Saturday, April 6, 2019
International arbitration entertains a particular relationship with its own literature – the written knowledge in the field and about the field. This relationship is marked by one big mix, be it in the form of competition or cooperation, of practitioners who use it, legal entrepreneurs who make and change it, and scholars who analyse it, with more or less permanent alternations and confusions of these roles. Of course, Schrödinger’s Cat-type problems make some of this intertwinement inevitable: Indeed, can one really analyse it without, by the same token, changing it by giving a certain representation of it? Can one use it without analysing it and, by using it, changing it? Can one make it without, in sense, using it and at least pretending to analyse it? Not really. But in arbitration, this relationship (call it, quite normatively, expertise-enhancing cross-fertilisation or rather mind-narrowing dogmatic collusion, as you will) has a strength that would probably appear curious, and worth investigating, in many other fields in which public interests are at stake.
This is what this chapter starts doing. It offers to put the starting point of this investigation in knowledge, empirically acquired and then abstractly, intuitively typologized. The chapter moves in two main parts. The first asks questions such as: What sort of literature has the field produced? By whom and citing whom? On what topics? Which journals structure the field, which landmark books have guided it? Who are, citation-wise, the great, impactful authors of international arbitration, and how do they cluster in groups? We seek to answer these questions with a scientometric analysis. The second part of the chapter then offers a typology of the main types of literature that fuel the field, and suggests hopefully credible hypotheses about the factors that determine what gets written, by whom, and where.
- Shin-yi Peng, The Rule of Law in Times of Technological Uncertainty: Is International Economic Law Ready For Emerging Supervisory Trends?
- Heng Wang, China’s Approach to the Belt and Road Initiative: Scope, Character and Sustainability
- Rafael Lima Sakr, Beyond History and Boundaries: Rethinking the Past in the Present of International Economic Law
- The Historical Lens in International Economic Law Steve Charnovitz
- Juscelino F Colares & Mustafa T Durmus, TURK-SWITCH: The Tariff-Leverage and Legal Case for Turkey’s Switch from EU–Turkey Customs Union to FTAs with the European Union and Beyond
- Aurelio Gurrea-Martínez & Nydia Remolina, The Dark Side of Implementing Basel Capital Requirements: Theory, Evidence, and Policy
Sundstrom, Sperling, & Sayoglu: Courting Gender Justice: Russia, Turkey, and the European Court of Human Rights
Women and the LGBT community in Russia and Turkey face pervasive discrimination. Only a small percentage dare to challenge their mistreatment in court. Facing domestic police and judges who often refuse to recognize discrimination, a small minority of activists have exhausted their domestic appeals and then turned to their last hope: the European Court of Human Rights (ECtHR). The ECtHR, located in Strasbourg, France, is widely regarded as the most effective international human rights court in existence. Russian citizens whose rights have been violated at home have brought tens of thousands of cases to the ECtHR over the past two decades. But only one of these cases resulted in a finding of gender discrimination by the ECtHR-and that case was brought by a man. By comparison, the Court has found gender discrimination more frequently in decisions on Turkish cases. Courting Gender Justice explores the obstacles that confront citizens, activists, and lawyers who try to bring gender discrimination cases to court. To shed light on the factors that make rare victories possible in discrimination cases, the book draws comparisons among forms of discrimination faced by women and LGBT people in Russia and Turkey. Based on interviews with human rights and feminist activists and lawyers in Russia and Turkey, this engaging book grounds the law in the personal experiences of individual people fighting to defend their rights.
- Joyeeta Gupta, What does UN environment’s GEO-6 mean for INEA?
