magnify
Home Articles posted by Anthea Roberts

A Possible Approach to Transitional Double Hatting in Investor-State Arbitration

Published on July 31, 2017        Author: 

In a recent ESIL Reflection, Malcolm Langford, Daniel Behn and Runar Hilleren Lie examine “The Ethics and Empirics of Double Hatting” in investor-state arbitration. (For the full article, see the Journal of International Economic Law). They found that a total of 47% of the cases they studied involved at least one arbitrator simultaneously acting as legal counsel. They also showed that the practice of double hatting is dominated by many of the most powerful and influential arbitrators in the system (who are often referred to as forming the system’s “core”). In some cases, double hatting occurs as a younger counsel transitions into being an arbitrator. But, “empirically, double hatting is more a norm than transition,” they conclude.

To me, there is a difference between the argument against double hatting in the core and in the periphery of the system. In the core of the most well established arbitrators, I think that the argument against double hatting in investor-state arbitration is strong. But in the periphery, when dealing with relatively new arbitrators or those with few appointments who are transitioning within the system, I think that a more nuanced approach is required. Why? Read the rest of this entry…

 

The Shifting Landscape of Investor-State Arbitration: Loyalists, Reformists, Revolutionaries and Undecideds

Published on June 15, 2017        Author: 

The investor-state arbitration landscape is shifting under our feet. The utility and legitimacy of traditional investor-state arbitration have come under fire, but states have not converged on a viable alternative. In simplified terms, three main camps are developing, which I call the “loyalist,” “reformist,” and “revolutionary” camps. The vast majority of states, however, are yet to take a public position on whether and, if so, how to reform investor-state dispute settlement. These “undecided” states are not a homogenous group, nor are they necessarily passive. Many states within this group are actively watching these developments and debating the various reform proposals.

One of the big strategic questions for the investment treaty system in the next few years will be whether the loyalists, reformists or revolutionaries will be able to attract a critical number of the undecideds to their cause in order to create a reasonable measure of convergence on a particular approach. The alternative is that the undecideds will split among the existing camps and/or develop their own distinct or hybrid positions. Another question is whether any members of the existing camps will shift their alliances. It is unclear how this will ultimately play out. What is clear, however, is that the tide appears to be turning against the traditional model of investor-state arbitration as it has few – if any – real supporters among states.

Loyalists, Reformists and Revolutionaries Read the rest of this entry…

 

A Turning of the Tide against ISDS?

Published on May 19, 2017        Author: 

The Court of Justice for the European Union fired a significant shot at investor-state dispute settlement (ISDS) this week, and the result is likely to be much more than just a flesh wound. In deciding that the European Union did not have exclusive competence to enter into agreements including ISDS clauses, the Court made it significantly more likely that the EU would jettison these clauses from its Free Trade Agreements (FTAs) and seek to conclude separate, parallel agreements dealing with dispute resolution. Along with a series of other developments, this may mark a turning of the tide against the inclusion of ISDS clauses in trade and investment agreements.

Background to the European Court’s Opinion

This week’s landmark case concerned the European Union’s competence to enter into the EU-Singapore Free Trade Agreement. This is a newer style FTA that, in addition to covering classic trade issues, like reductions in customs duties, includes provisions on a range of other trade-related matters, such as intellectual property protection, investment, public procurement, competition and sustainable development. This FTA also included investor-state arbitration.

The question that the Court had to grapple with was whether the European Union had exclusive competence to enter into such agreements, or whether this competence was shared between the EU and the Member States (or even fell within the exclusive competence of the Member States), at least with respect to certain issues. The European Commission and Parliament wanted EU exclusive competence, but this received pushback from many of the Member States.

In many ways, the Court handed a significant victory to the European Union on these issues. Going further than had been suggested by the Advocate General’s Opinion in that case, the Court found that the European Union had exclusive competence over almost all aspects of the EU-Singapore FTA, which paves the way for them to enter into such agreements without requiring the approval of all of the Member States. But this general ruling was subject to two notable exceptions. Read the rest of this entry…

 

Would a Multilateral Investment Court be Biased? Shifting to a treaty party framework of analysis

Published on April 28, 2017        Author: 

I have recently been pondering a common complaint voiced against the EU and Canada’s proposal for a multilateral investment court, which is that it would be biased against investors because all of the judges would be selected by states (see, for example, the ABA’s Report here and Judge Schwebel’s speech here). In my view, this criticism is misguided because it confuses the role of states as disputing parties and as treaty parties. States have dual roles in the investment treaty system: they are treaty parties with a legitimate interest in the interpretation and application of their treaties and they are disputing parties with a desire to avoid liability in particular cases. When it comes to questions of institutional design, I think that we need to adopt a treaty party framework of analysis, not a disputing party one.

In a particular dispute, an investor can appoint one arbitrator and a state can appoint another. Once a case is filed, it is hardly surprising that both disputing parties would seek to appoint arbitrators who are broadly sympathetic to their positions. This tends to generate polarization within the field with arbitrators often being thought of (whether accurately or not) as having either a “pro-investor” or a “pro-state” bias. This division helps to explain why, when judged from the perspective of the dispute resolution framework, investors and members of the arbitral community have raised concerns that having tribunals selected by states only would lead to biased results. This is so even though neither the claimant investor nor the respondent state would appoint the particular tribunal members tasked with hearing the case.

