Two days ago, the European Commission released a document in which it suggests the creation of a permanent court – actually, two courts – to resolve investment disputes in the Transatlantic Trade and Investment Partnership. Florian Grisel (CNRS, King’s College London) and I comment on this, in the form of historical background from a century ago, in a piece for the French newspaper Le Monde.
All posts by thomasschultzlaw
A smart reply to some of my arguments in Transnational Legality
Sergey Tretyakov has written a very good paper taking on some of the arguments I make in Transnational Legality – more precisely the idea that something is or isn’t law, but cannot be law to higher or lower degrees. I think legality does not obtain by degrees (it is an on/off feature), he thinks differently. The article is smartly done and offers a good read. (I still think I’m in the right though.)
Le Monde: TTIP and the polemics of investment arbitration: a few little known facts
The negotiations of the Transatlantic Trade and Investment Partenership unleashed serious polemics about the good and bad of investment arbitration. Here’s an article I wrote with Florian Grisel (CNRS, King’s College London) for the French newspaper Le Monde.
Time and the Creation of Norms of International Law
What we are willing to recognize as international law effectively creates international law. There are different forms of time, different temporalities that shape what we are willing to recognize as international law, and when we are willing to do so. This is the point I want to explore. Just a simple point. No big deal.
Time flows in different ways. Time is a social construct that we mould in different ways depending on what we want to use it for, what we want to make sense of. My speaking time right now is moulded by the hands – some poetry just this once – is moulded by the hands of the watch on my chairman’s wrist. It is a form of time, a temporality as Edmund Husserl put it, that is measured in minutes and seconds. My speaking time is not shaped or measured by the time it takes me to make my point. This is a time of ticking clocks, not of flowing ideas. It is a physical temporality, not an ideational temporality, if you will.
Now we can also use different ways to measure time, different temporalities, find different landmarks in time to account for the problem that preoccupies us: the creation of norms of international law.
But before I get into this, I should explain this curious thing I said in my first sentence: what we are willing to recognize as international law effectively creates international law.
What I mean by this is the idea that international law, just as law generally, is a noetic unity. It is a concept not represented, not constrained as a concept by anything except our ideas about it. Law is whatever we make it be. Nothing is inherently law. Nothing is inherently not law. Our thoughts, our thinking, make law law, make international law international law. Our discourse about international law is what makes international law international law.
It is what creates international law.
And so the question I want to ask is this: what are the episodes, the rhythms, the temporalities, that mark our discourses about international law? What forms of the passing of time structure our recognition of international law as international law? What temporal landmarks pattern the practice of how we think about international law?
I think we can identify at least five. Let me address them in turn.
The first relates to simple Kuhnian paradigm shifts. As we know, according to Thomas Kuhn, scientific disciplines –international law for instance – are usually organised around a central paradigm, a central idea, a central set of beliefs and values, rules of truth, shared by the members of the discipline. Think of the idea that international law is necessarily the creation of states. How norms of international law can be created depend on what the paradigm says.
But then, more or less inevitably Kuhn says, trouble comes to town. Anomalies appear. Things, phenomena not explained by the paradigm are spotted ever more frequently. And they vex. The validity of the paradigm is questioned. New candidate theories line up to become the next paradigm. The paradigm in place resists for a time but eventually resigns, allowing a new paradigm to come to the throne and rule the field, determine what’s true and what’s false in the field, what is international law and what cannot be. The new paradigm creates new norms of international law, by recognising new norms as norms of international law.
The temporality, the temporal landmark allowing us to make sense of the creation of norms of international law is, here, the temporality of paradigm shifts. Notice that this form of time is neither homogeneous, nor regular, nor easy to control.
Now, and this brings me to my second temporality, many people since Kuhn have pointed out that there is a bit too much idealism in his theory: for Kuhn, paradigm shifts occur because the new paradigm offers a better explanation than the previous one. It is scientifically better. And so science inexorably progresses. But that may not necessarily be the case.
Paradigms, central ideas in a field, can also be imposed by brute force. My paradigm is better than yours because I’m stronger, and I impose it. I impose it by inundating the field with publications by my gang mates, by organising conferences around my central idea, by launching journals that take my approach, by telling my students that mine is the only correct way of thinking, the only acceptable way of thinking. And so my school eventually prevails over yours. The field is dominated now by the New Haven school then by the NY school, now by the Chicago school then by the Cambridge school to be.
