LALIVE Lecture

REPORT ON LALIVE LECTURE OF 4 MAY 2023

“INTERNATIONAL ADJUDICATION AND GLOBAL CRISES: THE DEVIL IN THE DETAILS”

BY CATHERINE AMIRFAR

This year the LALIVE Lecture was given by Catherine Amirfar, who provided a thorough assessment of the criticisms levelled at international adjudication and its ability to contribute to the peaceful resolution of global crises, contending with a degree of caution that international adjudication still has an important role to play in defusing, if not resolving, global crises. In this regard, she emphasized that in order to understand the true contribution of international adjudication to the peaceful resolution of global crises, one has to look at the details, behind the appearances of sweeping judgment. Simon Bianchi of LALIVE reports.

The lecture was held at the Graduate Institute in Geneva on 4 May 2023. Michael E. Schneider, one of LALIVE’s founders and senior counsel at the firm, and Professor Zachary Douglas, professor of international law at the Graduate Institute, introduced Catherine Amirfar, who is Partner and Co-Chair of Debevoise’s International Dispute Resolution Group and Public International Law Group, and also serves as a member of the U.S. Department of State’s Advisory Committee on International Law.

Amirfar began her presentation by quoting Judge Bruno Simma according to whom “the principle of the peaceful settlement of disputes occupies a pivotal position within a world order whose hallmark is the ban on force and coercion.”

In this respect, Amirfar outlined that the world history was replete with examples in which international adjudication had defused, or even avoided, international conflicts. That said, she also acknowledged that there was, and still is, an inherent mismatch between, on the one hand, the limited jurisdictional purview of international courts and tribunals and, on the other hand, the multi-headed nature of global crises often involving intertwined political, economic, social, and legal aspects. This in turn has given rise to three potential critiques of international adjudication:

• an efficacy critique focusing on whether international adjudication is effective in resolving global crises;
• a legitimacy critique revolving around the legitimacy of international adjudication as a means of resolving aspects of broader political conflicts; and
• a desirability critique addressing whether international adjudication constitutes a desirable means to enhance the peaceful settlement of global crises.

Beginning with the efficacy critique and referring to historical examples, such as the Jay Treaty and the Alabama Claims Arbitration (held in Geneva) that paved the way for peace between the United Kingdom and the United States of America, Amirfar argued that international adjudication could be, and in fact had already proven to be, effective in resolving regional or global crises.

However, reminding the audience that the devil was in the details, Amirfar broke down her assessment of the efficacy of international adjudication to enhance the peaceful settlement of conflicts by looking at three different possible scenarios.

The first scenario is the one in which the underlying dispute persists even after international adjudication comes into the picture. In this respect, Amirfar explained that the persistence of a crisis despite ongoing or concluded international adjudication proceedings should not necessarily be seen as a failure. In many cases, such as the territorial and maritime disputes between Nicaragua and Colombia regarding part of the San Andrés Archipelago or between Malaysia and Singapore regarding the Johor Strait, international adjudication has allowed the parties to maintain a communication channel and to simultaneously engage in bilateral negotiations, thus preventing the escalation of the dispute and effectively deterring the use of coercive force.

The second scenario arises when international adjudication is unable to provide a universal and exhaustive remedy to a multi-faceted regional or global crisis. In such case, Amirfar cautiously argued that international adjudication can nonetheless contribute to the peaceful resolution of the dispute by forcing States to meet on equal terms before a court or tribunal, by providing a forum for engagement and negotiations (especially where the internal political context makes direct communications very difficult or impossible), and by requiring States to articulate their respective positions in legal terms. As a recent example, Amirfar referred to the political and diplomatic crisis in the Gulf, which began in 2017 when Saudi Arabia, the United Arab Emirates, Bahrain, and Egypt (i) severed diplomatic relations with Qatar, (ii) banned Qatar-registered planes and ships from using their airspace, land and sea routes, and (iii) issued a list of 13 demands concerning Qatar’s domestic and international policies. Amirfar started by saying that Debevoise served as legal counsel to Qatar during this crisis, and the views Amirfar expressed in the lecture are solely her own. She noted that no single international adjudication forum had jurisdiction to address all the underlying disputes. As a result, Qatar instituted over a dozen separate legal proceedings, including State-to-State proceedings not only before the International Court of Justice (“ICJ”) based on alleged violations of the International Convention on the Elimination of All Forms of Racial Discrimination of 21 December 1965, but also before the International Civil Aviation Authority arguing that the air blockade breached the 1944 Convention on Civil Aviation, before UN expert bodies involving the first ever State-to-State conciliation proceedings brought before a treaty body, and other fora. In addition, Qatari companies, such as Qatar Airways, Al Jazeera and beIN, brought investment arbitration claims. Despite the disaggregated nature of these proceedings, they created multiple communication channels allowing the States to engage with each other, albeit through legal representatives, creating leverage and ultimately, an effective alternative to the exercise of coercive power.  The Gulf dispute also highlighted the private dimension of international adjudication during crises, which while arguably less direct to promoting peaceful relations between States, may play an affirmative role by providing a potentially less politicized forum for key issues, and often the most robust opportunity for compensation claims.

The third and final scenario arises when international adjudication reaches its inherent limit and fails in preventing recourse to armed conflicts. Here, there is indeed a failure, which is perfectly and sadly illustrated by the ongoing war in Ukraine where the claims brought by Ukraine in multiple international adjudication fora did not prevent Russia from continuing on the path to armed hostilities. However, Amirfar stresses that this does not mean that the proceedings were fruitless; rather, the proceedings demonstrate how international adjudication can advance important goals beyond preventing or even ending the central conflict, including establishing legal accountability for Russia’s actions, redress and voice for the victims, the recognition and condemnation of the international community, and the preservation and presentation of evidence.

Having assessed these different scenarios, Amirfar came to the conclusion that the disaggregated nature of international adjudication necessarily limits its ability to exhaustively solve global and complex crises but does not prevent international adjudication from narrowing the issues in dispute and defusing tensions between stakeholders.

Turning to the legitimacy critique, Amirfar began by emphasising that the issue of institutional legitimacy arises from the fact that the limited jurisdiction of most, if not all, international adjudication fora necessarily prevent them from addressing all aspects of the global crises, even though such aspects are often difficult, if not impossible, to disentangle from one another.

Taking China’s significantly negative reaction to the South China Sea Arbitration initiated by the Philippines under Annex VII of the United Nations Convention on the Law of the Sea (“UNCLOS”) as a prime example, Amirfar noted that the legitimacy critique often relies either (i) on the alleged institutional overreach of international courts and tribunals, or (ii) on the fact that the very act of instituting proceedings was made in bad faith because it did not concern the “real” dispute and was only a means to serve a State’s own interests.

According to Amirfar, the second prong of this critique attempts to dismiss the legitimacy of international adjudication by accusing States of “lawfare”, a term which was coined by Charles J. Dunlap Jr. in a 2001 essay, in which he described lawfare as “a method of warfare where law is used as a means of realizing a military objective”. However, Amirfar counterargued that resorting to available legal fora can hardly be deemed as lawfare considering that the limited jurisdictional mandates of international adjudication fora constitute a feature, not a bug, of the international system agreed upon by the international community. In addition, international law provides important safeguards to prevent the improper use of international adjudication, including procedural barriers of jurisdiction and admissibility.

Concluding with the desirability critique, Amirfar submitted that the desirability of international adjudication as a means to enhance the peaceful settlement of conflicts was not a black-and-white issue. Rather, she contended, desirability is closely connected with, and partly depends on, the availability of alternatives, such as diplomatic channels or State-to-State negotiations. In any case, Amirfar outlined that when diplomatic channels are initially unavailable or break down at some later stage of the dispute, international adjudication may force the parties to come to the table and attempt to resolve their dispute peacefully.