- Frank Biermann & Ina Möller, Rich man’s solution? Climate engineering discourses and the marginalization of the Global South
- Azusa Uji, Institutional diffusion for the Minamata Convention on Mercury
- Carmen Rodríguez Fernández-Blanco, Sarah L. Burns, & Lukas Giessen, Mapping the fragmentation of the international forest regime complex: institutional elements, conflicts and synergies
- Tobias Arnoldussen, The role of national problems in European air quality regulation: the process of amplification
- Karen Holm Olsen, Fatemeh Bakhtiari, Virender Kumar Duggal, & Jørge Villy Fenhann, Sustainability labelling as a tool for reporting the sustainable development impacts of climate actions relevant to Article 6 of the Paris Agreement
Since 2006 the United Nations General Assembly (UNGA) has been discussing the question of the conservation and sustainable use of biodiversity in areas beyond national jurisdiction. Following the issues raised by the Ad Hoc Working Group (2006 – 2015) and the Preparatory Commission (2016 – 2017) in 2017 the UNGA agreed to convene an intergovernmental conference to discuss these issues. Conserving Biodiversity in Areas beyond National Jurisdiction, edited by David Freestone, brings together a collection of essays covering some of the key issues involved in these debates. The essays are contributed by a number of distinguished scholars and practitioners – many of whom are involved in the UNGA negotiations – and are a useful reference for actors involved in the negotiations as well as for practitioners, scholars, and students following the process.
What should the ICC do when it cannot rely on cooperation from the states that would ordinarily be best placed to assist it, such as the state(s) where the crimes occurred or whose nationals are the victims and/or perpetrators? Non-cooperation may arise from such state being unwilling to assist, for example because its agents are implicated in the crimes. Or the authorities may be unable to provide assistance due to insufficient control of territory, weak governance, or lack of means. In some areas, de facto cooperation and access to territory may be dependent on an opposing armed group, a separatist authority or a foreign occupying power – rendering the de jure authorities effectively ‘absent’. In other circumstances, the Court’s work may be interfered with by attempts to corruptly influence the judicial process. The ICC’s dilemma is made more complicated given its raison d'être to intervene where the national authorities have failed in their primary responsibility to investigate and prosecute. But how can it do this if any those same authorities cannot or will not assist it? Should the ICC decline to operate where it cannot rely on effective cooperation, but risk a persistence of impunity? Or should it endeavour even where cooperation prospects are not favourable, but risk institutional failure? In other words, can the ICC function without state compliance?
Friday, April 5, 2019
- Millicent McCreath & Zoe Scanlon, The Dispute Concerning the Delimitation of the Maritime Boundary Between Ghana and Côte d’Ivoire: Implications for the Law of the Sea
- Robert Veal, Michael Tsimplis & Andrew Serdy, The Legal Status and Operation of Unmanned Maritime Vehicles
- Michael Sheng-ti Gau, The Interpretation of Article 121(3) of UNCLOS by the Tribunal for the South China Sea Arbitration: A Critique
- Hao Duy Phan, International Courts and State Compliance: An Investigation of the Law of the Sea Cases
Thursday, April 4, 2019
Wednesday, April 3, 2019
This chapter identifies three perspectives for thinking and criticizing mass atrocity trials, through an analysis of three non-legal sources. First, through an engagement with Hannah Arendt’s writing on the Eichmann trial, it discusses the rule of law genre of critique, in which mass atrocity trials are constantly suspected of becoming “show trials.” Second, it turns to Shoshana Felman’s work on the same trial, to identify a genre of critique premised on an experience of catharsis, in which the trauma of atrocity’s victims is alleviated (constituting post-atrocity political community). Third, it analyzes The Hangman, a 2010 film about Eichmann’s executioner, who suffered trauma following the hanging the convict, illustrating the unacknowledged risks of wielding the violence of criminal justice. Based on this “hangman’s perspective”, the chapter suggests that mass atrocity trials must be assessed in light of the questions: what transnational allocation of such risks do such trials rely upon? What preexisting inequalities, economic, ethnic, and other, determine the roles different people will end up playing in trials? At times, the need to enforce criminal justice makes some of us seem worthy of sacrifice.
