The International Judicial Function Under Pressure: Do Courts and Tribunals Go Off the Rails?

Project lead: Laurence Boisson de Chazournes and Lorenzo Palestini

Having reached its zenith at the beginning of the twenty-first century, the international judicial phenomenon may well have since then embarked on a steep descent towards its nadir. The swing of the pendulum is evidenced by all kinds of manoeuvres aimed at obstructing, paralysing or even dismantling international courts and tribunals. Whereas some high-profile cases, such as the crisis faced by the Appellate Body of the WTO, monopolise the debate, the disenchantment that characterises our times is neither restricted to particular categories of disputes or dispute settlement mechanisms nor confined to certain regions of the world.

While contemporary research aims to address backlash against international courts and tribunals from a multidisciplinary perspective, thus unifying the field by bringing legal scholars, sociologists and political scientists together, the purpose of this research project is to ascertain, through mixed methods relying on qualitative analysis, whether adjudicators share part of the blame for the current socio-legal context. In particular, the research project aims at determining whether correlations can be established between backlash and the way the judicial function has been exercised. It is true that exogenous factors, such as the crisis of multilateralism and the so-called re-nationalisation of authority, provide explanations for the ongoing attempts to delegitimise international courts and tribunals. However, endogenous factors relating to the inner workings of dispute settlement mechanisms have also been targeted. What has often been criticised are alleged patterns of activism, overreach and judicial law-making.

The research project will provide an inventory of the criticisms relating to judicial overreach, as well as a catalogue of the proposed corrective devices that tighten the leash on supposedly reckless international courts and tribunals. The project will then assess whether the criticisms are justified and whether the rectifying devices are compatible with the proper exercise of the judicial function, or, rather, worse than the perceived disease they seek to cure. No comprehensive study has provided a crosscutting empirical overview of the criticisms and corrective mechanisms involved. The specific and practical aim of the project is thus to fill a gap, one that requires answering a twofold question. What are the boundaries of the international judicial function, and what constitutes interference in the exercise of that function?

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ISDS reform

Project lead: Professor Gabrielle Kaufmann-Kohler and Dr Michele Potestà

This CIDS project on ISDS reform has developed against the background of the criticism that has emerged over the last years towards investor-State arbitration. States and other stakeholders have begun to reflect about both the achievements and shortcomings of the existing ISDS system, reacting in different ways to its perceived limitations. Against this backdrop, a move for reform has developed over the past years, which currently has the United Nations Commission on International Trade Law (UNCITRAL) as the focal point of discussions.

The CIDS project seeks to provide fact-based study of the concerns over the ISDS system as well as contribute analysis and ideas for concrete reform proposals going forward. While the options for the reform of the ISDS regime are multiple and are ultimately for policy-makers (i.e., States) to make, the CIDS aims to accompany the ongoing discussions between stakeholders which are likely to touch on systemic and other complex issues of investment law, treaty law, and international dispute settlement.

With those objectives in mind, the CIDS has contributed two research papers to UNCITRAL and organized or co-organized a series of seminars or workshops. It has also facilitated the creation of an Academic Forum on ISDS, which comprises a number of leading academic experts in the ISDS field. 

Although the project was completed in 2020, Prof. Gabrielle Kaufmann-Kohler and Dr. Michele Potestà continued to participate as experts for Switzerland for the inter-state negotiations at UNCITRAL.

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From Situated Knowledge Production to Socio-Economic Effects: A Meta-Analysis of the Investment Arbitration Regime

Project lead: Professor Thomas Schultz and Dr Niccolò Ridi, Lecturer (University of Liverpool & King’s College London)

Does research about investment arbitration change investment arbitration? Who controls the knowledge about and the realities of this institution?

This project first aims at an understanding of the structures of knowledge production about investment arbitration. Based on the idea that our interests and aesthetic prefigurations shape our epistemology, and that legal realities are social constructs, it seeks to canvass the interests and other aesthetic prefigurations of the individuals and institutions producing this knowledge. Put differently, it asks what people who write about investment arbitration likely try to achieve with it, given who they are and what they otherwise do. The project then moves on to examine how this knowledge shapes the institution and our representation of it, how it actually works and the understanding we have of how it works. On this tack, it conducts a meta-analysis of empirical studies about the socio-economic effects of investment arbitration, and analyses how the findings of these studies could and do feed back into the understanding of this institution, how they clash with the key knowledge producers’ interests and aesthetic prefigurations, and how they lead to mensurable change.

