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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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Arbitrator Independence and Academic Freedom

Published on May 30, 2014        Author: 

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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Impact Factor – The Food is Bad and What’s More There is Not Enough of It

Published on October 19, 2012        Author: 

A loyal reader recently sent me the following email:

Just a quick note to let you know that EJIL and I.CON get the first and third position respectively in the general ranking of NON US Law Journals elaborated by Washington and Lee University School of Law (sections non US law journals) http://lawlib.wlu.edu/LJ/index.aspx  Congratulations!

The only reason I was happy to learn this exciting news was that no one will be able to dismiss what I am about to write as prompted by ‘sour grapes’.

But let us backtrack a bit. I invite you to visit this Washington and Lee University School of Law website. It requires some getting used to, especially in setting the search parameters. Experiment a bit (after you read this Editorial!) In its own way it is admirable and provides an important tool for legal academics. Its purpose is simple enough. When an author has to choose in which journal to publish his or her article, is there a way of making a choice based not on an impression of prestige or importance but on some hard data on readership, citations, impact (whatever that may mean) and the like? This meticulously constructed database (not the most user friendly, but it should not be a challenge to smart law professors and the like) tries to help in this worthy endeavour. In the USA, in which most, though not all, law journals are edited by students and associated with a law school, the typical choice used to be based on the ‘ranking’ of the law school with which the journal is associated. The Washington and Lee database tracks instead impact through citation and shows the law school ranking (itself a problematic notion) to be a crude and approximate measure. Especially when it comes to specialized, rather than ‘general’, law journals, the law school ranking is a bad proxy for readership and influence.

Like credit rating agencies, there is more than one outfit which tries to provide this service. The Washington and Lee database is interesting since, aware of the problematic nature of establishing criteria for influence, it allows the user to vary the parameters according to which tables of influence will be generated. The overall methodology seems to be the same: an electronic database of legal journals is selected and then citations to articles are computed. Simply counting citations, might, however, skew the impression of influence of a journal. You might, for example, have one or two highly cited articles published by this or that journal whereas almost everything else is hardly ever cited, and yet those one or two star pieces could skew the overall influence ranking of the journal compared to others. Read the rest of this entry…

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EJIL – the Beginning of an Existential Debate & Masthead Changes

Published on October 19, 2012        Author: 

At the last meeting of our Editorial and Scientific Advisory Boards I announced the beginning of a discussion which, in my view, will be the most fateful for the future of EJIL since its founding 23 years ago. There are two linked issues which inform this discussion and they can be stated simply enough, though resolution and decision will be anything but simple.

Should EJIL continue to be published in both hard copy and digital versions or should it move to digital only? And should EJIL continue to be published by an academic press such as our current publisher, OUP, or should it become self-publishing?

The two issues are linked because if we decide that there is virtue (my current belief, but increasingly a minority one, I suspect) in continuing to publish a hard copy paper version of EJIL, then we will have to continue to use the services of an academic or commercial press (the distinction between the two is increasingly blurred these days).

The principal case for going ‘digital only’ is that if we did that we could offer EJIL, in the very same form it is published today, as a free service to the whole world and simply abolish subscriptions, following the admirable model of the German Law Journal. To do this, we would have to cut our ties with OUP since, given the costs of running a big press like OUP, even the digital only’ option would entail very considerable subscription rates both to institutions and individuals. Read the rest of this entry…

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EJIL Volume 23, Issue 3: In this Issue

Published on October 18, 2012        Author: 

The latest issue of EJIL (Vol, 23, Issue no. 3) has just been published. We open this issue with an article by Alan Boyle, who grapples with the future of environmental protection in international law viewed from a human rights law perspective and in relation to three different aspects (i) procedural rights, (ii) the controversial notion of a right to a decent environment, and (iii) the extraterritorial application of existing human rights treaties to transboundary pollution and climate change. In all three fields, two related questions appear fundamental: Would it be appropriate to go beyond a mere greening of the existing human rights law coupled to a judge-made law approach? If so, which international institutions, mechanisms and instruments could or should be mobilized?

