Lectures on international law issues by eminent scholars, practitioners and judges of national and international courts. The lecture series is brought to you by the Public International Law Discussion Group, part of the Law Faculty of the University of Oxford, and is supported by the British Branch of the International Law Association and Oxford University Press. Further details of this series can be found on the Public International Law at Oxford website.
The Rise of Investor-State Arbitration: Rethinking Key Moments
What explains the rise of investor-state arbitration? To the extent that investor-state arbitration had founding fathers, what were their motivations, what constraints did they have, what was their thinking? Using documents from the American, British, German, and Swiss archives, this talk will revisit three moments: the initial vision for a standalone arbitration convention (the ICSID Convention), European governments’ decisions to add consent to arbitration into their investment treaties, and America’s late embrace of investor-state arbitration. Revisiting these moments with internal documents suggests a need to rethink conventional narratives about who and what drove the development of investor-state arbitration.
Taylor St John is Lecturer in International Relations at the University of St Andrews. She researches the history and politics of investment law. Her monograph, The Rise of Investor-State Arbitration: Politics, Law, and Unintended Consequences, was published by Oxford University Press in 2018. She is currently researching ISDS reform processes, and co-authors the EJIL Talk! blogs on the UNCITRAL negotiations with Professor Anthea Roberts. She was previously Postdoctoral Research Fellow, PluriCourts, University of Oslo and before that, Fellow in International Political Economy, London School of Economics. She received a DPhil and MSc from the University of Oxford. Creative Commons Attribution-Non-Commercial-Share Alike 2.0 UK: England & Wales; http://creativecommons.org/licenses/by-nc-sa/2.0/uk/
The Internalisation of Investment Treaties and the Rule of Law Promise
Investment treaties are often said to have two principal effects for the states that enter into them. First, it is asserted that investment treaties act to increase levels of foreign investment in host states. Second, it is said that investment treaties have a positive effect on national governance. Out of their desire to avoid liability for breaches of investment treaties, the argument is made, states will internalize their international legal obligations, reform their policy-making processes, and thereby improve the quality of national governance, notably, the rule of law (the “rule of law” thesis).
Although there is substantial empirical scholarship on the relationship between investment treaties and foreign investment flows (the findings of which have been, at best, ambiguous), there has been little empirical research on the effects of investment treaties on national governance. Further, the rule of law thesis is rooted in a traditional, rational-choice theory of the state as an actor making preference-maximizing decisions on the basis of cost-benefit analyses. Given the benefits of compliance and the costs of violation, a rational choice model predicts that states, on balance, will gain more from compliance, and as such, expects them, for the most part, to internalize their obligations and comply with them. There is, however, reason to be skeptical about these assumptions, especially in the developing world.
Drawing on eight qualitative empirical case studies, we uncover whether and to what extent a select group of Asian countries – Vietnam, Indonesia, Singapore, Sri Lanka, South Korea, Myanmar, Thailand and India – have internalized their treaty obligations, and what factors have affected this internalization. Furthermore, we assess what impact, if at all, this internalisation has had on national governance. In so doing, our findings shed light on the actual effects of investment treaties, thereby contributing to the emerging field of empirical studies of international investment law (and international law in general), as well as to a growing literature on the significance of international law in Asia.
Moreover, building on the public policy literature, we open up the ‘black box’ of the government and public administration and introduce insights regarding how obligations contained in international treaties come to be internalized and diffused within them, and what factors impact whether and the extent to which this happens. Ultimately, compliance with international obligations often rests on the willingness and ability of government officials and public bureaucrats to adhere, yet for the most part, international legal scholarship has had little to say about the intricacies of the internalization and diffusion of international obligations and how international obligations are actually, if at all, incorporated by policy-makers. In this project, we provide reason to believe that the dynamics and complexities of government and public administration, especially in the developing world, makes the diffusion and internalization of investment treaty commitments a far more complex and messy process than proponents of the rule of law thesis have assumed.
N Jansen Calamita is the Head of Investment Law and Policy at the Centre for International Law at the National University of Singapore, where he is also Research Associate Professor in the Faculty of Law. He was previously Director of the Investment Treaty Forum at the British Institute of International and Comparative Law and has held posts at the University of Birmingham and the University of Oxford.
Prior to entering academics, Mr Calamita served in the Office of the Legal Adviser in the US Department of State (International Claims and Investment Disputes Division) and as a member of the UNCITRAL Secretariat. He began his career in private practice in New York
Due Diligence: An Obligation under International Law
This talk will examine the legal nature of due diligence, namely whether it is a free-standing obligation under customary international law or a standard by which compliance with specific obligations may be assessed. It will be shown that there is a significant number of common elements in the analysis of due diligence as it is performed by international courts and tribunals, notwithstanding the specificities of the underlying subject matter. In doing so, this presentation will bring into question the validity of the recurring assumption that the content of due diligence differs fundamentally across various branches of international law.
