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Social Capital and Arbitral Decision Making

Published on September 24, 2014        Author: 
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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: 
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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: 
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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: 
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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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Arbitrator Independence and Academic Freedom

Published on May 30, 2014        Author: 
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In international law, members of the discipline often fill a variety of professional roles. Many are scholars and practitioners at the same time; some even act in capacities that are mutually incompatible at the domestic level, such as being counsel and decision-maker at the same time – albeit in different proceedings. Investment arbitration is an area where this “double-hat problem” is vividly discussed. The main concern is the independence of arbitrators in light of interests that that individual may have in fulfilling other professional roles. What is less debated is how practice involvement can affect the role of the international lawyer as academic and how practice affects, and risks compromising, the independence of international law as an academic discipline. This is the theme underlying the following discussion of a recent challenge in CC/Devas and others v. India, which was decided by ICJ President Peter Tomka in an UNCITRAL arbitration under the Mauritius-India bilateral investment treaty (BIT). It is an abbreviated version of my thoughts from the first Editorial of the new Journal of World Investment and Trade that just came out.

Challenge in CC/Devas and others v. India

In CC/Devas and others v. India, two arbitrators, Francisco Orrego Vicuña and Marc Lalonde were challenged because they had, in the Respondent’s view, prejudged the meaning of the essential security-clause in the applicable BIT: Mr. Lalonde because he sat in both CMS v. Argentina and Sempra v. Argentina where a similar essential security-clause from the US-Argentina BIT had been an issue; and Prof. Orrego Vicuña because he sat, together with Mr. Lalonde, in the same two arbitrations, as well as in Enron v. Argentina, which also involved the US-Argentina BIT. On top, Prof. Orrego Vicuña had written a chapter on ‘Softening Necessity’ in the Liber Amicorum for Michael Reisman, in which he analyzed the tribunals’ approach to the necessity defense under customary international law and to the essential security-clause.

While ICJ President Tomka rejected the challenge against Marc Lalonde, stating that merely expressing prior views on an issue in an arbitration did not result in a lack of impartiality or independence, he upheld the challenge against Francisco Orrego Vicuña, because the latter had stuck to his approach to interpreting essential security-clauses through three arbitrations and in the academic article in question, although all three awards had been partially or totally annulled precisely on that point. Comparing the two challenges, the article written by Prof. Orrego Vicuña made all the difference. The case may therefore be read as boiling down to upholding a challenge of an arbitrator based on a view he or she has taken in academic writing. This decision is alarming, in my view, not only for investment arbitration, but for scholarship in the field. Read the rest of this entry…

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International Arbitration: Heating Up or Under Pressure?

Published on March 11, 2014        Author: 
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Dapo recently posted on this blog about the rise of inter-State cases before the PCA and predicted that “the current rise of inter-state arbitration will endure for some time“. Many readers will presumably be quite happy about the trend described: binding dispute resolution, if it happens, tends to make us international lawyers happy after all – so the more (cases) the merrier?

Interestingly, there is one branch of international law in which the debate currently seems take a different turn; in which the belief in binding dispute resolution is under attack – and in which many commentators, incl. many with an internationalist mindset and a keen desire for a rights-based global order, strongly feel that we have too much international arbitration. This is the field of investment law, in which the concept of investment arbitration has come under fire. Of course, this is an important debate for those interested in investment arbitration — academics, practitioners, companies, civil society, etc.  But, as importantly (if not more), it is also a debate that general international lawyers interested in dispute settlement should follow, and which I feel would benefit considerably if they did not leave it to the (pro- and anti-) investment communities. So this post is an attempt to introduce it to a wider audience and to encourage a wider debate. Within investment law, the debate has been going on for a while. However, over the past few months, it has suddenly heated up – and it has heated up in Europe, where the EU is formulating its investment policy. And this fresh start has opened up interesting spaces for debate. So what is it all about? Read the rest of this entry…

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Saar Papier v Poland: Comparative Public Law and the Second-Ever Investment Treaty Award

Published on February 3, 2014        Author: 
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            Jarrod Hepburn is a Lecturer in Law at the University of Exeter, UK.