This now is the temporality of school struggles, of power struggles between schools of thought. This is the temporality of appointments in key positions around the world, of economic cycles also, or rather of cycles of economic policies regarding academia. Injecting money in certain institutions means – may well mean – injecting money in certain schools of thought, thus favouring certain rivals in the struggle between schools of thought. This empowers certain paradigms, certain understandings of what international law is. This may well amount to the creation, or the demise, of certain norms as norms of international law.
When will there be a significant dose of creation of norms of international law? One answer – one answer among many – one possible landmark for this, is when a new school of thought will prevail, prevail because it is stronger, not better.
Now what I’ve said so far, and with this I move on to my third temporality, what I’ve said so far assumes that there is only one community of international lawyers, within which different schools of thought battle for epistemological supremacy, battle for the imposition of their paradigm.
But that is a bit of a simplification. International law as a field of thought is much more fragmented than that.
International law is not the same thing for legal formalists, for the different offsprings of legal realism, for marxists and for critical legal scholars, for law & economics devotees, and so on and so forth. These are parallel, juxtaposed views, accounts of what international law is. These are parallel, juxtaposed communities of individuals who think about international law. These are parallel, juxtaposed drawings of the contours of international law. They are parallel, juxtaposed epistemic fields. They recognise, and by recognising create, different norms as norms of international law.
When a new community emerges of individuals who think about international law in a distinct way, according to a different paradigm, a different epistemology, the emergence of such a community may well mean the emergence of a new set of norms as norms of international law – in the relative view of that particular community.
So the temporality we have here is the temporality of the formation of distinct epistemic fields, which are as many distinct communities. There will be new norms of international when, among many other things, a new separate epistemic field develops that recognises such norms as norms of international law.
To my fourth temporality. Quite clearly, one’s epistemology, what one is ready to recognise as true, valid knowledge, is influenced by one’s interests. One’s epistemology is influenced by one’s interests. Think of a government lawyer, or a former government lawyer, who has interests (psychological or more tangible ones) in promoting or sustaining the power of governments. Such a person, because of his or her interests, is likely to have an epistemology that prevents him from recognising, possibly even in his or her most candid moments, that non-state actors can create norms of, say, customary international law. If one’s interest is that governments stay strong, one’s epistemology is likely to be such that only governments can create law, can create norms of international law.
So the temporality I’m talking about here is the temporality of the evolution of interests shaping epistemologies. When the interests of those who shape the thinking about international law change, their epistemology is likely to change, and the creation of norms of international law is likely to change too. Look out for such changes, and you’ll have one predictor for the creation of norms of international law.
Now what I’ve said so far is all quite rational – not rational in the sense that what I say is rational, but rational in the sense that it assumes rational behaviour on the part of those who think about international law.
But of course we aren’t always rational.
And so it may well be that our understanding of international law is, sometimes, influenced by other things than logical reasoning and calculation and empirical observation. It may be influenced, for instance, by beliefs, beliefs almost in the religious sense.
For instance, we may well believe that law is something inherently good, and that states and their collective creations are something either inherently good, or at least better than other regulators. This may lead us to believe that international law must be created by states and by states only, regardless of the evidence, regardless of the epistemological sense it makes. States, one may well believe, must not only be the foundation of the international order, but must also exercise a hegemonic domination over it, because only states, one may believe, can dispense the sort of justice we want to associate with law. Kelsen in fact at some stage admitted to doing this.
When such a belief changes, what one is ready to recognise as international may well change too, and thereby international law effectively also changes. A simple change in belief may create new norms of international law.
And so the rhythm of change in the relevant beliefs is one of the rhythms, one of the temporal landmarks, one of the temporalities of the creation, and recreation, of international law and its norms.
And so I reach my conclusion.
To someone interested in the question of how the passing of time influences the creation of norms of international law, I want to respond that part of the answer lies in how the passing of time influence how we think about international law.
What temporalities, what rhythms, what times mark the life and death of international law, mark the creation of norms of international law? Certainly, the common ideas of enactment and abrogation, of the ebbing and flowing of customs, of breaches and decisions, are pregnant answers. But they may not be the only ones: the temporalities of how we think of international law as international law offer an alternative set of ways to measure the passing of time in our efforts to understand the creation of norms of international law.
This text was the basis of a lecture given at the conference “International Law and Time“, Graduate Institute of International and Development Studies, 12-13 June 2015. It is not intended, and does not read well, as a printed text. But there you go.
Political risk materialises. Country gets sued by investor. Simple story?
