The “Cartesian” model of the rational subject is central to the political philosophy of Hobbes and Locke and is “transcendentally” affirmed in Kant's account of ethics and legality. An influential body of Hegelian inspired critique has suggested, however, that the dialectical deficiencies of the dominant models of Liberalism in late modernity inhere in this “atomistic” or “self-supporting” characterisation of the individual. The “atomistic” perspective appears as an obstacle not only to the coherent articulation of the compatibility of liberty and equality, but also to the attempt to express the mutuality of recognition between agents that might offer a genuinely communal conception of constitution and subject. Employing as a frame of reference Alan Brudner's analysis of these issues in his comprehensive Constitutional Goods (Brudner 2004) it is argued that legal and political theory might usefully adopt an understanding of Hegel's notion of “recognition” (Anerkennung) in this regard without drastic phenomenological reconstruction of the Cartesian or Kantian subject.
{"title":"Agency, Authority, and the Logic of Mutual Recognition","authors":"Stuart Toddington","doi":"10.1111/raju.12030","DOIUrl":"https://doi.org/10.1111/raju.12030","url":null,"abstract":"The “Cartesian” model of the rational subject is central to the political philosophy of Hobbes and Locke and is “transcendentally” affirmed in Kant's account of ethics and legality. An influential body of Hegelian inspired critique has suggested, however, that the dialectical deficiencies of the dominant models of Liberalism in late modernity inhere in this “atomistic” or “self-supporting” characterisation of the individual. The “atomistic” perspective appears as an obstacle not only to the coherent articulation of the compatibility of liberty and equality, but also to the attempt to express the mutuality of recognition between agents that might offer a genuinely communal conception of constitution and subject. Employing as a frame of reference Alan Brudner's analysis of these issues in his comprehensive Constitutional Goods (Brudner 2004) it is argued that legal and political theory might usefully adopt an understanding of Hegel's notion of “recognition” (Anerkennung) in this regard without drastic phenomenological reconstruction of the Cartesian or Kantian subject.","PeriodicalId":375754,"journal":{"name":"Public International Law eJournal","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130409144","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This article argues that juristic theories must be understood in relation to the historical conditions in which they have emerged. This is not to reduce theories to their context but to gain essential insight into their aims, meaning, and scope with the aid of such “external” reference points. Here I use the ideas of the Swedish legal realist Vilhelm Lundstedt to illustrate these claims, choosing his juristic theory for this purpose specifically because it has been so widely seen (at least by non‐Scandinavian interpreters) as deeply puzzling and “extreme.” The article argues that his central ideas are readily intelligible in historical context. But such a contextual examination of juristic ideas also makes it possible to assess what in them can properly travel beyond immediate context: in other words, what insights about the nature of the jurist's task can legitimately be taken from them for more universal application. Lundstedt's work, despite having been largely ignored or excluded from international juristic debate, has something to offer here if seen through a contextualising lens that sets the possibilities for its broader application in sharp relief.
{"title":"The Politics of Jurisprudence Revisited: A Swedish Realist in Historical Context","authors":"R. Cotterrell","doi":"10.1111/raju.12064","DOIUrl":"https://doi.org/10.1111/raju.12064","url":null,"abstract":"This article argues that juristic theories must be understood in relation to the historical conditions in which they have emerged. This is not to reduce theories to their context but to gain essential insight into their aims, meaning, and scope with the aid of such “external” reference points. Here I use the ideas of the Swedish legal realist Vilhelm Lundstedt to illustrate these claims, choosing his juristic theory for this purpose specifically because it has been so widely seen (at least by non‐Scandinavian interpreters) as deeply puzzling and “extreme.” The article argues that his central ideas are readily intelligible in historical context. But such a contextual examination of juristic ideas also makes it possible to assess what in them can properly travel beyond immediate context: in other words, what insights about the nature of the jurist's task can legitimately be taken from them for more universal application. Lundstedt's work, despite having been largely ignored or excluded from international juristic debate, has something to offer here if seen through a contextualising lens that sets the possibilities for its broader application in sharp relief.","PeriodicalId":375754,"journal":{"name":"Public International Law eJournal","volume":"14 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133335080","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
In this article, I discuss Alf Ross's claim that the concept of a legal right is best understood as a technical tool of presentation, which ties together a disjunction of operative facts and a conjunction of legal consequences, and that rights statements render the content of a number of legal norms in a convenient manner. I argue that while Ross's analysis is appealing, it is problematic in at least four respects. First, it is designed primarily to account for one type of legal right concept only, namely ownership; and although it can be used to account for other types of legal right concepts as well, the practical benefits of doing so will not be anywhere near as impressive as they are in the case of ownership. Second, Ross's attempt to distinguish the concept of a legal right from other concepts that might also be conceived of as connective concepts - by rather loosely characterizing the situations in which we typically say that a person has a legal right - is not successful as it doesn't indicate what is necessarily the case, but only what happens to be the case. Third, Ross's analysis cannot account for the concept of a legal right as it occurs in the legal object language. Fourth, Ross's analysis may in some circumstances give rise to an infinite regress. I also argue, however, that despite these difficulties Ross's analysis deserves our continued attention.