Tuesday, April 2, 2019
- Special Section: New directions in the IPE of Energy
- Caroline Kuzemko, Andrew Lawrence & Matthew Watson, New directions in the international political economy of energy
- Peter Newell, Trasformismo or transformation? The global political economy of energy transitions
- Benjamin K. Sovacool & Götz Walter, Internationalizing the political economy of hydroelectricity: security, development and sustainability in hydropower states
- Caroline Kuzemko, Re-scaling IPE: local government, sustainable energy and change
- Kate J. Neville, Jackie Cook, Jennifer Baka, Karen Bakker & Erika S. Weinthal, Can shareholder advocacy shape energy governance? The case of the US antifracking movement
- Diego Fossati, Embedded diasporas: ethnic prejudice, transnational networks and foreign investment
- Sung-Young Kim, Hybridized industrial ecosystems and the makings of a new developmental infrastructure in East Asia’s green energy sector
- Bentley B. Allan, Paradigm and nexus: neoclassical economics and the growth imperative in the World Bank, 1948–2000
- Hani Sayed, The Regulatory Function of the Turn to Anti-Impunity in the Practice of International Human Rights Law
- Khagesh Gautam, The Use of International law in Constitutional Interpretation in the Supreme Court of India
- Guobin Zhu & Antonios Kouroutakis, The Role of the Judiciary and the Supreme Court in the Constitution-Making Process: The Case of Nepal
- Daniel C.K. Chow & Ian Sheldon, Is Strict Reciprocity Required for Fair Trade?
- Cóman Kenny & Nikita Malik, Trafficking Terror and Sexual Violence: Accountability for Human Trafficking and Sexual and Gender-Based Violence By Terrorist Groups under the Rome Statute
- King Fung Tsang, International Multiple Derivative Actions
- Youri van Logchem, The Rights and Obligations of States in Disputed Maritime Areas: What Lessons Can Be Learned from the Maritime Boundary Dispute between Ghana and Côte d’Ivoire?
Why are certain responses to past human rights violations considered instances of transitional justice while others are disregarded? This study interrogates the history of the discourse and practice of the field to answer that question. Zunino argues that a number of characteristics inherited as transitional justice emerged as a discourse in the 1980s and 1990s have shaped which practices of the present and the past are now regarded as valid responses to past human rights violations. He traces these influential characteristics from Argentina's transition to democracy in 1983, the end of communism in Eastern Europe, the development of international criminal justice, and the South African truth commission of 1995. Through an analysis of the post-World War II period, the decolonisation process and the Cold War, Zunino identifies a series of episodes and mechanisms omitted from the history of transitional justice because they did not conform to its accepted characteristics.
- Gudrun Østby, Michele Leiby, & Ragnhild Nordås, The Legacy of Wartime Violence on Intimate-Partner Abuse: Microlevel Evidence from Peru, 1980–2009
- Michaël Aklin & Andreas Kern, Moral Hazard and Financial Crises: Evidence from American Troop Deployments
- Kathleen M Jennings, Conditional Protection? Sex, Gender, and Discourse in UN Peacekeeping
- Andrew Boutton, Coup-Proofing in the Shadow of Intervention: Alliances, Moral Hazard, and Violence in Authoritarian Regimes
- David B Carter, Rachel L Wellhausen, & Paul K Huth, International Law, Territorial Disputes, and Foreign Direct Investment
- Michael Poznansky, Feigning Compliance: Covert Action and International Law
- Jon C W Pevehouse & Felicity Vabulas, Nudging the Needle: Foreign Lobbies and US Human Rights Ratings
- Geoff Dancy, Bridget E Marchesi, Tricia D Olsen, Leigh A Payne, Andrew G Reiter, & Kathryn Sikkink, Behind Bars and Bargains: New Findings on Transitional Justice in Emerging Democracies
- Devin K Joshi, J S Maloy, & Timothy M Peterson, Popular versus Elite Democracies and Human Rights: Inclusion Makes a Difference
- Daniel W Hill, Jr & K Anne Watson, Democracy and Compliance with Human Rights Treaties: The Conditional Effectiveness of the Convention for the Elimination of All Forms of Discrimination against Women
- Inken von Borzyskowski & Felicity Vabulas, Credible Commitments? Explaining IGO Suspensions to Sanction Political Backsliding
- In Song Kim, Helen V Milner, Thomas Bernauer, Iain Osgood, Gabriele Spilker &, Dustin Tingley, Firms and Global Value Chains: Identifying Firms’ Multidimensional Trade Preferences
- Dan Alexander & Bryan Rooney, Vote-Buying by the United States in the United Nations
- Amir Lupovici, Toward a Securitization Theory of Deterrence
- Halvard Leira, The Emergence of Foreign Policy
- Ilan Zvi Baron, Jonathan Havercroft, Isaac Kamola, Jonneke Koomen, Justin Murphy, & Alex Prichard, Liberal Pacification and the Phenomenology of Violence
- Thijs Etty, Veerle Heyvaert, Cinnamon Carlarne, Bruce Huber, Jacqueline Peel, & Josephine van Zeben, Protecting the Tangible and Intangible Values of Transnational Environmental Spaces
- Louis Kotzé, A Global Environmental Constitution for the Anthropocene?
