LCIL International Law Seminar Series Cambridge University

Lecture 2: 'Exploring Nexus'

A series of three lectures by Dr. B.S.Chimni, Distinguished Professor of International Law, O.P. Jindal Global University. Previously, he was for over three decades Professor of International Law, School of International Studies, Jawaharlal Nehru University. Between 2004-2006 he was the Vice Chancellor of the W.B. National University of Juridical Sciences, Kolkata. He has been a Visiting Professor at Brown and Tokyo universities, the Graduate Institute, Geneva and the American University of Cairo, and has been visiting fellow at Harvard, Minnesota, and York (Canada) universities and the Institute of Advanced Studies, Nantes. He is an associate member of Institut de Droit International, and Member, Academic Council, Institute for Global Law and Policy (IGLP), Harvard Law School. He is former Vice-President Asian Society of International law and at present Member of its Advisory Council. He is a member of the editorial board of American Journal of International Law and also the former Editor-in-Chief of the Indian Journal of International Law. In 2022 he was honored by the American Society of International Law with its Honorary Membership. The University of London has instituted a scholarship in his name for the MA in Refugee Protection and Forced Migration Studies by distance-learning. He has also received an honorary doctorate from the University of Gothenburg, Sweden. He is the author of International Law and World Order: A Critique of Contemporary Approaches. He is closely associated with the Third World Approaches to International Law (TWAIL) movement.

Lecture 1: 'Mapping the Terrain'

A series of three lectures by Dr. B.S.Chimni, Distinguished Professor of International Law, O.P. Jindal Global University. Previously, he was for over three decades Professor of International Law, School of International Studies, Jawaharlal Nehru University. Between 2004-2006 he was the Vice Chancellor of the W.B. National University of Juridical Sciences, Kolkata. He has been a Visiting Professor at Brown and Tokyo universities, the Graduate Institute, Geneva and the American University of Cairo, and has been visiting fellow at Harvard, Minnesota, and York (Canada) universities and the Institute of Advanced Studies, Nantes. He is an associate member of Institut de Droit International, and Member, Academic Council, Institute for Global Law and Policy (IGLP), Harvard Law School. He is former Vice-President Asian Society of International law and at present Member of its Advisory Council. He is a member of the editorial board of American Journal of International Law and also the former Editor-in-Chief of the Indian Journal of International Law. In 2022 he was honored by the American Society of International Law with its Honorary Membership. The University of London has instituted a scholarship in his name for the MA in Refugee Protection and Forced Migration Studies by distance-learning. He has also received an honorary doctorate from the University of Gothenburg, Sweden. He is the author of International Law and World Order: A Critique of Contemporary Approaches. He is closely associated with the Third World Approaches to International Law (TWAIL) movement.

Lecture 3: 'Reframing Doctrines'

A series of three lectures by Dr. B.S.Chimni, Distinguished Professor of International Law, O.P. Jindal Global University. Previously, he was for over three decades Professor of International Law, School of International Studies, Jawaharlal Nehru University. Between 2004-2006 he was the Vice Chancellor of the W.B. National University of Juridical Sciences, Kolkata. He has been a Visiting Professor at Brown and Tokyo universities, the Graduate Institute, Geneva and the American University of Cairo, and has been visiting fellow at Harvard, Minnesota, and York (Canada) universities and the Institute of Advanced Studies, Nantes. He is an associate member of Institut de Droit International, and Member, Academic Council, Institute for Global Law and Policy (IGLP), Harvard Law School. He is former Vice-President Asian Society of International law and at present Member of its Advisory Council. He is a member of the editorial board of American Journal of International Law and also the former Editor-in-Chief of the Indian Journal of International Law. In 2022 he was honored by the American Society of International Law with its Honorary Membership. The University of London has instituted a scholarship in his name for the MA in Refugee Protection and Forced Migration Studies by distance-learning. He has also received an honorary doctorate from the University of Gothenburg, Sweden. He is the author of International Law and World Order: A Critique of Contemporary Approaches. He is closely associated with the Third World Approaches to International Law (TWAIL) movement.

Lecture summary: International economic law binds the state in relation to markets – most prominently with respect to cross-border trade in goods and services (trade) and the cross-border flow of capital (investment). The core tension to be managed in treaty design involves the balance between economic disciplines and the sovereign’s reserved regulatory authority – between liberalization and policy space. The trade regime has been fairly successful in striking this balance, while the investment regime has been less so. As a result, a natural tendency among reformers has been to look to trade for lessons and solutions to the challenges of investment treaties. This lecture considers why mechanisms that have worked in the former context have proven unworkable in the latter, and what that means for design going forward.