{"title":"Alf Ross on the Concept of a Legal Right","authors":"Torben Spaak","doi":"10.1111/raju.12054","DOIUrl":"https://doi.org/10.1111/raju.12054","url":null,"abstract":"In this article, I discuss Alf Ross's claim that the concept of a legal right is best understood as a technical tool of presentation, which ties together a disjunction of operative facts and a conjunction of legal consequences, and that rights statements render the content of a number of legal norms in a convenient manner. I argue that while Ross's analysis is appealing, it is problematic in at least four respects. First, it is designed primarily to account for one type of legal right concept only, namely ownership; and although it can be used to account for other types of legal right concepts as well, the practical benefits of doing so will not be anywhere near as impressive as they are in the case of ownership. Second, Ross's attempt to distinguish the concept of a legal right from other concepts that might also be conceived of as connective concepts - by rather loosely characterizing the situations in which we typically say that a person has a legal right - is not successful as it doesn't indicate what is necessarily the case, but only what happens to be the case. Third, Ross's analysis cannot account for the concept of a legal right as it occurs in the legal object language. Fourth, Ross's analysis may in some circumstances give rise to an infinite regress. I also argue, however, that despite these difficulties Ross's analysis deserves our continued attention.","PeriodicalId":375754,"journal":{"name":"Public International Law eJournal","volume":"201 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"134375221","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
As it is practiced by the world’s biggest international human rights NGOs (INGOs), fact-finding has become an elite activity, carried out, for the most part, by a class of professionalized 'experts.' Over the last several decades, their work has catapulted organizations like Human Rights Watch and Amnesty International to positions of prominence and influence in myriad global political and policy processes. The work of these individuals and organizations is projected to be (and indeed is sincerely imagined to be) neutral and apolitical, the product of technocrats concerned only with exposing abuses by powers small and large. While no one can doubt that INGO-led fact-finding has been a force for much good, raising the level of global human rights awareness, the collection and dissemination of human rights facts and knowledge have also been intimately bound of up with politics, power, and the reproduction of hierarchies, making the technocratic view of human rights fact-finding highly problematic. In this chapter, I argue that there is a particular need to think carefully and critically about the role of human rights fact-finding in generating institutional legitimacy and power, in privileging certain questions of social justice over others, and in potentially serving to narrow the terrain through which broader projects of social change might take place. Understanding fact-finding not as a technocratic exercise, but as part of a set of complex institutional and global power dynamics with distributional consequences may suggest the need to democratize the field, including the collection and dissemination of human rights facts. Though it has fallen out of favor with some of the biggest NGOs, 'capacity building' is one potential model that could be used to try to diversify and pluralize the production of human rights knowledge, making human rights fact-finding more of a true global project rather than the domain of a relatively restricted set of elite institutions. Yet capacity building projects carry their own problematic dimensions, implying, among other things, a one-way transmission of expertise from elite to ‘local’ organizations, and may serve to propagate the very hierarchies and elite strategies for change typified some global NGOs. Thus, simplistic recipes of 'more local, less global' are not sufficient to address some of the more problematic aspects of fact-finding practice. Ultimately, I argue, there is a need for NGOs, both local and international, to diversify and democratize not only in terms of composition, but in terms of fundamental advocacy paradigms. Fact-finding and the projection of professional, technocratic expertise has served as an impressive platform for high-level lobbying and pressure politics via the mobilization of shame, but is ultimately no substitute for developing a genuine human rights constituency akin to other social justice movements throughout history. While fact-finding may still serve as an engine of growth and