In conclusion, Amirfar stressed that the multifaceted nature of global crises makes them unlikely to be resolved through a unitary solution in a unitary forum. However, she insisted that international adjudication can still play an important role, which must be determined on a case-by-case basis, in defusing such global crises. In particular, beginning to address partial aspects, or even side issues, may constitute a more promising way to deal with and resolve complex crises than seeking to address them in their globality at the outset.

The lecture was followed by some questions from the audience.

Further to a question about the apparent contradiction between the current increase in international adjudication proceedings and the States’ reluctance to insert compromissory clauses in their more recent international agreements, Amirfar emphasised that, while we are witnessing a steady decline in States’ appetite for international courts of general jurisdiction, States seem to still be willing to give specific and clearly delineated consent, especially for technical or commercial issues.

When asked about the increased number of requests for advisory opinions before international courts, Amirfar noted that States are indeed showing an increased appetite for advisory opinions offering legal clarifications, in particular in the field of climate change. According to Amirfar, the UN General Assembly’s decision to request an advisory opinion on the legal obligations regarding climate change by the ICJ (upon an initiative led by Vanuatu), as well as the request for an advisory opinion on the States’ specific obligations regarding climate change under the UNCLOS by the International Tribunal for the Law of the Sea, constitute welcome developments that should contribute to the development of international law.

The lecture was reported in GAR. Please see article here.

REPORT ON LALIVE LECTURE OF 29 SEPTEMBER 2022

“A GUIDED TOUR OF THE CHORZÓW FACTORY CASE: A REVIEW OF REPARATION PRINCIPLES IN INTERNATIONAL INVESTMENT LAW”

BY PROFESSOR PIERRE-MARIE DUPUY

This year the LALIVE lecture was given by Professor Pierre-Marie Dupuy, who provided an insightful analysis into the well-known Chorzów Factory judgment, contending that the reparation principles relied on by arbitral tribunals in international investment disputes are often misunderstood. Vincent Reynaud and Maël Deschamps of LALIVE report.

The lecture was held at the Graduate Institute of International and Development Studies in Geneva on 29 September. Michael Schneider, one of LALIVE’s founders and senior counsel at the firm, and Professor Zachary Douglas, professor of international law at the Graduate Institute, introduced Dupuy, who is emeritus professor at the Graduate Institute, and counsel as well as arbitrator in numerous inter‑state and investor-state cases.

After paying tribute to brothers Pierre and Jean-Flavien Lalive, who he described as close friends and “great minds,” Dupuy introduced the 13 September 1928 Chorzów Factory judgment of the Permanent Court of International Justice (PCIJ). Chorzów Factory is amongst the “most visited places” in investor-state arbitration because of the following excerpt:

“reparation must, as far as possible, wipe out all the consequences of the illegal act and reestablish the situation which would, in all probability, have existed if that act had not been committed.”

According to Dupuy, despite being a “ritual reference” in investment awards, the precise scope and meaning of this quotation from Chorzów Factory is often misunderstood and at odds with the PCIJ’s intent.

Dupuy began by recalling that Chorzów Factory arose from a claim by Germany that Poland had violated the 1922 Geneva Convention on Upper Silesia. Germany argued that it was pursuing its own rights through the claim in “a dispute between governments and nothing but a dispute between governments.” Poland, on the other hand, argued that Germany was merely defending the rights of the two allegedly injured companies. The PCIJ sided with Germany finding that “the German application can only be to obtain reparation due for a wrong suffered by Germany in her capacity as a contracting Party to the Geneva Convention.”

As such, Dupuy explained that the PCIJ firmly established the principle of restitutio in integrum as a rule of international law applicable to inter-state relations. The views of Dionisio Anzilotti, then president of the PCIJ and whose writings supported a strict separation between international and municipal law, further support this understanding.

Referring to Philip Jessup, Dupuy argued that international investment law constituted a form of “transnational law.” As such, a principle of the law applicable between states should not necessarily be transposed to investor-state disputes. Indeed, although BITs and MITs record and sometimes even establish general principles, these rarely provide a definite answer as to the law applicable to disputes between investors and states, be it public international law or municipal law.

He then referred to Article 31(1)(c) VCLT, which provides that “any relevant rules of international law applicable in the relations between the parties” be taken into account when interpreting a treaty. He considered this provision to be an invitation to arbitrators to account for states’ other substantive obligations such as environmental and human rights ones.

Dupuy also set out to investigate the relationship between customary international law and investor-state arbitration. He criticised investment tribunals’ widespread practice of citing Article 35 of the Articles on the Responsibility of States for Internationally Wrongful Acts (ARSIWA) right after mentioning Chorzów Factory, as evidence of codification of restitutio in integrum in international law. In so doing, tribunals ignore that ARSIWA codify restitutio in integrum as a rule of international law applicable to inter-state relations only. Dupuy referred to the late Professor James Crawford, special rapporteur of the ILC, who insisted on this (see e.g., ICSID Review – Foreign Investment Law Journal, Volume 25, Issue 1, Spring 2010, pages 127–199).

This mistaken practice stemmed from a poor understanding of ARSIWA and its structure, he said. Part One of ARSIWA deals with what French law labels le fait générateur de la responsabilité, namely what is an internationally wrongful act and how it is attributed to a state. Part Two deals with the legal consequences for the responsible state and Part Three the implementation of international state responsibility (la mise en œuvre de la responsabilité). Whereas Part One is applicable in investment arbitration because tribunals must determine whether a state has committed an internationally wrongful act, Parts Two, which includes Article 35, and Three are not. The latter Parts only codify the law applicable to inter-state relations and may only apply to investor-state disputes by analogy.

As such, arbitrators can look to restitutio in integrum in public international law for inspiration and possibly go even further by contending that it is a general principle of law recognized by municipal legal systems. Yet they are wrong to apply it as a rule of international law applicable between a state and a private investor. According to Dupuy, arbitrators may therefore apply other sources of law, including municipal law, to reparations.

Dupuy also deplored that, after paying lip service to Chorzów Factory and Article 35 ARSIWA, too many arbitrators move straight to the quantification of damages. In so doing, arbitral tribunals tend to rely on the findings of the parties’ financial experts, which are often rooted in concepts originating from financial management rather than legal principles used to assess damage.

Taking the example of fair market value, which he underscored was not part of customary international law, Dupuy referred to arbitrators’ temptation to rely on quantum experts’ but-for scenarios, when seeking to reconstruct the financial situation that existed just before the breach by the host state. In so doing, tribunals assume not only that such a complex exercise of reconstruction can be achieved – a doubtful proposition, especially for early‑stage investments – but also take it for granted that a market for the investment in dispute necessarily exists, which is often but not always the case.

Dupuy therefore encouraged arbitrators to systematically conduct a thorough legal analysis and assessment of damage, including foreseeability and remoteness. Taking the example of préjudice from French municipal law, Dupuy argued that arbitrators should analyse the components of the damage, assess which part of the damage is legally recoverable, and consider other relevant facts such as the parties’ conduct.

Dupuy referred to the works of UNCITRAL Working Group III on investor‑state dispute settlement reform as highlighting the necessity of finding a better balance between the legal and financial assessment of damages.

In conclusion, Dupuy insisted that arbitrators in investment disputes should retain control over the entire reasoning underpinning their decisions, including the determination of reparations, which is first and foremost a legal exercise.

The lecture ended with some questions from the audience as well as statements from Douglas and Schneider.

Douglas agreed with Dupuy’s analysis. Mentioning discounted cash flow valuations in which quantum experts make myriad assumptions based on financial concepts, Douglas insisted on arbitrators’ duty to ensure not only that each assumption be underpinned by existing legal principles, but also that the valuation method be appropriate in the first place.

Schneider remarked that it is of paramount importance for arbitrators to assess the criteria of lost profits, especially if the underlying treaty contains related indicators. He suggested that French administrative law may prove an interesting source from which to draw on, in terms of how a state compensates private individuals.