Dr Vladyslav Lanovoy is an Associate Legal Officer at the International Court of Justice. He is also a Lecturer at Lille Catholic University and a Teaching Fellow at Queen Mary University of London. He holds a PhD in international law from the Graduate Institute of International and Development Studies in Geneva and is the author of Complicity and its Limits in the Law of International Responsibility (Hart 2016), which was awarded the 2017 Paul Guggenheim Prize in International Law. He has previously worked at Freshfields Bruckhaus Deringer LLP and at the Permanent Court of Arbitration. He has also consulted for the UN Office of the High Commissioner for Human Rights and the UN Environment Programme. His research interests include the law of international responsibility, dispute settlement, the law of the sea, human rights law and international economic law.
Interpretation of Security Council Resolutions and the Status of Explanation of Votes
Even though UN Security Council resolutions may have major consequences for the disputes and states concerned, some of the resolutions are ambiguous in their meaning. This raises questions about the appropriate means of interpreting Security Council resolutions. In the process of interpreting Security Council resolutions, explanation of votes may have a role. Explanation of votes are not provided for in Security Council Provisional Rules of Procedure. However, members of the Security Council may make statements in connection with their votes. These remarks are in the Council called "statements before the vote" or "statements after the vote". Dr. Klamberg will discuss the phenomena of explanation of votes and their status, including an analysis of explanation of votes made in relation to selected examples of controversial Security Council resolutions.
Dr Mark Klamberg is a research fellow during 2018/2019 at the Institute of European and Comparative Law (IECL) and affiliated with Christ Church College, Oxford. He is an Associate Professor, Senior Lecturer in Public International Law at Stockholm University and a visiting lecturer at Edinburgh University. He is currently the principal investigator of the project "Does International Law Matter? The UN Security Council and State Actions" funded by the Swedish Research Council 2018-2021. He has previously been an Associate Professor and Senior Lecturer in Public International Law at Uppsala University. He is the author of several publications on international criminal law, surveillance, privacy and other fields of international law, including 'Evidence in International Criminal Trials: Confronting Legal Gaps and the Reconstruction of Disputed Events' (Martinus Nijhoff Publishers, 2013) and 'Power and Law in the International Society - International Relations as the Sociology of International Law' (Routledge, 2015). He is the chief editor of the 'Commentary on the Law of the International Criminal Court' (TOAEP, 2017). He has also published articles in International Criminal Law Review, Journal of International Criminal Justice, Nordic Journal of International Law, Georgetown Journal of International Law and book sections published by Martinus Nijhoff Publishers and Oxford University.
Regime Interaction in Ocean Governance
Oceans are increasingly under pressure; be it for the multiplication and diversification of economic activities performed at sea, for the consequences of climate change, or for the deterioration of their environmental health. Several international bodies and a plethora of international instruments regulate, influence and shape what is happening in the oceans. Moreover, actors at different levels of governance participate in what it is commonly called ocean governance. But what is ocean governance? Which are the different actors and instruments involved? How do they interact in dealing with ocean affairs? Those are some of the questions that the Sustainable Ocean project (ERC grant agreement No 639070) deals with in order to answer the overarching research question: how can the law contribute to the sustainable use of the ocean and strike a balance between competing interests at sea?
Regime interaction is here analysed and used as a legal modus operandi, as an existing legal behaviour. We do not engage with the debate whether regime interaction is inherently beneficial or detrimental to the international legal order. Similarly, the research project adopts a concept of ocean governance which is mainly descriptive of processes, instruments and actors involved in oceans affairs and management.
In this presentation, I would like to present and discuss the partial results of our research which stem from a workshop we organised in April 2019 on ‘Regime Interaction in Ocean Governance: Problems, theories and methods’. The partial results can be synthesised in the this diagram that identifies three categories of interaction (interactive form; interactive substance; interactive process) and that proposes a lens through which analyse and handle instances of interaction.
Seline Trevisanut (PhD, Milan; MA, Paris I) is Professor on International Law and Sustainability at Utrecht University and currently principal investigator of the ERC Starting Grant Project ‘Sustainable Ocean’ (2015-2020). Before joining Utrecht in 2012, she taught courses and conducted research at Columbia University, at the European University Institute, at the Max Planck Institute for Comparative Public Law and International Law, at the National University of Singapore and at UC Berkeley. Her publications include inter alia edited volumes on Foreign Investment, International Law and Common Concerns (Routledge 2014), and on Energy from the Sea: An International Law Perspective on Ocean Energy (Brill 2015), and a forthcoming monograph on The International Law of Offshore Installations: Through Fragmentation Towards Better Governance (Cambridge University Press 2019).
Corporations and Human Rights Regulation
This talk will consider the regulation of corporations for the human rights impacts of their activities. It will include the role of legislation, industry sectors and civil society, as well as courts, in regulation of the actions of corporations that abuse human rights. It will use the framework of developments in the area of responsible business conduct, especially of human rights due diligence.
Professor Robert McCorquodale is Professor of International Law and Human Rights at the University of Nottingham, barrister at Brick Court Chambers in London, and Founder and Principal of Inclusive Law, a consultancy on business and human rights. He was the Director of the British Institute of International and Comparative Law for 10 years. He has published widely in all these areas, and engaged closely with governments, corporations, international institutions and civil society in his work.