正如世界上最大的国际人权非政府组织(ingo)所做的那样，事实调查已经成为一项精英活动，在很大程度上由一群专业的“专家”进行。在过去的几十年里，他们的工作使人权观察(Human Rights Watch)和大赦国际(Amnesty International)等组织在无数的全球政治和政策进程中占据了重要地位和影响力。这些个人和组织的工作被认为是中立的，与政治无关，是技术官僚的产物，他们只关心揭露大小权力的滥用。虽然没有人怀疑国际非政府组织领导的实况调查是一股有益的力量，提高了全球人权意识的水平，但人权事实和知识的收集和传播也与政治、权力和等级制度的再现密切相关，这使得技术官僚的人权实况调查观点非常有问题。在本章中，我认为特别需要仔细和批判性地思考人权事实调查在产生制度合法性和权力方面的作用，在使某些社会正义问题优先于其他问题方面的作用，以及在潜在地缩小可能发生更广泛的社会变革项目的范围方面的作用。了解实况调查不是一项技术官僚的工作，而是一套复杂的体制和全球权力动态的一部分，具有分配后果，这可能意味着需要使该领域民主化，包括收集和传播人权事实。虽然在一些最大的非政府组织中已经失宠，但“能力建设”是一种潜在的模式，可以用来尝试使人权知识的生产多样化和多元化，使人权事实调查更像是一项真正的全球项目，而不是一组相对有限的精英机构的领域。然而，能力建设项目有其自身的问题维度，其中包括精英向“地方”组织的单向专业知识传递，并可能传播一些全球非政府组织典型的等级制度和精英变革战略。因此，“更本地化，更少全球化”的简单方法不足以解决事实调查实践中一些更有问题的方面。最后，我认为，无论是本地还是国际的非政府组织，都需要多样化和民主化，不仅在组成方面，而且在基本的倡导范式方面。事实调查和专业技术专家的预测已经成为通过动员羞耻进行高层游说和施压政治的令人印象深刻的平台，但最终无法取代发展一个真正的人权支持者，类似于历史上其他社会正义运动。虽然事实调查可能仍然是21世纪一些国际非政府组织增长和合法性的引擎，但如果人权“运动”要走出精英圈子(迄今为止它在很大程度上受到限制)，就需要利用它来支持更丰富的倡导策略。
{"title":"Human Rights Fact-Finding and the Reproduction of Hierarchies","authors":"Dustin N. Sharp","doi":"10.2139/SSRN.2341186","DOIUrl":"https://doi.org/10.2139/SSRN.2341186","url":null,"abstract":"As it is practiced by the world’s biggest international human rights NGOs (INGOs), fact-finding has become an elite activity, carried out, for the most part, by a class of professionalized 'experts.' Over the last several decades, their work has catapulted organizations like Human Rights Watch and Amnesty International to positions of prominence and influence in myriad global political and policy processes. The work of these individuals and organizations is projected to be (and indeed is sincerely imagined to be) neutral and apolitical, the product of technocrats concerned only with exposing abuses by powers small and large. While no one can doubt that INGO-led fact-finding has been a force for much good, raising the level of global human rights awareness, the collection and dissemination of human rights facts and knowledge have also been intimately bound of up with politics, power, and the reproduction of hierarchies, making the technocratic view of human rights fact-finding highly problematic. In this chapter, I argue that there is a particular need to think carefully and critically about the role of human rights fact-finding in generating institutional legitimacy and power, in privileging certain questions of social justice over others, and in potentially serving to narrow the terrain through which broader projects of social change might take place. Understanding fact-finding not as a technocratic exercise, but as part of a set of complex institutional and global power dynamics with distributional consequences may suggest the need to democratize the field, including the collection and dissemination of human rights facts. Though it has fallen out of favor with some of the biggest NGOs, 'capacity building' is one potential model that could be used to try to diversify and pluralize the production of human rights knowledge, making human rights fact-finding more of a true global project rather than the domain of a relatively restricted set of elite institutions. Yet capacity building projects carry their own problematic dimensions, implying, among other things, a one-way transmission of expertise from elite to ‘local’ organizations, and may serve to propagate the very hierarchies and elite strategies for change typified some global NGOs. Thus, simplistic recipes of 'more local, less global' are not sufficient to address some of the more problematic aspects of fact-finding practice. Ultimately, I argue, there is a need for NGOs, both local and international, to diversify and democratize not only in terms of composition, but in terms of fundamental advocacy paradigms. Fact-finding and the projection of professional, technocratic expertise has served as an impressive platform for high-level lobbying and pressure politics via the mobilization of shame, but is ultimately no substitute for developing a genuine human rights constituency akin to other social justice movements throughout history. While fact-finding may still serve as an engine of growth and","PeriodicalId":375754,"journal":{"name":"Public