Further to a question about material restoration, Schneider evoked this as a possible remedy, citing Texaco v Libya. Schneider suggested this remedy could encourage parties to settle and prove a cost-efficient solution which avoids enforcement proceedings. Douglas agreed on the principle, but commented that tribunals may be reluctant to award such a remedy because of the difficulty to enforce it.

The lecture was reported on in GAR. Please see article here.

At the 2019 LALIVE Lecture, Professor Campbell McLachlan QC reminded the audience of the important role that international lawyers, scholars, and States have to play in defending international adjudication against the recent tide of withdrawals and criticisms.

Professor McLachlan opened the lecture with a quote from the Oresteia, setting the tone of the examination, one that would start from the function and importance of adjudication in the peaceful settlement of disputes:

Chorus: Where will it end? When will it all be lulled back into sleep, and cease, the bloody hatred, the destruction?

To which, the goddess Athena gave this revolutionary answer: I’ll choose a panel of judges to preside at … trials like this, and put them under oath, and so set up a court to last forever.

Now call your witnesses, prepare your proofs, bring forth whatever evidence you have that best supports your case. Meanwhile, I’ll pick my ablest citizens, and then return to deal with this matter fairly, once and for all.

He made reference to Pierre and Jean-Flavien Lalive and how to them the world of international disputes was one where the interactions between the spheres of public and private international law, on the one hand, and the national realm of States and national law had to be meticulously analysed, and the role of international dispute settlement hard won through careful legal argument.

Professor McLachlan explained the paradox in State withdrawal from international adjudication. Although at first glance the current criticism against international adjudication and the argument in favour of withdrawal appeared couched as a reassertion of popular democracy, these arguments may in fact serve as a cloak for the exercise of unrestrained executive power by States.

He wondered whether the current attack on international adjudication could prove historian Isabel Hull right that “[t]here is no inevitable march of progress in history or law. Everything that has been achieved can be rescinded, forgotten, tossed away…”.

Professor McLachlan began his analysis of the current state of affairs by turning to the evidence of withdrawal from international adjudication. Brexit and the consequent withdrawal from the European Court of Justice, the criticisms faced by the European Court of Human Rights (ECtHR) in Great Britain and elsewhere, the movement to withdraw from the International Criminal Court, as well as the growing opposition towards investment arbitration and the termination of bilateral investment treaties are all evidence of the trend towards withdrawal from international adjudication.

He then turned to explore the main criticisms that are being advanced towards international adjudication. Professor McLachlan identified and addressed four broad strands in the current dynamic of withdrawal.

First, in what he called the “burdens of enlargement”, he acknowledged the growing opposition of States against international adjudication because of the proliferation of decisions setting more and clearer boundaries to their sovereign powers. According to Professor McLachlan, however, States should not be heard to renege on their previous ambitions to create an international legal system because it produces the results that should have been expected of it.

Second, he considered the allegation of democratic deficit of international adjudication, on the ground that international judges not elected by or held accountable to national societies affected by their decisions, are thereby unable to assess public policy choices relevant to these societies. Here, Professor McLachlan referred to Baroness O’Neill and the German Constitutional Court in aid of the idea that democracy needs to be combined with international adjudication to protect the rule of law and the common interests of both individuals and States at an international level.

Third, concerning the argument that international adjudication should not apply when the vital interests of the State in the maintenance of its sovereignty are at stake, Professor McLachlan acknowledged that this must be taken into consideration by States before consenting to international adjudication. States must, however, take on the fact that they do not exist in splendid isolation and that the decision to submit to international adjudication is an act of sovereignty, rather than a derogation from it.

Fourth, as to the argument of excess of judicial power, Professor McLachlan considered that the existing system was built to ensure that any excess of a tribunal’s mandate be effectively sanctioned by avoidance for excess of power. On the other hand, a system where judges would refrain from exercising their power because it might be politically inconvenient would equally constitute an excess of power.

Professor McLachlan then pursued his analysis by considering the interplay between modern international law and withdrawal from treaties. Provisions on termination and withdrawal can be found in Section 3 of Part IV of the Vienna Convention on the Law of Treaties (VCLT), and in particular Articles 54 and 56.

The majority of treaties include provisions for withdrawal, but their operation is not necessarily simple as the United Kingdom’s experience with Article 50 of the Treaty on the European Union (TEU) illustrates.

Turning to implied rights of withdrawal, which is a more difficult case, Article 56 VCLT sets the objective and subjective substantive conditions to consider that withdrawal may be implied in a treaty and provides for the obligation for State purporting to withdraw to give a twelve-month advance notice of its intention.

Professor McLachlan considers that this provision reflects the idea that withdrawal is not a unilateral act and produces consequences for other State parties, who must in good faith be given the opportunity to engage with the State proposing withdrawal.

On whether treaties providing for binding judicial settlement imply by their nature a right to withdrawal, Professor McLachlan recalled that the International Law Commission took the prescient view that such unilateral right may be subject to abuse. He considers that an implied right of withdrawal from international adjudication is not supported, be it in State practice or otherwise. This suggests that an automatic right of withdrawal can never be presumed. In any event, the VCLT wisely provides for a rather detailed set of procedures meant to ensure notification to and consultation of the other State parties. In that sense, the presumption is to the contrary: a binding treaty obligation to settle disputes by third party adjudication cannot, once assumed, be rescinded without consent of other parties.

Finally, Professor McLachlan advanced four propositions in response to the assault on international adjudication.

First, he reasoned that the argument raised by governments for restricting the jurisdiction of international courts should not always be taken at face value. The function of international jurisdictions is to ensure compliance of the executive branch of the States with the rule of law. While it is understandable that this proposition will not garner popularity among State officials whose conduct is under review, this control is necessary to ensure the protection of individual rights. Professor McLachlan noted in this respect that those decisions of the ECtHR that sparked most controversy were in relation to the protection of the rights of marginalised groups in society to take their part in the democratic process.

Second, he posited that the primary defenders of international adjudication bodies are the States themselves, who endowed them with their mandate acting as a collectivity. Collective support is thus key to ensure the emergence of and maintain a common political goal going beyond the individual interest of each State party.

Third, Professor McLachlan emphasised the importance of national courts in support of international adjudication. He relied on, among others, the example of the UK Supreme Court, which decided that the British Constitution required that the executive could not take the decision to withdraw from the TEU without the authority of an act of Parliament.

Professor McLachlan’s fourth proposition was a call to bear in mind that international courts and tribunals remain human constructs, subject to changes and design improvement which did not necessarily evidence a wider failure of international adjudication. Indeed, he noted that, despite the backlash against them, very few of these institutions have actually disappeared from the map.

This led him to his conclusion that withdrawing from a process of compulsory settlement of international disputes has wide implications for international law. Relying on Lauterpacht’s position that no international dispute may be deemed to fall outside the scope of international adjudication, regardless of its political implications, Professor McLachlan warned international lawyers that they should be prepared to defend international adjudication against a tide of withdrawal that claims national self-determination as a ground for denunciation. Scholars and lawyers have a particular responsibility in recalling the principle under which international adjudication is here to protect individuals and other States against the arbitrary exercise of State power. He concluded by stating that the submission by States to international adjudication is not incidental, but rather central to the operation of international law. Withdrawal cannot be unilateral as it has implications, beyond the withdrawing party, on other States but even at the domestic levels. States should thus not only live by their commitments, but also ensure that other States do.

The 13^th edition of the LALIVE Lecture was held on 2^nd May 2019 at the Graduate Institute of International and Development Studies in Geneva.

Professor McLachlan was introduced by Vincent Chetail, professor of international law and head of the International Law Department at the Institute.

The report was reported in GAR on 12 September 2019. Please find the link to the article here.

