Anthea Roberts

Anthea Roberts

please note:
On leave Michaelmas 2013 - Summer 2015

Email: A.E.Roberts@lse.ac.uk
Administrative support: Dianne Delvaille
Room: New Academic Building 6.23
Tel. 020-7955-7726

Anthea Roberts is an Associate Professor at the LSE who specializes in public international law, investment treaty law and arbitration, and comparative international law. From 2013-2015, she will be on leave from the LSE and resident as a Professor of Law at Columbia Law School. Anthea joined the LSE in 2008 and was one of the co-founders of LSE’s Transnational Law Project. She has also been a Visiting Professor at Harvard Law School (2011-2012) and Columbia Law School (2012-2013).

Anthea has published in the American Journal of International Law, the European Journal of International Law, the Harvard International Law Journal, the International & Comparative Law Quarterly, and the Yale Journal of International Law. In both 2002 and 2011, she was awarded the Francis Deak Prize by the American Society of International Law for the best contribution to the American Journal of International Law by a scholar under 40 years of age. In 2012, Anthea was awarded a Leverhulme Prize in recognition of her scholarly contribution to her field.

Anthea is a member of the Board of Editors for the American Journal of International Law, the European Journal of International Law, ICSID Review, and the Journal of World Investment and Trade. She is a Reporter on Jurisdiction for the Restatement (4th) of the Foreign Relations Law of the United States, a member of the American Law Institute, and a participant in the ILA Study Group on the Principles on the Application of International Law by Domestic Courts. She has previously been a member of the Executive Council of the American Society of International Law (ASIL), a Co-Chair of the ASIL Annual Meeting, a Jacob L. Martin Fellow at the U.S. Department of State, and Rapporteur for the International Bar Association's Task Force on Extraterritorial Jurisdiction.

Anthea studied at the Australian National University, the University of Oxford, and New York University School of Law. She served as a Clerk for Chief Justice Murray Gleeson at the High Court of Australia and as an Intern for Judge Bruno Simma at the International Court of Justice. She then spent five years as an Associate in the International Dispute Resolution Group at Debevoise & Plimpton LLP in New York and London where she focused on public international law, international arbitration and Alien Tort Statute cases. She is admitted as an Attorney in New York, a Solicitor in England and Wales, and a Legal Practitioner in Australia.
 

 
Research Interests

Current research interests include: the interpretation and development  of investment treaty law; the adjudication of international law before international courts and tribunals; comparative approaches to international law before domestic courts; re-theorizing the doctrine of sources of international law, particularly with respect to challenges posed by state empowered bodies (including various international organizations) and non-state actors (including armed opposition groups); and extraterritorial and universal jurisdiction.

 
External Activities
  • Reporter on Jurisdiction for the Restatement (4th) of the Foreign Relations Law of the United States, 2013-

  • Member of the Board of Editors, American Journal of International Law, 2013-

  • Member of the Board of Editors, European Journal of International Law, 2013-

  • Member of the Board of Editors, ICSID Review, 2014-

  • Member of the Board of Editors, World Journal of Investment and Trade, 2013-

  • Member of the American Law Institute, 2014-

 
Books  

Is International Law International? (OUP, 2015 forthcoming)

Comparative International Law (Anthea Roberts, Paul Stephan, Pierre-Hugues Verdier & Mila Versteeg, eds) (OUP, 2015 forthcoming)

 
Selected articles
and chapters in books
 

'Triangular Treaties: the Nature and Limits of Investment Treaty Rights' 56 Harvard International Law Journal (2015, forthcoming)

'BG Group v. Argentina: The US Supreme Court and Judicial Review of Investment Treaty Awards' 108 American Journal of International Law (2014) (co-authored with Christina Trahanas).

'State-to-State Investment Treaty Arbitration: A Hybrid Theory of Interdependent Rights and Shared Interpretive Authority' Harvard International Law Journal  (2014) 55 (1) pp.1-70

Most investment treaties contain two dispute resolution clauses: one permitting investor-state arbitration for investment disputes and the other permitting state-to-state arbitration for disputes concerning the treaty’s interpretation and/or application. Despite this duality, the potential role of state-to-state arbitration, and its proper relationship with investor-state arbitration, have largely been ignored. However, recent cases, including Peru v. Chile, Italy v. Cuba, and Ecuador v. United States, demonstrate the need to examine the potential and limits of this form of dispute resolution and to consider its implications for the hybridity of the investment treaty system as a whole.