- Herdis Hølleland, Evan Hamman, Jessica Phelps, Naming, Shaming and Fire Alarms: The Compilation, Development and Use of the List of World Heritage in Danger
- Benjamin J. Richardson, Emily Barritt, Megan Bowman, Beauty: A Lingua Franca for Environmental Law?
- Joseph Wenta, Jan McDonald, Jeffrey S. McGee, Enhancing Resilience and Justice in Climate Adaptation Laws
- Prischa Listiningrum, Transboundary Civil Litigation for Victims of Southeast Asian Haze Pollution: Access to Justice and the Non-Discrimination Principle
- Jerneja Penca, Transnational Localism: Empowerment through Standard Setting in Small-Scale Fisheries
Monday, April 1, 2019
Vidigal: Living Without the Appellate Body: Hegemonic, Fragmented and Network Authority in International Trade
The Appellate Body has asserted extensive authority over the rules governing global trade relations, proclaiming its ultimate authority to determine the prevailing interpretation of the rules of the World Trade Organization (WTO) as well as to control the extent to which extra-WTO norms can validate deviations from WTO rules. Its dominance over the trade regime is now threatened by two developments: the multiplication, sophistication and increased significance of regional trade agreements and the crisis over Appellate Body appointments. Examining these developments, this paper argues that the Appellate Body’s ‘hegemonic authority’ over the trade regime could be replaced by ‘fragmented authority’, with various adjudicators making decisions independently without possibility to refer divergences to a centralizing authority. The continued coherence of the trade regime may depend on the ability of trade adjudicators to establish ‘network authority’, providing the interpretive community that operates the trade regime with security and predictability as regards the application of norms. Three elements may be key for this: references in regional trade agreements to WTO rules and jurisprudence, the predisposition of adjudicators to pursue coherence and follow past decisions, and the existence of repeat players in trade adjudication who are themselves Members of this interpretive community.
- Ignacio de la Rasilla & Jorge E. Viñuales, Introduction
- Jorge E. Viñuales, Experiments in International Adjudication: Past and Present Ignacio de la Rasilla, The Turn to the History of International Adjudication
- Inge van Hulle, Imperial Consolidation through Arbitration: Territorial and Boundary Disputes in Africa (1870–1914)
- Jan Martin Lemnitzer, How to Prevent a War and Alienate Lawyers: The Peculiar Case of the 1905 North Sea Incident Commission
- Gerard Conway, The Arbitral Tribunal for Upper Silesia: An Early Success in International Adjudication
- Frédéric Mégret, Mixed Claim Commissions and the Once Centrality of the Protection of Aliens
- Jean d’Aspremont, The General Claims Commission (Mexico/US) and the Invention of International Responsibility
- Cesare P. R. Romano, Mirage in the Desert: Regional Judicialization in the Arab World
- Andrei Mamolea, Saving Face: The Political Work of the Permanent Court of Arbitration (1902–1914)
- Freya Baetens, First to Rise and First to Fall: The Court of Cartago (1907–1918)
- Donal K. Coffey, The Failure of the 1930 Tribunal of the British Commonwealth of Nations: A Conflict between International and Constitutional Law
- Angelo Jr Golia & Ludovic Hennebel, The Intellectual Foundations of the European Court of Human Rights
- Morten Rasmussen, From International Law to a Constitutionalist Dream? The History of European Law and the European Court of Justice (1950–1993)
Sunday, March 31, 2019
Rossi: Whiggish International Law: Elihu Root, the Monroe Doctrine, and International Law in the Americas
International law’s turn to history in the Americas receives invigorated refreshment with Christopher Rossi’s adaptation of the insightful and inter-disciplinary teachings of the English School and Cambridge contextualists to problems of hemispheric methodology and historiography. Rossi sheds new light on abridgments of history and the propensity to construct and legitimize whiggish understandings of international law based on simplified tropes of liberal and postcolonial treatments of the Monroe Doctrine. Central to his story is the retelling of the Monroe Doctrine by its supreme early twentieth century interlocutor, Elihu Root and other like-minded internationalists. Rossi’s revival of whiggish international law cautions against the contemporary tendency to re-read history with both eyes cast on the ideological present as a justification for misperceived historical sequencing.
