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Investment Treaty Arbitration and the (New) Law of State Responsibility

Published on October 21, 2013        Author: 

Martins PaparinskisI am grateful to EJIL:Talk! for hosting the discussion of my article and chapter. I am privileged to have Anastasios Gourgourinis, Jessica Howley, and Robert Howse as discussants. In the following paragraphs I summarise the main arguments made in the article and the chapter.

The starting point of the argument is that investment law partly borrows and partly diverges from pre-existing regimes of international law. An interpreter of an investment protection treaty is required to determine the degree of similarity and difference so as to elaborate the meaning of particular terms, broader systemic structures, and underlying secondary rules. In order to situate investment protection law within the broader international legal order, an interpreter might draw upon multiple legal techniques from established legal regimes. Within the four corners of international law reasoning, the models of direct rights, beneficiary rights, and agency are the most plausible, relying on techniques drawn from, respectively, the law of human rights, law of treaties on third parties, and diplomatic protection. A firm position regarding the legally most plausible model will not be taken. Instead, the implications of relying on the techniques of those regimes will be spelled out, applying across different branches of international law.

The EJIL article under discussion examines whether and how the invocation of responsibility by a non-state actor has affected secondary rules of state responsibility. The shift from the state to the investor as the entity invoking responsibility for the breach of investment treaties seems to have influenced the law of state responsibility in a number of distinct ways. The apparent disagreement about the law of state responsibility may sometimes properly relate to questions of treaty interpretation, while in other cases rules from an inter-state context are applied verbatim. In yet other cases, the different perspectives lead to importantly different conclusions regarding circumstances precluding wrongfulness, elements of remedies, waiver of rights, and, possibly, interpretative relevance of diplomatic protection rules. The forthcoming chapter applies the same analytical perspective to the law of treaties, examining rules on interpretation and treaty-making through the lenses of other regimes of international law. The overall thesis is that the conceptual perspective of plausibly different readings of the genealogy of foundational structures of investment law is very important, but needs to be applied with subtlety: sometimes all the perspectives point in the same direction; sometimes they do not; sometimes they do but for very different reasons; and, in any event, a diligent application of such traditional techniques of legal reasoning as interpretation, resolution of conflicts, and analogies is just as important for reaching the right legal result.


Discussion of Martins Paparinskis’s Investment Treaty Arbitration and the (New) Law of State Responsibility

Published on October 21, 2013        Author: 

This week we will be hosting a discussion of Martins Paparinskis’s EJIL article, Investment Treaty Arbitration and the (New) Law of State Responsibility, and his related forthcoming chapter, Analogies and Other Regimes of International Law. Martins  is a Lecturer in Law at the University College London and a book review editor of the Journal of World Investment and TradeHis article  will be subjected to careful scrutiny this week by Anastasios Gourgourinis (Lecturer, National and Kapodistrian University of Athens), Jessica Howley (DPhil Candidate, Oxford), and Robert Howse (Professor, New York University). We are grateful to all four for agreeing to have this discussion here.

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Announcement: New Journal of World Investment and Trade, Call for Papers

Published on October 19, 2013        Author: 

The Journal of World Investment and Trade (JWIT) is under new editorial responsibility starting with the first issue 2014. It operates as a double-blind peer-reviewed journal and focuses on the law relating to foreign investment relations in a broad sense, including the law of investment treaties, investor-State dispute settlement, domestic law relating to foreign investment, and relevant trade law aspects, such as services, public procurement, trade-related investment measures, and intellectual property, both under the WTO and PTAs. JWIT aims to embed foreign investment law in its broader context, including its interactions with international and domestic law, both private and public, including general public international law, international commercial law and arbitration, international environmental law, human rights, sustainable development, as well as domestic constitutional and administrative law. It is open to doctrinal as well as interdisciplinary analysis covering the mainstream of foreign investment law and its frontiers. JWIT publishes articles, notes, case comments, and book reviews, and welcomes proposals for special issues in its fields of interest. For further information, including the full editorial board and instructions to authors, please visit Inquiries and submissions may be sent to jwit {at} mpil {.} de.

