), and Michael Waibel (Cambridge). We are grateful to all of them for participating in the discussion.

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The EU/US v. Russia Trade Wars: Revisiting GATT Article XXI and the International Law on Unilateral Economic Sanctions

Published on September 22, 2014        Author: 

The EU, US, and Russia are far from reaching any détente in the economic warfare waged between some of the world’s economic powerhouses. On 11 September 2014, the US and EU announced a deepening of their current joint economic sanctions over Russian actions in the Ukraine, this time imposing sanctions targeting Russian banks and oil companies. The new EU September 12 sanctions exclude Russian banks from raising long-term loans in the EU, ban any exports of dual-use equipment for military use in Russia, ban future EU-Russia arms deals, and prohibit EU export of oil industry technology to Russia. The United States has also announced that it would likewise deepen and broaden sanctions against Russia’s financial, energy, and defense industries. In response, Russia announced a “full embargo” on food imports from the United States, the European Union, Canada, Australia, and Norway, which it subsequently expanded in September to include used cars, clothes, and consumer products, in retaliation for the latest round of EU and US sanctions. On 12 September 2014, Russian Economy Minister Aleksey Ulyukaev announced that the latest round of US and EU sanctions “provides grounds for appeal to the WTO..and [Russia] will appeal.”

Does Russia have a plausible case against the US and the EU at the WTO?

Read the rest of this entry…

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Announcements: Oxford Research Fellowship in Law and Armed Conflict; International Organizations Scholarship Workshop

Published on September 20, 2014        Author: 

1) The Oxford Martin Programme on Human Rights for Future Generations invites applications for a Postdoctoral Research Fellow position in the area of Law and Armed Conflict. This is a fixed-term appointment until 31 March 2016, commencing as soon as possible. The postholder will be based at Pembroke College, Oxford. The Oxford Martin Programme on Human Rights for Future Generations  a research programme in the University of Oxford, which focuses on the question of whether human rights constitutes an appropriate framework for confronting some of the most serious problems facing current and future generations. Within this shared framework the research programme focuses on three of the most urgent aspects of insecurity; armed conflict, poverty and environmental change. The successful applicant will be required to conduct research on the themes above as directed by the Programme Co-Directors (which includes Dapo Akande) and to work as part of an interdisciplinary team. Applicants will be expected to write papers and articles linked to the programme’s area of focus, for publication in books, peer-reviewed journals and/or edited books. The deadline for completed applications is 13 October 2014. Further details are available here.

2) Call for Papers – International Organizations Scholarship Workshop. The International Organizations Interest Group of the American Society of International Law will hold a works-in-progress workshop on Friday, December 12th, 2014, in New York City.  Authors interested in presenting a paper at the workshop can submit an abstract to David Gartner (David.Gartner {at} asu(.)edu), Julian Arato (arato.julian {at} gmail(.)com), and Sarah Dadush (sdadush {at} kinoy.rutgers(.)edu)  by the end of the day on October 1, 2014. Abstracts should be a couple of paragraphs long but not more than one page. Papers should relate to the topic of international institutions and governance.  Papers should not yet be in print so that authors will have time to make revisions based on the comments from the workshop.

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Geoff Corn and Guglielmo Verdirame take part in Transatlantic Dialogue on International Law and Armed Conflict

Published on September 19, 2014        Author: 

This week guglielmo-verdirame_0 Professors Geoff Corn (left, South Texas College of Law)j-corn and Guglielmo Verdirame (right, Kings College London & barrister at 20 Essex Street) contributed pieces in the joint blog series arising out of the Transatlantic Workshop on International Law and Armed Conflict held in Oxford this past July.

Geoff Corn’s piece, “Squaring the Circle: The Intersection of Battlefield Regulation and Criminal Responsibility”, was posted at Lawfare at the start of this week. In this thoughtful pose, Geoff says:

“I sought to highlight what I believe are several evidentiary and institutional complexities associated with subjecting commanders and other operational decision-makers to criminal accountability for battle-command judgments – complexities that will become more significant as cases focus increasingly on complex operational decision-making, particularly in relation to targeting.”