International Law eJournal","volume":"51 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-06-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130898332","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Although coherence has become one of the key concepts in contemporary legal theory, its meaning is taken almost universally to be elusive, complex and controversial. However, these difficulties are due just to the failure of commentators to distinguish the intension of the notion from other features of its (many) referents in extension. The oversight has caused qualities to be ascribed routinely to coherence that properly attach to various object(s) of which coherence is predicated, and which a theorist happens to have in mind when bringing coherence into view. This conceptual error has significance for the substance of present claims made for the use of the notion in law. Freed from the entanglement, coherence emerges thinner and fitter, better able to be deployed with confidence in legal application.
{"title":"On the Entanglement of Coherence","authors":"Stephen J. Pethick","doi":"10.1111/raju.12034","DOIUrl":"https://doi.org/10.1111/raju.12034","url":null,"abstract":"Although coherence has become one of the key concepts in contemporary legal theory, its meaning is taken almost universally to be elusive, complex and controversial. However, these difficulties are due just to the failure of commentators to distinguish the intension of the notion from other features of its (many) referents in extension. The oversight has caused qualities to be ascribed routinely to coherence that properly attach to various object(s) of which coherence is predicated, and which a theorist happens to have in mind when bringing coherence into view. This conceptual error has significance for the substance of present claims made for the use of the notion in law. Freed from the entanglement, coherence emerges thinner and fitter, better able to be deployed with confidence in legal application.","PeriodicalId":375754,"journal":{"name":"Public International Law eJournal","volume":"26 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130597412","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The paper has a two-fold aim: first, it accounts for the legal grounds and evolution of the regulations regarding the mechanisms of international restitution of proceeds from illicit activity. Secondly, it illustrates the main challenges international asset recovery faces and possible solutions for furthering its effectiveness.
{"title":"International Asset Recovery: Origins, Evolution and Current Challenges","authors":"L. Borlini, G. Nessi","doi":"10.2139/SSRN.2391713","DOIUrl":"https://doi.org/10.2139/SSRN.2391713","url":null,"abstract":"The paper has a two-fold aim: first, it accounts for the legal grounds and evolution of the regulations regarding the mechanisms of international restitution of proceeds from illicit activity. Secondly, it illustrates the main challenges international asset recovery faces and possible solutions for furthering its effectiveness.","PeriodicalId":375754,"journal":{"name":"Public International Law eJournal","volume":"14 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-02-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124108312","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Effective January 1, 2012, the European Union (EU) instituted the first emissions trading scheme (ETS) for aviation which affected the domestic and international commercial airline industry flying into and out of the EU. The EU established the ETS to counter the global aviation sector’s role in releasing greenhouse gas (GHG) emissions; however, such movement was met with heavy opposition by foreign countries, the International Civil Aviation Organization (ICAO), various commercial airlines and the Air Transport Association of America (ATA). This paper analyzes the legality of the EU’s unilateral ETS approach with respect to the commercial airline industry, examines the subsequent development of the ICAO’s global market based members (MBM) program, reviews strategic political strategies implemented by foreign nations to counter the EU’s unilateral action, evaluates the ICAO’s recent developments in instituting a global trading scheme to reduce GHG emissions, and proposes policy issues with respect to the ICAO’s MGM program as it applies to the EU ETS.