Both the trade and investment regimes preserve policy space through a process of justification at the dispute settlement stage. Policy justification is built into most trade agreements (and some investment treaties) through formal exceptions clauses. Even in the absence of such clauses, exceptions-style justification has informally penetrated both regimes through adjudicative reasoning and borrowing. This "exceptions paradigm" of justification has worked well in trade treaties, where it has been especially key to securing a workable balance in the WTO/GATT context – in a coherent way, on which actors can plan ex ante. But, where tried, the exceptions paradigm has not worked out in the investment regime. I argue that the difference lies in the institutions within which trade and investment rules and exceptions are embedded. This lecture compares the trade and investment regimes across three institutional nodes: (1) the nature of the right of action (public vs private); (2) the degree of judicial centralization (court system vs ad hoc arbitration); and (3) the available remedies (prospective injunctive relief vs retrospective damages). I suggest that it is trade law's public-oriented institutions that have made the exceptions clause workable – not the other way around. By contrast, investment law's private-oriented institutions make that system particularly inhospitable to exceptions-style justification.

Julian Arato is a professor of law at the University of Michigan Law School. His scholarly expertise spans the areas of public international law, international economic law, and private law. Arato serves as a member of the board of editors of the American Journal of International Law. He is active in the governance of the American Society of International Law, having recently served on the executive council and as co-chair of the international economic law interest group. He also serves as chair of the Academic Forum on Investor-State Dispute Settlement and as a member of the Institute for Transnational Arbitration Academic Council. Since 2018, Arato has served as an observer delegate to the United Nations Commission on International Trade Law Working Group III (ISDS Reform).

Lecture Summary: The survival of our planet requires swift and targeted climate policies to adapt, mitigate and repair. Scientists and political elites acknowledge the urgency to reduce our reliance on coal and fossil fuels to achieve the necessary reduction in greenhouse gas emissions. Academics have been studying the impacts of investment treaty protections on climate action and argued that investment treaties raise the cost of climate action, financially and via regulatory chill and limit their ability to combat climate change. There also have been instances where investment treaties protected investors in the renewable energy sector leading to the argument that international investment law can support transition to renewable energy. This lecture will reflect on the compatibility of states’ existing investment treaty obligations with their climate obligations. It will consider the consequences of investment law’s distaste of local politics, stakeholder participation and public protest, which are essential to the realization of the right to a healthy environment, climate policy-making, and more broadly to democratic governance.

Anil is a Senior Lecturer at Essex Law School and a co-director of the Essex Business and Human Rights Project. Her research interests are in the fields of international investment law and business and human rights. Her research bridges the gap between corporate law, international investment law, human rights law, and tort law, examining how these areas can and should interact to operationalise human rights standards in the modern business context. She has published works on parent-subsidiary relationships in the business and human rights context, non-financial reporting, duty of care in supply chain relationships, human rights in investment contracts and the embedded inequalities in the investment treaty regime. She is the author of The Nationality of Corporate Investors under International Investment Law (2020, Hart Publishing), a member of the IEL Collective’s steering committee and a member of Teaching Business and Human Rights Forum’s governance committee.

Lecture summary: United Nations (UN) and several UN Agencies have started to use behavioural sciences in order to achieve their policy goals, including for achieving the Sustainable Development Goals (SDG). While it is to be appreciated that insights on actual behavior inform policy making of international actors, they raise scientific and normative considerations warranting caution. First, for those considerations it matters, who the acting and the targeted actors are, that is, where and for what behavioral sciences are used (inter-state or targeting citizens). Behavioural interventions come in many facets and warrant a differentiated view – a finely built roadmap is thus desirable. Second, there are concerns about the internal and external validity of experimental research on which behavioural sciences largely, but not solely, draws. Third, taking a differentiated view on behavioral sciences also allows for a more finely grained view on normative concerns underlying the operations of the United Nations. This contribution spells out those considerations while still advocating for the approach as such.

Reading material: https://www.uninnovation.network/assets/BeSci/UN_Behavioural_Science_Report_2021.pdf

Anne van Aaken (Dr. iur. and MA Economics) is Alexander von Humboldt Professor for Law and Economics, Legal Theory, Public International Law and European Law and Director of the Institute of Law and Economics, University of Hamburg. She was Vice-President of the European Society of International Law and is Chair of the European University Institute Research Council. She is a general editor of Journal of International Dispute Settlement and a member of the editorial boards of AJIL, the Journal of International Economic Law, International Theory, and EJIL (until 2021). She was a guest professor in Europe, Africa, Asia, Latin America and the USA (Global Law Professor at NYU and Columbia). She has been expert consultant for the IBRD, UNCTAD, GIZ, OECD and the UN High Level Advisory Board of Effective Multilateralism. Her research focuses on international (economic) law, international governance, behavioral economics/psychology and international legal theory. She has published widely on those topics.