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The Data-Driven Future of International Law

Published on July 25, 2017        Author: , and

Data is not only fueling the economy, but has also become an increasingly important driver of empirical legal research. Three reasons are chiefly responsible for this. First, the internet, better search engines and bigger databases today put more international law data from treaties to disputes or arbitrators at a scholar’s disposal than ever before. Second, researchers are beginning to treat the primary material of law – legal texts – as data. By conceiving text as data and transforming it into numerical representation using natural language processing techniques, scholars can analyze more written material than they could ever read. Third, neighboring disciplines, including legal informatics, computer science or the digital humanities, provide international lawyers with new tools for digesting large amounts of legal data including through machine learning and artificial intelligence.

In a Special Issue for the Journal of International Economic Law we are beginning to explore this new data-driven frontier in empirical legal scholarship. We have been fortunate to assemble strong contributions that engage with major international economic law debates through a data-driven lens using state-of-the-art empirical techniques. In this blog post, we want set out the main issues that, we believe, are raised by this new frontier of empirical scholarship. Read the rest of this entry…

 
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Social Capital and the Limits of Network Analysis

Published on September 29, 2014        Author: 

I want to start by thanking each of the commentators for their kind, forgiving and thought-provoking comments on my article, and by recognizing that the work of DaphaMichael and Tom set the foundations and served as the inspiration for this work. I will organize my responses into three different clusters:  methodology, extensions and other, more general comments.

Methodology

I will first address Tom’s comments on the record of appointment as a proxy for displayed preferences. Can we ignore the fact that an appointment does not necessarily indicate that the arbitrator was the appointer’s first choice? I like to think of this question as a job offer to a candidate who decides not to accept an offer. The truth may be that certain candidates are in high demand and that many companies are offering jobs to the same well-qualified candidates.  Hence it is possible that parties who nominate arbitrators and may be trying to enlarge the diversity of the pool of arbitrators in ICSID may be somewhat restricted by the broader market of arbitration professionals.  This is true especially where, as Michael points out (and as confirmed by arbitrators during my interviews), the compensation provided by ICSID is lower than that of other arbitration opportunities and venues.   This is a limitation of the assumptions that can be made from the ICSID appointments. We are left with only the record of appointments as a second-best proxy.

A second point raised by Tom as to why the mid-2000s witnessed the first appointments of today’s power-brokers is also relevant. We must take into consideration that these years saw a boom of investor-state cases and, hence, more appointments. It is also true that this is when we started seeing more awards discussed publically.  Although I did not report these statistics in this paper, measures that reflect the connectivity of the network start stabilizing and changing in less intense ways during this period.  Thus I’m not surprised that the network acquired self-organizing qualities during this time.  One plausible hypothesis for future exploration is how the development of transparency rules may have helped cement public knowledge of decisions and with that, some of the insights that come with understanding the decision-making philosophy of arbitrators.

On the methodology of determining the average compensation per arbitration of US$200,000, I admit that the number is not incredibly precise. However, it is the best approximation I could divine. I followed a complex, yet not foolproof strategy to arrive at what I consider a very rough average. First, I computed the amount in 2010 dollars from roughly 70 awards that provided information on compensation in my sample of ICSID and ICSID Additional Facility awards. I divided this amount by the months of duration of each case and averaged the result. Using the dollars per month estimate, I calculated the possible amount paid to an arbitrator on settled or dismissed cases based on an average duration of the case. I confirmed that this rough estimate was in the right ballpark with one scholar who has done extensive empirical work with ICSID data as well as through my interviews with arbitrators. It is not an exact appraisal, but what is relevant for the purpose of the article is whether ICSID’s rate completely changes the incentives to accept an appointment and hence whether the distribution of ICSID appointments is completely different from that of other institutions. We cannot know the answer to this question for certain, but with a grain of salt, my educated guess (taking into account what I gleaned from working at ICSID) is that it does not. Most appointments are accepted and most rejections occur when a conflict exists. In my experience it was only in very few cases that, for other reasons (such as being too busy) an arbitrator decided not to accept an appointment. 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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