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Home Archive for category "International Legal Profession" (Page 3)

Launch of GQUAL! – A Global Campaign for Gender Parity in International Tribunals and Monitoring Bodies

Published on October 8, 2015        Author: 

On September 17, 2015 GQUAL! was launched at the UN in New York. GQUAL aims to promote transparency and adoption of rules in the selection, nomination, evaluation, and election of candidates to international tribunals and monitoring bodies to promote gender parity, as well as to pursue research and monitor processes in order to identify best practices and standards. The GQUAL Declaration sets forth the road map to be followed and is open for signatures by academics, practitioners, researchers, policy makers, judges and political representatives (both male and female.)

This campaign arose from Viviana Krsticevic’s engagement as the Executive Director of the Center for Justice and International Law (CEJIL) and her concern that the majority of international tribunals and monitoring bodies are lacking gender parity among judges. Indeed, since its establishment, the ICJ has only had 3.8% women judges, the European Court of Human Rights 8.4% and the International Tribunal for the Law of the Sea 2.5%. The aim of this global campaign is to promote conditions, procedures, and mechanisms to ensure that out of 84 international bodies, which have 574 positions, 287 qualified women from different parts of the world and with diverse backgrounds are elected. Read the rest of this entry…

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Managing Change in International Law and the Dream of the Managerialist International Lawyer

Published on September 25, 2015        Author: 

This post is a reaction to an ESIL Reflection written by Ramses Wessel and Monika Ambrus and entitled Between Pragmatism and Predictability: Temporariness in International Law. Their piece originates in an impressive symposium on the topic that has been published in the Netherlands Yearbook of International Law (see here)

1. Thinking of international law in managerialist terms

The 19th century idealist-intellectual international lawyer was murdered by his doctrinal-formalist counterpart who rose to prominence at the beginning of the 20th century. It did not come as a surprise that the doctrinal-formalist would also soon succumb, not only to his own weight and self-confidence, but also to the blows of the next hegemon, i.e. the managerialist international lawyer who thinks that international lawyers managing the world can no longer afford overly formal and sophisticated structures of argumentation. Interestingly, the murder of the doctrinal-formalist international lawyer by the managerialist international lawyer was condoned by his peers who had grown averse to the false necessities of doctrinal constructions and formal modes of legal reasoning. This is why the managerialist international lawyer was quickly welcomed and celebrated as the messianic saviour of a profession that had ceased to hope in its ability to make demands on the world.

The murder of the doctrinal-formalist international lawyer by the managerialist international lawyer is however not the end of the story of 20th century international legal thought. Indeed, the night after the opulent celebration of his conquest, the managerialist international lawyer had a dream. He dreamed that he would not only manage the world through international law but also the time of that world. In his dream, managing time also meant managing change. And managing change required self-reactive legal institutions and modes of reasoning to allow his managerial project to be carried out whatever happens outside his palace. Read the rest of this entry…

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On My Way Out – Advice to Young Scholars I: Presenting a Paper in an International (and National) Conference

Published on September 8, 2015        Author: 

I first published this piece in an Editorial for the benefit of I.CON readers, but in the light of my recent experience at the ASIL Annual Meeting and in view of the forthcoming ESIL Annual Conference, EJIL readers might also find it of interest.

I have most certainly reached the final phase of my academic and professional career and as I look back I want to offer, for what it is worth, some do’s and don’ts on different topics to younger scholars in the early phases of theirs. A lot of what I may say will appear to many as a statement of the obvious – but if it so appears, ask yourself why so many experienced and seasoned academics still fall into the trap.

So you have all been there – I must have ‘been there’ literally hundreds of times in the last 40 years. You are at some international conference. The most common format for presenting a paper is in a ‘panel’. Most typically there will be four panelists. Imagine you are one of them, maybe number four. There might be two ‘discussants’ or ‘commentators’. Again, most typically, each panelist will be allocated 15 to 20 minutes. The commentators are allocated 10 minutes each. If all goes according to plan, one hour and 20 minutes are allocated to the speakers. There is then a planned discussion; on a good day 25 minutes are allocated. In this, the most common of plans, a session beginning at, say, 9.00 is meant to last until 10.45, after which there is a coffee break of 15 minutes and then the next session is meant to begin. There is usually a ‘moderator’ or ‘chairperson’, or, if you are in Europe, a ‘president’ of the session.