There has been much discussion in recent years – and in recent weeks on this blog – of the potential for investment treaty arbitration to benefit from a ‘comparative public law’ approach. In brief, the approach conceives of investment treaty arbitration as a form of public law, and calls for tribunals to draw on comparative domestic constitutional and administrative law, as well as other regimes of international public law such as WTO law and human rights law, to give content to the often vaguely-worded standards of typical investment treaties.

In the midst of contemporary enthusiasm for comparative public law, it is tempting to think that the approach is a new one that has been growing in prominence only over the last few years. However, this week brings news from Investment Arbitration Reporter that an UNCITRAL-rules investment treaty award dating from 1995, Saar Papier Vertriebs GmbH v Poland, has been unearthed. Amongst other aspects detailed by IAReporter, the case is particularly notable for its explicit use of domestic administrative law to interpret the provisions on indirect expropriation in the Germany-Poland BIT.

Indeed, this newly-uncovered investment treaty award – only the second ever (currently) known to be rendered, following AAPL v Sri Lanka in 1990 – contains intriguing indications that the comparative public law approach is a practically useful one for investment treaty arbitration. Furthermore, the age of this award raises the tempting view that, rather than being a new development in the field, comparative public law has been there all along.

However, as I discuss below, despite the treaty context of the claim, it is unclear whether the Saar Papier tribunal considered itself to be applying international law. Without this international law framework, it becomes more difficult to characterise the case as an instance of comparative public law at work. Read the rest of this entry…

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The Public Law Approach in the Practice of Investment Treaty Arbitration

Published on January 22, 2014        Author: 
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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 that it maximizes the benefits of investors as claimants, and in turn, the arbitrators’ own interest in being reappointed? This is what critics like Gus Van Harten argue. In his view,

the novel situation in which claims can be brought by only one class of parties, and only the other class can be found to have violated the treaty, provides investment treaty arbitrators (including those who are state-appointed) with an incentive to favour claimants in order to advance the interests of the industry and their position within it.

Appointment of Arbitrators as a Source of Change

My view is different. I think that the one-off nature of arbitration and the appointment mechanism for arbitrators have a great potential for bringing change to the system. Read the rest of this entry…

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International Human Rights Law, Investment Arbitration and Proportionality Analysis: Panacea or Pandora’s Box?

Published on January 7, 2014        Author: 
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GuntripEdward Guntrip is a Lecturer in Commercial Law at the University of East Anglia.

Investment law jurisprudence has failed to fully explore the relationship between international investment law and international human rights law (for example, see the cursory examination given in Vivendi v. Argentina para 262 and Pezold v. Zimbabwe Procedural Order 2 paras 57 – 59). As a result, the question of how to approach normative conflict between principles drawn from these regimes remains pertinent when resolving investment disputes with human rights implications. Proportionality analysis has been proposed as a suitable methodology for the resolution of this type of normative conflict (see Schill, ‘Cross-Regime Harmonization through Proportionality Analysis: The Case of International Investment Law, the Law of State Immunity and Human Rights’ 27 ICSID Review – FILJ (2012) 87). The use of proportionality analysis received tacit support when an ICSID arbitral tribunal suggested ‘counterbalancing’ competing obligations drawn from international investment law and international human rights law so as to determine which should be prioritised (see SAUR v. Argentina para 332, although the ICSID arbitral tribunal did not conduct the proposed balancing exercise). Despite support for proportionality analysis, the employment of this methodology by investment tribunals to resolve conflicts between investment protection standards and obligations sourced from international human rights law should be approached with caution. Whilst proportionality analysis is attractive as a concept, its application in instances of inter-regime normative conflict remains problematic.

Proportionality analysis is a legal construct that provides a methodology for decision makers to balance conflicting rights and interests by using a three-stage test. Initially, the decision maker must determine whether the measure giving effect to the interest being prioritised is capable of achieving its objective.  If so, the focus turns to whether the measure is necessary to achieve its end, or whether a less restrictive, but equally effective measure could be used. Finally, the decision maker addresses proportionality stricto sensu. This final stage evaluates whether the effects of the measure adopted are excessive compared to the competing right or interest that has been infringed. The decision maker should appraise the weight of each interest before a determination is made regarding whether the means used achieve their aim.

The application of proportionality stricto sensu is the most problematic aspect of proportionality analysis. Read the rest of this entry…

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