The 12^th annual LALIVE Lecture was held on 5 July 2018 at the Graduate Institute of International and Development Studies in Geneva, Switzerland. Prof. Emmanuel Gaillard delivered a thought-provoking address on “The Myth of Harmony in International Arbitration”.

The lecture was introduced by Prof. Vincent Chetail, International Law Professor at the Graduate Institute of International and Development Studies, and Michael E. Schneider, one of LALIVE’s founding partners, who recalled the origins of the LALIVE Lecture named after the late Jean-Flavien and Pierre Lalive. Schneider went on to highlight the importance of Gaillard’s contribution to the field not only through co-authoring the UNCITRAL Secretariat Guide on the New York Convention and collaborating with UNCITRAL to create a website currently numbering more than 2,500 decisions on the New York Convention but also through some of his most widely influential works, notably the go-to treatise Fouchard Gaillard Goldman on International Commercial Arbitration he co-authored, the landmark work on the legal theory of international arbitration, Aspects philosophiques du droit de l’arbitrage international, and his teaching at a number of law schools, including Yale Law School, Harvard Law School, University of Geneva, Sciences Po and many others.

Gaillard opened the lecture by his souvenir of the late Prof. Pierre Lalive, referring to him as “the most courageous arbitrator [he] ever met”. “He would have liked this lecture’s topic”, Gaillard said before addressing the Confucian concept of “harmony”. As a general rule, harmony is seen by lawyers as a positive value. When confronted with situations which do not fall squarely within a structured order, “lawyers freak out (US style), or start to feel ill at ease (British style)” said Gaillard with irony. Such a reaction is however unreasonable as a little bit of chaos is necessary to the evolution of the field. The naïve vision of a perfect judge, applying an immutable and permanent law, is an illusion, unless we are all replaced by artificial intelligence – which is a “scary prospect”, Gaillard noted. For instance, the lack of consistency in the case law of Investor-Sate Dispute Settlement (“ISDS”) is presented by certain NGOs as evidence of a broken system. This is, however, a manipulation of the notion of harmony. As put by the late Prof. David Caron, answering criticisms of ISDS on their face value is not the solution. ISDS detractors are manipulating the consistency concept to challenge globalization as a whole, not only ISDS. An honest observer of investment arbitration case law taken in its dynamic globality – as opposed to looking at it through snapshots at a given point in time – can only acknowledge its extraordinary level of consistency considering that it was elaborated in a decentralized manner. As in the Darwinian theory of natural selection, the best decisions become “jurisprudence constante”, whereas the worst ones are remembered as isolated mishaps.

Along this evolution, we witness concrete examples of the diversification of sources and players influencing the case law, in particular the ever-increasing contribution of private players in the law-making process. NGOs have gained a great deal of power, as illustrated by the 2014 Mauritius Convention on Transparency. The decision of the European Court of Justice (“ECJ”) in the Slovak Republic v Achmea BV case rendered on 6 March 2018 is another example of this phenomenon. “It is hardly credible that such decision has not been influenced by NGOs having vehemently criticized the investor-State dispute settlement system in place for the last decade. The Court would have found other ways to deal with the issue if it had not been for their lobbying”, Gaillard said. Whilst the ECJ relied in good part on the protection of a harmonious application of EU law to justify its radical decision, one can wonder whether harmony and consistency of EU law were truly the primary concerns of the ECJ. Indeed, the decision is understood not to extend to commercial arbitration, although commercial arbitrators routinely interpret and apply EU law.

Such as the Achmea decision, the excessive importance given to the fate of the award at the seat of arbitration sheds light on the use of the myth of harmony to promote inharmonious results. All courts are not absolutely neutral when deciding on recourse against awards in disfavor of their nationals, especially State-owned entities. Nevertheless, a large proportion of lawyers argue in the name of harmony that if an award has been set aside at the seat, it cannot be enforced elsewhere. However, these same lawyers see no issue in refusing to enforce an award the challenge of which was unsuccessful at the seat. Following this logic, the international reach of a judgment on a recourse against an award differs depending on the outcome of such recourse. If the courts of the seat set it aside, it has a worldwide impact. Conversely, if an award remains intact, the judgment bears little value on the international plane and the award will be scrutinized again at the place or places of enforcement. This is a striking example of a situation in which harmony or order are placed above justice “in defavorem arbitrandum”, Gaillard concluded. Another example of unsatisfactory consequences is the situation in which courts of a given jurisdiction undo their own enforcement decision many years afterwards because the award is finally set aside by the courts of the seat. This was the situation in the decision rendered by the U.S. Second Circuit Court of Appeals on 20 July 2017 in the Thai-Lao Lignite v. Lao case.

The Dallah v Pakistan saga illustrates again this mystification of the value of harmony. If one were to follow the English courts’ reasoning, it would amount to reinstating the double exequatur requirement that has been repealed by the 1958 New York Convention. In Gaillard’s view, such backward thinking, 60 years after the New York Convention, cannot be right: the assessment of the scope and validity of an arbitration agreement must be made by the judge in each country in which enforcement is sought. For English courts, a more honest approach would have been not to pretend to apply French law – indeed to butcher it – but to acknowledge that, contrary to French courts, they are more reluctant to widen the scope of the arbitration agreement to encompass non-signatories even in circumstances in which such signatories have negotiated and performed the contract.

The movement refocusing the attention on state court decisions ancillary to the award away from the award itself has recently generated even worse consequences. Some enforcement courts have now focused on recognition or enforcement proceedings in other countries to give effect to those decisions. Gaillard referred as an example to the Belmont Partners v. Mina Mar Group case where the U.S. District Court for the WD of Virginia, on 1^st October 2010, ruled that claim preclusion prevented it from deciding whether to modify or vacate an award rendered in Virginia since the Ontario Superior Court had confirmed the award. Gaillard qualified this trend as “extremely troubling”, noting that the English Court of Appeal has followed a similar logic, for instance, in the Yukos v. Rosneft matter. In Gaillard’s view, such type of reasoning creates a race to the most favorable or the least arbitration-friendly court depending on which side one is, with the hope of subsequently exporting the court decision in other countries.

The myth of harmony as applied to law applicable to the merits. For some, the choice of law approach ensures predictability of the outcome claim by selecting an appropriate choice of law rule. For others, including Gaillard and Pierre Lalive, harmony is best served by the application of the substantive transnational rules. These rules developed on the basis of a comparative law approach generally lead to predictable outcomes. A traditional criticism of the transnational rules method lies in the perceived difficulty of identifying the content of such rules. Today, however, it is not the scarcity of sources that may permit to identify the transnational principles but it is rather the abundance of such sources. Although the excessive amount of codification may result in conflicting rules, the transnational principles is a methodology (not a list of principles), and will thus enable arbitrators to find, at any given point in time, the most generally accepted rule to be applied in the given circumstances. Gaillard also addressed the question of lois de police or superseding mandatory rules. Recognizing Pierre Lalive’s contribution to this topic, Gaillard argued that arbitrators could displace the lex contractus when such law is contrary to generally accepted public policy principles (ordre public réellement international), but not for the mere reason that a loi de police pretends to apply to the case. This enhances predictability as the various genuinely international public policies worldwide should embody the same globally accepted values. French case law has embraced this theory, notably in the decision rendered by the Paris Court of Appeal on 16 May 2017 in the Customs and Tax Consultancy LLC v Democratic Republic of Congo case or the same court’s decision of 16 January 2018 in the MK Group v Onix case. In that latter case, the award was held to be in violation not only of a Laotian mandatory rule, but also the general consensus reflected in the 1962 UN General Assembly Resolution on Permanent Sovereignty over Natural Resources, which forms an integral part of the genuinely international public policy.

The lecture was reported on in GAR. Please see article here.