Except that it never (ever) goes according to plan; here is what most commonly happens. The session often does not start on time. People are still shuffling in; the previous session finished late; the moderator’s introduction (which often consists of reading a Wikipedia-based bio of each of the ‘distinguished panelists’) goes on a little bit longer than planned. Now finally the first speaker gets the floor. You glance sideways across the table, your heart sinks. He or she has a sheaf that seems to be at least 20 pages long. In fact, she has the precious, original, paradigm-shifting paper she has written for the conference. How, you think to yourself, will the speaker get through all of that in her 15 minutes. (You are right; she will not). Your heart sinks even further. The speaker just said that he will try to be brief. That ‘try’ is ominous. It sounds great in Italian: ‘Cercherò di essere telegrafico’. More like stagecoach than telegraph you are thinking to yourself. She introduces the paper, she gets going. You note, again glancing sideways, that on each page some paragraphs are highlighted in yellow. Hope Read the rest of this entry…

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A Question on Spying and Legal Ethics

Published on September 1, 2015        Author: 

In the wake of the scandal regarding the Croatia/Slovenia arbitration, but also the spats between Australia and East Timor, I have been left wondering with an ethical question: say you are counsel for one of the parties in a case before the ICJ or in an arbitration (but you are not the relevant government’s employee). Imagine if your client comes to you with a document that they could only have obtained by spying on the other party in the proceedings – say a draft of the opposing counsel’s pleadings, or a particularly important piece of undisclosed evidence in the case. Would it be ethical for you to rely on such a document? Would you, say, read your opponent’s draft pleadings? Would it make any difference whether the spying is done against the adversary state or against your opposing counsel directly?

NB: I’m not interested in how the court or tribunal would decide on any issue of admissibility; all I care about is the ethical dimension. For the avoidance of doubt, this is not a dilemma I’m currently facing or ever had to face. But my impression is that this sort of stuff must happen occasionally. Having been involved in some interstate cases, I know that some parties take reasonable security measures (e.g. send drafts or documents only in an encrypted format), while others take virtually none. In this post-Snowden era, such spying would seem trivially easy for many intelligence agencies, especially if no dedicated security measures are in place – the Slovenian arbitrator and agent providing an abject lesson.

Comments from readers much appreciated; anonymous comments with regard to this particular post are welcome.

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The Most Important Cities in International Law

Published on June 8, 2015        Author: 

Professor Martens’ Departure, a biographical novel about the international lawyer Friedrich Martens by Estonian writer Jaan Kross, describes Martens’ first academic visit to “the West”. The visit takes place in 1869, and goes to Berlin, Amsterdam, and Brussels. This raises the question of where Martens should have gone today. Put differently, what cities are currently the most important in international law?

This question can be answered in different ways. Which cities house the best universities for international law? Which have the most influential State governments? Where are the most important international organisations and courts located? And where are the best private practitioners? I have tried to combine these four parameters into a single rating, to give a highly informal ranking of the top international law cities as of 2015. I welcome readers’ reactions to my attempt to identify international law’s most important cities.

Each parameter has a rating of 0 to 5. The assessments are my own, but are to some extent based on other sources.

  • “Academia” is based on the Quacquarelli Symonds, Academic Ranking of World Univiersities, and Times Higher Education university rankings, with adjustments that reflect my view of the universities’ strength in international law. Only five cities get a top rating for their universities: Cambridge UK, Cambridge MA (Harvard), New Haven (Yale), New York (mainly NYU), and Oxford.
  • The numbers for “IOs and courts” are based on my impression of the practical importance of each city’s institutions in international law. Six cities get a top rating: New York (the UN), The Hague (the most international courts including the ICJ, ICC as well as international organizations), Brussels (mainly the EU and NATO), Geneva (the WTO, the UN, and more), Washington (mainly ICSID, the IMF, and the World Bank), and Strasbourg (mainly the ECtHR and Council of Europe).
  • My views of “State power” are mostly based on GDP numbers, the size and sophistication of armed forces, and membership of important groups and organisations (especially permanent membership of the UNSC). Only Washington and Beijing get a top rating for state power. The US and China have the world’s largest active military forces, military budgets, and GDPs, as well as nuclear weapons and permanent membership of the UNSC.
  • “Private practice” is based on the Legal 500 and Chambers and Partners rankings. Having a separate section for “public international law” and/or “international arbitration” gives a high rating, while having “international arbitration” mentioned in the section on “dispute resolution” gives a somewhat lower rating. Only four cities, Washington, New York, Paris, and London, get a top rating.

The combined result is that Washington is the number one international law city, followed by New York and Paris, ahead of London, Geneva, and Brussels. The full results (for a selection of cities) are as follows: Read the rest of this entry…

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ICSID Arbitrators: The Ultimate Social Network?

Published on September 25, 2014        Author: 

waibelMichael Waibel is a University Lecturer at the University of Cambridge.

Sergio Puig’s article offers a refreshingly new, thought-provoking analysis of the links between investment arbitrators. Who the parties appoint as arbitrators matters for how the investment treaty regime operates. Criticism of the appointment process in investment arbitration is widespread, yet rigorous empirical work on this important aspect of the investment treaty regime remains rare. Relying on the theoretical frame of social network analysis, Sergio sheds light on the interactions among ICSID arbitrators. His analysis suggests that a core group of 25 arbitrators enjoys disproportionate influence on the development of the investment treaty regime. To understand what animates the regime, it may suffice to analyse the preferences and political philosophy of these 25 ‘power-brokers’.