If the plurality of legal orders is undeniably one of the parameters to take into account when answering these questions, it is also an issue which lies at the basis of the Symposium organized by the American and European Societies of International Law (ASIL and ESIL), with additional support from the Hague Institute for the Internationalisation of Law (HiiL) Project on Transnational Private Regulation, and published in this issue. The symposium, regrouping the contributions of Fabrizio Cafaggi, David D. Caron, Daniel Bodansky, Gregory Shaffer, Francesco Francioni, Petros C. Mavroidis, Elisa Morgera, and André Nollkaemper, aims indeed to define the multi-faceted notion of global public goods (GPG). Foundational issues are thus discussed, such as the conceptual and analytical frameworks for understanding GPG; the modes and technologies of protection of GPG and the related governance and legitimacy issues that such techniques raise; the value that the concept of GPG adds to discourse within international law, and vice versa, the value that an international law perspective adds to our understanding of GPG. These foundational issues are also discussed through analysis of specific instantiations of GPG, such as international cultural goods, free trade, and environmental protection.

EJIL symposia allow our Editorial Board and Scientific Board to discharge their responsibility of introducing into the public discussion issues that we consider of importance but which the normal mail box may not necessarily throw our way, and certainly not in the sustained, probing way that a symposium can. I trust and hope that you share my view that it was high time that the relationship between global public goods and international law were aired in such a way. Read the rest of this entry…

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GoJIL: Call for Papers

Published on October 12, 2012        Author: 

The editors of the Goettingen Journal of International Law send the following announcement:

Vol. 5, Issue No. 1 of the Goettingen Journal of International Law will include a focus on the law and politics of indigenous peoples in international law.

Indigenous peoples received increasing public and scholarly attention over the last decades. It has been a unique journey from the colonial history to the beginning of their political presence in the United Nations since the 1970s to the UN Declaration on the Rights of Indigenous Peoples in 2007. The UN’s International Year for the World’s Indigenous Peoples in 1993 as well as the following decades of the world’s indigenous peoples from 1995 to 2004 and 2006 to 2015 prove the ongoing need to attend to indigenous peoples’ interests. Today, discourses of indigenous peoples rights and their claim for self-determination are found beyond International Human Rights law: topics such as intellectual property rights, control over the exploitation of natural resources, the protection of traditional knowledge and traditional cultural expressions are on the agenda. Underlying all is the constant debate about a definition and the implementation of indigenous peoples’ rights beyond the Americas, particularly in Asia and Africa. In order to shine a light on the legal and political problems indigenous peoples are facing, we call for authors to submit papers on the topic.

The submission deadline is 1 March 2013. For more information contact us at info {at} gojil(.)eu.

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Second Annual Junior Faculty Forum for International Law

Published on July 31, 2012        Author: 

The Second Annual Junior Faculty Forum for International Law was launched earlier today by Professors Dino Kritsiotis (Nottingham), Anne Orford (Melbourne) and J.H.H. Weiler (NYU). It is designed to bring together international legal scholars in the first six years of their academic career to present on a particular aspect of their research work before peers and experts in the field. Each presentation will then be discussed by a senior international legal scholar who has been designated to each junior faculty member for the purposes of the Forum. Selected presentations from the second Forum will be published in a future issue of the European Journal of International Law (Oxford University Press). Further details can be found here: www.annualjuniorfacultyforumil.org.

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Peer Review in Crisis

Published on July 12, 2012        Author: 

EJIL and its sister publication, I-CON are peer-reviewed journals. This is a counter-cultural posture in an age which celebrates, for some very good reasons (and some less admirable), the freedom that self-publication on the internet provides. Our own very successful Blog, EJILTalk!, is an example of a highly interesting and useful form of self-publication and I-CONnect will be launched soon. There are surely others like ours. SSRN is a more ambiguous example, but even there, there are some diamonds in the rough, if you have the patience to do some heavy-duty prospecting and sifting. Be that as it may, SSRN is not just part of contemporary academic culture; it is a defining part, both reflective and constitutive.

There is a place, we maintain, for discernment in publication, including external referents. There are some weeks where the (electronic) mailman (in the form of ScholarOne) sends my way one or even more articles per day for both EJIL and I-CON. We need to select, not simply because the economy of a journal dictates such, but because we try to give our readers a certain guarantee of quality, even excellence. We know, too, that in many countries, publication in a selective, peer-reviewed journal plays an important role in appointment, promotion and tenure.

At the heart of such a system is, indeed, peer review. This institution is in serious crisis, which is evident in the functioning of both journals. I have discussed the issue with other Editors in other journals and the situation is the same elsewhere. I am, thus, taking the extraordinary step of publishing a similar editorial in both EJIL and I-CON.