Judge Abdulqawi A. Yusuf delivered the 2017 LALIVE Lecture at the Graduate Institute of International and Development Studies in Geneva. He was introduced by LALIVE Partner Michael E. Schneider, who highlighted Judge Yusuf’s cross-cultural background in both practice and academia, at the juncture between public and private international law. Judge Yusuf thus incarnates the cross-border characteristics of the Lalive Lecture, established in 2006 in honor of Pierre and Jean-Flavien Lalive, founders of the eponymous firm.

Laureate of the Somali National University, Judge Yusuf pursued his studies at the Graduate Institute of Geneva, the University of Florence and The Hague Academy of International Law. He held various positions at intergovernmental institutions such as UNTAG, UNIDO, UNESCO and UNCTAD, before becoming first secretary, judge ad hoc and judge of the International Court of Justice (“ICJ”) where he now also serves as vice-president since February 2015. Judge Yusuf, member of the Institute of International Law (IDI) and of the Société Française pour le droit international, is a founding member of the African Association of International Law and of the African Foundation for International Law. Judge Yusuf shared fond memories of his time at the Graduate Institute and of Pierre Lalive’s teachings and advice which he enjoyed on several occasions.

While the title of Judge Yusuf’s Lecture ”The Jurisdiction of States and the Right of Access to Justice” suggests a broad scope of discussion, he immediately framed his presentation along two lines of analysis: jurisdictional immunities of States on the one hand and the right to access to justice on the other. He defined the latter as the right to seek a remedy before a legally constituted tribunal which guarantees independence and impartiality in the application of the law. He observed that the rules of sovereign immunities interact with other principles of international law, such as the right to access justice, and at times come in conflict or tension with them. Throughout his Lecture, Judge Yusuf offered tools to help overcome potential conflicts, for instance through the application of the private international law mechanisms forum non conveniens and forum necessitatis.

Judge Yusuf introduced his analysis by reminding the audience that, while access to justice is often taken for granted in many jurisdictions, such access remains difficult, if not impossible, for numerous victims of the most serious crimes committed across the world. He notably referred to the thousands of victims of the state of emergency in Kenya in 1952-1959 and to the Herero wars of 1904-1908 in today’s Namibia. In response to the atrocities suffered, victims struggle to access justice, at times seeking redress before domestic courts, at other times before special tribunals and compensation commissions established following international negotiations. He emphasized that the cases brought before courts represent only a fraction of the existing cases. Many cases remain unaddressed, including because of jurisdictional limitations. He added that he was ”also thinking of the individuals’ access to justice, be it direct or indirect. I dedicate this lecture to them”.

At the heart of his reflection lied his dissenting opinion to the ICJ’s decision of 3 February 2012 in the case concerning Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening). The Court found that Italy had breached its obligation to grant Germany immunity by allowing civil compensation claims to be brought before the Italian courts, against Germany, for violations of international humanitarian law between 1943 and 1945. Italy had argued that it was justified to deny jurisdictional immunity to Germany in the circumstances where the victims had not been able to obtain redress elsewhere. The ICJ dismissed this argument for lack of sufficient State practice which would subject a State’s entitlement to immunity to the availability of alternative avenues where victims can obtain redress.

Invoking the protection of the academic context in which the Lecture was being given, Judge Yusuf explained the reasons for his dissent. He observed that the ICJ had missed an opportunity to clarify the law in the direction in which international law was evolving by allowing ”a limited and workable exception to jurisdictional immunity in those circumstances where the victims have no other means of redress”. Rather, the Court’s approach reminds him of the doorkeeper in Franz Kafka’s Trial, who blocked access to the courtroom to the man from the countryside who had come to seek justice, and offered him a stool to sit on until sufficient State practice was established before he would let him in.

For Judge Yusuf, the ICJ’s approach in the Immunities case ignores the evolution of international law on immunities and, more generally, the gradual recognition of individuals on the international plane. Notably, over the past 50 years, there has been a growing concern that individuals should have access to effective forums, whether domestic or international, to enforce their rights. Recognizing human rights but not the right to enforce them renders them ”theoretical and illusory”. Judge Yusuf referred to various mechanisms to obtain redress, also through individual petitions, before international tribunals and commissions and stressed that the right to access to justice had, in his view, now become customary international law. At the same time, sovereign immunities belong to the cornerstone principles of public international law: all States stand on an equal foot and none can adjudicate the acts of another. The notion of State consent further remains at the heart of these principles.

While there is a priori no reason why State immunity should take precedence over any other rule of customary international law, in practice this appears to be the default position. The ICJ recognizes the possibility of exceptions supported by sufficient practice of the sovereign members of the international legal community. A better approach, Judge Yusuf argued, would be to admit that the boundaries of State immunity are unclear, that State practice in this area is equivocal and that one should therefore strike a balance between these two fundamental rights, having primary regard to the particular circumstances of the case at hand. It was the peculiarities of the situation in the Immunities case, including the grave abuses committed, that led Judge Yusuf to dissent in that case.

It is at this juncture that one could take guidance from the practice of domestic courts when deciding whether to assert jurisdiction over a case or refer it to another court (using concepts such as forum non conveniens at common law or forum necessitatis in civil jurisdictions) notably as the rules of private international law embody the fundamental right of access to justice. Determining the weight of factual circumstances in a case is an issue well tackled by domestic courts, which have adopted a contextual and holistic approach to strike a balance between competing principles, including by assessing the existence, availability and effectiveness of other for a before asserting jurisdiction over a case. The development of the doctrine of necessity as a separate head of jurisdiction further demonstrates that it is generally accepted that courts should be granted the power to assert jurisdiction to safeguard the right to access to justice. The main difference between the approaches under public and under private international law may flow from the fact that, according to the ICJ, international courts do not make law.

According to Judge Yusuf, the Court’s analysis is premised on the assumption that State immunity is the main principle, which must therefore be given priority. Any departure therefrom requires evidence of sufficient State practice, which precludes the possibility to look at, and weight, the particular facts of a case. However, the ICJ Statute does not set any rules of precedence between rules of customary international law. The greater weight accorded to State immunities is, thus, a choice made by the Court. Judge Yusuf proposes a more holistic approach, that accounts for the context of the claim, the particular situation of the claimant, the state of affairs in the concerned jurisdiction and any other relevant circumstances. Ignoring these elements could otherwise lead to a denial of justice for the aggrieved party, which is in stark contradiction with the contemporary values of the international community. Moreover, the emphasis placed on State practice (and the opinio iuris that emerges therefrom), is questionable where it presupposes that other States have faced analogous situations, that the facts were not unique. It could thus take decades more for sufficient State practice to emerge, and Kafka’s man from the countryside seeking to gain access to justice will have to wait just as long before entering the courtroom, if he ever does. Quoting Prof. Jean-Flavien Lalive, Judge Yusuf called for efforts of adaptation and harmonization in this area of international law.

How could this be done? Judge Yusuf suggested to acknowledge the inherent impossibility to reconcile at all times the principles of State immunities and individuals’ right to access to justice. By applying the philosophy of private international law without losing sight of the purposes of public international law, international courts should adopt, on a case by case basis, an analysis that reflects the evolving values of the international community. In other words, international judges should prioritize a factual analysis of the circumstances in the case at hand rather than the existence of sufficient State practice.

As part of the checks and balances to guide the analysis between the competing norms, Judge Yusuf proposed two principal factors. First, the nature of the norm in question and the gravity of the alleged breach. The necessity to allow redress for serious violations of human rights and humanitarian law may justify – on a case by case basis – setting aside rules of State immunity, if there is no other avenue to find such redress. Second, the likelihood of obtaining justice or the effectiveness of the remedy. This can prove difficult in practice, as the ICJ noted in the Immunities case, but for Judge Yusuf, such difficulty does not justify allowing denial of justice altogether if it appears that there was no other real alternative forum.

