IAA would like to bring to the brightest minds news from the international dispute resolution world.
Article: The Rough and Tumble of International Courts and Tribunals
In "The Rough and Tumble of International Courts and Tribunals" Prabhakar Singh (Jindal Global Law School) puts international judicial lawmaking to test by exploring how international courts and tribunals are indifferent to both rational choice approach and third world scholarship. This article is available online here. Here is a snippet that reflects his central proposition:
"The PCA, a college of arbitrators, originated as an alternative to wars and arms race in Europe at the high noon of colonialism. Subsequently, in 1922, the PCIJ was established to address the ad hoc-ism of pre-World War I hybrid tribunals. Both permanent courts and ad hoc tribunals however failed to acknowledge colonialism as international law’s Achilles heel. The interwar bourgeoisie funded the ghostwriting of apathetic legal methods and capitalist norms in transnational tongues for the protection of alien investors. Post-1945, the continuity of the structure of colonial legal arguments stood in the way of interrogating its essentialist ontology and capitalist teleology. As such, initially, the ICJ stood indifferent to the colonial question. During the ensuing Cold War, the erstwhile colonial powers refused to accept the ICJ’s jurisdiction with the United States doubting the integrity of individual judges. In disputes arising due to the breach of colonial concession contracts, invertor-state tribunals billed the costs of producing legal norms to the new sovereigns. Prescriptive writings in favour of judicial lawmaking and the proposed interweaving of investor protection with human rights continue to nourish international law’s Eurocentrism. A hyper-normative theory of lawmaking by international courts and tribunals remains decidedly indifferent to both rational choice approach and third world scholarship. This paper puts ontology and teleology of international judicial lawmaking to test."
Article: The Structure of International Arbitration Law and the Exercise of Arbitral
Joshua Karton (Queen's Univiversity, Canada - Law) published the article The Structure of International Arbitration Law and the Exercise of Arbitral Authority on Contemporary Asia Arbitration Journal, Vol. 8, No. 2. Here's the abstract:
"Existing theoretical treatments of international arbitration deal adequately with the sources of international arbitrators’ authority to resolve disputes, but tend to neglect the exercise of that authority. In what ways is arbitral decision-making constrained? Are international arbitrators obliged to exercise their authority in any particular ways? If so, what are the sources of such obligations, and how might they be enforced? This article contributes to the theoretical literature on international commercial arbitration by adding a dimension that has thus far been neglected: the structure of the legal regime that governs international arbitrations. It applies a familiar concept from Anglo-American jurisprudence, H.L.A. Hart’s typology of primary and secondary rules, to argue that international arbitration law is essentially contractarian in its structure. The article concludes by considering the implications of the contractarian structure of international arbitration law for the ways that arbitrators may and must exercise their authority."
New Latvian Arbitration Law Introduces a Mandatory Course and Aptitude Test for Arbitrators
The new Latvian arbitration law entered into force on 1st of January 2015. The changes introduced by it focused on allowing control and raising overall level of arbitration courts and also level of trust of parties that are involved in arbitration. However, as arbitration court has to be registered in commercial register of Latvia, the estimate is that the number of arbitration seated in the Country will decrease. Here is an extract with more details on the modifcations from the note "New Latvian Draft Arbitration Law Introduces a Mandatory Course and Aptitude Test for Arbitrators", which is available here:
"This Law impacts international arbitration proceedings seated in Latvia as it affects one of the cornerstones of arbitration – the arbitral tribunal. Specifically, Article 15(1) of the Law considerably limits the pool of potential arbitrators by imposing the obligation to participate in a special arbitration-focused course and to pass an aptitude exam in the Latvian language.
According to the Ministry of Justice, the rationale behind this requirement lies in the need to generally improve the reputation of arbitration in Latvia and to ensure the highest quality of arbitral awards. However, at the moment, it is unclear whether the introduction of this requirement will achieve these objectives considering the negative effects that it creates for international arbitration."
Jean d'Aspremont (Univ. of Manchester - Law; Univ. of Amsterdam - Law) discusses the defining role of Bindingness (in Fundamental Concepts for International Law, Jean d’Aspremont & Sahib Singh eds.). Here's the abstract:
"In the last decades of international legal thought, the defining role of bindingness has been growingly approached with skepticism. Its less and less construed as the exclusive genetic code that provides the instructions for the identification and autonomous development of international legal discourses as international lawyers have sought to emancipate themselves from their own genetic heritage." Since the second half of the 20th century, many international lawyers have come to feel that international legal discourses ought no longer to be structured and developed around the dichotomy between the ‘legally binding’ and the ‘legally non-binding’. Their emancipatory moves have arguably brought about refreshing dynamism and excitement in international legal thought. And yet, as this article argues, bindingness has proved resilient. After recalling the modern understandings and ontological functions of bindingness in international legal discourses (1), a few observations are formulated on the emancipatory experiments found in recent international legal thought (2). This paper ends with some remarks on the resilience of the idea of bindingness as a result of the anxiety and suspicions that have accompanied the attempts to alter the genetic code of the discipline (3)."
The Cambridge Journal of International and Comparative Law has issued a call for submissions for its volume 5, issue 2. Here's the call:
"The Cambridge Journal of International and Comparative Law (CJICL) is an open access, double-blind peer reviewed journal run by members of the PhD and wider postgraduate community of the University of Cambridge Faculty of Law. The Editorial Board invites submissions for its fifth volume.
General call for submissions – comparative and international law: The Board welcomes long articles, short articles, case notes and book reviews that engage with themes of public and private international and comparative law, as well as EU and transnational law. All submissions are subject to double-blind peer review by our Editorial Board. In addition, all long articles are sent to our Academic Review Board, which consists of distinguished international and comparative law scholars and practitioners."
The deadline for submissions is 12th December 2015 at 11.59 p.m. Only submissions received by this date will be considered for publication in Volume 5, Issue 2, to be published in Spring 2016. Further information is available at www.cjicl.org.uk.
2015 James Crawford Prize winner: Joshua Karton for his paper "The Arbitral Role in Contractual Interpretation"
Here is an abstract of the paper: The "article considers the role of arbitrators in adjudicating the merits of international commercial disputes. It focuses, as a case study within this broader topic, on the interpretation of contracts. Interpreting contracts is a highly practical activity, but arbitrators’ approach to interpretation has important implications both for theory and for the success of arbitration as a means for the resolution of international commercial disputes. Are arbitrators more like judges, bound to apply the governing law according to strictly defined rules, or more like commercially minded problem-solvers? What approach best serves the needs of commercial parties? What approach best serves the needs of commercial parties? [....]."
This interesting article is available for free on the page of the Journal of International Dispute Settlement.