He raises a number of important issues relating to the feasibility of international criminal prosecutions to produce credible accountability decisions in relation to battlefield decision-making. One question he addresses, which is particularly novel but really important is this:

“[A] complicated aspect of criminal prosecution based on alleged unlawful targeting decisions is the relationship between LOAC/IHL presumptions and criminal burdens of proof. The presumption of innocence an axiomatic component of any fundamentally fair trial, and imposes on the prosecution the burden of production and the burden of persuasion. However, several LOAC/IHL targeting rules are based on presumptions which, when applied in the criminal context, arguably shift the burden of production to the defense.”

At the the end of the week, Guglielmo’s piece, “Taming War through Law – A Philosophical & Legal Perspective” , was posted on InterCross (the blog of the ICRC. Guglielmo begins his post in this way:

“The relationship between theory and practice in international law eludes easy explanations. In the history of international law there are examples of ideas shaping practice. But at times the phenomenon of international law – with its complex mix of state practice, adjudication and politics – finds directions not foreseen by any theory.

The application of human rights law to armed conflict may be a case in point. It emerged over the last two decades from the decisions of international and domestic courts without being preceded by a reflection – by jurists, policy-makers or others – on how human rights could contribute to regulating armed conflict. Can this development be accommodated within the system of international law or does it in some way challenge its architecture?”

His post then examines the work of Kant, Grotius and Hobbes, together with decisions of the European Court of Human Rights and the UK courts, in his survey of the question whether human rights law should apply to armed conflicts.

 

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The Conviction of Cambodian Khmer Rouge Leaders– Justice at last?

Published on September 18, 2014        Author: 

On 7 August 2014, the Trial Chamber of the Extraordinary Chambers in the Courts of Cambodia (ECCC) delivered its second trial judgment. This lengthy decision addressed the criminal responsibility of the two remaining ‘senior leaders’ of the Democratic Kampuchea regime that are the subject of Case 002: Noun Chea (Pol Pot’s second in command) and Khieu Samphan (the President of the State Presidium and the ‘public face’ of the regime). Both were convicted of crimes against humanity and sentenced to life imprisonment, the maximum penalty available under the ECCC Law. The Chamber also endorsed a number of reparations projects requested by civil parties. The judgment is significant for its detailed consideration of one of the most vivid images of the Khmer Rouge era – the evacuation of Phnom Penh and other cities, and whether this population movement was contrary to international law.

Case 002 concerns crimes committed throughout Cambodia during the entire period of the Democratic Kampuchea regime, which existed from 17 April 1975 to 6 January 1979. It is one of the most complex cases to be conducted before an international or internationalised criminal tribunal. Recognising this, as well the uncertain nature of funding for the ECCC and the fear that the advanced age of the accused meant there was a real possibility that they would not live to judgment, the Trial Chamber severed Case 002 into separate trials in September 2011. The judgment delivered in August is the first in this series of trials (hence Case 002/01), and is limited to considering three crime ‘sites’ only: the evacuation of the population of Phnom Penh (and other cities) into the countryside in April 1975 (first population movement); a further movement of the population between various zones from September 1975 to at least December 1977 (second population movement); and the execution of former Khmer Republic officials and soldiers in connection with the first population movement, in particular the executions committed at Tuol Po Chrey in April 1975. All other crime sites and policies are to be considered in future ‘mini-trials’. Read the rest of this entry…

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Email Notifications Still Not Working

Published on September 18, 2014        Author: 

Our email notification function still is not working properly since we moved to a new web host. We apologize for the inconvenience and are working on a solution. Rest assured that no one has been dropped from the subscriber list, so once we sort out the technical issue subscribers should begin receiving emails again.