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Critical Arbitration

Project lead: Professor Thomas Schultz and Clément Bachmann
Senior Researcher: Dr Clément Bachmann, Dr Facundo Perez Aznar, Dimitrios-Georgios Kontogiannis

Arbitration is not only a dispute resolution mechanism. It is also an institution that creates a certain social order. What kind of social order?

This project seeks to apply to arbitration the basics findings and methodological moves of the Critical Legal Studies movement and more precisely its idea that law, generally, maintains a given power structure and through it a given social order. The project seeks to understand the mechanics of the creation or perpetuation of a social order through arbitration and the contents of that order – the social inequalities it increases and decreases, the values it fosters and neglects, the norms it spreads and shuts down, the status groups it elevates and sidelines; its ethos, its layout, and its dynamics. It takes a critical look at arbitration, from this perspective. But it doesn’t proceed from an aesthetic prefiguration that is critical of arbitration.

The project was completed in 2022

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Dealing with Data Disputes

Project lead: Professor Thomas Schultz

We live in a digital, data-driven economy, which has huge potential for growth and innovation. The growing digital trade is increasingly intermediated by online platforms: e-commerce marketplaces, application stores, social media and online advertising platforms. The online intermediation services of these platforms are used by millions of businesses all over the world. Disputes are unavoidable, and numerous. Similarly, electronic data is at the centre of modern, innovative economic systems and societies. Naturally then, in a data- driven economy, disputes about access to and transfer of data are likely to increase exponentially in the future.

Even though there are several redress mechanisms available to users facing such disputes, their effectiveness in solving specific problems is largely and seriously wanting. Internal complaint mechanisms are typically unsatisfactory because of the vagueness of responses or even lack of responses, leading to lengthy procedures and leaving issues unresolved. There is also a lack of effective and neutral external out-of-court dispute settlement alternatives. In addition, addition, online platforms often impose exclusive choice-of-court agreements on users, which effectively disable access to justice for all but the largest users.

There is, in other words, a “digital justice gap” between the extent and relevance of the activities carried out by these platforms and the lack of effective redress for the millions of business users having recourse to these services. It is further reasonable to assume, in the absence of extensive studies on the matter, that a similar digital justice gap exists in the field of data portability disputes

This project’s objective is to investigate the precise particulars of the disputes in the project’s scope, to propose a conceptual framework for a comprehensive and uniform dispute resolution system providing efficiency, effective redress and procedural fairness, and to test-drive this proposed framework.

The Domain of International Adjudication: Why Sovereign States Abandon Decision Control?

Project lead: Professor Fuad Zarbiyev, Associate Professor, International Law, Co-Director, LL.M. in International Law

Why do states voluntarily commit to international adjudicatory mechanisms and actually submit their disputes to them, given their traditional misgivings about the figure of the international judge?

This project aims to study the reasons explaining the jurisdictional commitments of States and their recourse to international courts and tribunals. States are often said to be reluctant to consent to the jurisdiction of international courts and tribunals and let the latter adjudicate their disputes, for instance because of a lack of predictability of court decisions and structural ambiguities of the applicable rules. These reasons, however, are particular manifestations of a more general phenomenon: the desire of all governments to keep control over the decisions that affect them.

Yet states do make judicial commitments and voluntarily submit disputes in which they are involved to international courts and tribunals. What are the reasons that bring states to abandon decision control?

Rules of Professional Conduct for Arbitrators

Project lead: Professor Thomas Schultz and Professor Benoît Chappuis

This project seeks to review the existing rules regulating the professional conduct of arbitrators, with regard to their applicability, contents, the sanctions they provide for, and how they compare to other rules of professional conduct for lawyers.

The Impact of Social Identity on Annulment Decisions among Lawyers 

Project lead: Professor Fuad Zarbiyev, Professor Thomas Schultz, and  Dr. Umut Yüksel

Is the perception of the correctness of a legal decision influenced by in-group identities and other social bonds? This project aims at understanding, through quantitative, statistical analysis, the extent to which social identity plays a role in lawyers reviewing and annulling other lawyers’ decisions, here in the specific context of investment arbitration: in an ICSID ad hoc annulment committee procedure, how influenced are the committee members, when having to decide whether to annul an investment arbitration award of an ICSID tribunal, by similar social traits and by prior social experiences?