It is often believed that investment arbitrations are filed because some form of political risk materialized, harming the investor’s interests. The story seems simple and convincing. But is it true? Or, a more properly academic question, when exactly is this a true story, under what conditions?
Colleagues and I have examined certain aspects of that question in a paper entitled “Types of Political Risk Leadings to Investment Arbitrations in the Oil & Gas Sector“, which is forthcoming in the Journal of World Energy Law & Business. To be specific, we examine which types of political risk, present in the host state, eventually lead oil & gas investors to file investment arbitration claims against that state.
What we find is that bad governance and economic nationalism seem indeed to be conducive to arbitration claims in the oil & gas sector. But, curiously, it appears that economic hardship does not have the same triggering effect.
Arbitral Decision-Making: Legal Realism and Law & Economics
As the social impact and role of international arbitration receives increasing attention, one central theme in this conundrum gains prominence: how do arbitrators decide cases? What influences arbitral decision-making?
With the progressive opening of scholarship in the field of arbitration to interdisciplinary approaches and studies going beyond doctrinal work, the question often takes the following form: do arbitrators apply the law, or do they make decisions based on something else – personal preferences, political biases, etc?
When empirical studies fail to find significant statistical evidence of the role of extra-legal factors in their decision-making, the conclusion is drawn that arbitrators do indeed nothing else than apply the law.
This article argues that the question so posed is an argumentative fallacy. Using the epistemology of legal realism and a simple methodology of law & economics, this article maintains that arbitrators, like every dispute resolver, are likely to always rely on both legal and extra-legal factors. It focuses on identifying, in the abstract, possible extra-legal factors which may amount to incentives and constraints placed by the current ecosystem of arbitration on arbitral decision-making.
Read the full article here.
The evolution of international arbitration as an academic field
Let us think a bit about the purposes of research in international arbitration. Why do we do research in this field? What are we trying to achieve? How good are we at doing that? How has all that changed, if it has, over the last thirty years?
Let me start with general things. In general, it is said that the purpose of any academic discipline, be it within hard sciences, social sciences, or humanities, is to articulate propositions. These propositions together form a system of thought. And this system of thought creates knowledge that is susceptible, if not of verification (think ‘empirical studies’), then at least of rational assent, of rational approval. In other words, it seek to improve our understanding of what has happened and what is likely to happen.
Of course, in law generally, much of what is published in law reviews doesn’t try to do that. It doesn’t really try to produce knowledge. It has more of an advocacy spin. It tries to produce opinion. It is something closer to religion than to social sciences (notice the connotation of the word ‘doctrine’). This type of scholarship identifies itself with the work of an appellate court, chastising or complimenting the lower court. It tries to be part of the substance of the law, to shape doctrines, to offer solutions to judges, arbitrators, and legislators.
To that, we may add what we could call reporting or, less charitably, case law journalism or legislative journalism: we are here in the realm of describing cases and legislative amendments, without really using them to form an overarching system of thought, without really trying to rationalise what is being studied.
Law, of course, is not only a theoretical corpus. It is also a social practice. The way law is actually practiced profoundly shapes the contents of the law. This leads to yet another type of scholarship, on, for instance, how witnesses are and should be cross-examined.
Then of course, there are writings that seek neither to advance our knowledge of law as a theoretical corpus or as a social practice, and not even to form opinions, but that seek to advance our knowledge of the author of the writings: if you need to hire a lawyer who’s good at a certain set of legal question, then I’m your man. Let me write something that demonstrates how good I master these questions. It’s bit like playing the violin in a masterclass.
Now, how about all of this in arbitration? How has it evolved?
First of all, arbitration has grown socially: there are quite more people who write on arbitration today than there were 30 years ago. There are more journals too, and more books.
So there’s more of it. But is it better?
I’d say it is. Be it only because arbitration scholarship, today, is more diversified. I’m oversimplifying, but were there used to be mainly doctrinal work and case law journalism, there is now, in addition to that, conceptual work, epistemological work, sociological work, socio-legal studies, critical systemic work. The methods are more diverse (think of the growth of empirical studies, for instance). There are more political discourses about arbitration, discourses about the social values that arbitration sustains, and whether that is a good idea or not. There is more interdisciplinary work, trying to bring into arbitration theoretical developments happening elsewhere, reaching out more into neighbouring fields (political science, economics, philosophy). To young people, but to everyone really, this would signal that we have more choices now when engaging in arbitration research. The field has become more ecumenical.