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Trivia Answers: Cases Before Inter-State Tribunals Involving Examination of Witnesses [UPDATED]

Published on October 18, 2013        Author: 

My latest international law trivia question was:

In which other cases has oral testimony been given in proceedings at the International Court of Justice and other standing international tribunals dealing with inter-State cases?  In particular, in which ICJ or other inter-State case or cases has an expert or witness been subjected to cross-examination by the other party?

Semir Sali correctly pointed out four cases in which witnesses were called and examined at the ICJ. In the Corfu Channel Case – the first contentious case at the ICJ – several Naval officers were called as witnesses and were examined in chief and cross-examined.  Also, witnesses were called and examined in the ELSI case (US v. Italy). At the merits phase of  the Bosnia Genocide Convention case, both parties called a number of experts and witnesses. In particular, each side called very senior British military officers – General Dannatt and General Sir Michael Rose – to testify. Examination for Serbia was done by Prof Ian Brownlie QC and for Bosnia by Joanna Korner QC

As Semir Sali and Serena Forlati both point out, in the Nicaragua case (Nicaragua v US), Nicaragua called a number of witnesses to testify. However, as the US did not appear at the mertis stage, these individuals were not cross examined. Indeed it was Judge Schwebel that took on the task of probing these withnesses

Witnesses have also been called and examined at the International Tribunal for the Law of the Sea. as with the ICJ  this happened in the very first case at ITLOS – the MV Saiga Case (St Vincent v. Guinea)

One interesting feature that unites almost all of these cases is that in all but one of the cases mentioned here, examination and cross examination was carried out mainly by English barristers! The one exception is the ELSI case (US v. Italy) where examination and cross-examination was carried out by American lawyers on both sides (Abraham Sofaer for the US and Keith Highet for Italy).

UPDATE: Caroline Foster, who has done tremendous work on expert evidence in international tribunals, has posted a comment to my original post in which she points out other inter-state cases in which experts have been called as witnesses and cross examined. She refers to a number of inter-State arbitral cases as well cases at ITLOS and the WTO.  She also raises interesting questions about how international cases dealing with expertise should be handled.

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Trivia: Cases Before Inter-State Tribunals Involving Examination of Witnesses

Published on October 17, 2013        Author: 

Every now and again I ask trivia questions relating to international law. Previous questions (and answers) are available here. At the end of this post, I have my latest international law trivia question.

In the oral proceedings in the Whaling Case (Australia v. Japan; New Zealand Intervening) heard by the International Court of Justice (ICJ) this past June, there was a relatively rare instance of experts being called to testify at the ICJ by one party, giving oral testimony and also being cross-examined by counsel for the other party. The International Court of Justice is the “principal judicial organ” of the United Nations (Art. 92, UN Charter). Decisions from the Court are final and without appeal (Art. 60, ICJ Statute). These features mean that the Court is usually looked upon, quite rightly, as the leading judicial authority for statements of international law. However, it is important to realise that the ICJ is not only a final court but is also a court of first instance. Thus, the ICJ is both like a Supreme Court and like a trial court. However, though many cases at the ICJ require an element of fact finding, this is usually done on the basis of documentary evidence. It is not often the case that the fact finding is done on the basis of oral evidence given in Court.

Having scientific experts providing their opinion as testimony at the ICJ is in contrast to some previous cases (Gabčíkovo-Nagymaros Project (Hungary/Slovakia)) where parties have included scientific experts as part of their team of counsel rather than as witnesses. In the Pulp  Mills case (Argentina. v. Uruguay) (2010), the Court stated:

“Regarding those experts who appeared before it as counsel at the hearings, the Court would have found it more useful had they been presented by the Parties as expert witnesses under Articles 57 and 64 of the Rules of Court, instead of being included as counsel in their respective delegations. The Court indeed considers that those persons who provide evidence before the Court based on their scientific or technical knowledge and on their personal experience should testify before the Court as experts, witnesses or in some cases in both capacities, rather than counsel, so that they may be submitted to questioning by the other party as well as by the Court. [para. 167]

In the Whaling Case, Australia heeded this admonition and called Professor Mangel as an expert on June 27. He was examined in chief by Prof Philippe Sands QC, cross examined by Professor Vaughan Lowe QC and asked other questions by a number of judges of the Court. Now for my question:

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“The City and the City” and Public International Law

Published on October 16, 2013        Author: 

City and CityThe City and the City. It is, at its core, a novel about jurisdiction, and its setting is one of Miéville’s most fascinating creations. Miéville himself is no stranger to international law, being the author of Between Equal Rights: A Marxist Theory of International Law (2005). His novel demonstrates an unsurprising interest with the possibilities of law and its relationship to society and culture.