{"title":"The Environmentally Conscious Skies: Did the European Union’s Game of Brinksmanship Lead to a Viable Global Plan for Emissions Trading in Aviation?","authors":"","doi":"10.2139/SSRN.2379781","DOIUrl":"https://doi.org/10.2139/SSRN.2379781","url":null,"abstract":"Effective January 1, 2012, the European Union (EU) instituted the first emissions trading scheme (ETS) for aviation which affected the domestic and international commercial airline industry flying into and out of the EU. The EU established the ETS to counter the global aviation sector’s role in releasing greenhouse gas (GHG) emissions; however, such movement was met with heavy opposition by foreign countries, the International Civil Aviation Organization (ICAO), various commercial airlines and the Air Transport Association of America (ATA). This paper analyzes the legality of the EU’s unilateral ETS approach with respect to the commercial airline industry, examines the subsequent development of the ICAO’s global market based members (MBM) program, reviews strategic political strategies implemented by foreign nations to counter the EU’s unilateral action, evaluates the ICAO’s recent developments in instituting a global trading scheme to reduce GHG emissions, and proposes policy issues with respect to the ICAO’s MGM program as it applies to the EU ETS.","PeriodicalId":375754,"journal":{"name":"Public International Law eJournal","volume":"13 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-01-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122025929","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The world needs a new approach to achieving international progress on climate change. Despite prodigious diplomatic efforts over two decades aimed at limiting emissions of climate change pollutants, relatively little in the way of effective global governance has been achieved. In Part 1, I argue that this is due to a narrow legal, economic, and political focus on the hardest part of the climate change problem – energy related carbon dioxide emissions. Part 2 explains key scientific developments over the past two decades and how these have reshaped the scientific view of human impacts on climate. Studies aimed at resolving the remaining uncertainties in climate projections have resulted in a dramatically improved understanding of the importance of short-lived climate pollutants in causing current and medium-term climate change. In Part 3, I argue that such a shift in focus to short-lived climate pollutants could produce more effective outcomes. In Part 4, I provide an account of how short-lived climate pollutants might form a path toward more comprehensive international greenhouse gas limits in the future. In the long run, a multilateral agreement limiting energy related carbon emissions is essential to avoiding the worst impacts of climate change. But simply repeating the failed strategies of the last twenty years is unlikely to accomplish that end. This article aims to provide a plausible path forward to deep cooperation that is consistent with current scientific knowledge, technical ability, and international law and relations theory.
{"title":"Building an Effective Climate Regime While Avoiding Carbon and Energy Stalemate","authors":"M. Wara","doi":"10.2139/ssrn.2377447","DOIUrl":"https://doi.org/10.2139/ssrn.2377447","url":null,"abstract":"The world needs a new approach to achieving international progress on climate change. Despite prodigious diplomatic efforts over two decades aimed at limiting emissions of climate change pollutants, relatively little in the way of effective global governance has been achieved. In Part 1, I argue that this is due to a narrow legal, economic, and political focus on the hardest part of the climate change problem – energy related carbon dioxide emissions. Part 2 explains key scientific developments over the past two decades and how these have reshaped the scientific view of human impacts on climate. Studies aimed at resolving the remaining uncertainties in climate projections have resulted in a dramatically improved understanding of the importance of short-lived climate pollutants in causing current and medium-term climate change. In Part 3, I argue that such a shift in focus to short-lived climate pollutants could produce more effective outcomes. In Part 4, I provide an account of how short-lived climate pollutants might form a path toward more comprehensive international greenhouse gas limits in the future. In the long run, a multilateral agreement limiting energy related carbon emissions is essential to avoiding the worst impacts of climate change. But simply repeating the failed strategies of the last twenty years is unlikely to accomplish that end. This article aims to provide a plausible path forward to deep cooperation that is consistent with current scientific knowledge, technical ability, and international law and relations theory.","PeriodicalId":375754,"journal":{"name":"Public International Law eJournal","volume":"63 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-01-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123620948","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