And there seem to be more people who write on arbitration whose socio-professional recognition does not depend, or depends to a lesser degree, on their practice of arbitration. This is important because our socio-professional interests, inevitably, shape our epistemology, they influence what we consider valid, interesting, admissible research.
A similar observation can be made about the epistemic community of arbitration – that is, the community of so-called experts (that would be us) that shapes the episteme of arbitration. The community that shapes the knowledge we have of the field, the way in which we come to apprehend it theoretically, to use it practically and to explain its operation. Well, that community has become much more diversified, much more fragmented into sub-communities, for instance the commercial lawyers, the trade lawyers, the public lawyers and the public international lawyers. Each sub-community has a somewhat different understanding of arbitration, and they don’t necessarily really talk to one another. The stars of one sub-community may have a very different standing in another sub-community, if they are known there at all.
As a result, there are more diverse discourses in arbitration today than there were 30 years ago. This matters because it means more experimentation with new ideas, and thus a greater likelihood that something really new emerges, what Thomas Kuhn would call paradigm shifts, what Gaston Bachelard would call epistemological breaks. And these are what we need to make the field progress, these are what is generally considered to make for a healthy scientific discipline.
We are probably still far behind other legal fields, such as international law, which clearly is no longer the intellectual wasteland that it was said to be 20 years ago. My sense is that arbitration is following a similar route, thanks in part, precisely, to the fact that international lawyers, but also political scientists, economists, and even militant NGOs, have joined the fray.
Of Correct Views on Law without the State
Over the decades innumerable attempts have been made to tell us what the correct view is on the question of what law without the state is. But what if there is no correct view?
Let me begin from the beginning. In many part of the world, state borders are increasingly less relevant. This is not only so for commercial transactions and arrangements, but also for the way we think of ourselves, and thus for our allegiances and for the rules we believe we should obey. It’s probably rarely been the case since the 17th century that we orient our behaviour so much according to transnational rules – rules that, like clouds and pollution, like economic transactions and crises, have little regard for the imagined communities we call nations.
Yet most of us lawyers continue as if nothing happened; as if these developments were the problem of economists, sociologists, political scientists, and soon historians, but not really the problem of lawyers; as if the only thing it really is appropriate for lawyers to think about is what happens in court (national and international); as if we had to take instructions from states about what law is and, in return, help states determine what that law exactly says; as if our students could have no other calling than to engage in a trade that, ultimately, revolves around what states and their courts do; as if we had no other choice, when thinking about law, than to think about what states undertake; as if the frontiers of legal thinking had to match the political borders of states.
Not that states are unimportant politically and socially. They can do things, good and bad, no one else can. But to give them the power to constrain what intellectuals in law can think about when they think about law and teach law: that is a different story entirely. Yet it is a story we tell ourselves quite often. And when we do, we usually skip the first chapter, in which we see the hero of the story (that would be ourselves, the lawyers) granting states the monopoly of law-making. For indeed that first chapter could have been written differently. The relationship between society and law does not have to be a relationship between society and states, between society and nations. It is only the way we lawyers usually want to think about it.
Strangely enough, perhaps, a great challenge we lawyers face today in our attempts to grapple with our changing, “transnationalising” world, lies within ourselves. A great new frontier of transnational law is indeed introspective, or “reflexive” as our jargon would have it. It starts with the realisation that law is whatever we call law. There is nothing inherent in law that makes law law. We could call law whatever set of rules a community gives itself. It could be a qualified version of this idea, for instance only those rules that embody certain basic human right ideals. Or it could be whatever the ruling power says it is. We are all potential Humpty Dumpties. There is nothing inherent in law that makes it only creatable by states. Law is whatever we want to call law. This means we have a choice.
We have a choice about how we want to define what we lawyers are supposedly competent to talk about: law. And it seems to be empirically true (I don’t think this has ever been properly studied) that most people believe they should, in general, obey the law, that it is, on most occasions, morally better to follow the law than to break it. If that is indeed true, isn’t it possibly meaningful what we do call law?
The problem with this choice, for us lawyers, is that we can’t answer it based on… the law. So we have to reach out beyond the traditional frontiers of our discipline to look for answers. And what we find there is, again, foreign to the natural habitat of the lawyer: there are a number of possible answers to the question of what it might be appropriate to call law. Some are better, some are worse. Different answers, different ways to understand what law is, empower different actors (by giving them law-making powers), and thus advance different interests. The less states have the monopoly of law-making, the more interests other than state interests are likely to be advanced. As a consequence, there are incentives for certain understandings of law to be pushed, and socio-professional constraints put in the way of others.
