Comparative Law

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The Public Law Approach in the Practice of Investment Treaty Arbitration

In my last post, I discussed how comparative public law methodology could inform the resolution of investor-State disputes and thus help to reform the system from within. This may sound like a view from the ivory tower. In this post I will first discuss why arbitrators have an incentive to make use of such a methodology and, second, point to existing cases in which tribunals have already adopted a comparative public law framework. System-Internal Reform and Identity Change The success of using comparative public law as a system-internal reform strategy depends on the extent to which those active in practice endorse it. Enculturating public law thinking will need an identity change among arbitrators, arbitral institutions, annulment committees, and disputing parties. But why should a change in thinking take place, if there is nobody who coerces arbitrators to incorporate public law thinking or parties to develop their submissions on the basis of comparative public law? Do arbitrators not even have an incentive to keep the system running in a way…

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Comparative Law and the Ad Hoc Tribunals: A Reply to Jaye Ellis’ Rejoinder

In her rejoinder to my post, Jaye Ellis underscores that “comparative law could help international judges understand general principles as an opportunity to learn from municipal legal systems, rather…

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Comparative Law and the Ad Hoc Tribunals: A Rejoinder to Aldo Zammit Borda

Jaye Ellis is Associate Professor and Associate Dean, Faculty of Law, McGill University, Canada. Her article General Principles and Comparative Law was published in (2011) 22 (4) EJIL 949-971 In his EJIL:Talk! post commenting on my recent EJIL article, Aldo Zammit Borda begins with reference to an approach to the…

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Comparative Law and the Ad Hoc Tribunals: A Reply to Jaye Ellis

Aldo Zammit Borda is a PhD candidate at Trinity College, University of Dublin and a Fellow of the Honourable Society of the Middle Temple. Previously, he served as First Secretary, Ministry of Foreign Affairs of Malta, and as Legal Editor, Commonwealth Secretariat, London.  1. Introduction This post seeks to engage with…

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General Principles and Comparative Law

Jaye Ellis is Associate Professor and Associate Dean, Faculty of Law, McGill University, Canada. Her article General Principles and Comparative Law was published in (2011) 22 (4) EJIL 949-971 My article explores the source ‘general principles of international law’ from the point of view of comparative law scholarship. As international law’s agenda becomes wider and…

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