In conclusion, Judge Yusuf warned the international legal community about the risk of stagnation of human rights and their enforcement and ”the danger of a step back” in this area. Although some progress has been made, vigilance must remain. ”It would be wrong to think that the evolution of international law always marches down a progressive road to a better world. Sometimes States, in response to international pressure, attempt to renege on their international obligations. It is the duty of international lawyers to interpret the law in a way that keeps up with the values of international society”. When it comes to State jurisdictional immunities, in his opinion, a change of mindset is necessary from those used to searching for exceptions to the rules of State immunities within the realm of State practice; including at the ICJ, as no one wants it to become Kafka’s Trial doorkeeper who keeps those with hope outside of the courtroom.

The lecture gave rise to a lively discussion and interesting interventions by the prestigious audience. Upon being asked about the possible reluctance of international courts to take guidance from national courts, Judge Yusuf noted that cross-fertilization between courts is a well-established practice, notably among the international criminal courts. He also referred to the ICJ’s practice to rely on the analysis and decisions of other international courts and denied any allegation of resistance against the jurisprudence of other fora. Prof. George Abi-Saab, one of Judge Yusuf’s former professors at the Graduate Institute, pointed out that increased horizontal cooperation between States would be desirable to ensure the existence of proper fora to adjudicate certain claims of individuals against States, in line with joint commissions for compensations, such as the United Nations Compensation Commission to process claims and pay compensation for losses and damage suffered as a direct result of Iraq’s unlawful invasion and occupation of Kuwait in 1990-1991. He also warned against the risk of abuse before domestic courts, citing as an example the US Alien Tort Claims Act, which many people consider to have the effect of giving the last word to US courts on issues that concern the world globally: ”I am in favour of the solution”, Prof. Abi-Saab said, ”but we have to think very seriously about the safeguards”. Judge Yusuf agreed, adding that such safeguards could be embodied in the checks and balance exercise required from judges. He reiterated at this point that ”The risk of abuse exists everywhere, in many rules of international law…but one has to take the risk to put forward the checks and balance approach as an alternative to the State practice exception…I have faith in the international judges and international adjudication and I think that a judge can always come up with the best solution possible. New solutions, new approaches are also the job of a judge”.

The tenth annual LALIVE Lecture was held on 12 July 2016 at the Graduate Institute of International and Development Studies in Geneva, Switzerland. Sir Michael Wood delivered a talk titled “Choosing between arbitration and a permanent court – lessons from inter-State cases”.

As an initial matter, Sir Michael noted that his topic, the choice between arbitration and a permanent court, could refer to two different choices: first, a State’s initial choice to sign up to a system providing for arbitration, a permanent court, or both (as in the case of UNCLOS); and second, the choice of a party to a particular dispute between available fora. His lecture would focus on the latter.

Sir Michael’s overarching message was that while there are practical differences between arbitration and permanent courts, the similarities are more important, and both mechanisms are satisfactory methods of achieving legal justice in inter-State disputes. Examining the various differences, he demonstrated that some could weigh either in favour of or against each mechanism, and that others were perhaps less significant than they appeared.

One broad difference, he observed, is that permanent courts – particularly the International Court of Justice (“ICJ”) – may be seen as having a higher status than ad hoc arbitral tribunals. As a result, a State may be less likely to reject an ICJ judgment than an arbitral award, although both are legally binding; thus the choice of forum can be crucial to compliance. The institutional nature of a permanent court may also weigh against it, however: where a party has a negative prior association with a given institution, it may prefer an ad hoc arbitral tribunal that is free of political baggage.

The effects of more concrete differences, too, may be equivocal. For example, permanent courts tend to be significantly larger than arbitral tribunals – fifteen to seventeen judges at the ICJ and 21 to 23 judges at the International Tribunal of the Law of the Sea (“ITLOS”), versus three to five arbitrators on an arbitral tribunal. The larger size can be seen as either a pro or a con. On the one hand, it is sometimes complained that having too many judges leads to excessive compromise and limited reasoning in judgments, whereas a smaller arbitral tribunal may be able to provide more rigorous legal reasoning. On the other hand, a large majority can lend authority to a decision. And useful exchanges between Bench and counsel are more likely with a smaller body.

Sir Michael mentioned that one option is a smaller chamber within a permanent court and queried whether this might be the best of both worlds. A chamber can temper the large size of the court and allow a degree of control over the composition, while offering the procedural certainty and lower cost of a permanent court.

Sir Michael also called into doubt some of the conventional wisdom about the advantages of arbitration. One of the striking distinctions of arbitration is the ability to appoint an arbitrator rather than accepting a predetermined court (notwithstanding some limited possibility to appoint an ad hoc judge before permanent courts), but Sir Michael questioned how crucial the choice of an arbitrator really is. While it may be easy to determine whom to rule out, making a positive selection is largely guesswork, as it is usually impossible to know how an arbitrator will decide a given case. He similarly suggested that the notion that arbitration gives the parties control over the procedure may be illusory: although it is true at the initial stage, once the proceedings are underway the procedure rests in the arbitral tribunal’s hands, without the certainty of rules established for a permanent court.

He then addressed other specific differences, pointing out potential convergences between court and arbitral practice. For instance, third-party intervention is clearly permitted before the ICJ and ITLOS, while it is widely thought to be impossible in arbitration; however, Sir Michael observed that no principle prohibits such a practice, and it is possible that inter-State arbitral tribunals may permit it if not expressly excluded. The ICJ and ITLOS also have clear rules for interim measures and bifurcation of proceedings, whereas interim measures and bifurcation are done on a case-by-case basis in arbitration. Moreover, an arbitral tribunal must be constituted before it can deal with interim measures, which is a point in favour of permanent courts; however, ITLOS has provisions for pre-constitution interim measures, and can thus provide support before an UNCLOS arbitral tribunal is formed. As concerns confidentiality, arbitration seems to be moving toward greater transparency, with States even seeming to welcome publicity.

Sir Michael questioned whether courts contribute more to international law than arbitral tribunals, or that courts follow their own case law more. While there may be some truth there, he said, arbitral tribunals have also made important contributions to international law, and arbitral tribunals now more and more quote each other’s reasoning, recognising the need for consistency.

Having analysed the differences, Sir Michael turned to the similarities between arbitration and permanent courts in inter-State cases. In particular, the jurisdiction of both arbitral tribunals and courts depends on consent; both generally have the power to determine their own jurisdiction (competence-competence); both arbitral awards and court judgments are final and binding; and both arbitral awards and court judgments are usually based on international law. In his view, these fundamental similarities outweigh the practical differences to which he had referred.

Finally, Sir Michael commented briefly on proposals to establish new permanent courts, such as a world environmental court, an international human rights court, and an international constitutional court, as well as a permanent investment court with an appellate instance. He noted that there were obvious difficulties with such initiatives, which could be criticised as unrealistic and costly – but that the same could have been said of the International Criminal Court, which is now a reality. Another concern with regard to specialised courts, he said, is that they would lead to artificial fragmentation of international law.

Sir Michael’s ultimate conclusion was that, while courts and arbitral tribunals vary widely, making it difficult to generalise, both forms of dispute settlement play a valuable role. The hope is that the more options States have for resolving disputes without resorting to force, the better the chances for a more peaceful world.

A lively question-and-answer session followed, during which audience members posed questions as to the increasing litigiousness of society, the differences in advocacy before courts and arbitral tribunals, and whether courts are to be preferred to arbitral tribunals in inter-state disputes, at least with regard to certain issues. Candidly acknowledging that, as a practitioner, arguing before an arbitral tribunal was quite a different experience to arguing before a large international court, Sir Michael reaffirmed his view that both arbitral tribunals and courts have an important part to play in international dispute settlement, and opined that on the whole the increase in inter-State legal cases is a positive development for the international legal order.

The LALIVE Lecture was published in Volume 32, Issue 1 of the ICSID Review. Please see link to the article here.