At EJIL (and I-CON) we try to practise double-blind peer review: in principle, the reviewer should not know the identity of the author, and the author, obviously, is not privy to the identity of the reviewer. The double-blind principle is not always achievable. We do not have the resources to scour each and every article that goes out to review and excise from it all tell-tale signs, notably footnotes of the ‘see-my-treatment in…’. Some authors have a distinct voice which is impossible to conceal. And, as I explained in greater length in an earlier Editorial (‘Demystifying the EJIL Selection and Editorial Process’, at 22 EJIL (2011)), since we like each piece we publish to have had critical scrutiny by at least two sets of eyes, oftentimes one of the peers is myself; obviously I am aware of the identity of the author. In that case the double-blind principle will apply only to one of the reviews.

We give considerable thought to the selection of ‘peers’. We look for people who have expertise in the field and whose own publications meet our yardstick of excellence. We make liberal use of our own Scientific Advisory Board and Members of the Editorial Board. But given the volume and diversity of submissions we receive, even after our in-house screening which reduces the numbers considerably, we need to venture outside and turn to the legal academic community at large.

Why crisis? Read the rest of this entry…

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New Issue of EJIL [Vol 23, No.2]: In this Issue

Published on July 10, 2012        Author: 

We begin this latest issue of the European Journal of International Law with a high-profile exchange on Europe and Democracy between Armin von Bogdandy and Jürgen Habermas, who, despite the ambient malaise, believe in the promises of the European Union as a model for the democratization of the international arena.

In this issue, we feature three articles illustrating the eclecticism that characterizes EJIL: Leora Bilsky’s article, assessing the contribution of transnational holocaust civil litigation to conceptions of justice in international law; Virginie Barral’s article which revisits the issue of the legal status of sustainable development; and the article by Giuseppe Martinico which explores a possible convergence in the way national courts deal with both the ECHR and EU law.

Roaming Charges shifts from Moments of Dignity back to Places. In this issue it is Places of Entry – Tel Aviv Airport.

In this issue we publish a symposium on the EU and Climate Change that tackles the recent inclusion of aviation in the EU’s emissions trading scheme (ETS) from two different perspectives. Lorand Bartels addresses the legality of the scheme under WTO law whereas Joanne Scott and Lavanya Rajamani stress the relevance of the principle of Common but Differentiated Responsibilities and Respective Capabilities in the context of unilateral climate action.

This issue also displays two of our occasional series, Critical Review of International Jurisprudence and Critical Review of International Governance. In the first series, Alberto Alvarez-Jiminez proceeds to a systematic analysis of the different modalities of disputes over boundary agreements, featured  in the ICJ’s jurisprudence over the last decade. In the second series, Jakob Cornides gives us a foretaste of what the EU anti-discrimination policy might entail.

We are hugely proud of EJIL’s book reviewing under the leadership of Professor Dr Isabel Feichtner of Frankfurt University. I think the selection of books for review is judicious and the various creative forms in which the reviews take place enhance and underlie the seriousness with which we take ‘the book’ in the age of the internet. In another example of creative innovation we introduce in this issue a further type of review essay – the review of A Life’s Work. This type of review does not assess, like our other reviews, individual books or developments in the literature on a particular topic. Instead, it concentrates on a scholar and critically assesses his or her writings, their impact on international law scholarship and their continued relevance in the world of today. An essay by Jorge Viñuales on the writings of Michel Virally begins this occasional series and focuses on Virally’s writings on International Organizations.

We also publish a Review Essay by Gregory Shaffer, who offers a transnational take on Nico Krisch’s pluralist structure of post-national law.

The Last Page poem is Nocturnal Vision by Elliot R. Wolfson.

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Irish Yearbook of International Law – Call for Papers – Symposium Issue Climate Justice in International Law

Published on June 29, 2012        Author: 

The Editors of the Irish Yearbook of International Law invite submissions for a special symposium issue on Climate Justice in International Law.  Papers on the following themes (and others) are welcome:

(1) Climate Justice, Regulation and Risk ; (2) Concepts of Justice, International Law and Climate Change; (3) Climate Justice, Equity and Rights ; (4) Global Governance, global institutions and international environmental law ; (5) Climate Justice – Right to Development; Climate Justice, Migration  and Asylum

Symposium articles should not exceed 12,000 words in length and should not be published or under consideration for publication elsewhere. Selected papers will appear in Vol VI of the Yearbook.

In addition to symposium articles, papers on general issues of international law are welcome for the ‘Articles’ sections and reviewed on an ongoing basis.   Read the rest of this entry…

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