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The Grand Chamber Judgment in Hassan v UK

Published on September 16, 2014        Author: 

The eagerly-awaited Grand Chamber judgment in the case of Hassan v UK has now been released, and its importance for anyone interested in extraterritoriality, detention and the relationship between international humanitarian law (IHL) and international human rights law (IHRL) cannot be overstated. For the first time in its history, the Court has explicitly offered its view on the interaction between IHL and IHRL and the operation of the Convention, particularly the right to liberty, in the context of an international armed conflict.

A good overview of the facts of the case and the Court’s judgment can be found here, and they will not be repeated in this post. Instead, I want to offer some initial thoughts on the Court’s reasoning with regard to Article 5 ECHR and, more specifically, its approach to treaty interpretation.

The question before the Grand Chamber was whether the internment of the applicant’s brother, which appeared to conform with the Third and Fourth Geneva Conventions, could be considered consistent with Article 5 ECHR, notwithstanding the absence of any derogation by the UK. At a very general level, the Court effectively had two options here. On the one hand, it could have followed the path it appeared to be laying in its previous case-law, particularly in Al-Skeini and Al-Jedda, and hold that, where jurisdiction exists and where no lawful derogation has been made, the State remains bound to honour its obligations under the ECHR as ordinarily interpreted. Had the Court taken this approach, the Contracting States may eventually have conceded defeat and begun derogating in extra-territorial contexts. (Incidentally, the Court continued to avoid explicitly engaging with the permissibility of extra-territorial derogations.) Instead, the Court adopted the alternative approach, interpreting the ECHR so as to leave room for the broader powers that States have under IHL. Thus, it effectively read into Article 5(1) ECHR an extra permissible ground for detention where consistent with the Third and Fourth Geneva Conventions, and it read down the requirement of habeas corpus in Article 5(4) to allow for the administrative forms of review under the Fourth Geneva Convention.

Let’s begin with a few, in my view, positive points about the Court’s approach here. First, and perhaps most importantly, the Court rejected the UK’s principal argument that IHL as the lex specialis precluded jurisdiction arising under Article 1 ECHR (para 77). To have followed this would effectively have been to displace the entire Convention where IHL applies. Instead, the Court adopted a more nuanced, case-by-case approach which looks at the specific right at issue. This enables the Court to retain its oversight function by assessing the legality of the actions of Contracting Parties through the prism of IHL.

Read the rest of this entry…

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Scottish Independence and EU Membership: Part II

Published on September 16, 2014        Author: 

Introduction

In my previous post (here), I addressed the reasons why international law and EU both arrive at the conclusion that an independent Scotland would not automatically succeed to EU membership. Given that it now seems to be accepted on all sides that membership of the EU would therefore need to be negotiated, much of the previous post can be considered a necessary background to the following discussion. In this post, I consider the correct legal basis in the European Treaties for negotiated EU membership, as well as some of the problems involved in the negotiations, the consequences if they fail, and how such issues might come to be considered by the Court of Justice.

Due to the complexity of the issues and the consequent length of this post, it is only appropriate to summarise my view from the outset. In theory, I consider that either Article 48 or Article 49 of the Treaty on European Union (TEU) could be utilised in order to facilitate EU membership for an independent Scotland. However, both routes involve significant difficulties, and it is likely that an Article 48 process would be the more problematic of the two, and could be blocked. In any case, it appears that the Scottish Government’s proposals for the timetable from a ‘Yes’ vote to independence day are wildly optimistic.

On balance, and contrary to the position in the Scottish Government’s White Paper, it may therefore be the case that Article 49 should be preferred by the Scottish Government, for the reasons I set out below. However, whichever process is used, if the date for independence day is immovable, then the possibility of the requisite membership steps remaining incomplete at that time is a nettle (or a thistle!) that must be grasped. In such a scenario, I envisage that EU law would be given continuity of effect, and that it would be possible or even likely that a case would reach the Court of Justice which would test this point. However, such a position would probably be an interim solution at best, and could still result, in the worst case scenario, in the EU rights and obligations of an independent Scotland, its citizens, and its companies, coming to an end. Read the rest of this entry…

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Filed under: EJIL Analysis, European Union