Superficially, The City and the City is a police procedural. In Besźel, a declining city-state somewhere in Eastern Europe, inspector Tyador Borlú finds a murdered woman. The suspicion is she was murdered in the neighbouring city-state of Ul Qoma. The extraordinary part of the novel is the relationship between these two cities. They are legally separate sovereign nations occupying the same physical space. While some “total” streets or districts belong entirely to one nation or the other, many are “crosshatched”. In these areas the two cities physically coexist alongside each other but legally their citizens may not interact, nor in any manner acknowledge each other’s existence, nor respond to events occurring in the “other” city. This difficulty is managed by the cultural practice of “unseeing” those things one is not legally entitled to see. (Given a moment’s thought this is less implausible than many speculative or weird fiction premises. Most of us unsee things of greater and lesser importance in our urban environment we find inconvenient to acknowledge: the homeless, the mentally disturbed, those collecting for charity, tedious acquaintances, etc.) Read the rest of this entry…


An EU-China Investment Agreement?

Published on October 15, 2013        Author: 

Notes from Glasgow #1

EU China BITMany thanks to Dapo, Marko and Iain for inviting me to contribute to EJIL: Talk! on a regular basis. It’s a great blog, and it complements my favourite international law journal, so I accept with pleasure. The first of my ‘Notes from Glasgow’ focuses on international investment law – an area of law that EJIL: Talk! has, I think it is fair to say, so far approached with a measure of caution. Investment law is exciting, though: not so much because of the number of awards produced, week by week, by arbitral tribunals. (In fact, just tracing awards quickly becomes boring.) But rather because it is such an interesting field-study in how international law evolves, how ‘exotic’ branches are rapidly mainstreamed, and how they change in the process.

The latter aspect – change in international investment law – is the theme of the following thoughts. I take my cue from a resolution passed in the European Parliament (EP) on 8 Oct 2013. (See here for the BBC’s coverage of the debate.) As was reported in the media, the EP in principle approved the start of negotiations towards a China-EU Investment Agreement, but added a number of caveats: notably, according to a useful summary by the EP Library (which condenses the resolution’s 49 recitals and thus can be quoted meaningfully), the EP wants the future agreement to “ensur[e] equality of investment environments” in China and the EU, to include binding provisions on “social responsibility, social and environmental standards”, to protect European public services, and to be negotiated with maximum transparency. All this is interesting for a number of reasons. I’ll flag four of them, hoping to return to some of them in subsequent posts. (photo above left, accompanying China’s announcement that it will seek an investment treaty with the EU) Read the rest of this entry…

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Prosecution of Heads of States and Other Senior Officials at the ICC: Map of the Scholarship

Published on October 14, 2013        Author: 

MerelMerel Alstein is Commissioning Editor at Oxford University Press responsible for publishing in the area of international law.

A few weeks ago, John Louth put together an index of discussions on the international law aspects of the Syria crisis, covering debates in blogs and newspaper articles. The idea behind it was that blog posts have become an important form of scholarly commentary and deserve to move away from their ephemeral status. A post that is widely read and appreciated when it publishes drops off the front page a few days later, but might still be hugely relevant to someone researching the topic months (or even years) later.

I have created a new map which looks at a number of issues surrounding the prosecution of heads of state and other senior officials at the ICC. Just like the Syria map, it sits on our Oxford Public International Law platform, together with OUP materials on the ICC that we have made freely available. Alongside topical questions like the impact of Kenya’s possible withdrawal from the Rome Statute and William Ruto’s request not to be continuously present at his trial, the map focuses on issues of immunity and third states’ obligations to arrest and surrender, which tend to come up time and time again. The map’s aim is to provide a quick overview of the relevant legal problems and controversies but also to create an archive of scholarship that can be referred back to when the ICC unseals a new arrest warrant for a head of state or when Bashir next threatens to visit another country.