- The ICJ and the compensation for environmental damage in Nicaragua/Costa Rica case: Does the application of equitable principles offset independent technical expertise?
- Introduced by Elena Fasoli
- Kévine Kindji & Michael Faure, Assessing reparation of environmental damage by the ICJ: A lost opportunity?
- Federica Cittadino, Scientia novit curia? Damage evaluation methods and the role of experts in the Costa Rica v Nicaragua case
Hsieh & Mercurio: ASEAN Law in the New Regional Economic Order: Global Trends and Shifting Paradigms
The fast-growing last decade of strong economic growth of the Association of Southeast Asian Nations (ASEAN) has played a critical role in Asia-Pacific regionalism and global trade. This book explores the concept of ASEAN law under the normative framework of the new regional economic order. It examines the roadmap of the new ASEAN Economic Community Blueprint 2025 by evaluating the impact of ASEAN trade agreements on domestic legislation on professional services, financial integration, investment disputes and digital trade. More importantly, it sheds light on the legal implications of ASEAN's agreements with China and India and the potential developments of mega-regional trade agreements such as the CPTPP and the RCEP. Hence, the legal analysis and case studies in the book offer a fresh view of Asia-Pacific integration and bridge the gap between academia and practice.
Fach Gómez & Mercedes López: Rodríguez 60 Years of the New York Convention: Key Issues and Future Challenges
60 Years of the New York Convention addresses a wide range of legal issues related to the application of the New York Convention in the context of international commercial arbitration and international investment arbitration. Worldwide interest in the recognition and enforcement of arbitral awards has never been higher, and the New York Convention of 1958, currently adhered to by 159 States including the major trading nations, remains the most successful treaty in this area of commercial law. This incomparable book, marking the Convention’s 60th anniversary, provides a fully updated analysis of the Convention’s application from international, comparative, and national perspectives.
Investment treaty arbitration (sometimes called investor-state dispute settlement or ISDS) has become a flashpoint in the backlash against globalization, with costs becoming an area of core scrutiny. Yet "conventional wisdom" about costs is not necessarily wise. To separate fact from fiction, this book tests claims about investment arbitration and fiscal costs against data so that policy reforms can be informed by scientific evidence. The exercise is critical, as investment treaties grant international arbitrators the power to order states-both rich and poor-to pay potentially millions of dollars to foreign investors when states violate the international law commitments made in the treaties. Meanwhile, the cost to access and defend the arbitration can also climb to millions of dollars.
This book uses insights drawn from cognitive psychology and hard data to explore the reality of investment treaty arbitration, identify core demographics and basic information on outcomes, and drill down on the costs of parties' counsel and arbitral tribunals. It offers a nuanced analysis of how and when cost-shifting occurs, parses tribunals' rationalization (or lack thereof) of cost assessments, and models the variables most likely to predict costs, using data to point the way towards evidence-based normative reform. With an intelligent interdisciplinary approach that speaks to ongoing reform at entities like the World Bank's ICSID and UNCITRAL, this book provides the most up-to-date study of investment treaty dispute settlement, offering new insights that will shape the direction of investment treaty and arbitration reform more broadly.
- Shea Elizabeth Esterling & Michael John-Hopkins, The Creation and Protection of History through the Prism of International Criminal Justice in Al Mahdi
- Etienne Kuster, Promoting the Teaching of IHL in Universities: Overview, Successes, and Challenges of the ICRC’s Approach
- Antônio Augusto Cançado Trindade, Reflections on the International Adjudication of Cases of Grave Violations of Rights of the Human Person