All of this is, as I said, fairly foreign to lawyers. It is also so because it forces us to see that there aren’t simply right and wrong answers, and that several understandings of what law is can validly coexist at the same time. It calls on us to practice intellectual pluralism. Let me tell a story to explain this.
Two individuals call on a rabbi to resolve their dispute. The rabbi listens closely to the first person, and finally says “you are right”. The second individual launches into a detailed repartee, defending the exact opposite view. “You are right too”, the rabbi enthusiastically responds. The rabbi’s wife, who had overheard the discussions, sighs, and admonishes her husband: “you can’t say that they are both right!”. The rabbi thinks about it for a while and answers “you, my dear wife, are right too.”
(Published as an editorial in the Journal of International Dispute Settlement in March 2015.)
The choices we have
A few weeks ago (I’m a slow blogger, and intend to remain so) I happened to be given almost carte blanche to organise the Closing Plenary of the International Law Association (ILA) British Branch Spring Conference we were hosting at King’s College London. (My colleagues are either extreme risk seekers or were totally desperate.)
What we ended up doing was this: Philippa Webb and I invited to the stage Thomas Pogge (the rockstar philosopher at Yale, and one of the leaders of the Global Justice movement), Paul Stephen (at Virginia, and the reporter for the American Law Institute’s Restatement of the Foreign Relations Law of the US) and Diane Marie Amann (at Georgia, and an adviser to the prosecutor of the International Criminal Court). Thomas and Paul knew what was expecting them, but not Diane. Our hope was to provoke a freewheeling, improvised, but introspective discussion. We asked them this:
“Do we not, as international scholars and practitioners, have a distinct social responsibility, or can we indeed simply be content to ‘clarify’ international law, to improve its internal consistency, or to advocate a certain norm? Isn’t there something more to what we do?”
The question of course rests on the immodest assumption that we are contributing to shaping the future of international law. That what we do can be meaningful. But is it an assumption we should reject? Then why the heck are we here in the first place?
We do have a certain freedom in doing the things we do – clearly in academia, even though many people act as if they don’t know this, but also in practice. And with that freedom comes responsibility (yes, just as Spiderman said…).
If the point is obvious, and obviously important, which I hope it is, then shouldn’t we, from time to time, just a bit, talk about it, and stop pretending there is nothing more to our job than craftsmanship?
Back to our room in London. The audience (and Diane) were told the question. Almost immediately a complete silence fell over the room. What a bizarre yet intriguing question: we are free!? Thomas Pogge went first. He came up with a detailed list of ways in which we can think of ourselves, and accordingly orient our writing, as participants in the project to end poverty in the world (this is, brutally simplified, one of the basic projects of the Global Justice movement). No, he essentially said, it is not too good to be true. No, it is not too lofty an ideal to be pursued. Yes, if we can, and we can indeed, we should. (He later promised me to write an editorial for one of the next issues of the Journal of International Dispute Settlement – an unlikely venue for such thoughts, but this precisely is why it matters.)
Paul Stephan spoke of our need to understand other cultures than our own usual Western habitat when we try to make (or restate) foreign relations law, and thus international law. We tend to project, he said, understandings, concepts, values on other peoples, which simply don’t exist there quite in the same way. Just as the German word “Kultur” emerged in defensive reaction to the French idea of “civilisation” (these are my words now, trying to explain differently what Paul said), where Kultur was trying to pull towards particularism when civilisation was trying to pull towards universalisation, we should understand that even values like democracy and human rights are cultural values. All very obvious, you might say, but when this is said by the rapporteur of the US Restatement? And the difficulties this creates for his daily work? If you think this is but normal, you probably just don’t know by what sort of people even large and important projects like this one are often conducted.
Diane Marie Amann told us a personal story. When she heard she was awarded a doctorate honoris causa by the University of Utrecht, she wondered what was up. Her academic craftsmanship is impeccable, but a doctorate honoris causa at this young age? She got the answer along with the award when she arrived in Utrecht: it was in recognition of the fact that she was the first US academic who had said, in an article she had difficulties to publish, that Guantanamo was not ok. A doctorate for courage, in other words. An award for something that makes the life of an academic worthwhile. A prize for a valuable way in which to exercise the choices we have.
Happiness is the successful management of your brain’s biochemistry.
That’s it. Assignment done. Life’s greatest puzzle cracked. Can I now have that pint of Abbott Ale? It’s for the biochemistry, you know.