AJIL Unbound

By: Joost Pauwelyn | May 02, 2016 |

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I am extremely grateful, and humbled, by the wealth of comments received on my AJIL article[1] through this AJIL Unbound Symposium. One of the many points I take away from these reactions is, indeed, that my analysis offers a snapshot and that many of the critiques now leveled against Investor-State Dispute Settlement (ISDS) are, in Catherine Rogers’s words, “effectively recycled versions of criticisms that were originally leveled against the WTO and its decision-makers.”[2] (Freya Baetens makes a similar point.[3])

In this rejoinder, I would only like to make two...

By: Donald McRae | April 13, 2016 |

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Investor-State Dispute Settlement (ISDS), a matter on which scholars have had diverging views, has captured public attention, particularly in Europe, with proposals by the European Union to change the ad hoc arbitration normally found in bilateral investment treaties to a more court-like system with an appellate process. Joost Pauwelyn’s creative and provocative paper[1] has added a new dimension to this debate. Focusing on who decides disputes, Pauwelyn brings to light some interesting and perhaps nonintuitive data on the differences between World Trade Organization (...

By: Freya Baetens | April 13, 2016 |

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In his thought-provoking and timely article, Pauwelyn asks how it can be “that today’s perception of two parallel processes involving the legalization of world politics, and on two closely related subjects of global economic affairs—cross-border trade and cross-border investment—differs so much?”[1] He focuses on one explanation: the individuals deciding World Trade Organization (WTO) versus International Centre for the Settlement of Investment Disputes (ICSID) disputes.

Comparing Regimes or Perceptions of Regimes?

Pauwelyn identifies five factors...

By: Gabrielle Marceau, Catherine Quinn, and Juan Pablo Moya Hoyos | April 13, 2016 |

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In this short response, we offer some additional context to the appointment of government officials as World Trade Organization (WTO) panelists, some information on the role of the Secretariat and areas of cross-fertilization.

The Involvement of Panel Members Working for Government

Pauwelyn emphasizes that a significant proportion of WTO panel members have a substantial government background. His numbers indicate that for the period 1995-2014, 88 percent of WTO panelists had worked a minimum of “three years in government as diplomats, negotiators,...

By: Robert Howse | April 13, 2016 |

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Late last year, the European Commission unveiled an ambitious and complex proposal to replace investor-state arbitration with a transnational court, including an appellate instance, which has now been incorporated into its new bilateral agreements with Vietnam and Canada (CETA). The Commission was responding to strong public resistance to including investor protections in the Transatlantic Trade and Investment Partnership (TTIP), the trade and investment agreement being negotiated between the European Union and the United States. This resistance reflects a remarkable...

By: Catherine A. Rogers | April 13, 2016 |

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In his thoughtful article,[1] Joost Pauwelyn poses a perplexing question: How can it be that trade and investment are converging in their substantive “legal orders,” but diverging in terms of perceived legitimacy? Investor-State Dispute Settlement (ISDS), he argues, is in a “state of crisis” whereas World Trade Organization (WTO) dispute settlement is generally regarded as “successful.” Pauwelyn’s provocative and counter-intuitive explanation for this paradox focuses on the apparent differences between the pool of decision-makers in each regime: WTO disputes are resolved...

By: Giorgio Sacerdoti | April 13, 2016 |

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I must state from the outset that I am not convinced that an analysis like the one conducted by Joost Pauwelyn, though valuable from a statistical and quantitative point of view, is really apt to explain the different functioning of legal institutions, their efficiency in term of results achieved in relation to objectives, the satisfaction of the various group of users and the reasons for their being subjected to criticism.[1] The different architecture of the trade and investment systems reflects different constituencies, objectives and needs. Praise and criticism come...

By: James Thuo Gathii and Henry J. Richardson, III | March 17, 2016 |

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This symposium on Third World Approaches to International Law (TWAIL) is the first of two resulting from an open call.[1] While TWAIL scholarship has its antecedents and roots in much earlier periods, TWAIL as a loose network of scholars began using that self-identifying acronym in the late 1990s. The four contributions to this symposium address international criminal law, international humanitarian law, and claims to justification for military intervention. They join a growing self-identified body of scholarship in international law. The essays also reflect important...

By: Asad G. Kiyani | March 17, 2016 |

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The Potential of TWAIL

A pattern of affording impunity to local power brokers throughout Africa pervades the application of international criminal law (ICL) in Africa. The International Criminal Court (ICC) investigation into Uganda is a notorious but representative example, although similar analyses can be made of the Central African Republic, Côte d’Ivoire, the Democratic Republic of Congo, and Libya. In Uganda, only members of the rebel Lord’s Resistance Army (LRA) have been indicted for international crimes, even though the United Nations, international human...

By: Parvathi Menon | March 17, 2016 |

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Weak sub-Saharan African states use international law and its institutions to legitimate their actions and delegitimate their internal enemies. In this essay, I argue that during internal armed conflicts, African states use international criminal law to redefine the conflict as international and thereby rebrand domestic political opponents as international criminals/enemies who are a threat to the entire community. This in turn sets the stage for invoking belligerent privileges under international humanitarian law (IHL).

The premise of this essay is that...