International investment tribunals, like all other international courts and tribunals, are created equal. This chapter focuses on genuine decisional fragmentation and the coordination of proceedings within the investment treaty regime, i.e. between parallel and subsequent investment arbitrations rather than cross-regime coordination of, for example, investment arbitrations and World Trade Organization (WTO) dispute settlement. Decisional fragmentation refers to divergent rulings in cases that share the same factual matrix. Numerous authors posit that inconsistent decisions are a particular risk in investment arbitration given the lack of internal (e.g. stare decisis) as well as external control mechanisms to ensure uniform arbitral decisions. The chapter examines what coordination tasks arise in international investment law (IIL), what the stakeholder interests related to these coordination tasks are and how overlapping jurisdictions of investment tribunals can be managed institutionally and procedurally. The distinction between jurisdiction and admissibility is an important element of successfully coordinating parallel investment arbitrations. The major advantage of declaring claims inadmissible is that it allows tribunals to fulfil their jurisdictional mandate – which many investments tribunals are keen to do – while coordinating proceedings through the lever of admissibility. After describing the structural features of IIL, and in particular the absence of stare decisis, Section 2 examines three coordination tasks that arise in IIL: related proceedings, mass claims and derivative shareholder claims.
{"title":"Coordinating Adjudication Processes","authors":"M. Waibel","doi":"10.2139/ssrn.2386051","DOIUrl":"https://doi.org/10.2139/ssrn.2386051","url":null,"abstract":"International investment tribunals, like all other international courts and tribunals, are created equal. This chapter focuses on genuine decisional fragmentation and the coordination of proceedings within the investment treaty regime, i.e. between parallel and subsequent investment arbitrations rather than cross-regime coordination of, for example, investment arbitrations and World Trade Organization (WTO) dispute settlement. Decisional fragmentation refers to divergent rulings in cases that share the same factual matrix. Numerous authors posit that inconsistent decisions are a particular risk in investment arbitration given the lack of internal (e.g. stare decisis) as well as external control mechanisms to ensure uniform arbitral decisions. The chapter examines what coordination tasks arise in international investment law (IIL), what the stakeholder interests related to these coordination tasks are and how overlapping jurisdictions of investment tribunals can be managed institutionally and procedurally. The distinction between jurisdiction and admissibility is an important element of successfully coordinating parallel investment arbitrations. The major advantage of declaring claims inadmissible is that it allows tribunals to fulfil their jurisdictional mandate – which many investments tribunals are keen to do – while coordinating proceedings through the lever of admissibility. After describing the structural features of IIL, and in particular the absence of stare decisis, Section 2 examines three coordination tasks that arise in IIL: related proceedings, mass claims and derivative shareholder claims.","PeriodicalId":375754,"journal":{"name":"Public International Law eJournal","volume":"44 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-01-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124552711","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2014-01-05DOI: 10.4337/9780857934789.00018
Jean d’Aspremont
This contribution aims to show that the dominance of formalism in treaty law is much more nuanced and qualified than the general perception sketched out in the preceding paragraph suggests. It will be argued that from its making to its termination, a treaty see-saws between formalism and flexibility, and that the body of rules designed by international lawyers to regulate the life of treaties mirrors this constant oscillation: the law of treaties, as codified in the two Vienna Conventions, displays both formal rationality and flexibility. This chapter aims to shed some light on the various, and disparate, features of this fundamental tension. It is more specifically submitted here that the oscillation between formal rationality and flexibility comes to a head at three different levels: at the moment of the creation of the treaty, at the moment of its validation and identification as a treaty properly so-called and, finally, at the moment of its application, that is when the provisions of a treaty are confronted with the facts and accordingly need to be interpreted. At each of these stages, the tension between formal structures and flexibility is solved according to a different equilibrium. The different balances struck are themselves unstable and in a constant state of flux, for they are treaty-dependent and have not been definitively concretized by the rules of the Vienna Conventions. It is true that the constant oscillation between formalism and flexibility also infuses the rules on suspension and termination. However, as suspension and termination form the subject of a separate contribution, the ‘un-making’ of treaties will be addressed only briefly.
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