One reaction to the re-emergence of state-to-state arbitration has been to view it as a dangerous development that threatens to infringe upon investors’ rights and to re-politicize investor-state disputes. This has led some to suggest radically curtailing the scope and availability of state-to-state arbitration in favor of investor-state arbitration. This Article argues that these attempts are inconsistent with the text, object and purpose, and history of investment treaties. The co-existence of these two forms of arbitration without a clear priority mechanism reflects the system’s essential hybridity and cannot be wished away. This duality helps to demonstrate that the goals of investor protection and the depoliticization of investor-state disputes are important, but not absolute.

Instead, the re-emergence of state-to-state arbitration represents an important step toward a new third era of the investment treaty system in which the rights and claims of both investors and treaty parties are recognized and valued, rather than one being reflexively privileged over the other. The investment treaty system has evolved from its first era, which focused exclusively on states’ rights and state-to-state arbitration, to its second era, which focused primarily on investors’ rights and investor-state arbitration. Instead of being an illegitimate or regressive development, the re-emergence of state-to-state arbitration represents a permissible and potentially progressive mechanism by which treaty parties can re-engage with the system in order to correct existing imbalances and help shape its development from within.

More generally, the co-existence of investor-state and state-to-state arbitration requires a hybrid theory about the nature of investment treaty rights and the allocation of interpretive authority. This Article argues that: investment treaty rights should be understood as being granted to investors and home states on an interdependent basis, such that either—but usually not both—may bring arbitral claims; and interpretative authority should be understood as being shared between the treaty parties, investor-state tribunals, and state-to-state tribunals. This hybrid theory has the potential to help resolve other controversial issues within the field.

'Clash of Paradigms: Actors and Analogies Shaping the Investment Treaty System' American Journal of International Law  (2013) Vol.107 (1) pp.45-94

Attempts to analyze controversial issues in the investment treaty system often result in participants drawing comparisons with and analogies from other legal disciplines, most notably public international law, international commercial arbitration, public law, trade law and human rights law. But how do these comparisons shape our thinking about the investment treaty system, why do different comparisons often support different answers to concrete problems, and which participants tend to support which paradigms and why? This Article critiques the role that the five most common interpretive paradigms are playing in attempts to understand the nature of the investment treaty system. It provides a schema for analyzing what these approaches reveal and obscure about the system and why they often support conflicting outcomes on controversial issues. It also explores why different actors - including states, investors, NGOs, arbitrators and academics - are likely to argue for, or default to, different paradigms based on their divergent interests and/or backgrounds.

Anthea Roberts and Sandesh Sivakumaran, 'Lawmaking by Nonstate Actors: Engaging Armed Groups in the Creation of International Humanitarian Law '  Yale Journal of International Law (2012) 37 (1) pp.107-152

This article considers whether non-state armed groups can, do and should play a role in the creation of international humanitarian law applicable in non-international armed conflicts. International law was traditionally understood as the law created by, and binding upon, states and states alone. It is now broadly accepted that international law regulates the rights and obligations of many non-state actors as well as those of states, yet any corresponding suggestion that non-state actors could or should play a role in international law-making remains highly contentious. Drawing on a wide range of rarely discussed practice, we demonstrate that armed groups already participate in law-making in a number of circumstances. Building on these developments, we contend that it is possible to move away from the traditional statist approach to sources, which denies armed groups any role in law-making, without moving to the extreme position of giving such groups complete control over their obligations or equal law-making powers with states.

'Power and Persuasion in Investment Treaty Interpretation: The Dual Role of States' 104 American Journal of International Law  104 (2) pp.179-225 (2010)

A key problem in the investment treaty field is that the balance of interpretive power between treaty parties and tribunals is askew. States entering into investment treaties establish dual roles for themselves as treaty parties (with an interest in interpretation) and actual or potential respondents in investor-state disputes (with an interest in avoiding liability). By viewing states primarily as respondents rather than also as treaty parties, investment tribunals often overlook or undervalue the relevance of the treaty parties' subsequent agreements and practice. This article seeks to redress this imbalance by proposing an interpretive approach that takes better account of such evidence.