The 9th edition of the LALIVE Lecture was delivered on 15 July 2015 by Professor Sean D. Murphy, Patricia Roberts Harris Research Professor of Law at George Washington University Law School and Member of the U.N. International Law Commission, at the Graduate Institute of Development Studies in Geneva. The lecture was introduced by Marcelo Kohen, International Law Professor at the Graduate Institute and Michael E. Schneider, founding partner at LALIVE. The LALIVE Lecture, named after the late Jean-Flavien Lalive and Pierre Lalive who both taught at the Graduate Institute, aims to explore the interface of public and private international law. Professor Murphy’s lecture was dedicated to the area of the law of the sea, which he believes straddles the public and private domains today as a result of the increase of private activities undertaken at sea and the detailed rules and institutions established under the United Nations Convention on the Law of the Sea, which entered into force in 1994 (the “LOS Convention”). He also noted that behind the State’s interests, the rights and interests of private parties always reside.

Professor Murphy’s lecture focused on contemporary dispute settlement mechanisms relating to the law of the sea. In a lively presentation punctuated with practical examples, Professor Murphy started by reminding the audience of the scope of the LOS Convention and how it seeks to regulate all aspects of the seas; from defining the distinct sea zones over which States’ sovereignty varies, to regulating the exploitation of the deep seabed. With codification efforts that are still ongoing today, the law of the sea has become a complex framework of global, regional and bilateral agreements coupled to well-established customary rules.

Professor Murphy then presented three non-compulsory dispute settlement mechanisms encouraged under Section 1 of Part XV of the LOS Convention: negotiation, mediation and conciliation. He noted that States have historically favoured negotiation for their law of the sea disputes: there are more than sixty known negotiations (often relating to issues of delimitation), less than a dozen mediations, and no conciliations since the entry into force of the Convention. Professor Murphy suggested that the tendency to disfavour conciliation might be explained by the fact that, once States have considered placing their disputes in the hands of a third party, they are more inclined to choose a process which leads to a legally binding decision. He also explained that the predictability and flexibility of the negotiation process compared with adjudication has contributed to the popularity of negotiation, with States being able to reach creative agreements that would not have been possible had international law been strictly applied. While some negotiation processes concerning overlapping claims to maritime resources may not have resulted in the conclusion of a final agreement determining a boundary line, States have nevertheless often been able to agree on an interim basis to a fair division for the exploitation of the resources at stake.

Professor Murphy went on to present the possible venues for compulsory dispute resolution, focusing in particular on the International Court of Justice (ICJ) and on dispute settlement provided under Section 2 of Part XV of the LOS Convention. Cases at the ICJ may arise under its normal bases of jurisdiction, including treaty-based jurisdiction or acceptance by States of its compulsory jurisdiction. Professor Murphy explained that the ICJ is the main international judicial body to which States turn when faced with disputes related to the law of the sea. Depending on the basis of the Court’s jurisdiction, the ICJ may have jurisdiction not only to hear disputes related to the LOS Convention, but also to rule on issues of sovereignty, such as over islands. Professor Murphy noted that the ICJ’s jurisprudence is very enriching for understanding the rules at play when deciding law of the see disputes; most notably when it comes to the delimitation of maritime zones, with the “provisional equidistance line” and “angle bisector” approaches becoming key techniques. He stressed that in contemporary jurisprudence, the specific context of each case and notably its geography remain the primary concern, while other factors such as environmental concerns are largely excluded.

The LOS Convention provides four compulsory dispute resolution mechanisms from which State parties can choose: the International Tribunal for the Law of the Sea (ITLOS) based in Hamburg (Germany), the ICJ, ad hoc arbitration (under Annex VII of the Convention) and special arbitral tribunals set up for specific categories of disputes (under Annex VIII of the Convention). Professor Murphy underlined the success of Annex VII arbitrations. More than a dozen cases have been filed since 1994, ranging from the Southern Bluefin Tuna arbitration to the more recent Artic Sunrise arbitration or the Philippines-China dispute. Such arbitral tribunals are typically composed of five arbitrators, and generally provide States with greater control over the composition of the arbitral tribunal, and the venue, speed and confidentiality of the proceedings. Professor Murphy indicated that litigation before ITLOS to date has been modest and that most cases relate either to interim measures prior to arbitration or to the expedited procedure for prompt release of foreign vessels and crew seized in a State’s exclusive economic zones. He underlined that, quite remarkably, some proceedings under the LOS Convention are open to natural and juridical persons. While ITLOS proceedings are not yet popular, Professor Murphy noted that the Tribunal as a whole, and its Seabed Dispute Chamber, have rendered their first advisory opinions respectively in April 2015 and in February 2011. By rendering well-reasoned opinions, ITLOS may well be opening the path to further requests from States which will provide guidance to the States when applying the law of the sea and therefore have a positive impact on limiting possible disputes.

Professor Murphy also mentioned the LOS Convention’s Commission on the Limits of the Continental Shelf, which serves as an institutional structure to resolve potential disputes between States with regard to claims to continental shelves extending beyond two hundred nautical miles from the coast to which all States are entitled under the LOS Convention.

He concluded by explaining that the increase of human activities at sea will continue to generate disputes between States, and that new types of disputes likely will arise in the near future from the challenges States have to face, such as stresses on global fisheries, global climate change, or the issue of maritime smuggling of persons. According to him, dispute settlement under the law of the sea, if not yet a tsunami can be seen as a rising tide. Questions and remarks from the audience were mainly related to the impact of climate change on the law of the sea. Among others, Dr Veijo Heiskanen of LALIVE raised the question of the (im)mutability of the maritime zones of States which are likely to disappear as a result of the rising sea levels; while a Phd student of the Graduate Institute addressed the issue of the exploitation of the mining resources in the Antarctic. Professor Murphy agreed that both issues are among the challenges that States will have to face and reach an agreement on in the near future.

The lecture was attended by over 120 participants and was followed by a reception at Villa Barton, premised owned by the Graduate Institute of International and Development Studies (IHEID), co-organiser of the event with LALIVE. A summary of the LALIVE Lecture was published in GAR on 23 September 2015. Please see full article here.

The 8th LALIVE Lecture was held on Tuesday, 7 October 2014 and was delivered by Gary Born, Chair of the International Arbitration Practice Group at Wilmer Cutler Pickering Hale and Dorr LLP and one of the world’s preeminent authorities on international commercial arbitration and international litigation.

Born’s lecture began with a review of the development of international dispute settlement since 1899, focusing in particular on the ground-breaking proliferation of international courts and tribunals that has taken place over the last 40 years. He queried the common wisdom that the products of this proliferation – what he called second-generation tribunals – suffer from the same defects as first-generation international courts and tribunals.

International adjudication is sometimes spoken of as optional, unenforceable, ineffective and marginal to world affairs, said Born. But this verdict needs to be reappraised in light of the performance of second generation tribunals. Born then embarked on a provocative comparison of what he had labelled first and second-generation international tribunals.

In the former category, he focused on standing international courts such as the International Court of Justice, its predecessor the Permanent Court of International Justice and the International Tribunal for the Law of the Sea. As examples of second-generation tribunals, Born pointed to national courts that hear litigation involving foreign states, international commercial arbitration tribunals that hear disputes involving states, investor-state arbitration tribunals, claims settlement tribunals and the World Trade Organization’s dispute resolution bodies.

Born argued that, in terms of the extent to which they are used, compliance with their decisions and the ease of enforcing their awards, first-generation tribunals compare unfavourably to second-generation tribunals.

Born attributed much of the apparent success of second-generation tribunals compared with their first-generation counterparts to the former’s nuanced blend of institutional characteristics. He suggested that second-generation tribunals’ partly depart from the court-like structure of “independent” tribunals and include some attractive aspects of “dependent” tribunals — allowing for some degree of party control in the setting up of the tribunal. This provides a model design for modern-day international dispute settlement bodies.

