'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.
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'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.
available via SSRN
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.
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'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.
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'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.
here for access via Westlaw [ON CAMPUS]
here for access via Westlaw [OFF CAMPUS]
‘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.
Working paper at SSRN
'The Emerging Recognition of Universal Civil Jurisdiction' (co-authored with Donald Francis Donovan) 100 American Journal of
International Law 142 (2006).
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
click here for full text via Hein Online
Working paper available at SSRN
'Righting Wrongs or Wronging Rights? The United States and
Human Rights Post-September 11' 15 (4) European Journal of International Law
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.
click here for full text via Swetwise [ON
click here for full text via Swetwise [OFF CAMPUS]
Working Paper available at SSRN
'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).
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.
click here for full text
Working paper available at SSRN
'Gender and Refugee Law' 22 Australian Year Book of
International Law 159 (2002).