'Who Killed Article 38(1)(b)? A Reply to Bradley and Gulati' Duke Journal of Comparative and International Law 21 (1) 2010 pp.173-190

'Comparative international law? The role of national courts in international law'  I.C.L.Q. 2011, 60(1), 57-92

Academics, practitioners and international and national courts are increasingly seeking to identify and interpret international law by engaging in comparative analyses of various domestic court decisions. This emerging phenomenon, which I term ‘comparative international law’, loosely fuses international law (as a matter of substance) with comparative law (as a matter of process). However, this comparative process is seriously complicated by the ambiguous role that national court decisions play in the international law doctrine of sources, under which they provide evidence of the practice of the forum State as well as being a subsidiary means for determining international law. This article analyses these dual, and sometimes conflicting, roles of national courts and the impact of this duality on the comparative international law process.

‘Legality vs. Legitimacy: Can Uses of Force Be Illegal But Justified?’ in P. Alston & E. Macdonald (eds.), Human Rights, Intervention, and the Use of Force (2008)

To many commentators, unilateral humanitarian intervention poses the dilemma of what states should do when there is a great divide between what international law requires and what morality dictates. This issue was brought into sharp relief by NATO’s bombing campaign in Kosovo in 1999. Most western international lawyers concluded that NATO’s use of force was both morally justified and incompatible with international law. In short, NATO’s actions were ‘illegal but justified’. The ‘illegal but justified’ approach provides an intuitively attractive way of maintaining the prohibition on unilateral uses of force while permitting justice in individual cases. However, it is ultimately not a sustainable position given the role of state practice in developing international law. This approach also shifts the focus away from questions of legality and towards questions of legitimacy, which can undermine the law and risk manipulation. 

'The Emerging Recognition of Universal Civil Jurisdiction' (co-authored with Donald Francis Donovan) 100 American Journal of International Law 142 (2006).

This paper traces the emerging recognition of universal civil jurisdiction, which is a doctrine that would permit victims of the most serious violations of international law to bring tort claims for damages in any national jurisdiction, regardless of the location of the conduct or the nationality of the victim or defendant. We examine the rationale for such a doctrine, the existence of state practice in support of and against, and the appropriate limitations that might operate on the exercise of such jurisdiction.

'Righting Wrongs or Wronging Rights? The United States and Human Rights Post-September 11' 15 (4) European Journal of International Law 721 (2004).

What impact are US policies having on the fabric of international human rights law in the wake of September 11? This paper examines this question from three largely independent angles. First, US policies embody discrimination against non-citizens and between non-citizens, which is pushing international law to clarify the rights of non-citizens and the relationship between such discrimination and discrimination based on race, nationality and religion. Second, in assessing the impact of US policies, we must consider not only the actions of the United States but also the reactions of the rest of the world. When we broaden our focus in this way, interesting divisions emerge both between states and within states, which are relevant to the formation of customary international human rights law. Finally, the premise that the international terrorist threat is `novel` has been used by the United States to justify picking and choosing between existing laws and to claim that there are legal vacuums in international law. This raises questions about the validity of taking an à la carte approach to international law and whether there are ways to protect against similar legal vacuums arising in the future.  

'Traditional and Modern Approaches to Customary International Law'95 American Journal of International Law 757 (2001). Reprinted in Charlotte Ku and Paul Diehl (eds), International Law: Classic and Contemporary Readings (2nd ed. 2003).

What impact are US policies having on the fabric of international human rights law in the wake of September 11? This paper examines this question from three largely independent angles. First, US policies embody discrimination against non-citizens and between non-citizens, which is pushing international law to clarify the rights of non-citizens and the relationship between such discrimination and discrimination based on race, nationality and religion. Second, in assessing the impact of US policies, we must consider not only the actions of the United States but also the reactions of the rest of the world. When we broaden our focus in this way, interesting divisions emerge both between states and within states, which are relevant to the formation of customary international human rights law. Finally, the premise that the international terrorist threat is `novel` has been used by the United States to justify picking and choosing between existing laws and to claim that there are legal vacuums in international law. This raises questions about the validity of taking an à la carte approach to international law and whether there are ways to protect against similar legal vacuums arising in the future.

'Gender and Refugee Law' 22 Australian Year Book of International Law 159 (2002).