Unity and Diversity in International Law

The primordial Greek sea-god Proteus could alter his shape at will, notwithstanding that his divine substance remained the same. Reinventing himself by adapting to new circumstances, Proteus still stayed unchanged in essence. Unlike the sea-god’s protean nature, the substance of international law may well undergo alterations when examined through the telescope of legal culture, or with predispositions of divergent educational backgrounds. For the thoughtful reader, scholarly speculation on such variations will be triggered by reading Is International Law International?. In that book, Professor Anthea Roberts explores a variety of elements in the teaching and practice of international law, viewed through the lenses of scholars and judges from different parts of the world

reconciling party autonomy and the international rule of law

This paper focuses on one particular issue which has arisen in the course of the ongoing debate on the reform of investor-State dispute settlement (ISDS), namely that of the appointment of arbitrators. Taking as its starting point that there now exists tentative consensus that the present system for the appointment of arbitrators either causes or exacerbates certain problematic aspects of the current ISDS system, the paper explores one option for reform, namely the introduction of an independent panel for the selection of investment arbitrators. In doing so, it is argued that a shift in the normative basis of the rules governing appointments is required in order to accommodate the principles of party autonomy and the international rule of law. Such reform, while not completely removing the initiative that parties presently enjoy, is the most efficient way to introduce rule of law considerations such as a measure of judicial independence into the current appointments system. This, it is argued, would in turn help to address some of the problematic features of the appointment of arbitrators in ISDS

协定解释权的再调整

对于在投资条约体系中进行投资者保护和国家主权之间的再平衡的呼声已被多次提出。然而，另一个同等重要的变革也在悄然进行，即协定解释权在协定各缔结方与仲裁法庭间的重新调整。在新的投资协定中，国家不断强化其在协定解读和推行中的权威地位

Recalibrating interpretive authority

In newer-style investment treaties, states are increasingly protecting and enhancing their role in interpreting and applying their treaties. This evidences an important shift underway in the investment treaty system: the recalibration of interpretive authority between treaty parties and arbitral tribunals

Incremental, Systemic, And Paradigmatic Reform Of Investor-State Arbitration

In Imperfect Alternatives: Institutional Choice and the Reform of Investment Law, Sergio Puig and Gregory Shaffer introduce comparative institutional analysis to evaluate alternative processes for resolving investment disputes. The impetus for this article is clear: many states view investor-state arbitration as akin to a horse that has bolted from the barn. Wishing to close the stable door, a wide range of states are considering the merits of various reform proposals. Puig and Shaffer's comprehensive and balanced framework for assessing the tradeoffs involved in making different choices is thus a welcome and timely intervention in these (often highly polarized) debates

Protecting public welfare regulation through joint treaty party control: a ChAFTA innovation

The recent FTA between China and Australia aims to protect public welfare measures through joint treaty party control. This Perspective assesses the FTA’s mechanism in the context of broader efforts to rebalance investor protection and state sovereignty, and to recalibrate interpretive authority between arbitral tribunals and treaty parties

The Limitations of Comparative Institutional Analysis

Atul Gawande’s Checklist Manifesto became a sensation in 2009 because it promised that a simple technique could powerfully discipline decision-making. Gawande had saved lives using hospital checklists, and he argued that checklists could improve outcomes in other complicated endeavors. Checklists, he explained, “provide a kind of cognitive net. They catch mental flaws.” Neil Komesar’s method of comparative institutional analysis is by necessity messier than the checklist and does not claim to produce faultless policy-making. But Komesar similarly seeks to improve cognitive processing by imposing a disciplining framework on decision-making. Sergio Puig and Gregory Shaffer’s effort to introduce Komesar’s technique to the debate about foreign investment law reform is welcome. Their emphasis on tradeoffs among institutional alternatives helps us to appreciate the different contexts facing different nation-states, the value of regime competition, and consequently, the importance of implementing reforms in ways that preserve a variety of options for states. If they persuade commentators and policy-makers to take stock of the tradeoffs among institutional alternatives, Puig and Shaffer will have made a meaningful contribution. Still, their analysis illustrates some of the weaknesses of comparative institutional analysis. In this essay, I identify those weaknesses and suggest that they also weigh in pluralism’s favor