When it comes to institutional design, however, we need to shift our focus from the disputing party framework to the treaty party framework. Read the rest of this entry…

 

Being Charged by an Elephant: A story of globalization and inequality

Published on April 19, 2017        Author: 

Along with many economists and globalization scholars, my favorite graph these days is the elephant graph. Named for its distinctive elephant-shaped curve (see below), this graph shows the rise in real incomes for people in different income brackets throughout the world over a twenty year period of intense economic globalization (1998 to 2008). Economists often like to tell us that free trade is good because it is a rising tide that lifts all boats. What this graph suggests, however, is that economic globalization has produced clear winners and clear losers. This division seems to be playing an important role in explaining some of the rising nationalist and pro-protectionist sentiments we are witnessing in certain developed states, as shown by the rise of Trump and the vote for Brexit.

So who has won and lost in the age of economic globalization? Read the rest of this entry…

 

Syrian Strikes: A Singular Exception or a Pattern and a Precedent?

Published on April 10, 2017        Author: 

In a recent post, Monica Hakimi argued that, rather than crafting a legal justification for the United States’ use of force in Syria, we should instead treat it as a “one-off incident for addressing conduct that, if not deterred, could be destabilizing,” much like occurred in the United States’ Baghdad strikes in 1993. In order not to further undermine the Article 2(4) prohibition on the use of force, the United States should at the same time “underscore its overall commitment to and investment in” the law governing the use of force so as to avoid the impression that “the United States does not view the jus ad bellum, and maybe international law more generally, as normatively relevant in the global order.”

I do not want to take issue with whether or not the United States should have taken action in this case, or whether or not this use of force supports an existing or emerging doctrine of unilateral humanitarian intervention. Others are addressing these points (see, for example, Koh). Rather, as I set out previously in a paper on Legality vs. Legitimacy: Can Uses of Force be Illegal but Justified?, I want to register concerns about the argument that states can violate international law and yet simultaneously seek to preserve the Charter prohibition by reaffirming Article 2(4) while characterizing their own conduct as a singular exception.

First of all, this kind of violation of Article 2(4) is not a one-off incident. There is something ironic about arguing that we should treat this violation as a singular use of force much like we treated another violation of Article 2(4) by the United States. In one sense, every violation is singular because every violation has its own unique facts. But, in another sense, when singular violations occur again and again, they no longer look like singular violations … they look like a pattern. Whether something appears to be singular or a pattern often depends on the level of generality one employs in making the assessment. Read the rest of this entry…

Filed under: EJIL Analysis, Syria, Use of Force
 

Custom, Public Law and the Human Rights Analogy

Published on August 14, 2013        Author: 

anthea2Anthea Roberts is a Senior Lecturer in Law at the London School of Economics and a Professor of Law at Columbia Law School.

I always enjoy reading Martins Paparinskis’ work and have read enough of it to know that I can count on him to have (1) written about questions that are of interest to me, (2) engaged in careful analysis, and (3) researched the hell out of the issue. Paparinskis’ breadth across investment treaty law, general issues of international law like state responsibility, and case law in specific fields like human rights law, is truly impressive. I don’t plan to push Paparinskis on his central thesis.  Instead I want to ask three broader questions about how international law is developed and interpreted.

First, Paparinskis begins and ends his book by endorsing Jennings’ quote that the meaning of rules cannot be deduced a priori but instead “must be hammered out in the practice of Governments and by the familiar process of the development of law through its application by international tribunals” (pp 6 and 259). I agree with this point. In practice, however, we see extensive reference to judicial and arbitral decisions, including some that say they are interpreting treaty provisions as free standing norms and others that say they are interpreting the treaty in light of custom. But we see almost no discussion of the actual practice of governments, including in the latter type of case law. Why is that?

One reason is that the test for establishing custom is problematic. Customary international law is ostensibly made through state practice and opinio juris. But practice can be hard to find and cumbersome or difficult to collect. Paparinskis himself notes that the form of practice that we are most likely to see in the investment treaty context is pleadings by states, but this source has a number of shortcomings, including that pleadings are likely to be made by some states frequently and others rarely or not at all, and pleadings tend not to be made publicly available (pp 144-146, 171). (NAFTA is a notable and welcome exception to the latter point.)

Even when we can find smatterings of practice, it is almost impossible to collect real evidence of (1) general and consistent state practice followed out of (2) a sense of legal obligation. Even when people say that they are finding custom, they are usually relying on short cuts, such as referring to case law that says something is custom, General Assembly resolutions that declare something to be custom, or academic articles that opine that something is custom. Almost no one actually “finds” custom. Instead, arbitrators, academics and counsel typically refer to other sources that supposedly have already “found” custom.

The rules for determining custom are not a good description of what any of us actually do. Instead, they are largely used to critique the work of others. Read the rest of this entry…

 
 Share on Facebook Share on Twitter
Comments Off on Custom, Public Law and the Human Rights Analogy