Born noted, however, that this new generation of international tribunals is still developing and that they require the attention, direction and parent-like care of the college of international lawyers.

The lecture was attended by over 100 participants and was followed by a reception at La Maison de la paix, the new premises of the Graduate Institute of International and Development Studies (IHEID) in Geneva, co-organiser of the event with LALIVE. A summary of the LALIVE Lecture was published in GAR on 29 October 2014.

La « Lalive Lecture » 2013 s’est tenue le 5 juin 2013 et a été prononcée par M. Alain Pellet, professeur à l’Université Paris Ouest Nanterre La Défense, ancien président de la Commission du droit international des Nations Unies, président de la Société française pour le droit international et membre associé de l’Institut de droit international. Son intervention, intitulée « La jurisprudence de la Cour internationale de Justice dans les sentences CIRDI », a fait état d’une application ni systématique ni harmonisée de la jurisprudence de la CIJ par les tribunaux CIRDI, essentiellement en raison de l’absence de règle de stare decisis et du fait que chaque décision est très liée aux particularités de l’affaire concernée.

M. Pellet a indiqué que les tribunaux CIRDIA se référaient ainsi volontiers à d’autres décisions CIRDI en matière de droit des investissements, ne se tournant vers la CIJ que pour des questions de droit international général et de procédure, notamment en termes de droits des actionnaires, d’attribution, d’état de nécessité, de clause de la nation la plus favorisée, de compétence des juridictions internationales et de mesures provisoires. Il a néanmoins conclu à l’existence d’une forte porosité entre l’arbitrage CIRDI et la jurisprudence CIJ, qui confirme l’ancrage du droit international des investissements dans le droit international général ainsi que l’affirmation du CIRDI comme « nouvel ordre juridique de droit international ».

Plus de 150 personnes ont assisté à la « lecture », qui a été suivie d’une réception à l’Institut des hautes études internationales et du développement (IHEID) de Genève, co-organisateur de l’évènement avec LALIVE. Le texte de l’intervention du Pr. Pellet a été publié dans l’ICSID Review, Volume 28, No. 2 (2013), pp. 223-240.

La LALIVE Lecture 2012 a été donnée le 23 mai 2012 par le Professeur Karl-Heinz Böckstiegel, professeur émérite de droit international des affaires à l’Université de Cologne, président de l’Institut allemand de l’arbitrage (DIS), ancien président de l’International Law Association (ILA) et ancien président de la London Court of International Arbitration. Lors de sa lecture ayant pour thème “Commercial and Investment Arbitration: How Different are they Today?” (« L’arbitrage commercial et l’arbitrage d’investissement : Dans quelle mesure sont-ils différents aujourd’hui ? »), le Professeur Böckstiegel a offert une vue d’ensemble des raisons fondant les distinctions les plus importantes entre l’arbitrage commercial et l’arbitrage d’investissement dans la pratique internationale contemporaine. Ces différences ont été mises en exergue à travers différents thèmes, parmi lesquels l’impact des différentes cultures juridiques, le cadre juridique applicable, le rôle du droit national, les questions de compétence, la désignation des arbitres et les conflits d’intérêts, la gestion des affaires et le caractère prévisible et la cohérence des décisions arbitrales. Plus de 150 participants ont assisté à la lecture qui a été suivie d’une réception à l’Institut de hautes études internationales et du développement (IHEID) à Genève, co-organisateur de l’événement avec LALIVE. La lecture a été publiée dans Arbitration International (Volume 28 (2012), Issue 4, p. 577-590).

Le 23 juin 2011, David D. Caron, professeur de droit à l’Université de Californie – Berkeley et Président de l’American Society of International Law, a prononcé la 5^ème LALIVE Lecture sur le thème « International Courts and Tribunals: Their role amidst a world of Courts ».  Pour le professeur Caron, le débat sur la fonctionnalité des juridictions et tribunaux arbitraux internationaux se comprend mieux en distinguant leur fonction primaire de leur fonction secondaire. En effet, alors qu’il est généralement admis que la fonction primaire d’une juridiction internationale est de résoudre un différend, il n’y a pas de consensus sur la fonction secondaire, qui peut être liée à une diversité d’objectifs  d’ordre public : maintenir la paix et la sécurité ; garantir l’Etat de droit ; promouvoir l’investissement étranger, etc.  L’auditoire de la LALIVE Lecture 2011 était comme d’habitude très étoffé et l’intervention du professeur Caron a été suivie d’un fructueux échange avec les participants. La Lecture du Professeur Caron a été publiée dans la ICSID Review : D. Caron “International Courts and Tribunals: Their role amidst a world of Courts” ICSID Review Vol. 26, No 2, Fall 2011, p. 1.

En 2010, la LALIVE Lecture a eu lieu le 2 juin et c’est le juge Gilbert Guillaume, ancien président de la Cour internationale de justice, qui est intervenu sur le thème du « précédent dans la justice et l’arbitrage international ». En se fondant sur sa riche expérience d’agent du Gouvernement français, de juge et président de la CIJ et d’arbitre international, le juge Guillaume a dressé un portrait du concept de précédent dans l’ensemble des systèmes de règlement des différends internationaux.  Il a établi une distinction entre, d’une part, l’utilisation par les juridictions internationales de leur propre précédent et, d’autre part,  l’utilisation – plus récente – de précédent provenant d’autres systèmes de règlement des différends internationaux, en particulier par des tribunaux CIRDI, ALENA ou CNUDI dans le domaine de l’arbitrage d’investissement.  Le débat qui a suivi la conférence a porté sur le nécessaire équilibre entre flexibilité et prévisibilité. L’intervention du juge Guillaume a été publiée : voir G. Guillaume, « Le précédent dans la justice et l’arbitrage international (LALIVE Lecture, 2 juin 2010) », J.D.I. (doctr. 8), 2010, vol. 137, N^o 3, p. 685-705.

La troisième LALIVE Lecture 2009 a été donnée le 27 mai 2009 par Pr. Jan Paulsson, qui co-dirige les départements d’arbitrage international et de droit international public du cabinet Freshfields Bruckhaus Deringer LLP, est Président de la London Court of International Arbitration et un praticien renommé. M. Paulsson s’est exprimé sur l’application du droit national par les tribunaux arbitraux dans une conférence intitulée: «Looking rigorously at national law from the outside : How does an international tribunal distinguish droit from loi?». La lecture a été un succès et a suscité un débat intéressant. Elle a été publiée dans la ICSID Review (J. Paulsson, “Unlawful Laws and the Authority of International Tribunals”, ICSID Review, vol. 23, N^o 2, automne 2008, p. 215).

La Lecture 2008 a été donnée le 22 mai 2008 par Pr. Pierre Mayer, professeur à l’Université Paris I (Panthéon-Sorbonne). Pr. Mayer est un praticien renommé de l’arbitrage, associé du cabinet Dechert LLP à Paris; il a développé dans sa présentation les notions de treaty claims et de contract claims, dont l’importance va croissant en matière d’arbitrage international entre Etat et investisseurs. (P. Mayer, “Contract claims et clauses juridictionnelles des traités relatifs à la protection des investissements”, Journal du droit international (Clunet), 2009, p. 71-96.)

La Lecture inaugurale a été donnée par S.E. Mme Rosalyn Higgins, président de la Cour internationale de justice, sur le thème : « The International Court of Justice and Some Private International Law Thoughts ». La conférence a été suivie d’une réception ; elle a connu un très grand succès, avec plus de deux cents participants. (R. Higgins, “The International Court of Justice and Private International Law Thoughts”, In: R. Higgins, Themes and Theories. Selected Essays, Speeches and Writings in International Law, vol. 2, Oxford University Press (2009) p. 1307-1319.)