The Core-Periphery Divide and Underrepresentation

The core of the arbitration network is composed of 25 arbitrators. Members of this elite group are on average connected to 11.75 other arbitrators. The core’s cultural and legal homogeneity is striking: 14 Europeans, 4 Latin Americans, 3 Canadians, 1 New Zealander and only 1 US arbitrator. Similarly, among the top ten countries of origin of ICSID arbitrators overall, five are Euro-Atlantic states (US, France, UK, Canada and Switzerland) and five Latin American. By contrast, African and Asian arbitrators have rarely been appointed to ICSID tribunals, despite significant inward- and outward flows of foreign investment to and from Asia in particular. In such data-intensive work, minor errors are bound to creep in. For instance, in Figure 4, Vaughan Lowe appears as a US, rather than a UK national, and the 26th arbitrator in the core between Jonny Veeder and Jan Paulsson remains nameless.

The formal bond of nationality may be only a crude measure of arbitrator behaviour. As Sergio rightly highlights (p. 405), many arbitrators with nationalities of developing countries have received at least part of their legal education in developed countries (chiefly the UK, the US and France). Indeed, if one focuses on arbitrators who have spent most or all of their adult lives in a developing country and have not worked or received part of their educated in developed countries, the voice of developing countries in even less represented among ICSID arbitrators than the formal link of nationality would suggest.

Other demographics are also underrepresented among ICSID arbitrators, most notably women. 93 percent of all ICSID appointments were male arbitrators (p. 404). Given that Brigitte Stern has accumulated the highest number of appointments of any ICSID arbitrator, the share of female arbitrators is even lower at 5 percent (p. 405). Two female super arbitrators apart, women are at the periphery of the arbitration network. This gender imbalance mirrors the general characteristics of the entire arbitration network (p. 411).

Yanhui Wu and I have recently assembled data on a control group composed of more than 700 potential ICSID arbitrators, i.e. individuals with similar characteristics and qualifications to those who have already been appointed to at least one ICSID tribunal. Our control group includes current and former ICJ and WTO Appellate Body (AB) Members who, unlike some of their judicial colleagues, have yet to be appointed to an ICSID tribunal, and partners at leading arbitration practices in the same position. Ten former AB members and 18 current and former ICJ judges since 1990 have never been appointed. The following table compares some characteristics of the treatment and control groups. Read the rest of this entry…

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Social Capital and Arbitral Decision Making

Published on September 24, 2014        Author: 

DDaphnaaphna Kapeliuk is a Senior Lecturer at Radzyner Law School, IDC Herzliya. Her research interest focuses on international arbitration in general and on arbitral behavior in particular and on private international law.

In his brilliant article “Social Capital in the Arbitration Market”, Sergio Puig seeks to map the social arrangements that result from interactions among ICSID arbitrators, as part of the social dynamics of international arbitration. Using data of all appointments of ICSID arbitrators made between 1972 and 2014 and applying a social network analysis methodology, Sergio sets out to understand the role of social capital in investment arbitration by relying upon proxy measures for social connectivity.

The sophisticated maps of the interactions among ICSID arbitrators represent a picture of the social landscape of the arbitration market. These maps are of great importance, especially since ICSID tribunals are composed of three arbitrators, and the dynamics between the arbitrators within the panels are important to understand the outcome of disputes. Sergio’s article joins prior scholarship that has claimed that ICSID arbitrations are handled by a closed group of arbitrators, sometimes referred to as “grand old men”, or “blue chip men”, who are being repeatedly appointed to decide large scale investment disputes. He argues that the network analysis of ICSID arbitrators “provides important evidence of a dense network”, in which a limited number of prestigious arbitrators increase in prestige, while the others remain in the periphery.

Sergio’s major contribution to understanding the interconnections among these arbitrators is presented in figures 4 and 6. Figure 4 focuses on the inside and outside of core ties and common cases of the 25 most central arbitrators, and figure 6 represents a sociogram of appointments of arbitrators (as presiding arbitrators) by other arbitrators to the same panels. These figures clearly show the strong ties between the central arbitrators within arbitration panels.
While the main objective of the article is to map the social dynamics of ICSID arbitrators, Sergio argues that the network analysis provides evidence that the dense network of arbitrators “reinforces prevailing norms and behavior and insulates its most important members from outside influence”. Although the social landscape presented in the article supports the claim that the core of the prominent ICSID arbitrators is small, that the article does not analyze how this network might reinforce prevailing norms and behavior. It does not define or analyze these terms. The remainder of this comment offers one possible mechanism for how the social structure might lead to the postulated outcome.
There is no doubt that the entry barriers to the investment arbitration market are extremely high. An arbitrator who wishes to be admitted to the core of the prestigious network, and thus repeatedly appointed, must establish a reputation that justifies a “membership” in the “club”. It is through his connections, behavior and decision making that he can establish such reputation. Sergio’s article focuses on the interconnections among arbitrators, but not on their behavior or decision making. Read the rest of this entry…

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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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