Other issues relating to the ICC will be added to the map over time, just as the current sections will be expanded with new posts, articles and, eventually, books. I would very much welcome suggestions as to what is missing from the map and how it could be improved.

Our intention is to keep creating debate maps for important new developments or ongoing news stories that raise questions about international law. We would love to hear from you if you have an idea for a new map or if you would like to help us create one. You can send me an email at merel.alstein{at}oup(.)com.




Announcements: Essay Competition and Cassese Workshop

Published on October 13, 2013        Author: 

1. Human Rights Essay Award Competition. This annual competition sponsored by the Academy on Human Rights and Humanitarian Law at American University Washington College of Law seeks to stimulate the production of scholarly work in international human rights law. The 2014 topic is Persons with Disabilities and International Human Rights Law. Participants have the flexibility to choose any subject related to the assigned topic. The best articles may be published in the American University International Law Review. The Academy will grant two Awards, one for the best article in English and one for the best article in Spanish.  Deadline: February 1, 2014. Detailed guidelines about the award are available here, or contact hracademy [at] wcl.american [dot] edu.

2. The Cassese Initiative announces its coming workshop on the topic “Enforced Disappearance: Challenges to Accountability under International Law“, which will be held at the European University Institute in Florence, on Friday 25 October 2013. This Workshop, inspired by Antonio Cassese’s early dedication to the eradication of enforced disappearance in Chile, seeks to address some of the problematic issues raised by the ‘modern’ forms of enforced disappearance, and evaluate the effectiveness of the existing international framework. Presentations will be given by leading experts in the field. In the active discussion that will follow each presentation, participants will have the opportunity to share views and experience in both an academic but also in a professional context. The Workshop is addressed to professionals in the fields of human rights and international criminal law, as well as PhD researchers and students with a demonstrated interest. Find out more about the programme here. Register here. See also the Cassese Initiative website, Facebook and Twitter pages.

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Syria and the Law of Humanitarian Intervention (Part III – A Reply)

Published on October 12, 2013        Author: 

Editor’s Note: This piece was originally published on Just Security.

My recent two-part essay on Syria, posted on this blog, made both a policy claim and a legal claim. My policy claim was that despite undeniable political miscues, President Obama’s recent threat of force catalyzed a long-stalemated diplomatic process for securing Syrian chemical weapons. The Russians finally joined a landmark Security Council resolution to remove chemical weapons from Syria, but a long road still lies ahead. Maintaining a continued threat of force, I argued, remains critical if that diplomatic process is to progress. My legal point was that Obama’s threat to attack the Syria’s chemical weapons program, which catalyzed stalled diplomacy, was neither illegal under U.S. law– even without congressional authorization– nor illegal under international law– even without U.N. Security Council approval. But to the extent that Obama remains in a legal gray zone, we should treat this as a lawmaking moment. The President’s lawyers should now clarify –as they pointedly did not do in Kosovo–when and under what circumstances the U.S. would consider it lawful to use force for humanitarian purposes outside the Security Council framework.

Focusing narrowly on the international legal aspect of my argument, several thoughtful commentators—including Professors David KayeKevin Jon Heller and Carsten Stahn —have now repeated the absolutist view that absent a self-defense rationale, Article 2(4) of the U.N. Charter bars use of force outside the Security Council. They essentially suggest that the original intent of the framers and the text of Article 2(4) permit no other reading. Kaye acknowledges,  “[a] legal system in which the veto power of five states is at the center may be out of date, but until the time of mutual restraint and good faith, or until the United States and others offer outright reform, this legal system at the heart of the Charter is unlikely to change.” So we may not like Article’s 2(4) absolute bar against the use of force outside the Security Council framework, but a rule is a rule is a rule. The U.S. has no lawful option but to accept that rule, unless we can change the Security Council, which of course will not likely happen for many, many years.  The policy implications of this approach are clear: should Syria fail to comply with the latest Security Council resolution, it would still be illegal for Obama to keep a threat of force on the table. This would be true even if that threat finally got multilateral diplomacy in Syria going, and even if it seems critical to keeping the diplomatic process moving in the weeks ahead. Read the rest of this entry…